On 2 August 2021, after months of Parliamentary Debates, the Criminal Law (Miscellaneous Amendments) Bill was introduced by Minister of State for Home Affairs Mr Desmond Tan, which amended the Penal Code in an unprecedented way. This comes in the wake of a significant review of penalties for hurt and sexual offences which was addressed by the Law and Home Affairs Minister K Shanmugam in March 2021.
Read more: New Sexual Offences To Be Introduced
In this article, we will cover the specific offence of voyeurism – including its more broadened definitions and revised punishments, as set out in the new S 377BB of the Penal Code 1871.
What is Voyeurism?
Voyeurism is defined as a breach of a person’s sexual or physical integrity. It may also be understood as obtaining sexual gratification from observing others.
What are some examples?
S 377BB of the Penal Code significantly widens the ambit of voyeuristic offences. What was once covered under just one vague section of the Penal Code (s 509 of the Penal Code, prior to the 2021 amendments, criminalised uttering of any word or making or any sound or gesture or exhibiting any object to a woman with the intention to insult her modesty, or intrudes upon her privacy) has now been fleshed out in great detail, spanning 6 subsections.
|Elements of Offence||Examples (non-exhaustive)|
|1||Intentionally observing a person doing a private act||Includes showering, changing clothes, even relieving onself (arguably)|
|2||Operating equipment to enable oneself or others to observe a person doing a private act||Using a mobile phone or installing a spy camera in a toilet or bedroom|
While this offence and the offence in (3) appear similar, offences where no video is actually recorded, but where the perpetrator had made the attempt, and had the intention, would fall under this section
|3||Intentionally or knowingly recording another doing a private act||Using a mobile phone or installing a spy camera in a toilet or bedroom|
|4||Operating equipment to enable oneself or others to observe a person’s private parts (genital region, breasts, buttocks) in circumstances where the privates parts would not otherwise be visible||Using a mobile phone to “upskirt” or “downblouse” another, or installing a spy camera in a toilet or bedroom|
|5||Intentionally or knowingly recording a person’s private parts (genital region, breasts, buttocks) in circumstances where the privates parts would not otherwise be visible||Using a mobile phone to “upskirt” or “downblouse” another, or installing a spy camera in a toilet or bedroom|
While this offence and the offence in (4) appear similar, offences where no video is actually recorded, but where the perpetrator had made the attempt, and had the intention, would fall under this section
|6||Installing equipment or constructing or adapting a structure with the intention to commit any of the above offences [(1) – (5)]||Installing cameras, adjusting air vents, modifying, installing special mirrors, downloading a specific app in their device to cover up the offences|
Some things to note
Subsection 9 sets out the presumption that if a recording is made of another person doing a private act, or of another person’s private parts where they would not otherwise be visible, that the recording was taken without consent, unless the perpetrator can prove otherwise.
This shift of the burden of proof onto the perpetrator is deliberate, and makes clear the legislature’s stance on condoning voyeurs.
It should also be noted that the sections are largely gender non-specific (save for offences relating to a woman’s breasts), and a perpetrator of voyeurism can be a male or female, as can a victim.
What are the penalties for Voyeurism?
The penalties are set out at subsections (7) to (8) of s377BB of the Penal Code.
|7||Punishment for any of the offences from s 377BB(1) to (6): Up to 2 years in prison or fine or caning or any combination|
|8||If the victim is below 14 years old: Up to 2 years in prison and a fine or caning|
Are these penalties more severe than before?
Comparatively, the offence of voyeurism pre- Penal Code amendments only attracted an imprisonment term that may extend to 1 year, or with fine, or both. Caning was introduced in the amended sections, as well as a separate more severe section for vulnerable victims.
What factors does the Court look at when calibrating an Accused’s sentence?
It should be noted that the exact term of prison, the quantum of fine and number of strokes of the cane are not specified in subsections 7 and 8. Therefore, the severity of punishments will depend on the culpability of the perpetrator and the harm caused to the victim. This is where the Judges will apply the law to each case accordingly. Additionally, they will apply the law in accordance with case precedents.
Culpability of Accused person
This will be assessed based on aggravating factors and mitigating factors present, to the perpetrator’s detriment and/or favour.
Some non-exhaustive examples of aggravating factors include prior antecedents (i.e. re-offenders), number of charges, number of victims, premeditation (lengths that the perpetrator went to target the victim or to commit the offence(s), planning, concealing of offence(s) through physical means and even technology), and lack of remorse.
Some non-exhaustive examples of mitigating factors include early plea of guilt, a clean record, offence(s) committed on impulse, regret and remorse, medical condition, offer of compensation, offer of apology, and good character. It should be noted that the notion of good character has been somewhat controversial in the cases of late, and the Courts are increasingly less inclined to give discounts to perpetrators based on the type of school or education they have, and their proverbial “bright futures ahead”.
The same goes for medical conditions – it is crucial that whatever disorder a perpetrator may have has a causal or contributory link to the offence(s) committed.
It is normal for a perpetrator to have both aggravating factors and mitigating factors concurrently. It will be on the Prosecution and Defence to then argue which factors stand out more prominently.
The next thing the Courts will consider is how much harm is caused to the victim or victims in question, as a result of the offence(s) committed against them.
The analyses typically classify the hurt in three categories – low harm, moderate harm and severe harm. The category of harm that the perpetrator’s offence(s) falls under would depend on number of victims, whether there is psychiatric damage to the victim(s), damage to their reputation, number of photographs/videos captured, length of video(s), and whether they had been deleted (it should be noted that this is another factor of controversy – just because the perpetrator deleted the video, does not negate the fact that they did the act. There is also the issue of whether the material was deleted after they were apprehended, to avoid punishment). These are some non-exhaustive examples.
How GJC Law can help you
If you have been charged or investigated for a charge under the new s 377BB of the Penal Code 1871, we suggest that you reach out to our experienced criminal lawyers who will be able to assist you and provide you with legal advice. You may contact us at firstname.lastname@example.org for further assistance.