Criminal Law Reform: Vulnerable Persons, Definitions of Rape and Suicides

Parliamentary Speech: 6 May 2019

Mr Speaker, I welcome the Criminal Law Reform Bill. As Thomas Jefferson said, laws and institutions must go hand in hand with the progress of the human mind.

I will be addressing three areas of the law reform today: (i) Enhanced Punishments (ii) Abolishment of Marital Rape Immunity and Changes in Definition of Rape and Consent and (iii) Decriminalisation of Suicide.

Extension of Enhanced Punishments for Certain Offences

I wish to commend on the Government’s acceptance of the Penal Code Review Committee’s recommendations relating to the extension of enhanced penalties for offences committed against the vulnerable amongst us, namely, (i) domestic helpers, (ii) vulnerable persons, (iii) persons below 14 years of age, (iv) victims in intimate relationships, and (v) victims in close relationships. The purpose of these sections is clearly to recognise the systemic vulnerability of certain victims, and therefore the need for commensurate enhanced punishment.

However, Mr Speaker, I am confounded by the incongruence between the policy basis underlying the enhanced penalty regime acknowledging an inherent power asymmetry versus the the newly proposed sub-section 73(2) in Clause 15. This sub-section renders the section setting out enhanced punishments inapplicable where the accused person is able to prove that his/her relationship with the victim did not adversely affect the victim’s ability to protect themselves from harm. Similar wording appears in the proposed sub-sections 74A(2A), 74B(3), 74C(3) and 74D(3) found in Clause 18 of the Bill

In practice, this provision could potentially require the victim to prove that he/she could not have done more to protect himself/herself. There are sadly enough cases of domestic worker abuse. One employer was charged last year for having punched her domestic worker so much over the course of a two-year contract such that the latter had become blind in her left eye in addition to suffering from an injured right eye. It is not difficult to imagine a similarly abusive employer, in an attempt to avoid being sentenced with enhanced punishments, citing the exception provided in the proposed subsection 73(2) and claiming that the mere fact of employment did not adversely affect the domestic helper’s ability to raise her arm to stop the punching.

I therefore urge the Ministry that the above mentioned sections [73(2), 74A(2A), 74C(3) and 74D(3)] be supplemented with illustrations to clarify the scope and limits of the new provision, if the provision is not omitted altogether. I do however believe that this should be removed as it inadvertently leads to harsh scrutiny of a victim’s actions which encourages a culture of victim-blaming.

Mr Speaker, equally important to the continued protection of vulnerable persons and groups is that of education and raising awareness. I would like the Minister to clarify on the Ministry’s efforts to work with relevant community partners such as schools, employment agencies, family service centres to train and raise awareness on the new laws and the additional protection offered to the vulnerable that they support.

Abolishment of Marital Rape Immunity and Changes to Definitions of Rape and Consent

Next, I would like to express my full support for the amendment to abolish marital rape immunity — we are sending a strong signal to where we stand as a society with protecting and advancing women’s rights.

Mr Speaker, let me also take this opportunity to commend the expanded legal definition of rape which now uses gender neutral terms and incorporates many more exploitative scenarios. This is a significant change because it acknowledges that men can be victims of sexual harassment and assault too. Not only will male survivors be able to seek legal remedy under this new definition, but this also implicitly acknowledges the unique struggles and social stigmas that male survivors face. As a society, we should move towards de-stigmatising issues related to sexual assault and provide more support to all survivors, regardless of gender.

Mr Speaker, even though the legal barriers for reporting rape are now reduced, there still exists other barriers that discourage rape survivors from actually making a report. For a start, there is an immense informational gap in the definition of ‘consent’ in our laws versus the laypersons’ understanding of the same.

I strongly urge for a clear and positive definition of consent for the purposes of judicial review and public education. The Penal Code Review Committee decided against making changes to Section 90 citing its general ease of application in court. I understand the Committee’s concerns and acknowledge from the briefing (notes) on CLRB that the Government intends to create a new section to set out types of misconceptions of acts that will vitiate consent. However, I am concerned that these measures might be insufficient in addressing the problem at hand.

