Recently, Teenage Magazine, a local lifestyle and entertainment magazine, published a letter from one of their teen readers who was seeking advice in its weekly ‘Aunt Agony’ column.
In the letter, she described her unfortunate experience of having sexual intercourse with another man, despite not having consented to it. More importantly, she described how she had forgotten what exactly had happened after she was intoxicated and the extreme hurt and unease she felt at being raped. A great furore erupted because readers felt the advice she received was condescending and reeked of a victim-blaming mindset.
In fact, a survey done by WE CAN Singapore found that more than 1 in 3 respondents reported experiencing sexual violence and 1 in 6 reported experiences of sexual assault (kissing, intimate touching or penetration without consent). For 83% of the victims, the perpetrator was someone they knew (significant other, friend, family member). This is indeed a serious and pertinent problem affecting our society.
In this article, we will look at what constitutes consent for physical intimacy and how you can seek help if you are a victim.
The concept of consent
At this juncture, it is important to examine what the definition of consent is, in the context of sexual offences in Singapore.
In Singapore, there is no statutory definition of consent, although there are several situations in the Penal Code which elucidate situations where consent is vitiated. (Refer to the table below)
In PP v Iryan , the Singapore High Court adopted the definition in Ratanlal which states that:
“[c]onsent on the part of a woman… requires voluntary participation… based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent…it is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.”
The following key principles have guided our Singapore courts thus far:
|1||Consent given by a victim labouring from unsoundness of mind or/and intoxication is invalid consent.||Section 90(b) of the Penal Code states that consent given by a person who suffers from unsoundness of mind, mental incapacity, intoxication, or the influence of any drug or other substance, is unable to understand the nature and consequence of that to which he gives his consent to, and therefore cannot give valid, lawful consent.
In today’s context a common example of invalid consent being given normally arises where the victim is heavily inebriated and cannot fully appreciate what is happening due to the effects of alcohol.
|2||Consent must be given in relation to the act of penetration.||Consent in the context of rape, as laid out in section 375 of the Penal Code, must be given to the act of penetration of the vagina of a woman.
Consent which has been given to any other sexually intimate act (eg kissing and fondling) is not valid consent. As long as the victim has not consented to the act of penetration,
In PP v Ong Mingwee , the accused claimed that the victim tried to seduce him by dancing closely and sexily with him at Zouk and asking him to be her boyfriend. The Court found that “by no stretch of the imagination can the victim’s conduct of dancing in what he claimed to be a seductive manner be construed to mean that she would therefore be willing to have sex with him subsequently in his flat. Even his claim that she asked him to be her boyfriend ….cannot be interpreted to mean that she would therefore be prepared to have sex with him.”
|3||Consent given out of fear and terror is not consent.||Section 90(a) of the Penal Code states that if consent given by a person under fear of injury or wrongful restraint to the person or to some other person is invalid consent.|
|4||Consent cannot be extrapolated to where it is absent.||Rape or sexual assault may even occur in between consensual sexual acts a couple engages in.
In Mohamad Liton, the parties had consensual sexual relations at one point after the break-up, but then the man tied her up, raped her at knifepoint, and committed sodomy on her. She then had sex with him once more willingly. The court found that there was no consent even though the parties had sex before and after the incident .
|5||Consent can be conditional.||If there are preconditions to sexual intercourse, default of a precondition before or at the point of penetration would amount to a withdrawal of consent to sexual intercourse .
For example, in the case of R v Director of Public Prosecutions , the claimant agreed to sexual intercourse on the condition that the other party would not ejaculate into her vagina. The other party, however, did so.
The court found that the victim was deprived of her choice relating to the crucial feature on which her original consent to sexual intercourse was based on. This is because the express forbiddance is part of the victim’s freely exercised choice and if this condition is not met, consent is negated.
This short video is helpful in visualising some of these above mentioned principles.
How to respond to sexual assault
If you are a victim of sexual assault you should seek help immediately in any of the possible following ways:
1) Report the incident immediately to the police. You may call the police (999) or go to the nearest police station and file a police report.
2) It is also advised that you seek medical attention as soon as possible. A medical examination may identify any risks of sexually transmitted infections and pregnancy. You may also request for a rape kit examination to preserve any forensic evidence which may be helpful in prosecuting the perpetrator.
3) You may also call the AWARE Sexual Assault Care Centre (SACC) at 1900-774-5935. Alternatively, you may also reach out to the Samaritans of Singapore if you have suicidal thoughts. It is important that you seek emotional support from someone professional.
Vulnerable girls and women do not deserve to be blamed and should know how to protect themselves. Rape, in any circumstance, is unacceptable. The emotional and psychological damage which follows after any sexual assault case cannot be overstated and it is important that you seek help. For guys, intimacy should never be forced and this is especially so if the other party is inebriated. Remember, it is not okay for a perpetrator to commit sexual assault without the victim’s consent based on some “signals” or “vibes”, especially when she is intoxicated or unwilling.