If you think about it, there are many instances whereby we have to put our faith in people whom we’ve never met, despite our elders constantly telling us to always beware of strangers.
Be it a hairdresser to give you a decent haircut, the cai png auntie not to miss out on your favourite order, or a Grab taxi driver to take you home safely.
Unfortunately, things don’t always turn out well.
Former Grab Driver On Trial For Raping Drunk Passenger
Tan Yew Sin, 46, remains on trial, contesting against the attempted rape, outrage of modesty, and sexual assault against a 19-year-old woman, who had been a passenger in his car.
On 19 May, 2018, Tan picked the drunk victim up from Wildseed Bar in the early hours of the morning, and allegedly raped her in his vehicle.
However, both sides are still deeply contesting whether or not consent was given from the woman regarding the sexual acts.
Consent, according to the Penal Code, is considered absent if a person is too intoxicated to understand the nature and consequences of what they are consenting to.
It is an important distinguishing factor in whether the case is considered to be one of rape, leaving Mr Tan’s lawyer Chenthil Kumarasingam and Deputy Public Prosecutor (DPP) M Kayal Pillay arguing for their stances.
Testimonies of the victim’s friends saying that she hadn’t been “fall-down drunk” and was under the impression that she could take care of herself, as well as the moaning heard in clips from Mr Tan’s in-car footage contributed to Mr Kumarasingam’s belief that there had been consent.
He also argued that the victim had “participated” in fellating (an oral sex act) Tan.
This was contrasted by Ms Pillay, who said that moaning was a response to physical stimulation and not an indicator of consensual participation from a person.
She also added that the victim was “unaware of the mechanics” of fellating Mr Tan, backed up by a doctor’s testimonial that one would not suddenly “gain these abilities in a state of intoxication” if they truly did not know how it worked.
Lawyer Said “She Knew What She Was Doing”
Mr Kumarasingam maintained that the woman had known what she was doing despite having no recollection of what happened the next day.
He said that there appeared to be a positive outcome as heard from the first group of in-car recordings, and only when the car was moved did the victim say she did not want any further contact.
“This is clearly indicative, barring her lack of memory, of somebody who had the capacity to say yes or no. And she may not have said yes in so many words, but she was reactive that way, and she was clear when she wanted to say no,” he added.
He also claimed that the recordings were “more accurate and reliable” in showing this than the woman’s “somewhat inaccurate and arbitrary” blood alcohol statistics.
Mr Tan had picked the victim up from the bar at around 2:30am and driven her back home, where she was unable to enter the side gate of her condominium and had squatted down near the gate to cry. He took her back to his car where she banged her head against the window and continued crying.
In attempts to “console” her, Mr Tan went to the back seat and thus began the first group of sexual acts – he kissed her before attempting to rape her.
Following this, he drove to a more secluded area where he allegedly molested and sexually assaulted her.
Mr Kumarasingam argued that the woman seemed to have a “coherent conversation” with Mr Tan as heard from the recordings, for she had apologised for the inconvenience of taking so long to exit when she first got out of the car.
She was also able to detail in her evidence that the reason behind her squatting down was to look for the access card in her bag, and that there was usually a cat at the top who would jump down, leading her to squat a distance away to avoid it.
The lawyer took this as an indication that she “was not severely impaired”.
However, after performing the first group of sexual activity and moving the car to a more secluded area across the condo, Mr Tan once again returned to the back seat to continue what he was doing with the victim.
Pertaining to the recordings, some contact occurred and the victim said “no”, to which the driver allegedly stopped immediately and moved back to the front seat as sounds of the car door opening and closing could be heard.
Mr Kumarasingam said that this proved that the victim had the capacity to refuse consent, which his client “honoured”.
Mr Tan dropped the woman off at her condominium again around 4:00am, yet she was found lying on the road at about 4:40am by another Grab driver, without her underwear and shorts.
Prosecutor: “Did Not Possess The Capacity To Consent”
Ms Pillay fought against the lawyer’s claim, saying that some evidence pointed to the woman not even possessing the capacity to consent.
Although both sides agreed that the woman was intoxicated, the issue was how intoxicated she was.
As such, the prosecutor cited objective evidence—an expert’s opinion—that the woman was highly intoxicated and had her judgement severely impaired.
There was an absence of clear consent in the in-car clips as well, congruent with Mr Tan’s statement that he did not explicitly ask her for her consent, nor did she provide any express consent.
The argument of implied consent through alleged “participation” wasn’t borne out by Ms Pillay, who still held that evidence suggested she did not give consent.
Now, imagine a bowl of chillis, said Mr Kumarasingam in response, using an analogy.
He said that he might be led to try the chillis if he was under the effects of alcohol, whereas he would not if he had not been drinking. Still, he was aware of the full nature and consequences of the act in both situations.
“When she wanted to, she could say no. The prosecution hasn’t dealt with that … it shows she had the capacity to give or refuse consent,” he said.
The prosecutors were final in their stand that all activities that happened before she said “no” were still without consent.
The decision by Justice Pang Khang Chau was moved to a later date. If the defence’s arguments were to be accepted, he may either discharge the case, alter the charge or present a new charge before calling on Mr Tan to give his defence.
On the other hand, dismissing the defence’s arguments would allow him to call on Mr Tan to testify on the stand.
Mr Tan, who is married with three children, could be jailed for up to 20 years, fined, or caned if found guilty for rape or sexual assault by penetration.
Charges for outrage of modesty could land him in jail for two years, and fined, caned, or be sentenced to a combination of these punishments.
It’s never okay to assault someone, especially when they’re under the influence of alcohol, so don’t try it.
Feature Image: Doidam 10 / Shutterstock.com
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