Incest and Sexual Penetration of Minors

Incest and Sexual Penetration of Minors

General Overview

In Singapore, it is strictly forbidden for close family members to have sexual relations. Incest is the act of having sexual encounters with a close relative or family member, whether the individual is male or female. Having a sexual connection with one’s parents, kids, siblings, half-siblings, grandparents, and grandchildren falls under this category, regardless of whether the relationship is the result of legal matrimony. Additionally, Singaporean law forbids minors under the age of 16 from giving their permission for sexual actions and imposes severe penalties to dissuade potential offenders.

Explanation of Incest

The offence of incest is explained under section 376G of the Penal Code. Four instances can be categorized as incest as mentioned in this section. It states that A, who is 16 years or above, commits an offence of incest against B, knowing that B is a close family relative if:

a) A penetrates with his penis the vagina, anus or mouth of B, who is 16 years or above and is a close family relative.
b) A sexually penetrates with any part of A’s body or with anything else except for A’s penis if A is a man, the vagina or anus of B, who is 16 years or above and is a close family relative.
c) A cause or permits B, who is a man of 16 years or above and a close family relative, to penetrate with B’s penis, the vagina, anus or mouth of A.
d) A cause or permits B, who is 16 years or above and a close family relative, to sexually penetrate A with any part of B’s body or anything else apart from B’s penis if B is a man, the anus or vagina of A.

Who is a Close Family Relative?

If B is A’s grandchild, kid, sibling, half-sibling, parent, or grandparent, regardless of whether the relationship can be traced back to legal matrimony, B is considered to be a close family relative of A.

Consent Required for Incest?

It is not a defence nor a requirement of the prosecution to establish that B gave his or her consent to the aforementioned acts of penetration.

Punishment for Incest

Section 376G(3) mentions the punishment for incest. A person who commits an incest offence will be penalised with a sentence of imprisonment that might last up to five years.

Sexual Penetration of Minors

This offence is mentioned under section 376A of the Penal Code. Subsection (1) states that A shall be guilty of an offence against B if:

a) A penetrates with his penis the vagina, anus or mouth of B, who is below 16 years of age.
b) A sexually penetrates with any part of A’s body or with anything else except for A’s penis if A is a man, the vagina or anus of B, who is below 16 years of age.
c) A cause or permits B, who is below 16 years of age, to penetrate with B’s penis, the vagina, anus or mouth of another person including A.
d) A cause or permits B, who is below 16 years of age, to sexually penetrate A with any part of B’s body or anything else apart from B’s penis if B is a man, the anus or vagina of any person including A or B.

Consent Required?

It is not a defence nor a requirement of the prosecution to establish that B gave his or her consent to the aforementioned acts of penetration.

Defence for this Crime

Subsection (4) states that no one who commits an act of penetration against their spouse with that spouse’s consent is guilty of the offence described under this section.

Punishment for Sexual Penetration of Minors

Subsections (2) and (3) of section 376A and section 376AA of the Penal Code provide for four distinct punishments for this offence.

1) General Punishment – Anyone found guilty of this offence against a person who is at least 14 years old but under 16 years old faces a sentence of up to 10 years in prison, a fine, or a combination of the two.

2) Punishment for Offender in an Exploitative Relationship – If the offender is in a relationship that is exploitative of B, and the offender commits an offence under this section against B who is at least 14 years old but under 16 years, the offender faces up to 20 years in prison as well as a fine or caning.

3) Punishment if Victim is Under the Age of 14 Years – Anyone found guilty of violating this section’s provisions against a person under the age of 14 is subject to a period of imprisonment that may last up to 20 years, as well as a fine or caning.

4) Punishment for Offender in an Exploitative Relationship where Victim is between 16-18 Years of Age – A person who is guilty of this offence shall be punished with imprisonment for a term which may extend to 15 years, and shall also be liable to fine or to caning.

Sentencing Factors

The court weighs various aggravating and mitigating factors when sentencing offenders who sexually assault minors to determine the most suitable punishment.

