Changes to Singapore Penal Code include repeal of marital immunity for rape and decriminalisation of attempted suicide

Law Minister K Shanmugam (YT screencapture)

The Criminal Law Reform Bill was introduced in Parliament for First Reading today. The Bill introduces amendments to the Penal Code, to ensure that it remains relevant and up-to-date. The Bill also amends other legislation, such as the Criminal Procedure Code, the Children and Young Persons Act and the Women’s Charter to make related changes.

The Penal Code is a key part of Singapore’s criminal law framework. The last major review of the Penal Code was carried out in 2007.

In July 2016, the Penal Code Review Committee (PCRC) was formed. The PCRC comprised leading practitioners and thought leaders from the academia and the private and public sectors.

Consultation Process

The PCRC submitted its report to Mr K Shanmugam, Minister for Home Affairs and for Law, on 31 August 2018. The report was published on the websites of REACH, the Ministry of Law, and the Ministry of Home Affairs on 9 September 2018. Engagement sessions were held with more than 700 stakeholders from the legal, social, religious, financial and education sectors. More than 60 individuals and organisations also submitted written feedback on the report.

The feedback received was largely supportive of the PCRC’s recommendations, and focused on the recommendations to (a) enhance protection for the vulnerable in society; (b) tackle emerging crime trends; and (c) update the Penal Code. Many of the respondents saw the review as timely and far-reaching, and were heartened by the emphasis given to protecting the vulnerable in society.

The Government has considered the recommendations by the PCRC, and the feedback received. The Government agrees with most of the recommendations, and will amend the Penal Code and other legislation to implement them.

Key Amendments to the Penal Code

The amendments to the Penal Code will: Enhance protection for vulnerable victims;
Update the Penal Code; Rationalise the general principles, explanations and defences in the Penal Code; Tackle emerging crime trends.

The amendments will also harmonise provisions in the Penal Code by: removing outmoded offences, simplifying offences by removing distinctions that are no longer relevant, removing offences in the Penal Code that are already dealt with under dedicated legislation, and updating the sentencing framework. The key recommendations of the PCRC and the Government’s response are set out below.

Enhancing protection for vulnerable victims

Enhanced punishments for offences committed against vulnerable victims

The PCRC proposed to enhance punishments for offences committed against vulnerable victims, namely (a) children, (b) persons with mental or physical disabilities, and (c) domestic workers. Persons who commit offences under the Penal Code against such persons may be punished with up to twice the maximum punishments provided for the offence.

Respondents to the public consultation agreed that enhanced protection should be accorded to the groups recommended by the PCRC. The Government also received suggestions that vulnerable victims could include persons who are abused by their spouses or intimate partners, and the elderly.

The Government accepts the PCRC’s recommendations. In addition, the Government will recognise two new categories of vulnerable victims who will receive enhanced protection under the law: (a) those in a “close relationship” with the offender (e.g. persons who are living in the same household and who have frequent contact with each other); and (b) people who are in “intimate relationships” (e.g. persons who share the care and support of a child, are financially dependent on each other, or share tasks and duties of daily lives). Offenders who commit a specified list of offences involving hurt or violence against these persons may be punished with up to twice the maximum punishment for these offences.

For elderly persons who are abused by caregivers or family members, enhanced punishments may apply if their abusers are in a close relationship with them (e.g. if they live with the elderly persons).

New offences to protect minors against sexual exploitation

The key recommendations by the PCRC are as follows:

To introduce new offences that criminalise the production, distribution, advertising, or possession of child abuse material. These offences will cover the entire spectrum of material depicting the sexual and physical abuse of minors below 16 years of age, and the depiction of minors’ genitalia. There will be a defence for persons who receive unsolicited child abuse material, but who then take all reasonable steps to cease possession of such material. Defences relating to legitimate purposes such as the administration of justice and education will also be included.

To introduce new offences relating to exploitative sexual activity with minors between 16 and below 18 years of age. Persons who engage in sexual activity with such minors in the context of an exploitative relationship will be criminally liable. To determine if a relationship is exploitative, the court will consider a non-exhaustive list of factors such as the age difference between the offender and the victim, and the degree of influence the offender has over the victim. Where the offender and the victim fall within a list of relationships set out in the Penal Code, the relationship will be presumed to be exploitative. Such relationships include teacher-student and parent-child relationships.

In terms of offences to deal with predatory conduct against minors by adult offenders, to introduce new offences of sexual communication with a minor, causing a minor to look at a sexual image or engaging in sexual activity before a minor.

The proposals to protect minors from sexual exploitation received resounding support from respondents. While child abuse material featuring actual children was considered unequivocally wrong, there was mixed feedback about whether fictional child abuse material should be criminalised, since this might include cartoons or comics. Those who did not support criminalising fictional child abuse material were of the view that the production of such material did not cause harm to actual children.

The Government recognises that minors are particularly vulnerable to sexual exploitation and require greater protection under the law. The Government accepts the PCRC’s recommendations to introduce new offences relating to child abuse material, by criminalising child abuse material depicting actual children, or materials featuring images which are indistinguishable from actual children. The distribution and sale of fictional child abuse material will continue to be criminalised as “obscene material” in the Penal Code, and will be subject to enhanced penalties.

In response to technological advancements that have facilitated the production of child sex dolls, the Government has decided to criminalise the possession, production, sale, and distribution of these dolls.

Updating the Penal Code

Decriminalisation of attempted suicide

The PCRC recommended decriminalising attempted suicide.