For example, I know of such a case cited by AWARE’s Sexual Assault Care Centre or SACC. A survivor initially consented to have sex but later withdrew her consent when she realised that the man was too drunk and was being verbally abusive. However, he threatened to hurt her so she eventually complied with his demands for her own safety. When she went to the police, she was told multiple times, I quote, “(but) you did consent initially”, unquote. This discouraged her from formally making a report as she felt she had no case which was inconsistent with the precedence set by case law.

Case law presents a different yet more straightforward definition of consent compared to what is currently defined in the Penal Code. It covers a number of situations where consent is negated. However, the definition of consent as developed by case law is not codified nor easily accessible. I recommend that we adapt Ratanlal & Dhirajlal’s definition of consent*, which was referred to in Pram Nair v PP (2017). For ease of reference, the proposed specific definition of consent for sexual activity should be created under “Sexual Offences” of Chapter 16 in the Code and should be defined as: “Consent is the free, informed and voluntary participation in the sexual activity in question. Lack of resistance and submission to sexual activity, in itself, is not consent as a matter of law.”

[*“[c]onsent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, 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… Consent implies the exercise of free and untrammelled right to forbid or withhold what is being consented to; it is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.” R. Ranchhoddas, D.Keshavlal. Ratanlal & Dhirajlal’s law of crimes: a commentary on the Indian Penal Code, 1860 vol 2 (CK Thakker & M C Thakker eds). Bharat Law House, 2007.]

This encompasses the elements of free exercise of choice, voluntary participation and the exercise of choice based on the knowledge of the significance and moral quality of the act. I also propose that the Government includes a section to set out six specific situations where either there is no consent in law, or no consent is obtained.

Situation 1: Where the consent to participate is expressed under fear of injury or wrongful restraint to the person, or to some other person including the accused. I would like to bring particular attention to the addition the words “including the accused” in to account for the type of situations that AWARE has come across where the accused threatens to harm himself if the complainant does not comply with his demands for sexual intercourse.

Situation 2: Where the consent is given by a person who, 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.

Situation 3: Where the consent is given by a person who is under 16 years of age.

Situation 4: Where a person says or does something to show that they are not willing to continue an activity that has started.

Situation 5: Where the accused causes or induces the complainant to participate in the activity by abusing a position of trust, power or authority. One could argue that this is already recognised in the proposed section 375(3)©on exploitative relationship but that is only for minors. An exploitative relationship can also be a superior co-ercing his subordinate at the workplace into sexual activity.

Situation 6: Where the consent is expressed or implied by the words or conduct of a person other than the complainant. This scenario would be applied to situations that SACC has come across where a wife’s consent is assumed if her husband told another man that he can have sex with her.

Mr Speaker, I urge for more to be done on public education, including comprehensive sex education in schools, to improve the public’s understanding of consent. Sex education programmes need to explicitly discuss the meaning of consent and what it means in practice.

Repeal of Section 309: Decriminalisation of Suicide

Lastly, I would like comment on the decriminalisation of suicide, an issue very close to my heart, given the people I know — far and near — who have contemplated and attempted suicides.

Suicide is a taboo topic in Singapore. This Bill offers us — as a society — an opportunity to break the stigma by having a national conversation about it so that more can come forward to seek help. Because these escalating statistics across all ages of our population are telling us we must: Children aged five to nine calling the Samaritans of Singapore hotline increased by more than 500% in less than 3 years. Suicide is the leading cause of death for those aged 10–29. The number of elderly aged 60 and above who took their own lives peaked in 2017, the highest since suicide tracking started in 1991.

First, Mr Speaker, we must de-link the convenient and linear association between suicide and mental illness. Many studies have conclusively absolved mental illness as the only cause of suicides. Research has shown that mental illness is associated with 62% of all suicides in Singapore. There are two other risk factors that make up the other 38%. First, life events — for the young — relationships, academic stress, national service for the young; for working adults — marital, financial like unemployment or failed business, and legal problems; for the elderly — bereavement, debt, feeling lonely and fear of being a burden are problems for the elderly. Second, physical illness is another risk factor which means that suicide associated with physical illness, not unexpectedly, increases with age.

I wish to, therefore, express my concern that the police referring a person attempting suicide to a medical practitioner may inadvertently categorise all suicide attempters as having mental illness who need a medical “solution” and as such, not be given the optimal and multifactorial support he/she needs at that point of distress, and after.

