06 May 2019

Second Reading of Criminal Law Reform Bill - Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law

INTRODUCTION

 

  1. SPS Amrin has given the Government’s view on some of the key proposed amendments.

     

  2. I intend to set out the Government’s position on two major areas of the law which we are amending. One, better protection of vulnerable victims, and second, dealing with sexual offences.

     

  3. We are setting out new offences and enhancing penalties where minors are involved.

     

  4. Some additional conduct of a sexual nature will be specifically criminalised.

     

    PROTECTION FOR VULNERABLE VICTIMS

     

  5. First, protection for vulnerable victims. We want to provide stronger protection for those who cannot protect themselves.

     

  6. First, we will enhance maximum punishment for offences committed against such victims, and second, we will introduce new offences where such victims are abused.

     

    Children, Vulnerable Persons, and Domestic Workers

  7. The first category of vulnerable victims: children below 14 years old, secondly, vulnerable persons due to mental or physical disabilities; and third, domestic workers.

     

  8. Penalties for all offences in the Penal Code committed against these vulnerable victims will be enhanced up to twice the maximum penalties prescribed for these offences.

     

  9. Members of this House will remember the case of Annie Ee. Annie had low IQ. She lived with her so-called close friends. They abused her by beating her daily, they made her do all the household chores, and they kept her salary. Annie was not capable of protecting herself.She suffered for 8 months and then she died.

     

  10. With the new amendments, if a person like Annie Ee is assessed to be substantially unable to protect herself, then her abusers will be liable to up to twice the maximum punishment. They will be charged for the offence of voluntarily causing grievous hurt; so up to 20 years’ imprisonment. This is in Clause 17 of the Bill.

     

  11. All Penal Code offences committed against such vulnerable persons will be made arrestable, regardless of whether the underlying offence is itself arrestable. That will allow the Police to intervene quickly.
  12.  

    Abuse of partners/close relationships

     

  13. Penalties will also be enhanced for specific offences committed against persons who are in an intimate or close relationship with the offender even if they are not married.

     

  14. PAVE is a VWO which works closely with a variety of other agencies, including the Government. They told me about this case, which was one of the reasons why I decided we ought to change the law here. They helped a lady by the name of Cindy. Cindy had suffered horrific abuse from her live-in partner. She was found by the Police in the year 2000, almost completely blind, with slash wounds all over her body and broken bones - she had suffered horrific sexual abuse over the 8 years. Quite unspeakable. Her two young children she had with the abuser witnessed all of this abuse. It took place almost daily.

     

  15. In many serious domestic abuse cases, the abuser exploits the trust of the victim to abuse them. The victims often find it difficult to leave such partners due to the emotional and psychological manipulation which is frequently found in such relationships.

     

  16. So if the offender commits specific offences: rape, wrongful confinement, causing hurt against intimate partners or against those in close relationships, the offender will be subject to twice the maximum penalties that are normally prescribed for such offences. [Refer to Clause 18 of the Bill]

     

  17. These amendments will mean such perpetrators who abuse victims, where the victims trust and depend on them, will face much more severe punishments.

     

  18. These amendments must be read or looked at together with the proposed amendments to the Protection from Harassment Act (POHA), which will be coming up for Second Reading tomorrow. It means that such intimate partners can get PPOs on an expedited basis and that perpetrators will get more severe penalties. Previously, only married partners can apply for PPOs under the Women’s Charter. Now, under the proposed amendments to POHA, the timelines for getting a PPO will be comparable to that under the Women’s Charter. So intimate partners, usually women who are in a relationship but not married, who fear violence - this is a significant step to giving them greater protection. Based on Parliamentary rules, I cannot go too much into detail on POHA but my intention is that it must be fast, it must be quick, and they must be able to get remedies. My colleague, Edwin Tong, will take Parliament through POHA tomorrow.

     

  19. So for intimate partners, on the one side, there are offences to be made arrestable, and penalties to be enhanced, and on the other side, easier access to protection orders. Of course, there is the underlying psychological problem, that if the woman doesn’t want to leave and continues to suffer the abuse, then our agencies will have to try and find a way - the VWOs will have to try and find a way of identifying these women, and then encourage them to take these steps.

