Criminal justice Criminal law

Singapore’s New Voyeurism Offence: Time for Victim-Specific Considerations in Sentencing? | Symposium on Criminal Law Reform Act 2019 | By Bozy Lu

Bozy Lu graduated with a L.L.B (Hons) from the Faculty of Law at the National University of Singapore and a B.A (Hons) from Yale-NUS College with a major in Psychology. Her research interests include neurocriminology, youth delinquency and mental health advocacy. She is currently a Practice Trainee, focusing on community litigation and dispute resolution. Bozy is grateful to Daryl Yang and Jack Lee for their comments on this piece.

Photo by Kat Jayne from Pexels.

Content warning: Sexual violence

“I never felt more violated or helpless in my life. Initially, I was embarrassed but now I just feel angry when I see this injustice happening to other women. It is humiliating to have my modesty peddled by perverts.” Like many other survivors of voyeurism, Michelle continued to struggle with the trauma of the violation of her dignity even years after the incident. Unfortunately, the number of such cases, and accordingly the number of victims, has increased over the years. In 2013, the number of voyeurism cases in Singapore involving hidden cameras rose from about 150 to about 230 in 2017.[1] In 2019, a series of voyeurism incidents were reported on university campuses and at least 15 illicit Telegram chat groups such as Nasi Lemak and SharingIsCaring were set up to share pornographic photos and videos, such as that of young girls showering and upskirt photos involving known local victims.

In response to this troubling trend, Parliament introduced the new offence of voyeurism which imposes more severe punishments with the passage of the Criminal Law Reform Act 2019.[2] In line with these encouraging developments, this post suggests that courts should take more seriously the harm suffered by victims of such offences in the sentencing process. A review of existing case law highlights that the impact of the offence on the victim is often not considered. It is proposed that the harm suffered by victims should be given greater weight in criminal sentencing, particularly through the use of victim impact statements.[3]

New Voyeurism Offence

Prior to the Criminal Law Reform Act 2019, voyeuristic offenders in the past have typically been prosecuted under the now-repealed section 509 of the Penal Code,[4] which carried a maximum imprisonment term of one year, a fine or both. Section 509 prohibited the intention to insult and the act of insulting a woman’s modesty by word, sound, gesture or the exhibition of an object.

The new offence of voyeurism now appears as section 377BB of the Penal Code, which criminalizes a person who (a) intentionally observes another person doing a private act, without that person’s consent; and (b) knows or has reason to believe that another person does not consent to being observed. As defined in section 377C(3)(f) of the Penal Code, a person is doing a private act when, under the pretext of having a reasonable expectation of privacy, they are (i) in a state where their genitals, buttocks or breasts (if the person is a female) are exposed or covered only in underwear; (ii) using a toilet, showering or bathing; or (iii) doing a sexual act that is not of a kind ordinarily done in public. An offender convicted under section 377BB may face a maximum imprisonment term of two years, a fine, caning or any combination of such punishments. As there have not yet been any reported judgments on this offence, this post will rely on prior cases involving section 509 to evaluate the current sentencing practice with respect to voyeuristic acts.

Current Sentencing Considerations in Voyeurism Cases

In the leading High Court case of PP v Chong Hou En [2015] 3 SLR 222 (“Chong Hou En”), Chan Seng Onn J elucidated that the sentencing guidelines for voyeurism cases are general and specific deterrence. The court will take into account the following non-exhaustive list of considerations, as summarized in The Sentencing Practice in the Subordinate Courts[5] as well as several reported decisions:[6]

  • Offence-specific factors
    • Whether there was pre-meditation and/or careful or high degree of planning involved in the commission of the offence.
    • Whether the offender took positive action to conceal himself.
    • Whether devices such as video-camcorder, mobile phones, digital cameras were used.
    • The potential of circulation of video-recording and/or photographs.
  • Victim-specific factors
    • The degree of intrusion, i.e., whether the victims were in full nudity during their private moments or only the thighs and undergarments were seen or captured.
    • The number of victims involved as well as the age of the victims.
    • The offender’s relationship with the victim and the location of offences.
  • Offender-specific factors
    • Whether the offender’s pattern of offending was prolonged and persistent.
    • Whether the offender had a psychological condition and the manner and extent of the mental disorder’s relevance to the offence committed.
    • Whether the offender had pleaded guilty to the offence.
    • Whether the offender had any antecedents.
    • Proceeded with and taken-into-consideration (TIC) charges.

