Crime of Voyeurism in Singapore (Penalties and Defences)
Voyeurism has been clinically described as a perverse behaviour involving deliberate and wilful intrusion of someone’s privacy. The Monica Baey case – where a man secretly filmed a woman showering – is an example of voyeurism.
Men have also been victims of voyeurism. For example, Mr Koh Kah Hock was sentenced in 2019 for filming several men showering without their knowledge and keeping obscene videos of naked men on his laptop.
Previously, a person accused of the offence of voyeurism could only be charged under section 509 of the Penal Code for insulting the modesty of a woman. This meant that if the victim was male, the accused could not be charged under that section and had to be charged with another offence. For example, Mr Koh Kah Hock was charged with making obscene films.
To better address voyeurism offences, Singapore’s Penal Code has been amended to provide a specific offence of voyeurism from 1 January 2020 onwards. This offence is found in section 377BB of the Penal Code and it does not matter what the victim’s gender is.
This article will explain in detail what voyeurism is as well as the punishment for and defences to this offence.
What Acts can be Considered a Voyeurism Offence?
The following are acts of voyeurism criminalised under section 377BB of the Penal Code:
- You intentionally observed the victim doing a private act without his/her consent and you know or believe that the victim does not consent to being observed. An example involves you peeping over or under the toilet cubicle gaps to observe the victim showering.
- You operated equipment, such as binoculars, to enable you or another person to observe the victim doing a private act, such as changing clothes, without the victim’s consent. This is with the knowledge or belief that the victim does not consent to it, and regardless of whether the private act was recorded.
- You intentionally recorded the victim doing a private act, without his/her consent and you know or believe that the victim does not consent to you making the recording. An example is using a mobile phone to record the victim changing clothes in a changing room or using the urinal.
- You operated equipment, such as through a mobile phone, to enable you or another person to observe the victim’s private parts, namely their genitals, breasts (where the victim is a female), or buttocks (whether exposed or covered) that would otherwise not be visible, without the victim’s consent and with the knowledge or belief that the victim does not consent to it. This is regardless of whether the victim’s private areas were recorded. An example is using a mobile phone to look under victims’ skirts on the escalator.
- You recorded an image of the victim’s private parts, namely genitals, breasts (where the victim is a female), or buttocks (whether exposed or covered) that would not usually be visible, without the victim’s consent and with the knowledge or belief that the victim does not consent to being recorded. This is similar to the above example, just that the victim’s private areas were actually recorded. An example is the taking of upskirt pictures on the escalator.
- You installed equipment, such as a camera, or made or adapted a structure or part of it, such as by adjusting the window and/or curtains to the victim’s bedroom, to enable you or someone else to commit any of the acts mentioned above.
Punishment for Voyeurism
If convicted of the offence of voyeurism, you can be jailed for up to 2 years or fined or caned (or any combination of these). If the victim is below the age of 14 years, imprisonment of up to 2 years is compulsory, and you will also be either fined or caned.
An alternative is being put on probation, where you will be placed under the supervision of a probation officer.
Amongst the requirements to be eligible for probation, the offender’s age is an important factor because it is not common for offenders aged 21 or older to be given probation. Such adult offenders must show an extremely strong likelihood for reform in order to be given probation.
Defences to an Offence of Voyeurism
Defences you can rely on if you have been charged with the offence of voyeurism include:
1. You did not intend to come into possession of or have access to the voyeuristic images or recordings
For this defence, you must have also taken steps to stop coming into possession of, or stop having access to, the voyeuristic images or recordings as soon as possible.
2. You committed the offence of voyeurism without malice and with reasonable cause
Examples of this are for purposes of investigating an offence or for court proceedings or national security, and you did not keep the voyeuristic images or recording any longer than reasonably necessary or required for the specified reason.
For example, you confronted a stranger who recorded an upskirt video and took possession of his mobile phone (which contained the video) for the purpose of handing the phone over to the police when you make a police report.
In doing so, you did not commit an offence of possessing the upskirt video because you did it to assist the detection or investigation of the offence.
Is Voyeurism an Arrestable Offence?
All forms of voyeurism under section 377BB are arrestable offences. An arrestable offence is one where the police can arrest a suspect without a warrant.
For example, if you were caught observing a victim in the toilet cubicle, you can be arrested without a warrant.
Once you have been arrested, it is up to the police or the court to decide whether to release you on bail.
How will Offenders be Sentenced for Voyeurism?
Since section 377BB of the Penal Code is still new, there is no reported decision at the time of writing that has explained how accused persons convicted of voyeurism will be sentenced.
