Tuesday, 11 September 2018

Penal Code Review: Proposals aim to better protect vulnerable

Wide-ranging suggestions by committee include changes to laws on marital rape, sex abuse of minors
By Selina Lum, Law Correspondent, The Straits Times, 10 Sep 2018

Women, minors and other vulnerable people will get more protection from violent and sexual crimes, if recommendations tabled by a committee are accepted by the Government and passed by Parliament.

The committee, set up in 2016 to conduct a wide-ranging review of the Penal Code, has called for marital immunity for rape to be removed and also for attempted suicide to be decriminalised.

It has proposed changes to further protect minors from sexual predators, as well as enhanced punishment for crimes committed against children, domestic maids and adults with disabilities.

The 169 recommendations also include updating the 150-year-old Penal Code with new laws to tackle emerging crime trends, such as voyeurism.


The last comprehensive review was completed in 2007. The current review committee was formed in July 2016 to ensure that criminal laws remain relevant and updated.

Section 377A, the provision that criminalises sex between men, was not part of the review.

It was the first time that a committee of experts has been convened to review the main piece of criminal legislation in Singapore.


Mr Shanmugam told reporters he decided in late 2015 there was a need to relook the Penal Code.

"I have been wanting to make a number of changes in the areas relating to protection of women, children, vulnerable victims. And I wanted the laws updated... We have many different types of property now, and electronic means; those weren't thought of when the Penal Code was set up."



The proposals are being put up for a public consultation, after which the Government will make necessary amendments before tabling them in Parliament by the year end.

The committee proposed fully repealing provisions that give men immunity from being prosecuted for raping their wives. This was partly lifted in 2007.

It also recommended creating a new offence to deal with cases of abuse of vulnerable victims that lead to death or grievous hurt, such as the acts committed against waitress Annie Ee.

The proposals include new offences and tougher penalties for sexual offences against minors.

They include jail of up to three years for a new offence of causing a minor to look at sexual images. Currently, cases such as that of American expatriate Joshua Robinson, who showed an obscene film to a six-year-old, are prosecuted under a broader provision, which carries up to a year in jail.



Another area tackled by the committee: crime trends brought on by advances in technology and the proliferation of social media.

A new offence will target acts such as "upskirt" photography and other voyeuristic recordings, regardless of the victim's gender.

A new offence of fraud has also been proposed, to cover situations where a person makes a false representation even if it is not proven what outcome resulted from it.

Other proposals include raising the minimum age of criminal responsibility from seven to 10 and expanding the definition of rape.

The full report can be found on the websites of the ministries of Home Affairs and Law and government feedback unit REACH. Feedback must be submitted by Sept 30.













Penal code review: Protecting the vulnerable

Harsher punishment for abuse leading to death
New offence proposed to adequately reflect culpability after recent spate of such cases
By Selina Lum, Law Correspondent, The Straits Times, 10 Sep 2018

Those who physically abuse vulnerable victims over a period of time, eventually leading to death, could face harsher punishment under a proposed new offence that carries up to 20 years' jail, and a fine or caning, or all three.

A committee tasked with reviewing the Penal Code has proposed creating a new offence - of causing death by sustained abuse of a vulnerable victim - to adequately reflect culpability.

A recent spate of cases of vulnerable victims who died after suffering repeated abuse have not been prosecuted under provisions that adequately reflect the heinous nature of the crime, the committee said.

At least five cases were heard in court between 2016 and last year, an increase from seven cases prosecuted from 2000 to 2011.



Currently, in cases where the abuse consists of a series of acts that eventually leads to death, the abuser is likely to be prosecuted under causing grievous hurt, which carries a jail term of up to 10 years, with a possible fine and caning.

This is because there is often insufficient evidence to prove that the abuser had the intention to cause death or fatal injury.

This was "unsatisfactory", said the committee. A person who abuses a vulnerable victim over a period of time, eventually leading to the victim's death, is arguably as culpable as a person who kills another in a one-off incident, it said.

Two cases were cited in the report - those of toddler Mohamad Daniel Mohamad Nasser, who died after five weeks of abuse by his mother and her boyfriend, and 26-year-old waitress Annie Ee Yu Lian, who died after eight months of torture by her flatmates.