Aggravating Factors

1) Exploitative Relationship – The parent-child bond is based on trust, and parents have power over their kids. If a parent has sexually abused their kid, this is a betrayal of trust and abuse of power. Both of these elements are aggravating conditions that may lead to a harsher punishment being imposed.
2) Violence – The use of violence against the victim is also one of the aggravating factors.
3) Pre-Planning – Additionally, higher punishments may be imposed if the perpetrator made preparations to plot the commission of the offence in advance.
4) Vulnerable Victims – Likewise, it is aggravating if the perpetrator acted on a victim who was vulnerable owing to his or her age.

Mitigating Factors

1) Remorse – If the perpetrator sincerely feels remorse for their actions, this may be a mitigating factor in the sentence handed down.
2) Mental or Sexual Disorder – The existence of a mental or sexual disorder in the offender may also serve as a mitigating factor if the disorder interfered with the offender’s capacity to grasp the gravity and significance of their acts at the time the offence was committed.

Glossary

1) Sexual Assault: The term sexual assault refers to sexual contact or behaviour that occurs without the explicit consent of the victim.
2) Penetration: Penetration means vaginal intercourse, cunnilingus, fellatio, or anal intercourse between persons or insertion of the hand, finger, or object into the anus or vagina.
3) 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.
4) Mistake of Fact: A mistake of fact arises when a person does any act but misunderstood some fact that negates an element of the crime.
5) Sentencing Factor: Factors considered in determining sentences for a specific offence.
6) Aggravating Factor: Any fact or circumstance that increases the severity or culpability of a criminal act. Aggravating factors include recidivism, lack of remorse, amount of harm to the victim, or committing the crime in front of a child, among many others.
7) Mitigating Factor: Any fact or circumstance that lessens the severity or culpability of a criminal act. Mitigating factors include the ability of the criminal to reform, mental retardation, an addiction to illegal substances or alcohol that contributed to the criminal behaviour, and past good deeds, among many others.

Cases Concerning Incest and Sexual Penetration of Minors

1) Yap Lee Kok v Public Prosecutor [2021] SGHC 78

On Facebook, the appellant friended the victim. The victim accepted his friend request, and they started corresponding via Facebook Messenger. During their talk, the appellant learned that the victim was a virgin and 14 to 15 years old. The appellant initiated sexual conversations with the victim, misrepresented his age to her as “about 40 years old,” and sent her eight images of his penis. The appellant obtained photographs of the victim’s breasts and vagina in exchange for these degrading images. The subject of having the victim try to fellate him was then brought up by the appellant. He offered that they get together “for a blowjob” even though the victim did not reply, and “continued reiterating the request and offering to transport the youngster to school after their meeting” until the victim finally accepted. The victim was taken to the appellant’s multipurpose vehicle, which was parked on the sixth floor of the Carpark. The victim’s mouth and vagina were both twice penetrated inside the vehicle over around 40 minutes by the appellant. Under section 376A(1)(a) of the Penal Code, the appellant admitted guilt to two counts of sexual penetration of a minor, which is punished under section 376A(2). For accusations involving penile-oral penetration and penile-vaginal penetration that were prosecuted, the judge imposed sentences of 12 months and 18 months in prison, respectively. A total term of 18 months in jail was imposed after both sentences were ordered to run concurrently. The appellant appealed against his sentence for the second proceeded charge involving penile-vaginal penetration. The appeal was dismissed.

2) Public Prosecutor v Muhammad Haiman Bin Samad [2021] SGDC 252

The victim (V) began using WeChat and got to know Haiman. As their dialogue between Haiman and V progressed, it became more sexual. V accepted when Haiman asked her if she wanted to have sex with him as their chats continued. At a landing of a staircase in an HDB building close to where V lived, Haiman and V first had face-to-face contact. Haiman requested V’s permission to suck his penis. V approved. Haiman used his penis to penetrate V’s mouth. A week later, Haiman asked V if she wanted to meet up with him once again. V consented, and the two of them made plans to meet when V got home from school. They crossed paths and proceeded to an HDB building in Singapore’s western region. V was instructed by Haiman to remove her shorts and pants. V obliged and sat down on the stairwell landing step. V then removed her shorts and underwear. Then, with V’s permission, Haiman climbed on top of her and inserted his penis into her vagina. At this moment, Haiman wasn’t using a condom. Haiman ejaculated on the ground after removing his penis from V’s genital area. After getting dressed, Haiman and V talked for a while before departing the area. They talked on WeChat for a few days before cutting off communication. There wasn’t enough evidence to imply that Haiman was intentionally concealing his identity to the point that it would have been challenging to identify him. It must be emphasised that Haiman didn’t seem to have made an effort to determine V’s age. It was openly admitted in the mitigation that Haiman was ignorant of V’s age (at the time of the offences) and only discovered V’s age once the police were investigating him. The Defence claimed that it was fair for Haiman to presume that V was an adult since V had “discussed her prior sexual experiences with her current and then lovers,” as was indicated in the Mitigation. These penetrative actions qualified as offences under section 376A(1)(a) of the Penal Code. Regardless of whether V had given her consent or not, these actions would be illegal because she was under the age of 16. Thus, Haiman received a 14-month prison term as a punishment.

