Cyber-Flashing and Related Offences

Cyber-Flashing and Related Offences

General Overview

Cyber-flashing is the deliberate transmission of unwanted material that may be considered indecent. These may contain images of one’s genitalia, pornography, or other material that may elicit sentiments of disgust in the receiver. In certain cases, engaging in or pursuing cybersex might also be considered a crime. It is, for example, unlawful to create, distribute, import, sell, market, or simply own and download pornographic content. When cybersex is utilized to perpetrate such an offence, it becomes a felony. Other sorts of cyber sexual crimes include cyber extortion and cyber grooming.

Explanation of Cyber-Flashing

The legal term for cyber-flashing under the Penal Code is sexual exposure. Cyber flashing is the unsolicited transmission of genitalia photographs to another person via electronic means. One might be prosecuted with sexual exposure if they are caught cyber flashing. Under section 377BF of the Penal Code, one is guilty of sexual exposure if they:

a) deliberately exposes their own or another person’s genitals to a person for the purpose of receiving sexual gratification or causing humiliation, alarm, or distress to that person with the aim for that person to see their own or another person’s genitals without their consent; or

b) deliberately distributes an image of their own or another person’s genitals to a person for the purpose of receiving sexual gratification or causing humiliation, alarm, or distress to that person with the aim for that person to see their own or another person’s genitals without their consent.

A person who is guilty of either of the acts mentioned above shall on conviction be punished with imprisonment for a term which may extend to one year, with a fine, or with both.

However, if the victim is under 14 years of age, the offender shall be punished with imprisonment for a period which may extend to 2 years and shall also be liable to a fine or caning, if convicted.

Related Offences

1) Distributing or Threatening to Distribute Intimate Image or Recording

A person may be prosecuted under Penal Code section 377BE if he or she deliberately threatens to distribute or distributes intimate images or recordings of another person without his or her consent, knowing or having reason to believe that doing so will cause the other person humiliation, alarm, or distress.

According to this section, an intimate image or recording is one that shows someone’s genital or anal region, whether it is exposed or covered by underwear, their breasts, whether they are exposed or covered by underwear, or someone performing a private act. This includes images or recordings in any format that have been altered to appear to show any of the things mentioned above, but it does not include images that have been altered to the point where no reasonable person would think that they show any of the things mentioned above.

If found guilty, a person might receive a fine, a cane, up to five years in prison, or any combination of these penalties. If the victim is under the age of 14, imprisonment for up to five years is mandatory, and the criminal faces additional penalties including a fine or caning.

2) Criminal Intimidation

If someone makes threats to disclose humiliating images or recordings of the victim with the goal to alarm the other, causing the victim to act in ways they otherwise wouldn’t, or to refrain from acting in ways they otherwise would, then that person may be guilty of criminal intimidation.

A person who is found guilty of criminal intimidation faces up to two years in prison and/or a fine. However, if the offender threatened the victims with the distribution of their incriminating photos or videos while communicating anonymously or by creating a false online persona, they might face an extra two years in prison.

3) Cyber Grooming

Building up a trusting and emotional connection with a youngster online with the purpose of sexual abuse, exploiting, or satisfying one’s desires is known as cyber grooming. Groomers will first contact young people online, sometimes through social media or gaming sites. To win the trust of their victims, they may employ manipulative techniques including appealing to the empathy of the young or flattery. Additionally, they can ask the young individual to meet up or provide sensitive information like their address. Depending on the age of the youngster the offender was grooming online, he or she might be found guilty of a variety of offences.

One may be guilty of grooming a minor under 16 for sexual gratification under section 376E of the Penal Code if:

a) The offender is at least 18 years old and has met or communicated with the victim at least once;
b) Meets with the victim on purpose;
c) Intends to do something to or with them during or after the meeting that would be considered sexually offensive;
d) The victim is under 16 years old at the time of the meeting; and
e) The offender does not reasonably believe that the victim is or above 16 years old.

Up to 3 years in prison and/or a fine are potential consequences for this offence. However, the maximum prison term is enhanced to 4 years if the victim was under 14 years old and the offender had no cause to believe that they were 14 or were older than that.

However, under section 376EA of the Penal Code, a person may be found guilty of exploitative sexual grooming if they were engaging in an exploitative relationship with a youngster who was at least 16 years old but under 18 years old. There is a presumption of an exploitative relationship if the offender is:

  • The parent, step-parent, foster parent, or guardian of the minor;
  • The partner of the parent, foster parent, or guardian of the minor;
  • A teacher or staff at the school the minor attends;
  • A religious, sports or music instructor of the minor;
  • A registered doctor or psychologist treating the minor; or
  • A lawyer or counselor and the minor is the client.

If someone is involved in an exploitative relationship with the minor depends on a variety of circumstances. These factors include the minor’s age, the age gap between the offender and the minor, the type of connection they have, and the level of control or influence they have over them. An offender faces a maximum 3-year sentence in prison and/or a fine if found guilty.