     

  20. In the Penal Code, new offences in respect of abuse of vulnerable victims which lead to death or other forms of grievous hurt will also be introduced. I can remind Members of another case – Daniel Nasser, 2 years old, was abused by his mother and her live-in boyfriend over a period of at least five weeks. They kicked and slapped him almost every day. They stomped on his chest. The autopsy found 31 external injuries on Daniel. The court said that the couple had inflicted harm “in a ruthless and unrelenting manner”.

     

  21. In such serious cases of abuse which leads to the death of the vulnerable victim, Members will find it odd, but lawyers will know, it’s not easy to convict the offenders of murder. The reason is that it is difficult to show that they had the requisite mens rea - the mental elements that were present to meet the requirements for murder.

     

  22. I think we have to take a strong stance against such abuse. I will refer to Clauses 83, 104 and 171.

     

  23. The first two offences “causing death by sustained abuse”; and “failure to protect” will cover persons who owe these victims a duty of care.

     

  24. Who are such persons? Persons who have custody, care or charge of the victims. They have a responsibility to protect those under their care from harm. You can refer to Clause 83.

     

  25. The third new offence is “causing or allowing the death of a vulnerable victim”. Victims, as I described earlier, refer to children, domestic workers, and other vulnerable persons.

     

  26. This offence deals with situations where two or more persons who are in a position to cause the death of the victim, but both deny that they were the ones who caused the ill-treatment.

     

  27. In such cases, it is very difficult to prove in Court who committed the abuse, and who permitted the abuse. Currently, when there is this sort of ambiguity, both could get acquitted, while there is a dead child. This is not right, I think.

     

  28. Deaths resulting from natural causes or accidents will not be covered. But otherwise, if you stood by and you allowed the child to be abused in this way, you can be charged.

     

  29. The United Kingdom and Australia have similar offences.

     

  30. A case from the UK is illustrative of the kind of situation we are thinking about.

     

  31. I refer to R v. Ikram from UK where a 16-month-old boy died. He was living with his father and his father’s female partner. The boy suffered 21 different injuries within 48 hours before his death, including a fatal fracture to the left femur which occurred within 12 hours prior to his death.

     

  32. It was established that only the father and his partner were present during the period when the fatal injury was inflicted.

     

  33. The father had been absent for around two hours. Both defendants were charged for murder. Both claimed not to know how the injuries were sustained.

     

  34. In Singapore, under our proposed amendments, the father and partner can both be charged for causing or allowing the young child’s death.

     

    [Clauses 83, 104, 171] There have been some feedback and concerns that persons who are themselves victims of abuse could nevertheless be held liable for their inaction by “failing to protect” a vulnerable victim, or “causing or allowing the death of a vulnerable victim”.

     

  35. For example, a husband may violently abuse his wife and his children. The concern is that the abused wife may be found liable under this offence if she did not intervene to prevent her husband from abusing the children. This is even though she may not have really been in a position to intervene.

     

  36. That should not be the case. The clauses in the Bill require the court to consider past or present experiences of those of the accused persons of abuse as well.

     

  37. The Court needs to determine the steps the accused person could have been reasonably expected to have taken to prevent the abuse of the vulnerable person.

     

  38. Under the amendments, Daniel Nasser’s abusers, the very people who were supposed to protect him, could be liable for the new offence of causing death by sustained abuse, and causing or allowing Daniel’s death.

     

    REVIEW OF SEXUAL OFFENCES

     

  39. I will turn to the review of sexual offences. There are:
    1. Amendments to better protect minors, and
    2. Amendments creating new category of sexual offences.

     

    Sexual offences involving victims who are minors

     

  40. First, minors. Members of this House may remember the case of Joshua Robinson.

     

  41. He was 39 years old, met two 15-year old girls on social networking sites, pressured them to send him nude pictures of themselves, and to meet up to have sex with him.