Most of the respondents agreed that persons who attempt suicide should be provided with help rather than be penalised. However, a minority were of the view that the decriminalisation of attempted suicide is contrary to the societal view that life is precious.

The Government accepts the PCRC’s recommendation. The repeal of attempted suicide does not mean that the Government has shifted its position on the sanctity of life. This is reflected through the continued criminalisation of the abetment of attempted suicide, as well as amendments to other legislation to provide the Police with the powers to intervene to prevent loss of life or injury in cases of attempted suicide.

The PCRC recommended repealing marital immunity for rape, to protect all women from sexual abuse.

Members of the public and representatives from the religious, legal, and social sectors strongly supported the repeal. However, some expressed concern that the amendment could adversely affect the institution of marriage and potentially lead to an increase in false allegations of rape.

The Government agrees with the PCRC that all women should be protected from sexual abuse regardless of whether they are married to the perpetrator. This reflects society’s view that marriage is a partnership between equals.

All cases of alleged rape are subject to the same level of evidential rigour during investigation and prosecution. There are also existing offences in the Penal Code that adequately address and deter false reporting.

Expansion of definition of “rape”

The PCRC recommended that the definition of “rape” be expanded to include non-consensual penile-anal penetration.

Representatives from the social sector said that the definition of “rape” should be expanded to cover non-consensual penile-oral penetration, in addition to penile-anal penetration.

The Government will expand the definition of rape to include both non-consensual penile-anal and penile-oral penetration.

Rationalise the general principles, explanations and defences in Penal Code

Raising the Minimum Age of Criminal Responsibility (MACR)

The PCRC recommended raising the MACR from 7 to 10 years of age.

There was support for the raising of the MACR. However, there were differing opinions on the age ceiling. Some representatives from the social sector were of the view that the MACR should be raised to 12 instead of 10 years of age, in line with the recommendation of the UN Committee on the Convention on the Elimination of Discrimination against Women.

After considering the feedback, the Government accepts the PCRC’s recommendation to raise the minimum age of criminal responsibility from 7 to 10 years of age, which will put us on par with jurisdictions such as England, Wales and Hong Kong. In Singapore, there is a marked increase in the number of juveniles offending from the age of 10, which might require Police to intervene.

The Government will also develop a suitable rehabilitation framework to manage children between 7 and 10 years of age who commit offences. The amendments to raise the MACR will come into force when this framework is ready.

Clarify the definition of “consent” for sexual offences

The PCRC recommended retaining the definition of “consent” in section 90 of the Penal Code.

However, representatives from civil society groups advocated for a positive definition of “consent”. They also recommended to include illustrations to clarify situations where consent would not be valid.

The Government agrees with the PCRC’s recommendation not to adopt a positive definition of “consent”, as any proposed definition would be too vague and too broadly phrased to be useful to the courts. Instead, a new section will be introduced in the Penal Code to clarify the types of misconceptions of fact that negate consent in the context of sexual offences. Misconceptions of fact that relate to the: (a) nature of the act, (b) purpose of the act, and (c) identity of the person doing the act will be considered as capable of negating consent.

In addition, the Bill introduces a new offence criminalising the procurement of sexual activity where consent is obtained by deception or false representation regarding (a) the use or manner of use of a sexually protective device, or (b) whether one is suffering from a sexually transmitted disease. In such cases, while consent is not legally negated (as the deception does not relate to the nature of the act, the purpose of the act, or the identity of the person doing the act), the consent obtained is compromised, and there is risk of physical harm to the victim.

The PCRC recommended that the Government:

  • Create new offences that criminalise the production, possession, and distribution of voyeuristic recordings. This will better address cases of “up-skirt” photography, and the circulation of such images.
  • Create a new offence of distributing or threatening to distribute an intimate image, which is more widely known as “revenge pornography”.
  • Create a new offence of sexual exposure to deal with “flashers”. This offence will cover situations where a person exposes his or her genitalia intending or knowing that such display will humiliate or cause distress or alarm to the observer.

Respondents and representatives from the legal and social sectors supported these recommendations.

The Government accepts the PCRC’s recommendations, and has also taken in feedback by representatives from the legal sector to criminalise “cyber-flashing”. This would cover situations where images of genitalia are sent to recipients without their consent, and with the intention to cause humiliation, distress or alarm.

New offence of fraud

The PCRC recommended introducing a new offence of fraud. This offence focuses on the dishonest or fraudulent intent to deceive a victim, rather than the effect of the deception of the victim.

This recommendation was welcomed as it addressed sophisticated deceptive schemes in which wrongful gain or loss was intended without an identifiable victim being deceived. One example is the manipulation of the London Interbank Offered Rate (or LIBOR, a rate often used as a benchmark for other financial products) via false submissions by banks, where it was difficult to identify any specific person who suffered loss but it was possible to say that the manipulators had benefited. However, some respondents raised concerns that the maximum imprisonment sentence of 20 years and unlimited fine quantum for this new offence of fraud was too high.

The Government agrees with the PCRC’s recommendation to create a new offence of fraud. While the prescribed maximum penalty for this offence is high (up to 20 year’s imprisonment, or fine, or both), this is to address single charges of fraud that may involve serious betrayal of trust, multiple victims and/or substantial loss. There is no mandatory minimum sentence applicable, and the courts have full discretion to take into account the facts of the case in imposing the sentence.

The above is a press release by the Ministry of Home Affairs. Read the statement in full here.

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