However, while this list of factors is laudably extensive, it focuses largely on the offence and offender. The harm suffered by the victim is absent from the sentencing exercise. While it is arguable that the degree of intrusion serves as a proxy for the harm suffered by the victim, it is unclear why the court should not directly consider the harm caused to the victim as a sentencing factor. This is particularly since such harm is already considered when sentencing an offender for other sexual offences.

This contrast came to the fore in the recent case of GCO v PP [2019] SGHC 31 (“GCO”). The offender had appealed against his sentences in respect of two charges, one for outrage of modesty under section 354(1) of the Penal Code (touching the victim’s vaginal area from underneath her shorts) and another for insulting a woman’s modesty under section 509 of the Penal Code (peeping at the victim who was showering). In considering the offender’s charge for outrage of modesty, the High Court applied the sentencing framework laid out in Kunasekaran s/o Kalimuthu Somasundara v PP [2018] 4 SLR 580 (“the Kunasekaran framework”). Notably, the Kunasekaran framework considers, among other things, three offence-specific factors: (a) the degree of sexual exploitation; (b) the circumstances of the offence; and (c) the physical or psychological harm caused to the victim. However, with respect to the voyeurism act under section 509, the High Court cited Chong Hou En and focused on the offender’s lack of planning and premeditation in the incident. Even though the offender had seen the victim fully naked, the court in GCO made no mention of the victim’s physical or psychological harm in its sentencing analysis. While this is consistent with sentencing precedents, it raises the question as to whether the harm inflicted on victims of voyeurism should also be taken into account when sentencing those who commit such acts.

Victim’s Harm in Voyeurism Offences

If one’s harm cannot be visualized as a physical mark or witnessed through a mental breakdown (albeit silently embedded in one’s psyche), can one really be considered to have suffered? Perhaps some light could be shed on this conundrum if one steps into the shoes of victims and consider voyeurism from their perspective.

In numerous cases, victims were unwittingly going about their days at public locations such as supermarkets and MRT stations[7] or travelling on escalators at shopping centres[8] when the offenders surreptitiously slipped electronic devices such as mobile phones and camera pens beneath the victims’ skirts to capture obscene photographs and videos. Furthermore, true to the adage that nowhere is safe, in some instances, victims were simply relieving themselves in public toilets or washing up in campus shower rooms when mysteriously-placed devices (and in one case, a mirror affixed by Blu Tack on the wall[9]) entered their sight from an adjacent cubicle occupied by the offenders.[10]

Undesirably, stranger danger is not the only threat that compromises one’s modesty and privacy. In several cases, offenders and victims had interpersonal relationships, such as:

  • a father who stuck out his mobile phone to record a video of his young daughter showering at home, a supposedly safe and secure environment for the family;[11]
  • landlords who peeped at their tenants when they were showering in the sanctity of a home;[12]
  • ex-colleagues who visited the offender’s home but had their private moments filmed in the bathroom;[13]
  • co-workers who shared meals in the same working premises with the offender when he slipped a recording device under their skirts to record videos;[14] and
  • co-workers who shared office changing rooms to suit up for work.[15]

While victims of voyeurism may not suffer physical harm, the immediate and devastating psychological torment that plagues their lives from the revolting incident is no less substantial. Some victims may suffer extreme mental distress such as guilt, depression, loss of self-esteem, helplessness and impaired relationships.[16] Having once been caught off-guard at some of the least expected and suspecting occasions, victims of voyeurism offences may subconsciously find themselves on excessively high alert the next time they visit the same locations or even when they use the bathroom. These anxiety-inducing thoughts may also be buried and not articulated for fear of being labelled as unwarranted paranoia. Furthermore, in cases where the offenders were in a position of trust and at times authority, the emotional trauma suffered by victims after the incident could be gravely aggravated. Moreover, for victims who had videos or photographs of themselves posted online by the offenders, they may fear direct physical attacks,[17] have their reputations damaged, and even find their livelihoods at risk if found out by employers.[18] Therefore, it is submitted that victims’ harm is a significant aspect of criminal justice in voyeurism offences and ought to be adequately accounted for in sentencing.

Including Victim Impact Statements in Addressing Court on Sentence?

In assessing the psychological harm of victims of voyeurism, the court could refer to victim impact statements, which document “any harm suffered by any person as a direct result of an offence” (Section 228(7) Criminal Procedure Code[19]). However, it should be noted that sections 228(1) and (2) of the Criminal Procedure Code direct the Prosecution, in its address to the court on sentence, to include victim impact statements where it sees fit.