Pointing to public outrage over these cases, the committee said society reserves "special disapprobation" for the abuse of vulnerable people by their caregivers or others in a position of trust.



Another new offence - of causing or allowing death or serious injury of a child or vulnerable person - was also proposed to cover the scenario in which two or more caregivers had the opportunity to cause death, but it is impossible to pinpoint who was responsible.

This provision, which would apply to the person who committed the unlawful act, as well as to someone who did nothing to stop it, is punishable with up to 20 years' jail, and a possible fine and caning.

Moves to prevent abuse were also mooted.

They include adding a provision requiring a caregiver to take reasonable steps to prevent future abuse. Current laws do not compel intervention.

Apart from the new offences, the maximum penalties for all offences committed against children below the age of 14, vulnerable adults and domestic maids may also be enhanced by up to two times.

Currently, the law provides for enhanced penalties of up to 1½ times the maximum prescribed by law for specific offences, such as causing hurt, committed against a maid by her employers.

The committee proposed that the same protection be extended for crimes against children below 14 and people unable to protect themselves due to mental or physical disability.

Criminal lawyer Sunil Sudheesan, of Quahe Woo & Palmer, said he sympathised with the thinking behind this. But he pointed out that many offenders do not pause to think about facing potentially heavier sentences.

He also cautioned that this may prompt some people, who happen to fall into the category of vulnerable victims, to lodge false reports to get someone into trouble.





Penal code review: Sexual predators

Protecting minors aged 16 to 18 from sexual exploitation
Proposed changes include new categories of sex offences and harsher punishment
By Tan Tam Mei, The Straits Times, 10 Sep 2018

Minors will receive more protection against sexual predators with new categories of sex offences and harsher punishment for sexual crimes involving those below 18, under proposals from the Penal Code Review Committee.

A key proposal will protect minors aged between 16 and 18 from being exploited for sex. Currently, there are no provisions for penetrative sexual activity arising from an exploitative relationship for this age range.

The current age of consent for sexual activity is 16, which the committee recommended to retain.

However, it suggested a new offence covering exploitative penetrative sexual activity with minors aged between 16 and 18, as an exploitative relationship could affect the quality of consent.



The committee also made suggestions to tackle the commercial exploitation of minors. A key point was to use the term "child abuse material" instead of "child pornography" to reflect its harms. The term would cover not just sexual abuse, but physical abuse as well.

Other recommendations included new offences to punish the supply chain of child abuse material.

There are currently no specific provisions regarding child pornography, and existing laws, like those under the Films Act, are used to tackle these cases. "The current law was not designed for, and is inadequate to address, the serious problems the rise of the Internet has created for offences such as child pornography," said the committee.

It also proposed fictional child abuse material be covered as it can be used for grooming children and reinforcing abusers' inappropriate feelings. But it recognised that since fictional material does not involve actual children, lower punishments could be prescribed.

Under the recommendations, the bar for sexual grooming offences is also lowered - just one instance of prior contact is needed and it will cover the scenario where a victim travels to meet the offender.

Another new offence is to criminalise sexual communication with minors, even if the minor does not respond. To protect minors from being shown sexual images by an adult, the committee proposed to make it an offence to engage in sexual activity before a minor or cause the minor to look at a sexual image.

The committee hoped the recommendations would allow the authorities to intervene and punish offenders early, before greater harm is done to the victims.



Commenting on the recommended changes, Law and Home Affairs Minister K. Shanmugam said the enhancements would deal effectively with "Joshua Robinson-type" cases which must be severely dealt with. Last year, Robinson, a mixed martial arts instructor, was sentenced to four years' jail for a range of offences from sexual penetration of two 15-year-olds to showing an obscene film to a girl, six. Obscene films were also found in his home.

Mr Shanmugam said the review aimed to update the law, change certain definitions and create new offences in this specific field.

The number of alleged cases of child sexual abuse has also been on the rise. Last year, the Ministry of Social and Family Development's Child Protective Service investigated 181 allegations of sexual abuse involving children under 16. This was a 70 per cent jump from the 107 cases investigated in 2016.

Lawyer Amolat Singh said the amendments are timely and provide certainty and clarity.