There were 361 suicides in 2017 according to SOS. The latest number for attempted suicides is not available but in response to a parliamentary question raised in 2015, MSF reported that there were about 1000 cases of attempted suicides each year between 2010–2014. Because suicide is a crime under Section 309, reporting of suicide attempts is mandatory as provided for in the Criminal Procedure Code. This will not be required with the repeal.

The World Health Organisation (WHO) urges society and the individuals themselves not to associate suicide with immorality but to approach it with compassion, which I completely agree. It also said that decriminalisation reduces suicide rates. Yet there have also been studies of seven nations (Canada, England and Wales, Finland, Hong Kong, Ireland, New Zealand and Sweden) that present a contradicting conclusion where suicide rates were actually higher after decriminalisation.

So I reluctantly did a dip test with those around me who have contemplated or attempted suicide. None knew that committing suicide was a crime in Singapore at that point of their attempt, and most added that it would not have deterred them even if they had known it was. Therefore I am also not convinced of the deterrent effect of Section 309 in preventing suicides. In addition, we know only 0.6 percent of reported cases of attempted suicide resulted in prosecution each year between 2013 and 2015 which I surmise that, at least in recent years, our police officers have been taking a compassionate approach in practice anyway, despite suicide being a crime.

Mr Speaker, I think we all agree that a person in distress and attempting suicide should not be treated like a criminal and must be shown care and compassion with the necessary professional and psychosocial support. The repeal of Section 309 to decriminalise suicides most definitely helps to de-stigmatise suicides. However, I am concerned that this repeal is not supported with a clear post-decriminalisation strategy including (a) enhanced psychological first aid training for police and SCDF officers (b) coordination between the Police, SCDF, IMH and support agencies including tracking and monitoring of suicide attempts and support structures to course-correct should suicides go up after decriminalisation.

With the rising numbers of suicides with our young and our elderly, decriminalisation of suicides must not be done without reviewing and rebuilding our systemic response towards suicide attempts. We must do more to raise awareness of suicide risk factors, shift perceptions on mental health and deepen community-based efforts in active monitoring, reporting and help-seeking. We must do more to counter the threats of rising suicides amongst our young and elderly — the latter is likely to rise with our ageing population whilst the former is also predicted to escalate with the unrelenting pace of a fast changing digital-dominant future.

Conclusion

In conclusion, Mr Speaker, the proposed amendments in this Criminal Law Reform Bill demonstrate — to a large extent — that our laws are keeping apace with our aspirations of being a more inclusive society, especially in the greater protection given to the vulnerable such as minors, persons with mental or physical disabilities, domestic workers and sexual assault victims. However, we can and must continue to do more for other minority groups that are still stigmatised by our laws such as 377A. Because through history, we have never made or changed laws only for the majority within our society. Including this Bill.

Notwithstanding the above clarifications, Mr Speaker, I support this Bill.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~Anthea Ong is a Nominated Member of Parliament. (A Nominated Member of Parliament (NMP) is a Member of the Parliament of Singapore who is appointed by the President. They are not affiliated to any political party and do not represent any constituency. There are currently nine NMPs in Parliament.)

The multi-sector perspective that comes from her ground immersion of 12 years in different capacities helps her translate single-sector issues and ideas across boundaries without alienating any particular community/group. As an entrepreneur and with many years in business leadership, it is innate in her to discuss social issues with the intent of finding solutions, or at least of exploring possibilities. She champions mental health, diversity and inclusion — and volunteerism in Parliament.

She is also an impact entrepreneur/investor and a passionate mental health advocate, especially in workplace wellbeing. She started WorkWell Leaders Workgroup in May 2018 to bring together top leaders (CXOs, Heads of HR/CSR/D&I) of top employers in Singapore (both public and private) to share, discuss and co-create inclusive practices to promote workplace wellbeing. Anthea is also the founder of Hush TeaBar, Singapore’s 1st silent teabar and a social movement that aims to bring silence, self care and social inclusion into every workplace, every community — with a cup of tea. The Hush Experience is completely led by lovingly-trained Deaf facilitators, supported by a team of Persons with Mental Health Issues (PMHIs).