General Overview
There are various forms of sexual assault mentioned in the Penal Code 1871. One such form is mentioned under section 376. The offense provided is known as sexual assault involving penetration. Sexual assault involving penetration is different from the offense of rape, which is one of the highest categories of sexual assault. The gender of the offender is irrelevant for the commission of the crime as mentioned under the different subsections of section 376 of the Penal Code.
What is Sexual Assault Involving Penetration?
The explanation of what constitutes sexual assault involving penetration is given under section 376(2). It includes three scenarios:
a) If a person sexually penetrates the vagina or anus of another person. Such penetration can be done with any part of the body or anything else. If the offender is a man, the body part used should be other than the penis.
b) If a person causes a man to penetrate the vagina, anus, or mouth of another including the person, with the man’s penis.
c) If a person causes another to sexually penetrate the vagina or anus of any other person including the victim or the offender with any part of the body or anything else. If the victim is a man, the body part caused to be used should be other than the penis.
Any of these three scenarios can constitute the offense of sexual assault involving penetration if the victim did not consent to the penetration. If the victim is below 14 years of age, consent to penetration is irrelevant to constitute the offense.
Punishment for the Offense of Sexual Assault Involving Penetration
The general punishment for sexual assault involving penetration, without any aggravating factors, is imprisonment for a period of up to 20 years and a fine or caning. This is mentioned under section 376(3) of the Penal Code 1871.
Aggravating Factors
The aggravating factors that can attract harsher punishments are mentioned under section 376(4). The factors are:
a) If the offender voluntarily causes hurt to any person to commit the crime or to facilitate the commission of the crime.
b) If the offender puts any person in fear of death or fear of hurt to himself or any other person to commit the crime or to facilitate the commission of the crime.
c) If the victim is below the age of 14 years and the offense is committed without consent.
d) If the victim is below the age of 14 years and the offender had a relationship with the victim that was exploitative.
Punishment for Aggravated Form of Sexual Assault Involving Penetration
If either of the aggravating factors is involved in the crime, the punishment for the offense will be as according to section 376(4) of the Penal Code. The minimum imprisonment period is 8 years and can extend up to 20 years. The offender will also be liable to caning with a minimum of 12 strokes.
Defences Available
Section 376(5) provides for what will not constitute an offense of sexual assault involving penetration.
a) If penetration is committed on one’s spouse with their consent.
b) If it can be proved that because of a mistake of fact in good faith, the offender believed that the victim did consent to the penetration and that the victim was not below the age of 14 years. The burden of proof lies with the offender.
Section 376(6) provides for what will not constitute an aggravated form of sexual assault involving penetration. If the charges against the offender are under section 376(4)(b) which states that the crime was committed against a victim below the age of 14 years without consent, and it can be proved that because of a mistake of fact in good faith, the offender believed that the victim had given consent, then the offense would not fall under the aggravated form of sexual assault involving penetration. The burden of proof lies with the offender in this defence as well.
Sentencing Framework
A framework for sentencing for the offense of sexual assault involving penetration was given by the court in the case of Pram Nair v Public Prosecutor [2017] SGCA 56. The framework which was given was not for all forms of sexual assault involving penetration but only for penetration of the vagina using a finger. Three bands were established by the court with the starting sentence for each band being lower to reflect the lesser gravity of the offense. Thus, the lower the band, the lesser the gravity of the crime. The number of aggravating factors and other circumstances involved in the crime would result in the offense falling under the higher bands.
1) Sentencing under Band 1: Imprisonment for a period between 7 to 10 years with 4 strokes of the cane.
2) Sentencing under Band 2: Imprisonment for a period between 10 to 15 years with 8 strokes of the cane.
3) Sentencing under Band 3: Imprisonment for a period between 15 to 20 years with 12 strokes of the cane.
For example, if the crime involved any of the aggravating factors mentioned in section 376(4), such cases would fall within Band 2. If there are additional aggravating factors, then Band 3 would be applicable.
The court also stated that the issue of whether this framework would be applicable, where the penetration of the vagina was done with the use of any other thing than a finger, should be decided on another occasion.
Glossary
1) Sexual Assault: The term sexual assault refers to sexual contact or behavior that occurs without 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) 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.
4) 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.
5) Exploitative Relationship: Exploitative relationships consist of one-party taking advantage of another, using an imbalance of power to control another, or to unrightfully benefit from another’s vulnerabilities.
6) 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.