Family therapist Evonne Lek said the proposed changes showed a stricter stance on child sexual abuse. She added that she hoped the new laws would allow offenders to be flagged earlier so they can receive treatment and therapy.










Penal code review: Marital rape

Husbands may no longer have marital immunity for rape
By Rahimah Rashith, The Straits Times, 10 Sep 2018

Husbands who force themselves on their wives will not get immunity from being prosecuted for rape, under a recommendation tabled by a committee tasked to review the Penal Code.

The committee, convened by the Ministry of Home Affairs and Ministry of Law in 2016, called for a "full, unqualified repeal of marital immunity for rape" aimed at providing all women, married or unmarried, protection from sexual abuse.

In a letter to Law and Home Affairs Minister K. Shanmugam dated Aug 31, the Penal Code Review Committee, led by Minister in the Prime Minister's Office Indranee Rajah and Senior Parliamentary Secretary for Home Affairs and Health Amrin Amin, said that the extensive review involved modernising the Penal Code as "many of the reasons underpinning the previous state of the law are rooted in societal norms which we believe no longer exist in Singapore society".

The committee submitted its report to the Government on Aug 31 recommending a full repeal of the marital immunity for rape, along with other recommendations.



Up till 2007, Singapore did not recognise marital rape - that a husband could rape his wife.

That year, the law was amended to recognise marital rape under certain circumstances which signalled a breakdown in the marriage, such as if the husband and wife were living apart under an interim judgment of divorce or written separation agreement, or if divorce proceedings had begun, or if the wife had commenced proceedings to or had already obtained a personal protection order against her husband.

The repeal would provide equal access to protection for sexually abused wives and ensure consistency with other sexual offences.

The maximum penalty for rape is 20 years' imprisonment, as well as a fine or caning.

Said Mr Shanmugam: "The changes they are recommending, I have talked about some of them in the last two years as to what we would like to see as well.

"Women, for example, I have thought it odd that we still have immunity for husbands who rape their wives. A woman's body is her own. And even if she is your wife, she is entitled to say no. And no means no. So that, they are proposing to repeal the immunity. "



Executive director of Association of Women for Action and Research Corinna Lim welcomed the recommendation.

"A long overdue, full and unqualified repeal of marital immunity for rape would be a momentous step forward for women's rights," she said.

"The repeal would be a powerful signal that the state does not condone any form of violence against women, including within marriage."





Penal code review: Attempted suicide

Getting suicidal people help instead of prosecuting them
By Selina Lum, Law Correspondent, The Straits Times, 10 Sep 2018

A committee reviewing the Penal Code has called for attempted suicide to be decriminalised, saying the criminal justice system is not ideal for managing people who are suicidal.

Treatment, rather than prosecution, is the appropriate response to people who are so distressed that they are driven to take their own lives, the committee said in its report.

Other laws have to be changed to empower the authorities to intervene, such as giving the police the power of forced entry and the power to arrest people who attempt suicide and refer them for medical assessment.

Laws should also be amended to ensure that those who need help receive appropriate treatment.



However, to "clearly signal society's continued opposition to suicide", the committee said the abetment of suicide should continue to be an offence, regardless of whether the attempt succeeds.

Under the current Penal Code, a person who attempts suicide faces a jail term of up to a year, or a fine, or both.

While attempted suicide is an arrestable offence, actual prosecutions are rare. In 2015, out of 1,096 reported cases of attempted suicide, 837 people were arrested.

An average of 0.6 per cent of the reported cases between 2013 and 2015 were brought to court.

Prosecution is usually sought for those who repeatedly attempt suicide, because only the courts can compel people to seek treatment, via a mandatory treatment order.



The committee acknowledged that society is opposed to suicide. But it noted there is growing recognition that suicide is a health and social issue, rather than a criminal one.

According to a report by the World Health Organisation published in 2014, only 25 of the 192 countries and states surveyed still have laws and punishments for attempted suicide.

Lawyers agree with the move to repeal the offence, saying that people pushed to take their own lives are not likely to be deterred by prosecution.

"Given the state of mind of a person attempting suicide, the focus should be on addressing the precipitating causes since there may be limited contemplation of deterrence or consequence in those circumstances," said Mr Anand Nalachandran of TSMP Law Corporation, who has acted for someone who attempted suicide.