A review of reported decisions on voyeurism offences reveals that only one case appears to have featured the use of the victim impact statement – PP v BDN [2012] SGDC 450 (“BDN”). In BDN, the offender, who was the young victim’s father, recorded a video of the victim showering at home. The Court appraised the victim impact statement, dated about two years after the incident, to be “an insightful account of the victim’s feelings and how the incident had affected her” that illustrated “the emotional and psychological scars marked on the Victim”. In sentencing the offender, the Court in BDN took into account the effect of the incident on the victim as seen in the victim impact statement as an aggravating factor.

The inclusion of victim impact statements in sentencing voyeurism offenders offers victims a cathartic medium thorough which their voices are heard and could represent an imperative restorative tool.[20] Further echoing the Court in BDN, former Attorney-General of Singapore Professor Walter Woon in a recent article on sexual misconduct in universities remarked that in cases with identifiable victims, it might be useful to tender a victim impact statement.

However, it is worth noting that the admission of victim impact statements could be controversial if motivated by indiscriminate retaliation that blurs the line between retribution and revenge.[21] Further, the court may be faced with unnecessary public pressure in high-profile cases if victim impact statements are publicized. Procedurally, obtaining victims’ in-depth perspectives could result in delays and cost implications.[22] Above all, perhaps what may be the most unsettling for opponents to this proposal would be the perceived injustice and unfairness to the offender as victim impact statements may be potentially over-emotive or its intemperate style of writing may unduly influence the court.[23]

An Exercise of the Court’s Discretion

In addressing the concerns raised in the preceding paragraph, it is crucial to highlight that the court, when faced with victim impact statements tendered by the Prosecution, must exercise judicial discretion in giving suitable weight to the evidence. Moreover, the court is not oblivious to the extent of harm suffered victims of voyeurism. It has on multiple occasions expressed that it is to be “mindful of the potential trauma and embarrassment that the victims would have to endure”[24], such as “unimaginable shame and distress”[25], in addition to the prospect that “the victim continues to suffer the effects of the crime”.[26] To that end, this post highlights two aspects of the crime to be evaluated in accounting for victims’ harm.

(1) Severity of the Offence

In corroborating victims’ perspectives, the nature of the videos and/or photographs from the offence should be examined objectively. As mentioned by the Court in PP v Yee Chun Wei [2015] SGDC 15, factors to consider include whether the shot was a full-frontal nude one that captured the victim’s face or one of the victim’s undergarments and lower body, as well as the length of the video and whether any attempts had been made to circulate the video. These elements of the crime are likely to directly impact the victims, especially their mental well-being.

(2) Victims’ Personal Attributes

Fundamentally, it must be recognized that victims of sexual offences are not a homogeneous group, and that even in voyeuristic acts that involved similar modi operandi, each victim’s reaction is particular to their own experience. It is acknowledged that the court through its adjudication of cases would become acquainted with archetypal features of criminal violations and their associated impact. Nevertheless, it is earnestly believed that the court will be minded to steer clear of preconceptions of how a victim would typically behave or react in its interpretation of victim impact statements and note the idiosyncrasies of each victim through their writings.[27]

Where victims have developed mental conditions due to the traumatic experience, supporting evidence such as medical reports from psychologists should be appended to the victim impact statements. Additionally, the court should also take into consideration victims’ reactions to offenders when they discovered the voyeuristic acts, such as directly confronting offenders by giving chase and entering into a physical altercation[28], demanding for their videos to be deleted[29], and attempting to remove videos uploaded on to pornographic websites but to no avail.[30] Noting such interactions of victims with the offenders would provide greater insight to victims’ experiences and the harm suffered.

Beyond Court Decisions: Sending A Social Message

In closing, this post advocates for the court, in sentencing offenders under the new section 377BB Penal Code voyeurism offence, to account for more victim-specific factors, such as the physical or psychological harm caused to them. To facilitate this recommendation, it is hoped that the Prosecution will integrate victims’ perspectives into the criminal justice process through including victim impact statements in its addresses to the court on offenders’ sentences.

With harsher punishments under the new voyeurism offence, it is no doubt that a strong message of deterrence is sent to our society, urging anyone with even the slightest inkling to commit such misconduct to refrain from doing so. Beyond legal means, greater social awareness of the trauma and harm that victims of voyeuristic acts suffer could be engendered with public access to victim impact statements (with victims’ full consent). The voices of these victims would hopefully provide a poignant perspective on how serious and deeply pernicious such a crime is, in turn appealing to the moral conscience of potential offenders to desist from voyeurism.