Glossary

1) Cyber extortion: Cyber extortion, commonly referred to as “sextortion,” occurs when the offender demands payment in exchange for agreeing not to release compromising or sexually explicit images or videos of the victim.

2) Exploitative Relationship: Exploitative relationships consist of one-party taking advantage of another, using an imbalance of power to control another, or unrightfully benefiting from another’s vulnerabilities.

3) Morally Offensive: Something that is offensive upsets or embarrasses people because it is insulting.

4) Reasonable Cause to Believe: Reasonable cause to believe means, in light of all the surrounding facts and circumstances which are known, a reasonable person would believe, under those facts and circumstances, that an act, transaction, event, situation or condition exists, is occurring or has occurred.

5) Exhibition: Exhibition means broadcast, transmission, distribution, and communication to the public.

6) Conviction: The outcome of a criminal prosecution which concludes in a judgment that the defendant is guilty of the crime charged.

Cases Concerning Cyber Sexual Offences

1) Public Prosecutor v Lee Seow Peng [2016] SGHC 107

The Accused was 36 years old at the relevant time, whereas the Complainant was just under 13 years old. Through a mobile phone application, the Complainant and the Accused got to know one another. The Complainant responded positively to the Accused’s message requesting her to be his girlfriend. The parties also traded self-portrait photos. The complainant and the accused communicated through text messages about sexual topics between May 27 and May 29, 2012. The Complainant received communications from the Accused specifically about having sex in his automobile. Additionally, they discussed getting together that evening, May 29, 2012. The Accused picked up the Complainant in his Toyota multi-purpose vehicle somewhere in the evening. The Accused parked his vehicle in the Chinese Garden’s public parking lot after driving the Complainant there. Then, after driving the complainant to a McDonald’s drive-through to get some dinner for the two of them, the accused dropped her off at home. The accused sent the complainant several SMS and WhatsApp messages, including one that suggested they meet up to have sex. The accused was charged with 3 distinct charges including one under section 376E(1) of the Penal Code. After hearing the prosecution’s case and the mitigation plea, the court sentenced the accused to 12 years imprisonment and 9 strokes of a cane.

2) Public Prosecutor v Shahrul Nizam Bin Kharuddin [2021] SGDC 67

The victim was a citizen of Indonesia. After interacting on social media, the Accused and the Victim started dating. The victim occasionally visited the accused in Singapore. Their bond started to fray around January 2019 when the Accused started to believe the Victim was cheating on him. The victim traveled to Singapore in March 2019 to see the accused. During one of their sexual encounters on this trip, the accused captured three video recordings of the victim masturbating and fellating him. She permitted the recordings to be made. A few days later, the Victim, who was now back in Indonesia, pushed the Accused to end the relationship. They dissolved their relationship after several disagreements. The Accused messaged the Victim on Whatsapp, demanding to know who the man was that the Victim was cheating him with. The accusation was refuted by the victim. He reacted by saying he was “one button away” from sharing the recordings with the victim’s family, friends, and her ex-husband and his family in a Whatsapp message to the victim. The Victim screenshotted the entire Whatsapp discussion she had with the Accused. The Police were later given access to these screenshots. The Accused was aware that the Victim would become alarmed if the tapes were sent to her family, friends, ex-husband, and relatives. The Accused admitted to one charge under section 377BE(2) of the Penal Code, which is punishable under section 377BE(3) of the Penal Code because the Accused had knowingly threatened to send the victim’s family and friends videos of her engaging in intimate acts on the Accused through Whatsapp messages. She engaged in both fellating and self-masturbation throughout the alleged intimate actions. It was intended to frighten her. After considering all the facts and circumstances of the case, the court imposed a punishment of 10 weeks imprisonment.

3) Public Prosecutor v GED [2022] SGDC 6

A 27-year-old man was the defendant. He had a 30-year-old wife at the time of the relevant event. His wife could have been having an affair, he thought. When he removed her phone from her possession on February 6, 2020, he discovered intimate pictures and videos of her having sex with her supervisor. This proved his suspicions to be correct. He uploaded a private photo of the adulterous act on Facebook six days later after learning of his wife’s adultery and expressing his deep distress. Within a few hours, the post gained a large following on Facebook, with a large number of people sharing and commenting on it. After learning about the post from a friend, the Supervisor immediately filed a police report. Four offences were brought against the defendant after an inquiry. He accepted a plea deal and admitted guilt to two offences. One charge was for stealing the victim’s cell phone, which is a violation of section 380 of the Penal Code. The other charge was for distributing a picture of the victim having sex with the supervisor while having cause to believe that doing so would likely make the victim feel humiliated, which is a violation of section 377BE(1) of the Penal Code. For the purpose of sentencing, the final two counts that were connected to these instances were taken into account. The defence recommended a term of between 5 and 7 weeks in jail, while the prosecution asked for at least 18 months. The defendant received a sentence on December 3rd, 2021, calling for a total of 13 weeks in jail.