Mr Amolat Singh of Amolat & Partners said: "If at all, the fear of prosecution may in itself make him all the more determined to end it successfully."

Minister for Home Affairs and Law K. Shanmugam pointed out that abetting another person to commit suicide is still an offence.

"So the people who can be deterred, I think will continue to be deterred," he said.





Penal code review: Emerging crime trends

Proposed laws to tackle voyeurism, revenge porn and flashing
By Tan Tam Mei, The Straits Times, 10 Sep 2018

Emerging crime trends such as voyeurism, revenge porn and flashing will be tackled under proposed new offences by a committee reviewing the Penal Code.

Key points from a report of proposed changes by the committee included new laws to target voyeurs and the process of making, distributing, possessing and accessing voyeuristic recordings.

The committee noted that there is currently no specific provision to address voyeurism - defined as the observation or recording of a person in circumstances where one could reasonably expect privacy - as well as the possession and distribution of voyeuristic images.

Where voyeuristic behaviour is concerned, one of the provisions the accused is likely to be prosecuted under currently is that of insulting the modesty of a woman.

However, this is gender-specific and creates an "anomaly" in the way offenders are prosecuted and sentenced, said the committee.

It said the existing law is "inadequate" to acknowledge or address the serious problem technology has created and the "bustling" online market for voyeuristic content.


Technology has also given rise to scenarios where sexual images can be distributed without consent, and lawyer Gloria James-Civetta has seen more of such cases, which include "revenge porn".

The committee proposed a new offence criminalising the distribution of, or threat to distribute, an intimate image.

At present, there is no specific offence criminalising the distribution of sexual images without consent.

While existing provisions used to prosecute offenders include extortion and criminal intimidation, a "stronger and consistent response" is needed, said the committee.

It said that given the ease with which images can now be created, uploaded and downloaded, and the difficulty to remove them, existing laws should be updated to account for this.

The committee also suggested a new offence to tackle sexual exposure and make it criminal for one to expose his or her genitals - in a public or private place - intending that someone will see them and knowing it would cause or likely cause fear, alarm or distress.

Mr Gregory Vijayendran, president of the Law Society of Singapore, said that given the changing times, technology has become a modus operandi and weapon in modern crime.

"Any smartphone is potentially a virtual crime scene," he said.

He added that while a "patchwork quilt of non-specific laws" has been used to tackle emerging crime trends, it would be better to lay out the elements of specific offences so as to address "core mischief" of various crimes such as flashing.










Penal code review: Child offenders

Raising minimum age of criminal responsibility from 7 to 10
By K.C. Vijayan, Senior Law Correspondent, The Straits Times, 10 Sep 2018

Children below the age of 10 will not face criminal responsibility for offences, up from the current age of seven, under a proposal by the Penal Code Review Committee.

The review committee is also seeking to expand the definition of rape, to introduce presumptive minimum sentences, and to refine and reserve the life imprisonment regime for the severest of offences.

In proposing to raise the age of criminal responsibility for children, the committee noted international trends which showed keeping the age at seven is low by global norms.

An online check showed that the minimum age of criminal responsibility remains at seven years in India while countries such as Britain and Malaysia have set the bar at 10 years. It is 14 years in Japan and South Korea.

The committee found that there would not be a significant risk to public safety with this change. It noted that there were about 150 children in the seven-to-nine age group arrested between 2014 and 2016. They comprised only about 2 to 4 per cent of the total number of juveniles - those aged from seven to 15 years - arrested each year.

Together with the proposed rise, the committee recommended that children above 10 and under 12 years who do not have sufficient maturity of understanding to judge the nature and consequences of their conduct should continue to not be criminally liable.



A mechanism will be introduced to deal with offenders below the minimum age and offenders between 10 and 12 years who are acquitted by virtue of inadequate maturity, to attend treatment/counselling and other non-custodial programmes under a non-criminal framework.

Separately, rape will be expanded to include penile-anal penetration in the current definition.

Among other things, the outrage of modesty offence in Section 509 of the Penal Code is proposed to be made gender-neutral by replacing the term " woman" with " person".

The committee said its moves to update the Penal Code in relevant areas is to ensure that it covers circumstances where offences are committed against males and females, and to reflect changing societal norms and views on the roles of men and women.

