Parliamentary debate on Section 377A, part 2: Ho Peng Kee

Editor’s note: Only the parts of the speech touching on Sections 376A, 376B, 376C, 376D, 376E, 377, 377A and 377D are archived here. Other portions are [snipped].

Source: Parliamentary Reports

22 October 2007, 3:40 pm, in Parliament

PENAL CODE (AMENDMENT) BILL

Order for Second Reading read.

The Senior Minister of State for Home Affairs (Assoc. Prof. Ho Peng Kee): Mr Speaker, Sir, I beg to move, “That the Bill be now read a Second time.”

Sir, the Penal Code is the primary criminal statute in Singapore with more than 500 provisions. It is a key part of the corpus of Singapore’s laws which have served us well in keeping our law and order situation under control all these years. As a major criminal law statute, its provisions reflect our society’s norms and values. This review is the most comprehensive undertaken since 1984, when we amended the Penal Code to introduce mandatory minimum punishment for several serious offences. Now, we are amending the Code so that it remains effective in a dynamic and changing environment that remains challenging.

Working closely with the Attorney-General’s Chambers, Ministry of Law and other Government agencies, we updated the Code’s provisions to reflect present realities, addressing the changing nature of crime and ensuring that there is adequate protection for the more vulnerable members of our society, such as our young and mentally disabled. Stretching over two to three years, the process was a measured and deliberate one, taking into account, where applicable, legislative changes in other jurisdictions. In amending some provisions, we also took into account comments made by the Judges in their judgments.

Consultation process

Sir, the amendments now before the House have been refined through a robust process of public consultation, with inputs from members of the public, professional organisations, as well as stakeholders of our criminal justice system. During the consultation period, we received about 300 responses through multiple points of engagement, such as the REACH e-portal, letters and articles to the media, email messages, as well as input at three focus group discussions with people from different walks of life. And, thereafter, continued to receive more feedback. In addition, institutions, such as the Law Society, Subordinate Courts and Singapore Academy of Law, gave valuable input. It is heartening that Singaporeans took an active interest in this review. I say “thank you” to all of them for contributing time and effort to make this consultation exercise a very meaningful one.

We carefully considered every feedback received, holding discussions with the relevant agencies to explore the ideas, suggestions and views that surfaced. Indeed, as rightly pointed out by some contributors, this is a valuable process which has helped to further refine and improve the proposed amendments. About 30 provisions were further amended as a result of suggestions received during this consultation period. In all, this review will see 77 provisions expanded, updated or clarified, four provisions repealed, and 21 new offences enacted to address identified gaps in the law, strengthen enforcement capability and accord better protection to vulnerable persons. In addition, we have undertaken a comprehensive and holistic review of all the penalties set out in the Code.

Let me now cover the key features of the Bill.

[snip]

New section 376C (Commercial sex with minor under 18 outside Singapore)

Sir, another provision with extra-territorial application is the new provision on commercial sex with minors. Currently, Singaporeans who have sex with young persons in other countries cannot be prosecuted under our laws prohibiting sex with young persons, as these laws do not extend jurisdiction over them. In this review, we took cognisance of the fact that similar laws in countries such as Australia, Canada, Hong Kong, Japan, New Zealand, UK and US had extra-territorial effect.

The new section 376C will have extra-territorial effect so that it would be an offence for Singapore citizens and Permanent Residents to solicit or engage in commercial sex with minors under 18 in other countries. Sir, in doing so, we join other countries in doing our part to prevent the sexual exploitation of children around the world by denying sex tourists a safe haven back home if they exploit children in these countries.

It will not be easy to enforce this provision. Indeed, it will be challenging to gather the necessary evidence as foreign witnesses would have to be interviewed including, very likely, the victim concerned. This would be exacerbated by factors such as the language barrier, and the cooperation level of local officials. However, notwithstanding these constraints and difficulties, the new offence will be a strong signal that Singapore does not condone such heinous acts, an expression of societal value in this regard. But we know full well that the enactment of extra-territorial laws is only part of the solution. In order that we successfully reduce the incidence of child prostitution in other countries and worldwide, host countries must themselves enact tough laws against child prostitution and enforce them strictly. Other stakeholders must also chip in with relevant publicity and education and extend counselling and practical help to victims who come forward or who are identified.

Penal Code to enhance protection of vulnerable persons as victims of crime

Sir, whilst the Penal Code protects society generally, we should be mindful that some amongst us are more vulnerable to crimes than others. These include persons of a young age and persons with mental disability.

Minors

The amendments we are making to our laws to further protect minors from sexual abuse received strong support from many quarters. Let me mention the key ones.