     

  42. Currently - and some Members might find this surprising when they think about it - asking for and receiving nude images by consent, from a 15-year-old, is not an offence, today.

     

  43. He also filmed their sexual encounters. When his house was raided, we found obscene films, including more than 300 films of child pornography.

     

  44. After he was arrested and released on bail, when he was on bail, Joshua Robinson showed a six-year-old girl an explicit video of his girlfriend performing a sexual act on him. At present, that is not a separate category of offence. It will have to come under the rubric of showing an obscene film. But I think Members will agree that we should criminalise it separately and clearly rather than treating it as just showing an obscene film. I think the action and acts are heinous in themselves, beyond the showing of the film.

     

  45. Joshua Robinson was eventually sentenced to imprisonment for having sex with minors because both girls were under 16, making and possessing obscene films and showing an obscene film to a six-year-old girl. I think Members will agree, getting the two 15-year-old girls to send nude photos should itself be criminalised, and showing an obscene film to a six-year-old should be treated with more severity by a separate category of offence.

     

  46. I said at that time that we needed to look at criminalising some parts of his conduct, which were not at that time caught, and increasing the penalties as well, to ensure that persons like Joshua will be dealt with more severely through higher penalties.          
  47.  

    Exploitative sexual activity with minors

     

  48. The new offences, under the rubric of “exploitative sexual activity with minors” will deal with sexual predators who exploit young people.

     

  49. The age of consent for sexual activity is 16 years old, but there are situations where slightly older minors - those between 16 and 18 years old, may be exploited for sexual gratification by persons who are in relationships of trust with the minor.

     

  50. In such cases, the young person’s consent - we are talking about 16 and 18 - that young person’s consent, is in my view, compromised.

     

  51. We are therefore introducing offences involving sexual exploitation of minors of age 16 or above but below 18 years old where sexual penetration is involved, where sexual grooming is involved, and where sexual communication is involved.

     

  52. For sexual exploitation offences by persons in relationships of trust with minors who are below 16 years of age, we will enhance the existing penalties, and we will peg them to those for non-consensual sexual penetration.

     

  53. There are two parts to this definition of “exploitation”.

     

  54. First, in considering whether the accused is in a relationship that is exploitative of the victim, the court will be required to consider –

     

    a. The age of the minor: the younger the person/victim, the more susceptible to influence he/she will be.

     

    b. Second, the difference in age between the accused and the minor: a large age difference may result in the victim viewing the accused as an authority figure, allowing the accused to exert significant influence over the victim.

     

    c. Third, the nature of the relationship: if the accused initiates sexual communication or activity very early in the relationship, it is likely that the intention was to make use of a power imbalance in the relationship to exploit the victim for his sexual gratification.

     

    d. Fourth, the degree of control or influence exercised by the accused over the minor: the greater the influence by the accused over the minor, the more the minor’s will may be considered to be compromised.

     

  55. The use of violence or coercion by the accused will be considered to be amongst the indicators of control or domination over the victim.

     

  56. In short, a key factor in determining “exploitation” is the presence of a power imbalance between the accused person and the minor.

     

  57. There are other jurisdictions that take a different approach. For example, the United Kingdom and some states in Australia have an exhaustive list of relationships; sexual activity between adults and minors in such relationships is prohibited.

     

  58. We have adapted this as the second part of the definition of “exploitation”.

     

  59. A list of specified relationships has been included in the law. Where these relationships exist between the accused and the minor, there will be a rebuttable presumption that an exploitative relationship exists.

     

  60. What are these relationships? They involve an adult who is in a position of responsibility, authority or influence over the minor. It will include teacher-student, doctor-patient, parent-child.

     

  61. Where the relationship between the accused person and the minor is not in this list, the Court can still find that a relationship was exploitative based on its assessment by reference to the first part of the definition.

     

  62. If you look at Clauses 113, 121, those are set up.

     

    Dealing with predatory conduct

  63. I will now turn to predatory conduct against minors.

     

  64. The amendments and new offences take into account developments in technology which have enabled predators to increase their number of victims, and the speed with which they can groom minors.