3) Public Prosecutor v ABC [2022] SGDC 40

At the time of the offences, the victim was between the ages of 13 and 14. The defendant, who was 28 years old at the time, was working pro bono as a facilitator for a religious organization’s Children’s Ministry. Around the beginning of 2020, the victim first encountered the defendant when picking up her siblings from a class that the defendant was facilitating. The victim also began volunteering with the nonprofit organisation, and their connection with the accused progressed from there. Soon after exchanging messages on Instagram, the accused and victim switched to WhatsApp. The age of the victim was known to the accused. Soon after, they started dating; the accused and victim kept it a secret. On the first time, the accused groped the victim’s breasts outside of her clothing. The accused’s actions surprised the victim, but she didn’t object since she didn’t want to let him down. The accused then advanced on a second occasion to stroking the victim’s breasts while she was still wearing her clothing (skin-to-skin). On a third occasion, the accused stroked the victim’s vagina while she was wearing garments and her breasts next to each other. With one finger on the first occasion and two fingers on the second, the accused eventually advanced to digitally penetrate the victim. The victim’s mother examined the victim’s phone sometime in June 2020 and discovered that the victim had spoken to the accused. She also saw that the accused had received a video of the victim taking off her clothing. When the victim was questioned by her mother, she afterwards acknowledged having a connection with him. The accused was detained on June 15, 2020, following the victim’s police report on him on June 14. The accused was charged with seven counts, including one count of sexual penetration of the vagina with two fingers when the victim was 14 years old under section 376A(1)(b) of the Penal Code, punishable under section 376A(2), and one count of sexual penetration of the vagina with a finger when the victim was under 13 years old under section 376(2)(a) of the Penal Code. Three cane strokes and a six-year jail term were imposed on the accused.

4) Public Prosecutor v BSV [2020] SGHC 115

The accused at the time 48 years old and the complainant were alone at home in the early morning hours of March 27, 2016, then 23 years old. The accused’s daughter is the plaintiff. According to the prosecution, the accused committed several significant sexual and physical offences against the complainant somewhere between 3 am and 6 am. The offences included outrage of modesty, by touching the complainant’s vagina with his hand intending to outrage her modesty, an offence punishable under section 354(1) of the Penal Code, a charge of aggravated sexual assault by penetration, by penetrating the mouth of the complainant with his penis without her consent, and to facilitate the offence, putting the complainant in fear of death, by placing a penknife at her neck an offence under section 376(1)(a) and a charge of aggravated rape, by penetrating the vagina of the complainant with his penis without her consent, and to facilitate the commission of the offence, putting the complainant in fear of death by holding a penknife in his hand, an offence under section 375(1)(a). The accused demanded a trial for all of the charges. In his testimony, he acknowledged having sexual contact with the complainant twice and participating in other sexual activities. The complainant, he claimed, initiated the sexual contact and gave her consent to all of the activities. The defence’s position was that the accused was only guilty of the offence of incest under section 376G of the Penal Code concerning the two aggravated rape counts. Concerning the aggravated sexual assault by penetration charge and the aggravated outrage of modesty charge, as those were consensual acts, the accused was not guilty of them. As for the remaining five charges, the defence’s case was one of denial. The complainant’s account of how the offences were committed was accepted by the court. Her testimony supported each element of the offences and demonstrated that she had not given her permission for the sex acts or sexual contact. Her evidence was credible and supported by corroborating evidence. On the other side, the accused’s defence was turned down by the court. In light of this, the prosecution had established its case against the accused on all nine charges beyond a reasonable doubt. The court found the accused guilty and convicted him of all nine charges.