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Sexual Assault Involving Penetration
Criminal Law
Last updated 15.08.2022
Introduction
Sexual assault involving penetration can be committed both intentionally and unintentionally, especially when one is not careful to ask for consent. This article is about the various forms of sexual assault involving penetration, including information about what to do if you have been sexually assaulted.
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 offence 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.
Cases Concerning Sexual Assault Involving Penetration
- Public Prosecutor v Tan Yew Sin [2023] SGHC 136
In the early hours of 18 May 2018, the accused and the complainant engaged in certain sexual acts. In this instance, the complainant was judged to have had reasonable ability to consent to the sexual acts, whereby the prosecution failed to prove beyond a reasonable doubt that the complainant had no ability to consent.1
- Public Prosecutor v Yap Pow Foo [2023] SGHC 79
In this case, the appellant raped the victim after meeting the victim for the first time at the KTV lounge on the night of 29 January 2017. After the karaoke session, he drove to the apartment of the victim to send her home, before returning later on and sexually assaulting her.2
- Public Prosecutor v BWJ [2023] SGCA 2
In the Prosecution’s case, BWJ’s former girlfriend ended her relationship with BWJ prior to 6 August 2017 (the date of the alleged rape) and BWJ, refusing to accept this fact, turned to violence and raped her on 6 August 2017. The exact date of the end of their relationship was debated upon both in the trial and upon appeal. BWJ was initially acquitted; however, the Court of Appeal overturned this decision and sentenced him to 3 years’ imprisonment and the mandatory minimum 12 strokes of the cane.3
Conclusion
Sexual assault involving penetration is a crime that is not taken lightly in the eyes of the law. If you or anyone you know has been sexually assaulted, it is advisable for you to file a police report. Should you need help in going through the reporting process, our lawyers are available for consultation.
Glossary and Key Terms
Sexual Assault: The term sexual assault refers to sexual contact or behavior that occurs without explicit consent of the victim.
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.
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.
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.
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.
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.
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.
Frequently Asked Questions
Q: What is consent?
A: Consent is an agreement between two people to engage in sexual activity. Consent must be freely given, enthusiastic, and ongoing. It can be given verbally or through clear and unambiguous actions.
Q: What are the signs of sexual assault?
A: The signs of sexual assault can vary depending on the individual and the circumstances of the assault. However, some common signs include:
- Physical injuries, such as bruises, cuts, or torn clothing.
- Emotional distress, such as anxiety, fear, or depression.
- Changes in behavior, such as withdrawing from social activities or becoming sexually promiscuous.
Q: How do I prevent sexual assault?
A: There are a number of things you can do to prevent sexual assault, such as:
- Learn about consent and healthy relationships.
- Be aware of your surroundings and take steps to protect yourself, such as staying in well-lit areas and traveling with friends.
- Report any suspicious behavior to the authorities.
It is important to remember that sexual assault is never the victim’s fault. If you or someone you know has been sexually assaulted, there is help available. Please reach out for support.
References