It also recommended the removal of life imprisonment as a sentencing option for various offences which are not as severe as offences like culpable homicide.

Among the changes, the committee is also introducing presumptive minimum sentences for first offenders in exceptional circumstances where it would be unjust to impose a mandatory minimum sentence. For a start, this will apply to a "tightly scoped list" of nine offences. The Misuse of Drugs Act is excluded.





* Penal Code review: Who wants what
By K.C. Vijayan, Senior Law Correspondent, The Straits Times, 25 Oct 2018

The Penal Code Review Committee submitted its report and recommendations to Mr K. Shanmugam, Minister for Law and Home Affairs, on Aug 31.

The report was published on the websites of REACH, the Ministry of Law (MinLaw) and the Ministry of Home Affairs (MHA) from Sept 9 to Sep 30 for the public to provide feedback on the recommendations.

In addition, the Government conducted closed-door engagement sessions with relevant stakeholders from the social, religious, financial, education and legal sectors, including law academics and the Law Society, said MHA and MinLaw in a joint statement on Oct 23.

"We are currently studying the feedback and submissions received from both the public and stakeholder groups, and will be publishing a summary of the feedback when ready."

The Straits Times Senior Law Correspondent K.C. Vijayan looks at submissions from three stakeholders: Aware, the Singapore Children's Society and the Association of Criminal Lawyers of Singapore.





AWARE: CHANGES ON SUICIDE BIDS, RAPE GET NOD BUT MORE NEEDED

The Association of Women for Action and Research (Aware) welcomes the repeal of marital immunity for rape as well as the decriminalisation of attempted suicide, among other proposed changes to the Penal Code.

But the gender-equality group said there are still gaps in relation to offences against vulnerable persons that the proposed changes need to address.

Aware identified these gaps from its experience working with victims as well as from previous research and studies.

It said updates on sexual assault offences should be comprehensively defined to make clear that "lack of resistance and submission to sexual activity, in itself, is not consent as a matter of law".

Consent for sexual activity, Aware said, should be defined as the "free, informed and voluntary participation of the complainant in the sexual activity in question".

It concurred with the committee that public education is important in improving public understanding of consent.

Aware had paired up with Silver Ribbon (Singapore), a group dedicated to helping to integrate people with mental illness within the community, for joint views on decriminalising attempted suicide, as recommended by the committee.

Both groups are supportive of the police and the Singapore Civil Defence Force (SCDF) continuing to play the role of first responders in attempted suicide cases, in line with the committee's overall "treatment, not prosecution" approach.

But they suggest that the police and SCDF should have "trauma-trained" staff to serve as first responders, while also engaging with non-governmental organisations like the Silver Ribbon, to provide intervention teams which can accompany the police when dealing with suicide attempts.



Children's Society: DEDICATED LAWS TO TACKLE CHILD SEX ABUSE MATERIAL WANTED

In endorsing the committee's suggestions to tackle the commercial exploitation of minors, the Singapore Children's Society has called for child sex abuse material to be defined and to penalise its production, distribution and possession.

It points to similar laws abroad specifically dedicated to this area, noting that in the Singapore context, offences linked to such material are now placed in various laws like the Penal Code, Films Act and Women's Charter.

The group made clear its support for government efforts "to draft dedicated legislation against child pornography" which it suggests should be termed as child sexual abuse material (CSAM).

The society said to call it child pornography would be to trivialise the act of producing and distributing or possessing such materials as "these acts are in fact child sexual abuse".

"There is a need for Singapore to enact specific, comprehensive laws concerning CSAM," said the society, taking into account the influence of technology in these crimes.

It referred to the Europe-based Copine scale, which grades the severity of a child sexual abuse image to determine how heavy the ensuing sentence should be for the offender linked to such material.

The scale was developed by the Child Studies' Unit in University College Cork in Ireland, which worked with the London Metropolitan Police to categorise child abuse severity.

The committee has recommended new offences to punish the making, distributing, selling, advertising, seeking, accessing and possessing of child sex abuse material.

Currently, a patchwork of existing laws are used to tackle these cases.

