The Crime of Voyeurism

There has been a significant increase in voyeurism incidents in Singapore. Easy-to-access, internet spy cameras, and mobile devices make it much easier for perpetrators to breach people’s privacy and physical integrity. Internet Protocol (IP) cameras are commonly used in Singapore homes for security purposes or to monitor children, the elderly, pets and domestic workers.

In March 2020, it came to light that many such security cameras were hacked and the footage shared online. Clips were uploaded onto pornographic sites. The footage included people getting undressed, using the toilet, mothers breastfeeding their babies, and young girls in their underwear in their bedrooms. A group of dedicated hackers was behind the incidents. The group has about 1,000 members all over the world. They operate on a social messaging platform, and members of this platform pay a subscription fee for lifetime access to the content. The group allegedly has a list of more than 50,000 hacked cameras that members can access.

Until January 2020 this type of voyeurism offences was dealt with under s.509 of the Penal Code, “Insult to Modesty of Woman”, s.29 and 30 of the Films Act for making or possessing an obscene film and s.292 of the Penal Code for transmission of obscene material by electronic means. None of these options addressed voyeurism and the distribution of the material sufficiently.  Some of the offences previously used, protected woman only, although it is clear that men can also be victims of voyeuristic acts.

To keep up with modern technology and address the issue of voyeurism more efficiently, s.377BB was included in the Penal Code from 1 January 2020 to provide a specific offence of voyeurism.

What exactly is voyeurism?

Voyeurism can be described as a breach of a person’s privacy or sexual or physical integrity.

S.377BB defines the offence of voyeurism as follows:

• You intentionally observe the victim doing a private act without the victim’s consent, and you know or have reason to believe that the victim does not consent to be observed.
• You operate equipment with the intent to enable yourself or another person to observe the victim doing a private act without the victim’s consent, and you know or have reason to believe that the victim does not consent to you operating equipment with that intention. This is an offence regardless of whether the private act was recorded or not. Watching someone through binoculars, for example, could constitute this offence.
• You intentionally or knowingly record another person doing a private act without the person’s consent, and you know or have reason to believe that the person does not consent to you recording the act. An example would be recording someone in a changing room, changing clothes.
• You operate equipment without the victim’s consent with the intent to enable yourself or another person to observe the victim’s private parts, including genitals, breasts (where the victim is female) or buttocks (exposed or covered) in circumstances where the private parts or underwear would not otherwise be visible, and you know or have reason to believe that the victim does not consent to you operating equipment with that intention. This is regardless of whether the private parts were recorded or not. An example would be using a mobile phone to look under a girl’s dress going up an escalator.
• You intentionally and knowingly record without the victim’s consent the victim’s private parts, including genitals, breasts (where the victim is female) or buttocks (exposed or covered) in circumstances where the private parts or underwear would not otherwise be visible, and you know or have reason to believe that the victim does not consent to such recording.
• You install equipment or adapt or construct a structure or part of a structure with the intent to enable yourself or another person to commit any of the above acts. This refers to installing cameras, adjusting curtains or air vents, for example, to enable the above acts.

The terms “upskirt” or “downblouse” offences are sometimes used to refer to voyeurism.

Punishment for Voyeurism

If convicted of a voyeurism, you can be sentenced for up to two years imprisonment, or a fine, or caning, or any combination. If the victim is younger than 14 years, imprisonment is mandatory, and you will also be either fined or caned.

If you are under 21 years old, you may qualify for probation instead of imprisonment. Although very unlikely, if you are over 21 years old, you may qualify for probation if you can demonstrate an extremely strong propensity for reform.

If you are convicted of voyeurism, you will have a criminal record.

Since s.377BB of the Penal Code is relatively new, it is yet to be seen how the courts will sentence convicted offenders. In a decision just before the introduction of s.337BB, the court gave an indication of what will be taken into account as mitigating and aggravating factors when sentencing.

Possible aggravating factors include planning and pre-meditation, as opposed to an impulsive act carried out on the spur of the moment. The length of time or frequency that the crime was committed, the number of victims and the places where the crime was committed can all be taken into account. The degree of intrusion is always highly relevant. Targeting friends or relatives can also be seen as aggravating, where the perpetrator takes advantage of the friendships or familiarity to commit the offences. Abuse of technology and hiding equipment, and subsequently uploading the material could all be considered aggravating factors when considering an appropriate sentence.