Sexual penetration of minor under 16

Feedback received highlighted concerns over female sexual abuse of male minors. On further consideration, we accept that these younger male children could be exploited by older women. Consequently, we have decided to make it an offence for a woman to engage in penile penetrative sexual acts with a male minor under 16 and to have commercial sex with a male minor under 18. Section 376A will be introduced to make oral and anal sex, whether consensual or non-consensual, with a minor under 16, an offence, attracting an imprisonment term of up to 10 years or fine or both. This new offence will also cover other penetrative acts such as penile-vaginal penetration and penetration of the anus or vagina by any part of the body or object. Causing a minor to penetrate or be penetrated by any person will also be an offence. Whilst there is some overlap with the Women’s Charter and the Children and Young Persons Act, we believe that this new offence will provide the prosecution with greater prosecutorial discretion in deciding on the appropriate charge to prefer based on the circumstances of the case.

Commercial sex with minor under 18

Sir, whilst prostitution per se is not an offence, new section 376B will make it an offence for a person to solicit, communicate or obtain sexual services from a minor under 18 years of age. Young persons, because they are immature and vulnerable and can be exploited and, therefore, should be protected from providing sexual services. Although there is no evidence to suggest that we have a problem with 16- and 17-year-olds engaging in commercial sex in Singapore, we decided to set the age of protection at 18 years so as to protect a higher proportion of minors. By doing so, we join other countries such as the UK and Australia which have also adopted the approach of criminalising commercial sexual activities with persons under 18 years of age, in line with the United Nations Convention on the Rights of the Child 1989 and the Stockholm Declaration and Agenda for Action 1996 whilst maintaining the age of consent for consensual non-commercial sexual activities at the age of 16.

Commercial sex with minor under 18 outside Singapore

Sir, as mentioned earlier, new section 376C will be introduced to protect minors in other countries from being sexually exploited by our nationals. Many have welcomed this move. New section 376D will also be introduced to make it an offence for any person to make or organise any travel arrangements for or on behalf of any other person with the intention of facilitating the commission by that other person of child sex tourism, whether or not such an offence is actually committed by that other person. It also criminalises a person who transports any other person to a place outside Singapore with the intention of facilitating the commission of child sex tourism by that other person, again, whether or not such an offence is actually committed eventually. This provision also makes it an offence for a person who prints, publishes or distributes any information that is intended to promote conduct that would constitute an offence under section 376C, or to assist any other person to engage in such conduct. This offence will discourage demand for child sex tourism. I note that the National Association of Travel Agents in Singapore has urged industry players to behave responsibly even if it means blowing the whistle on those who break the law.

Sexual grooming

Sir, even whilst we protect minors in the physical realm, we are mindful that surging Internet usage has created a new phenomenon – that of sex predators prowling the online landscape for prey under the guise of making friends. On 17th July this year, I informed the House that there has not been any significant increase in the number of Internet-related sexual crimes, but that this remained an area of concern as it involved young victims. I also informed the House that MHA was considering introducing a new offence of sexual grooming, taking into account feedback from both in and outside this House, and recognising that this tide will gather momentum rather than recede. Thus, we have decided to introduce a new section 376E on sexual grooming of a minor under 16.

Sir, this section, modelled after section 15 of the UK Sexual Offences Act 2003, provides that an adult of or above the age of 21 years who meets or travels to meet a minor, either male or female, under 16 years of age within Singapore with the intention of committing a sexual offence, will be guilty of an offence if the person had met or communicated with the minor on two or more previous occasions. Like the UK, we had set the bar at two or more communications or meetings as this signals repeat behaviour, that is to say, rather than being one-off, the offender is more likely priming the victim by gaining his or her trust and confidence for a “strike” later. These prior meetings or communications can take place face-to-face or over the Internet.

Besides the two prior communications or meetings, a key element in this new offence is that the offender possesses a criminal intent at the time of meeting the child or at the time of travelling to meet the child to commit a sexual offence against her. The meeting or travelling must take place in Singapore, even if the earlier communications or meetings had taken place outside Singapore.

Sir, this new offence will strengthen Police’s hand in preventing any harm from befalling the victim. Currently, in order to secure a successful prosecution for an attempted sexual offence, it would require the offender to be caught in doing something very close in proximity to the sexual offence in question, for example, undressing the victim. This, of course, is not satisfactory. With the new offence, Police will be able to intervene much earlier. What is needed is for Police to show that there has been the requisite number of communications wherein the predator has prepared the ground, after which he acts with the intention of committing a sexual offence against the victim, ie, by travelling to meet her or actually meeting her. The penalty is a maximum term of imprisonment of three years, or fine or both.

