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General Overview
Men could not be rape victims until the new Criminal Law Reform Act (CLRA) 2019 went into effect on January 1, 2020. In Singapore, both men and women can now be considered rape victims. However, because rape is defined as the use of one’s penis to penetrate another person, only men may be prosecuted for it. If the sexual assault was perpetrated by a female offender, she might be prosecuted with sexual assault including penetration under Penal Code section 376, which has the same maximum penalties as rape.
Explanation of Rape under Penal Code
Rape occurs when a male uses his penis to penetrate a woman’s vagina, any person’s anus or mouth without their consent. If the victim was under the age of 14 at the time of the occurrence, penile penetration will still be considered rape, whether or not the victim consented to the conduct.
Rape is widely recognised in Singapore and many other nations across the world as compelling an unwilling partner to engage in sexual intercourse or conduct sexual actions against their will. Section 375 of the Penal Code defines rape as –
a) any male who inserts his penis into a woman’s vagina; or
b) any male who penetrates another person’s anus or mouth with his penis (male or female).
In each of the aforementioned situations, the act of penetration must be performed without the other person’s consent, and whether or not consent was provided is irrelevant if the other person is under the age of 14.
Difference between Rape and Sexual Assault by Penetration
It is significant to highlight that according to the Penal Code, rape only happens when a man’s penis enters a person’s vagina, anus, or mouth. This distinguishes sexual assault by penetration from rape since the latter relates to using digits (i.e., fingers) or an object (e.g., sex toys). This distinction is crucial since rape carries a harsher sentence than sexual assault by penetration.
Explanation of Consent
When someone voluntarily gives permission for a sexual act, such action is referred to as consent. However, if the person was intoxicated or under the influence of drugs, their voluntary consent is invalid. This is because, when intoxicated or under the influence of drugs, the person could not have grasped the nature and implications of the permission. Additionally, a person cannot provide their permission if the offender makes a threat to harm them.
Explanation of Exploitative Relationship
In accordance with section 377CA of the Penal Code, the court will decide whether a relationship with a person under the age of 18 constitutes exploitation of the minor after taking into account several elements. These elements are:
a) the age of the minor;
b) the age gap between the offender and the minor;
c) the nature of the relationship;
d) the degree of control or influence exercised by the offender over the minor.
The following are examples of exploitative relationships:
a) a teacher-student relationship, but also involves the school’s administrative personnel;
b) a mentor-mentee relationship in the fields of music, athletics, or religion;
c) an attorney-client relationship, including an advocate, solicitor, or counsellor;
d) a parent-child relationship, including stepparents, foster parents, or guardians;
e) a doctor-patient relationship, including a psychologist or a practitioner of traditional Chinese medicine;
f) the offender works as a custodial officer at a facility where a minor is detained.
Typically, the court must decide how much control the criminal had over the victim in rape cases if the victim is a minor. It will be assumed that there is an exploitative relationship until it can be shown otherwise.
Women as Offenders
A woman cannot be an offender under this section. Only a man who uses his penis to penetrate a woman’s vagina, another person’s (male or female) anus, or another person’s mouth is considered to have committed rape, according to the unambiguous language of section 375 of the Penal Code. But if a woman coerces a man or another woman into having intercourse without their consent, she will be penalised under a different law, probably section 376 of the Penal Code, which deals with sexual assault by penetration.
Marital Rape
In Singapore, males who rape their spouses may be found guilty. Men were often protected from being convicted of rape in marriage before the new regulations in the CLRA went into effect on January 1, 2020. Men may now be charged with rape if their wives refused to provide consent for penile penetration.
Aggravated Form of Rape
Aggravated rape occurs when a perpetrator:
a) voluntarily hurt someone else or makes threats to harm or kill them or anybody else in order to commit rape;
b) rapes a minor under 14 without the consent of the victim; or
c) rapes a child under the age of 14 when the offender is in an exploitative relationship with the victim (even if that person had consented to the act).
Punishment for Rape
- General Punishment – Offenders who are found guilty of raping a victim who is 14 years of age or older face a maximum sentence of 20 years in prison as well as a fine or caning.
- Punishment for Aggravated Rape – On the other hand, those found guilty of aggravated rape will get a minimum of 8 years in prison and a maximum of 20 years in prison as well as at least 12 canings.
Arrestable Offence
Rape, including aggravated rape, is a crime that can result in arrest without a warrant. An offence that allows for the arrest of a suspect without a warrant is known as an arrestable offence. For instance, a man may be detained without a warrant if the police have reason to believe he committed rape. After the suspect has been detained, the police or the court will determine whether to grant him bail.
Criminal Record for Rape
A person with a rape conviction will have a criminal record. The possibility for the offender to have his rape offence be considered spent is forfeited. This indicates that the perpetrator’s rape offence is often irreparable. Until he passes away or becomes 100 years old, his rape offence will remain permanently on his record. Despite this, the offender has the option to request that the record be regarded as spent by the Commissioner of Police. The Commissioner of Police will take into account these factors in deciding whether to grant the application:
a) the applicant’s behaviour after the conviction;
b) the severity of the term imposed for the conviction; and
c) the seriousness of the rape conviction.