     

  65. We are seeking to lower the threshold for the current offence of sexual grooming. We are reducing the required instances of prior conduct from two to one. We will lower the age floor of the offender from 21 to 18.

     

  66. [Clause 116, 117] New offences will be introduced. Sexual communication with minors and showing a minor a sexual image - I spoke about these earlier. Also, sexual activity in the presence of a minor.

     

  67. [Clause 117] This will allow us to criminalise predatory behavior like Joshua Robinson’s including asking minors to send him nude images.

     

  68. There will be of course, other types of conduct, like sexual experimentation amongst young persons. It is not the intent of these new offences to target this group of persons. The intent is to prevent predatory conduct.

     

  69. AGC will of course have to exercise prosecutorial discretion in determining whether it is in the public interest to prosecute. When it is between boyfriend and girlfriend and they are of a certain age, very young, and it is not exploitative, it should not come within these provisions.

     

  70. Covering the spectrum of predatory behavior allows us to intervene early to ensure that our children are protected, before the offender has time to meet them, prepare them and commit additional, more serious sexual offences. That could cause greater physical and psychological harm.
  71.  

    Child abuse material [Clause 120]

     

  72. Next, child abuse material. I said in this House last year, we were looking into drafting specific laws against child abuse material.

     

  73. Apart from sexual abuse, some children are physically abused. They are tortured as well. Terrible harm is caused to these children who are used in the production of such material. We must do what we can to protect them. This does not happen much in Singapore but we are going to make this extra-territorial in some ways.

     

  74. We have criminalised the spectrum of offences to deal with every person involved, from consumers to the producers of such material.

     

  75. We will also cover realistic depictions of children, meaning the depictions which closely resemble that of actual children, such that if an ordinary person looks at the depiction, they cannot tell whether this is real or a depiction.

     

  76. Inclusion of these realistic depictions of children will prevent an accused person from arguing that a depiction is computer-generated, when in fact it involved an actual child.

     

  77. The offences of using or procuring a child for child abuse material and production of child abuse material will be made extra-territorial.

     

  78. The offences will cover Singaporeans and PRs who commit such offences overseas, and of course it will cover them if they do it here as well - any person who is in Singapore and commits these offences against a child overseas; and any person who is overseas and commits these offences against a child in Singapore.

     

    Fictional child abuse material and child sex-dolls

     

  79. Next, child abuse material which depicts fictional children. This is dealt with under section 292 of the Penal Code.

     

  80. The offence criminalises the sale, distribution, exhibition, production of obscene material. Possession of such material is not criminalised under this provision.

     

  81. We want to enhance punishments under section 292 when the obscene object depicts minors below 16 years old. The maximum punishments are sought to be increased from three months to two years of imprisonment.

     

  82. A new offence criminalising possession, distribution, importation, production of child sex-dolls will also be introduced. These refer to anatomically accurate dolls or robots with features which resemble a minor below 16 years old.

     

  83. These dolls are produced and used overseas. We are prohibiting them because of the concern that they may reinforce tendencies which can then develop into actual harmful acts towards children.

     

    New sexual offences of general application

     

  84. Technology has facilitated the commission of sexual offences such as voyeurism, “cyber-flashing”, and the distribution of intimate images (often referred to as “revenge pornography”).

     

  85. There has been an increase in such cases.

     

  86. These offences are currently criminalised under the Films Act and Penal Code.

     

  87. We want to create specific offences in the Penal Code to provide proper framing for such offences and adequate punishments.

     

    Voyeurism [Clause 120]

     

  88. Voyeurism involves observation or recording of someone doing a private act without the person’s consent. Some of the more commonly known forms of voyeurism include “upskirting” and “downblousing”.

     

  89. Recently there has been a spotlight on these offences because of the incident in NUS, involving Mr Nicholas Lim.

     

  90. These offences are currently dealt with under “Insult of Modesty” in the Penal Code, and Films Act.

     

  91. The current laws, in my view, do not adequately address the range of offences involving voyeuristic recordings, and the distribution of such material on the Internet.