[1] Singapore Parliamentary Debates, Official Report (1 October 2018) vol 94 (Written Answers to Questions for Oral Answer Not Answered by 3.00pm) (K Shanmugam, Minister for Home Affairs and Law).

[2] Act 15 of 2019.

[3] It is not in the ambit of this post to discuss the substantive elements of Section 377BB and the related offences (e.g., Section 377BC on distribution of voyeuristic image or recording). Readers can refer to SMU Lexicon’s piece on this for further reading:

[4] Chapter 224 of the 2008 Revised Edition.

[5] Third Edition, Volume 1 at [606].

[6] For example, PP v Ang Wei Sheng [2016] SGMC 28; PP v Ang Zhu Ci Joshua [2016] SGMC 2.

[7] For example, PP v Tan Huat Heng [2012] SGMC 1; PP v Tan Lian Koon [2015] SGDC 39; PP v Chong Hou En [2015] 3 SLR 222; PP v Clarence Chan Yew Keong [2015] SGDC 186; PP v Ling Chengfeng @ Ling Koh Hoo [2018] SGDC 77; and PP v Koh Rong Gui [2019] SGDC 157.

[8] For example, PP v Ng Jiak Teng [2007] SGDC 115; PP v Soo Ee Hock [2011] SGDC 26; PP v Be Keng Hoon [2014] SGDC 176; PP v Yee Chun Wei [2015] SGDC 15; PP v Chen Wei Han [2018] SGMC 15; PP v Koh Rong Gui [2019] SGDC 157; and PP v Lim Jia Jun [2020] SGMC 16.

[9] PP v Chiu Boon Siang [2008] SGDC 90.

[10] For example, Adrian Tan Chun v PP [2001] SGMC 12; PP v Chiu Boon Siang [2008] SGDC 90; PP v Lim Keng Siong [2013] SGMC 8; PP v Ang Wei Sheng [2016] SGMC 28; PP v Lee Chee Hoong [2017] SGDC 242; PP v Hoon Qi Tong [2020] SGMC 5.

[11] PP v BDN [2012] SGDC 450.

[12] Tan Pin Seng v PP [1997] 3 SLR(R) 494; PP v Sun Qiang [2019] SGMC 8.

[13] PP v Tay Beng Guan Albert [2000] 2 SLR(R) 778.

[14] PP v Ang Zhu Ci Joshua [2016] SGMC 2.

[15] PP v Luo Zhiang [2016] SGDC 115.

[16] Andrea Slane, “Legal Conceptions of Harm Related to Sexual Images Online in the United States and Canada” (2015) 36(4) Child & Youth Services 288–311.

[17] Clare McGlynn and Erika Rackley, “Image-based Sexual Abuse” (2017) 37(3) Oxford Journal of Legal Studies 534–561.

[18] Stuart P Green, “To See and Be Seen: Reconstructing the Law of Voyeurism and Exhibitionism” (2018) 55 American Criminal Law Review 203.

[19] Chapter 68 of the 2012 Revised Edition.

[20] Rita Shackel, “Victim Impact Statements in Child Sexual Assault Cases: A Restorative Role or Restrained Rhetoric” (2011) 34 University of New South Wales Law Journal 211.

[21] Shahrul Mizan Ismail, Halila Faiza Zainal Abidin, and Apnizan Abdullah, “Victim Impact Statement in Criminal Sentencing: Success or Setback for the Criminal Justice Process?” (2017) 8 Current Law Journal xv–xxxiii.

[22] Edna Erez and Linda Rogers, “Victim Impact Statements and Sentencing Outcomes and Processes: The Perspectives of Legal Professionals” (1999) 39(2) British Journal of Criminology 216–239.

[23] Rita Shackel, “Victim Impact Statements in Child Sexual Assault Cases: A Restorative Role or Restrained Rhetoric” (2011) 34 University of New South Wales Law Journal 211.

[24] PP v Ng Jiak Teng [2007] SGDC 115, echoed in PP v Tay Beng Guan Albert [2000] 2 SLR(R) 778.

[25] PP v Chong Hou En [2015] 3 SLR 222.

[26] PP v Hoon Qi Tong [2020] SGMC 5.

[27] Edna Erez and Linda Rogers, “Victim Impact Statements and Sentencing Outcomes and Processes: The Perspectives of Legal Professionals” (1999) 39(2) British Journal of Criminology 216–239.

[28] Adrian Tan Chun v PP [2001] SGMC 12.

[29] PP v Tan Swee Pheng [2015] SGMC 40.

[30] PP v Luo Zhiang [2016] SGDC 115.

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