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) Voluntarily Causing Hurt (VCH): When a person does an act that causes hurt to a person while intending to cause hurt to that person, or knowing that he is likely to cause hurt to that person.
4) 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.
5) 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.
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) Criminal Record: When a crime is committed, registrable or otherwise, the offender will be subject to punishment as well as a potential criminal record. Registrable crimes are crimes which are listed in the First and Second Schedules of the RCA.
8) Criminal Record being Spent: This means wiping clean one’s criminal record.
Cases Concerning Rape
1) Muhammad Anddy Faizul bin Mohd Eskah v Public Prosecutor [2020] SGCA 113
A total of 68 counts against the appellant stemmed from sexual offences involving 19 victims. He admitted admission to and was found guilty of nine offences, the remaining charges were taken into account while determining his sentence. Three sentences were given successive execution dates by the High Court Judge resulting in a final sentence of 22 years in jail and 24 canings. These charges led to the three consecutive sentences:
a) A charge of the fifth victim’s aggravated statutory rape is punishable by the Penal Code’s sections 375(1)(b) and 375(3)(b).
b) A charge of the sixth victim’s penile-oral penetration during a sexual assault punishable under Penal Code sections 376(1)(a) and 376(3).
c) A charge of penile-anal penetration sexual assault against victim number 11 was punished under section 376(1)(a) of the Penal Code, read in conjunction with section 376(3).
The remaining accusations pertained to rape, statutory rape, and sexual assault offences. The Appellant was an inexperienced criminal. He was close to 16 years old when the first offence occurred, and 18 years old when the most recent offence occurred. In this appeal, the appellant made two submissions. First, he claimed that the Amended Statement of Facts had several contradictions and inconsistencies and that he had been denied the chance to review it before entering a guilty plea. Second, he said that the penalty was too harsh. The court concluded that the Appellant’s appeal had no merit after carefully examining the written and oral arguments made by the parties.
2) Isham bin Kayubi v Public Prosecutor [2021] SGCA 22
After a trial, the applicant was found guilty of four counts of rape and two counts of penetration-related sexual assault. These crimes were perpetrated against two females, both 14 years old. On both victims, the applicant used the identical method. Under the guise of promising them a job, he enticed the victims to his apartment where he then raped them and had them fellate him under duress. Additionally, the applicant captured these sexual actions on tape. He pressured and abused one of the victims once more by threatening to release the aforementioned footage. At the conclusion of the case, the judge found the applicant guilty of all six accusations. The judge concluded that there was abundantly clear objective proof that the applicant had committed the required sexual acts on the two victims, including films of the attack that he had himself filmed. The Judge also determined that both victims were reliable witnesses who gave largely consistent testimony. The applicant was sentenced to a total of 32 years in prison and an additional term of 12 months in prison in place of caning after being found guilty after a trial on four counts of rape under section 375(1)(a) of the Penal Code and two counts of sexual assault by penetration under section 376(1)(a) of the Penal Code. The applicant filed an appeal against his conviction and sentence on the basis that the conviction was unreasonable and that his sentence was manifestly excessive. The appeal was dismissed by the court.
3) Public Prosecutor v Ng Yi Yao [2021] SGHC 295
The victim (V) was a social escort at the time. V entered the Harbour Ville Hotel by herself. To wait for a customer who was expected to come at 8.15 p.m., she reserved a room for two hours and was given Room 301. The client, who was the defendant, introduced himself as “Ivan”. The accused introduced himself to V as a police officer when they were in Room 301. The accused recorded a voice recording of his talk with V while they were in Room 301 using his phone. They had penile-oral and penile-vaginal sex, among other sexual acts. The accused then gathered with V at the hotel’s door and paid her $40. The prosecution said that the accused planned to force V into having sex with him by arranging to get her sexual services while knowing he lacked the funds to pay her the agreed-upon cost. V allegedly urged the defendant to pay her $450 charge when they were in Room 301, according to the Prosecution. V obeyed the accused’s commands out of fear when he introduced himself as a police officer and warned her that serving as a social escort was wrong. Five charges were brought against the defendant. According to Section 170 of the Penal Code, impersonating a public official was the initial accusation. According to Penal Code Section 375(1)(a) and punishable by Section 375(3)(a), the second and fourth counts were both for aggravated rape. Charges of aggravated sexual assault by penetration under Section 376(1)(a) of the Penal Code, punishable under Section 376(4)(a), were made in the third and fifth cases. The prosecution’s case against the accused was determined to be beyond a reasonable doubt by the court. The two counts of aggravated rape and the two counts of aggravated sexual assault by penetration resulted in the defendant’s conviction. His punishment included an overall jail term of 18 years and 24 strokes of cane.