Showing genuine remorse, a plea of guilty, having a mental disorder, or being able to show that the offender acted completely out of character may be taken into account as mitigating factors for sentencing.

If the victim is under the age of 16 years old, the images may be considered child pornography, which carries even harsher penalties.

Are there any defences against a voyeurism claim?

• If you can show that you didn’t have the intent to come into possession of the voyeuristic images or recordings, or you didn’t intend to have access to the recordings you may be successful in your defence. You will have to show that you took steps to avoid possession or access as soon as possible.
• You had reasonable cause to commit a voyeuristic act and had no malice. For example, you confronted a stranger who was busy taking upskirt photo’s, took his phone with the images and kept it to later hand over to the police. You need to show that you did not keep the images for longer than it was necessary.

Other offences related to voyeurism

Distribution of voyeuristic images or recordings – s.377BC

• If you are intentionally and knowingly in possession of an image or recording for the purposes of distribution; or
• you distribute an image or recording of another person without that person’s consent, and you know or have reason to believe that the image or recording was obtained through conduct as described in s.377BB; and
• you know or have reason to believe that the victim does not consent to the distribution, you can be guilty of an offence.

If convicted, you can be sentenced to a maximum of five years imprisonment, or a fine, or caning, or any combination. If the victim is younger than 14 years old, imprisonment is mandatory, and you will be fined or caned.

Possession of or gaining access to voyeuristic or intimate images or recordings – S.377BD

You are guilty of an offence if:

• you have a voyeuristic image or recording in your possession; or
• you have access to such image or recording of another person; and

you know or have reason to believe that:

• such image or recording was obtained through a voyeuristic act; or
• you know that it is an intimate image (section 377BE(5)) or recording;
• the possession or access is without the consent of the person in the image or recording; and
• the possession or access is likely to cause humiliation, alarm or distress to the person in the image or recording.

If convicted under this section, you can be sentenced to a maximum of two years imprisonment, or a fine, or both. If the victim is younger than 14 years old, imprisonment is mandatory, and you will be fined or caned.

Take note, if the image or recording is in electronic form, you are deemed to be in possession if you control access to the electronic version of the image or recording, whether or not you have physical possession of the electronic image or recording.

“Access” includes viewing or displaying the image through an electronic medium, or communicating, sending, supplying or transmitting the image to yourself.

Distribution or threatening to distribute an intimate image or recording – S.377BE

• Anyone who intentionally or knowingly distributes or threatens to distribute an intimate image or recording of another person;
• without that person’s consent; and
• who knows or has reason to believe that the distribution will cause, or is likely to cause the person humiliation, alarm or distress, can be guilty of an offence.

An “intimate image or recording” is defined as an image or recording of:

• a person’s genitals or anal region, bare or covered by underwear;
• a female’s breasts, bare or covered by underwear;
• a person doing a private act.

It includes an image or recording that has been altered in any form that appears to show any of the above mentioned, provided that a reasonable person would believe that it shows the victim’s private parts or the victim in a private act. For example, if a person cuts and pastes, or crops an image of a person’s face onto an image of a body engaged in sexual activity, it could be reasonable for someone to believe that the person was engaging in the sexual act. This would qualify as an intimate image.

If, however, the person’s face is pasted on a cartoon showing sexual activity, no reasonable person will believe it depicts the person engaging in a sexual act, or that it shows the person’s private parts.

If convicted, you can be sentenced to a maximum of five years imprisonment, or a fine or caning, or any combination. If the victim is younger than 14 years, imprisonment is mandatory, as well as a fine or caning.

Whether the new offence and harsher penalties for voyeurism will have an impact on reducing voyeuristic conduct remains to be seen. Although many IP cameras can be at risk, users can do a lot to minimise the risk of being hacked. Always ensure the software is up to date and use strong passwords. Change your password regularly. Always use a trusted brand IP camera with reliable security features. If you are a victim of voyeurism, you should contact the police as soon as possible.

Voyeurism is a serious offence, and a conviction will have significant consequences for the offender. Unfortunately, some youngsters still think of “upskirt’ conduct as pranks and don’t realise that you can be in very serious trouble if caught. It is important to understand the law, and if accused of voyeurism, you should speak to a criminal lawyer with experience in this field of law. An experienced lawyer can review your case and assist with your defence.