In practice, what this offence does is to allow law enforcement authorities to step in when, for example, a child receives sexually suggestive communications over the Internet, or a child is seen being met by a stranger in suspicious circumstances. That law enforcement authorities can now intervene at an earlier stage would be sufficient to send a chilling effect on would-be sex predators. Besides being a deterrent, those who persist will be apprehended more easily. This is borne out from the experience in England and Wales where more of such predators have been caught. The UK crime statistics show an increase in the number of sexual grooming cases recorded by the Police: 185 in 2004/05, 237 in 2005/06 and 322 cases in 2006/07. Action was taken against the suspects in 43% of the 237 cases in 2005/06, and 39% of the 322 cases in 2006/07. Of some significance is that the percentage of sexual grooming cases where action was taken against the suspects is higher than the percentage for other types of sexual offences against minors, such as rape of female minors under 16. That is the UK experience.

[snip]

Section 377D (Mistake of age)

Sir, we had proposed to introduce a young person’s defence, where in the case of a person below the age of 21 years, the presence of reasonable cause to believe that the minor was above the age of 16 years would be a valid defence on the first occasion he is charged, similar to that provided under existing section 140(5) of the Women’s Charter. This defence will be introduced for the offences of sexual penetration of minor under 16 and prostitution of minor under 18 in Singapore and overseas.

On this, Sir, we have accepted the Law Society’s suggestion that this defence be denied only if, at the time of the offence, the person charged for that offence had previously been charged in court for an offence under the relevant section. This is fairer as an accused who is charged with, for example, two charges (which because the offences involved different dates, time, places and victims, he could not be jointly tried) would now not be denied the defence on the second trial on the second charge.

[snip]

Section 377

Next, Sir, we will be removing the use of the archaic term, “Carnal Intercourse Against the Order of Nature” from the Penal Code. By repealing section 377, any sexual act including oral and anal sex, between a consenting heterosexual couple, 16 years of age and above, will no longer be criminalised when done in private. As the Penal Code reflects social norms and values, deleting section 377 is the right thing to do as Singaporeans by and large do not find oral and anal sex between two consenting male and female in private offensive or unacceptable. This is clear from the public reaction to the case of PP v Anis Abdullah in 2004 and confirmed through the feedback received in the course of this Penal Code review consultation.

Sir, offences such as section 376 on sexual assault by penetration will be enacted to cover non-consensual oral and anal sex. Some of the acts that were previously covered within the scope of the existing section 377 will now be included within new sections 376 – Sexual assault by penetration, 376A – Sexual penetration of minor under 16, 376B – Commercial sex with minor under 18, 376F – Procurement of sexual activity with person with mental disability, 376G – Incest and 377B – Sexual penetration with living animal. New offences will be introduced to clearly define unnatural sexual acts that will be criminalised, that is, bestiality (sexual acts with an animal) and necrophilia (sexual acts with a corpse).

Section 377A

Next, Sir, section 377A which criminalises acts of gross indecency between two male adults will be retained. Public feedback on this issue has been emotional, divided and strongly expressed with the majority calling for its retention. Sir, Singaporeans are still a largely conservative society. The majority find homosexual behaviour offensive and unacceptable. Neither side is going to persuade or convince the other of their position. We should live and let live, and let the situation evolve, in tandem with the values of our society. This approach is a pragmatic one that maintains Singapore’s social cohesion. Police has not been proactively enforcing the provision and will continue to take this stance. But this does not mean that the section is purely symbolic and thus redundant. There have been convictions over the years involving cases where minors were exploited and abused or where male adults committed the offence in a public place such as a public toilet or back-lane. Sir, whilst homosexuals have a place in society and, in recent years, more social space, repealing section 377A will be very contentious and may send a wrong signal that Government is encouraging and endorsing the homosexual lifestyle as part of our mainstream way of life.

Conclusion

Sir, in conclusion, this review has taken two to three years because we wanted to be thorough. Not only have we examined every provision in terms of its substantive coverage and scope by updating, clarifying and enhancing some of them, we have also introduced new offences to plug identified gaps, especially in view of latest technological developments and crime trends. We have also combed through all the sections to ensure parity and coherence in their assigned punishment tariff, doing this not only within the Penal Code itself but also, where applicable, cross-checking them with related provisions in statutes such as the Women’s Charter and Children and Young Persons Act. And, finally, we took the opportunity to do some house-cleaning work and have removed references to archaic terms such as “bullock”, “carriage”, “chariot”, “schoolmaster”, “ice-house” and “penghulu “.

Finally, Sir, I assure Members that even though the review is over, we will continue to monitor how these amendments will work out in practice. And, if necessary, we will finetune the provisions to ensure that they achieve their desired outcomes.

Sir, I beg to move.

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