"Singapore Children's Society applauds the Government's efforts to ensure that our laws effectively cover offences relating to CSAM, and we have put this paper together to support its initiatives."



ACLS: CALLS FOR ABOLITION OF EUTHANASIA OFFENCE, DEATH PENALTY, S377A

The Association of Criminal Lawyers of Singapore (ACLS) submissions are as notable for what was not within the scope of the Penal Code review as for its views on what was.

It argues, for instance, that moves to enhance sentencing for certain offences may not produce the desired deterrence and calls instead for further study on the effects.

It has also called for the abolition of the death penalty, euthanasia as a crime, and Section 377A of the Penal Code, which outlaws gay sex. These are issues outside the scope of the review.

The association also called for discretion to be given to judges in all capital cases, if it is not timely to abolish the death penalty now. Separately, the ACLS, while supporting the committee's moves to enhance protection of vulnerable victims, also suggested that "measures of equal magnitude be explored for vulnerable accused persons" such as those with psychiatric histories.

To this end, it suggested creating a general defence of diminished responsibility which would enable offenders to be channelled to a different sentencing track. This is to ensure proper monitoring and treatment.

The ACLS has also made specific recommendations in relation to several other Penal Code provisions where changes were proposed by the Penal Code Review Committee.

In arguing that time was opportune to decriminalise mercy killing or euthanasia, it pointed out that the Advanced Medical Directive is already in place. It said the directive allows a person the avenue to deny prolonging of life through artificial means. "To allow euthanasia is just a logical progression and extension of what is already in place now", it said, stressing that full verification checks should be in place for any such procedure.

Conceding this is a divisive topic, the group said full consideration was due, given the evolving circumstances in society.




**  Survey on death penalty being conducted by Ministry of Home Affairs for the first time
National poll, from October to December, will involve 2,000 Singaporeans and PRs
By Fabian Koh, The Straits Times, 31 Oct 2018

A survey is under way to gather public sentiment towards the death penalty here.

The Straits Times understands that this is the first time that the Ministry of Home Affairs (MHA) is conducting a survey on the death penalty.

The national survey, between October and December this year, will involve 2,000 Singaporeans and Singapore permanent residents.

While there have previously been surveys on the death penalty conducted by other bodies, such as Reach in 2016, this is the first time that MHA itself is commissioning one.

In response to queries from ST, an MHA spokesman said the survey is being conducted "to give us a better understanding of Singapore residents' attitudes towards the death penalty". It is part of the Government's regular research on the criminal justice system, he said.

Participants were randomly selected based on age, race and gender, for a representative sample of the Singapore resident population, he added.

The MHA informed participants in letters, seen by ST, that market research consultancy Blackbox Research has been commissioned to carry out the survey, called Survey On Singapore Residents' Attitudes Towards The Death Penalty 2018.

Participants were also told that an interviewer, identifiable by the company's identity pass and a letter of authorisation from MHA, may visit their home to conduct the survey, which will take about 15 minutes.

"Please be assured that the survey is non-identifiable and your responses will be kept anonymous," the letter said.

Each respondent will receive a $5 NTUC FairPrice voucher for participating.



There were eight executions last year, all for drug offences, according to data from the Singapore Prison Service. It was the highest in the past 10 years.

In 2008, there were six executions - the second-highest number - followed by five in 2009.

There was a moratorium on executions imposed in July 2011, when the Government started reviewing the death penalty.

Parliament passed laws in November 2012 to remove the mandatory death penalty in certain instances of drug trafficking, and for murder cases where the killing is not intentional. The moratorium was broken in July 2014, with the execution of two drug traffickers.

In the recent Penal Code review, the Association of Criminal Lawyers of Singapore called for the abolishment of the death penalty, an issue outside the scope of the review.

The association called for discretion to be given to judges in all capital cases, if it is not timely to abolish the death penalty now.

In September 2016, Foreign Minister Vivian Balakrishnan had pushed back against calls for all countries to abolish the death penalty, at a meeting on the sidelines of the United Nations General Assembly.

At the Asia-Pacific Forum Against Drugs in October last year, Home Affairs and Law Minister K. Shanmugam said the death penalty is part of a proven anti-drug framework in Singapore, adding that it "saves more lives", including those of families ruined by drug addiction.





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