7) Burden of Proof: Burden of proof is a legal standard that requires parties to demonstrate that a claim is valid or invalid based on facts and evidence presented.
Cases Concerning Sexual Assault Involving Penetration
1) BOX v Public Prosecutor [2022] SGCA 33
In this case, the appellant started sexually abusing two girls, one 10-year-old and one between eight and nine years of age. After the appellant and the victims’ mother started their relationship, the appellant spent many nights in the flat in which the victims lived. Subsequently, he moved into the flat permanently. The appellant was, in effect, the father figure for both victims. The appellant requested a reduction in the Judge’s overall sentence of 17 years in prison and 24 strokes for two counts of outrage of modesty of individuals under the age of 14 and two offenses of sexual assault by penetration of a child under the age of 14, to which he had pled guilty. In addition, the appellant had agreed to have five counts considered in the sentencing process. The court determined that the indicative starting sentence would still fall within the upper end of Band 2 or the lower end of Band 3 of the sentencing framework due to several other offense-specific aggravating factors such as the victims’ young age, vulnerability, abuse of trust as a stepfather, and exposure to the risks of contracting sexually-transmitted diseases. The appeal was thus dismissed.
2) Pram Nair v Public Prosecutor [2017] SGCA 56
In this instance, the victim was so intoxicated that she was barely conscious, and the appellant had penetrated her with his finger and raped her while they were on the beach. The appellant contended that the victim was not as drunk as she claimed and that their sexual conduct, which included some foreplay, was consensual. The judge convicted the appellant of rape and sexual assault involving penetration and ordered the punishments to run consecutively. The appellant’s total punishment was 11 years and 19 days in prison and 12 cane strokes. This sentence was appealed against. The court after considering all the evidence and hearing all the witnesses established the sentencing framework for sexual assault involving penetration of the vagina using a finger. Finally, the court found no reason to overturn the appellant’s convictions for rape under section 375(2) and sexual assault by penetration under section 376(2)(a) and punishable under section 376(3). The conviction was upheld, and the appeal was dismissed. The appeal against the sentence on the charge of digital penetration was permitted, and the court, like the previous judge, ordered that both sentences be served consecutively. As a consequence, the entire jail sentence stayed at 11 years and 19 days, but the total amount of caning strokes was lowered from 12 to 10.
3) Public Prosecutor v Tan Meng Soon Bernard [2018] SGHC 134
At various locations, the accused performed fellatio on several minor boys. The accused recorded and uploaded photos and videos of himself in the act to his Facebook Messenger account at times. The accused pled guilty to five counts of sexual assault by penetration of a child under the age of 14, an offense punishable under section 376(4)(b) of the Penal Code, and was found guilty. In addition, the accused agreed to 20 additional counts being considered in the sentencing process. For each of the five offenses, the court sentenced the offender to 13 years in jail and 12 cane strokes. Two terms of imprisonment were to be served consecutively, with the remaining sentences to be served concurrently. As a consequence, a sentence of 26 years in prison and 24 cane strokes was imposed, effective from the date of initial detention on October 3, 2015.
4) Public Prosecutor v BQW [2018] SGHC 136
BQW, the offender, was accused of sexually assaulting the granddaughter of a restaurant’s owner while working as a delivery driver. The assaults began in September 2015 and lasted for over 15 months. The Victim was seven years old at the time of the first offense, and BQW was 57 years old. The accused did, in many instances, penetrate the vagina of a girl under the age of 14 with his finger, without her consent, and therefore committed an offense under section 376(2)(a) and punishable under section 376(4)(b) of the Penal Code. The court sentenced the accused to a total of 20 years in jail. Because BQW was over 50 years old, no caning was imposed. The prosecution subsequently filed an appeal against the sentencing decision. The court believed that a total term of 20 years in jail was not excessive, and the Defense had even argued that such a punishment was reasonable. The court also believed that such a combined sentence was appropriate under the circumstances.
5) Public Prosecutor v AUB [2015] SGHC 166
The accused, who was 44 years old and working as a deliveryman at the time of the offenses, was the victim’s biological father. The victim was between the ages of 12 and 13 at the time of the offenses. The accused admitted to two offenses, including sexual assault by penetration on a girl under the age of 14 by putting his middle finger into her vagina without her consent, and thereby committing an offense under section 376(2)(a) of the Penal Code punishable under section 376(4)(b). The judge sentenced the accused to 12 years in jail and 12 cane strokes for the first offense, and one year in prison for the second offense. With effect from the day of remand, the judge ordered that both sentences be served consecutively.