     

  92. We propose to introduce specific offences involving “voyeurism” which will define the offending behaviour, and provide for adequate punishments.

     

  93. The proposals, Members know, as I said earlier this afternoon, well predate the incident involving Mr Lim. In fact, the Bill was tabled in Parliament before that incident became public. It was before the incident took place as well, in terms of working on it and drafting.

     

  94. We have also introduced a presumption. Where the accused person has made a recording of another person doing a private act, or of their private parts, it will be presumed that the person being recorded or observed did not consent to the observation or recording.

     

  95. Sometimes there are evidential challenges because you can find the images, but you cannot identify who the person is. The accused will get all the legal burden as the presumption will be that there was no consent. The accused can then say why there was consent.

     

  96. The new offences will criminalise “Peeping Tom” behaviour, making of voyeuristic recordings, distribution, possession or gaining access to such recordings.

     

  97. Modifying any part of a building’s structure to make voyeuristic recordings will also be specifically criminalised. This was recently reported in the international media as being a very serious issue in South Korea.

     

  98. The proposed maximum imprisonment terms for the observance, possession, and making of such “voyeuristic recordings” is now going to be two years if the Bill gets passed. That is double the current maximum one-year imprisonment for the offence of insulting modesty under s 509.

     

  99. There is a clear need to deter the proliferation of voyeuristic recordings. So, distribution of voyeuristic recordings will attract a higher punishment, a maximum imprisonment term of five years.

     

  100. The court may also impose a fine and caning for these offences.

    Sexual exposure [Clause 120]

  101. We have also introduced a new offence to criminalise sexual exposure, which is commonly known as “flashing”.

     

  102. There has been prevalence of this. Persons intentionally send unsolicited pictures of their genitalia over social media or via messaging platforms. That will be criminalised. Penalties for that offence will be enhanced where the victim is below 14 years old.

     

    Distribution or threat to distribute intimate images [Clause 120]

  103. Distribution or threat to distribute intimate images - we will introduce a new offence involving distribution, or a threat to distribute intimate images, colloquially known as “revenge pornography”.

     

  104. Intimate images could become widely shared and on platforms, and may be impossible to completely remove. They have the potential to cause great harm to the victim.

     

  105. This offence will exclude images such as caricatures or cartoons of a person performing a sexual act. Lewd caricature of a person may amount to harassment, but not something that could be mistaken as an “intimate image” of the person depicted.

     

  106. The maximum penalty for this offence will be imprisonment of up to five years, with the option of fine and caning. Where the offence is committed against a person below 14 years old, imprisonment will be made mandatory.

     

  107. The new offence will also cover cases where a person unlawfully accesses databases or recordings that contain intimate images.

     

    Procurement of sexual activity by deception or misrepresentation [Clause 119]

  108. We are also introducing a new offence – the procurement of sexual activity by deception relating to two types of conduct. First, the use of sexually protective measures. Second, the presence or absence of sexually transmitted diseases.

     

  109. In some countries, cases have emerged of men agreeing to use a condom but secretly removing it before or during sex, known as ‘stealthing’.

     

  110. In these cases, the quality of the consent provided by the victim would be compromised by the deception.

     

  111. We have identified, and also if a man - usually men - does not identify their or mislead the partner on their sexually transmitted diseases, that is also covered. We have identified these two types of deceptions because they carry serious risks to the victim and represent a greater violation of victims’ sexual autonomy.

     

  112. We will continue to assess whether there is a need to expand this offence to cover other circumstances in the future relating to consent.

     

    CONCLUSION

  113. My Speaker Sir, these enhanced penalties and the new offences created, I think will help to better protect vulnerable victims, victims of sexual crimes and reflects our commitment to protect such persons.

     

  114. The amendments we are making today strengthen our laws and will help ensure that Singapore continues to be a safe home for our people, particularly women, children, and vulnerable persons.
  115.  

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