However, the decision of PP v Ang Zhu Ci Joshua, made prior to the enactment of section 377BB of the Penal Code, gives an idea of the aggravating and mitigating factors that may be considered when sentencing an offender for taking upskirt photos.
The following are possible aggravating factors that could contribute towards the offender being given a stiffer sentence:
Planning and pre-meditation
This involves considering whether the offender’s criminal actions were deliberate and well-thought-through as opposed to being impulsive and/or carried out on the spur of the moment.
Criminal actions are said to be deliberate and well-thought-through where the offender has a modus operandi or systematic process in carrying out the offence.
For example, in PP v Ang Zhu Ci Joshua, the offender’s modus operandi was using his mobile device to record his victims and later hiding the device. He also had a process of transferring the recordings to his computer for storage where he organised them into folders according to the victims’ names for easy identification and viewing.
Duration of committing the offence
The length of time over which the crime was committed is important because it suggests that the offender put in effort to commit the offences and avoid detection.
For example, the offender in PP v Ang Zhu Ci Joshua committed his offences on more than a hundred different occasions over a span of 4 years.
Number of victims involved and the number of times a victim is targeted
The higher these numbers, the more likely the offender will be given a stiffer sentence.
Place where the offence was committed
There are certain places where a person may not expect to be a victim of voyeurism, such as premises of religious institutions, a school, and at the workplace. This goes towards the circumstances of whom the offender targeted, how he targeted them, and where he targeted them.
Relationship with the victim
If the offender targets friends or colleagues, this suggests a breach of trust and taking advantage of the victims’ friendship, familiarity and/or faith in the offender.
Instruments used to commit the offence
The abuse of modern technology, especially the mobile phone as a video-recording device, is an aggravating factor. This is because offences can be committed more easily and allows replaying of the videos.
The miniaturisation of cameras has made it easier to hide them without detection, which encourages voyeurs to take more risks to commit the offence of voyeurism.
Moreover, it is now easy for such videos to be uploaded onto the internet for dissemination and can cause unimaginable shame and distress to the victims.
Charges that are proceeded with and Taken Into Consideration (TIC) against the offender
The effect of TIC offences is that the offender would be sentenced for the offences proceeded against him/her but the sentence may be increased in the court’s final sentencing to account for the TIC offences.
The offender in PP v Ang Zhu Ci Joshua faced a total of 127 similar charges for upskirt videos, where he pleaded guilty to 15 charges and applied for the remaining 112 charges to be TIC for sentencing.
The following are possible mitigating factors that could help the offender receive a lighter sentence:
Psychological condition of the offender
There are sentencing considerations for those who are found to have a mental disorder and the manner and extent of the mental disorder’s relevance to the offence committed, amongst other considerations.
If there is evidence that the offender is unable or mostly unable to control or stop himself from committing voyeurism because of his mental disorder for example, then punishment is unlikely to be effective.
In such situations, the offender may be sentenced to a Mandatory Treatment Order to undergo psychiatric treatment at a psychiatric institution, such as the Institute of Mental Health (IMH), for up to 36 months.
Plea of guilt
A plea of guilt can be taken into consideration when motivated by genuine remorse, contriteness or regret and/or a desire to help the administration of justice. However, it may have no mitigating value if the evidence supports a conviction.
Previous criminal records
A clean record may be effective in showing that what the offender did on certain isolated occasions was totally out of character.
However, a clean record may not have much mitigating value if the offender is convicted of a string of offences committed over a period of time because it means that he had just not been caught earlier.
Will People Convicted of Voyeurism Have a Criminal Record?
Yes, if you are convicted of voyeurism, you will have a criminal record.
However, you might still have the opportunity to have your criminal record treated as spent after a certain period of time. This simply means that your record will be wiped clean. To qualify for having your record spent, you must first meet the following criteria:
- If you were given a prison sentence, your imprisonment term must have been not more than 3 months;
- If you were given a fine, the fine imposed on you must have been not more than $2,000;
- You must not have any other conviction on your criminal record; and
- You must not have any previous spent record on the register.
If you meet these criteria, you then have to remain crime-free for at least 5 consecutive years, starting from the date of your release from prison, or from the date that your sentence was passed if you were given a fine. Once you accomplish this, your record will be spent automatically, and you will be able to legally declare that you do not have a criminal record.
Distribution of voyeuristic content
Section 377BC of the Penal Code criminalises the distribution of voyeuristic content. If you distribute or are in possession of voyeuristic content for distribution without the victim’s consent, you can be jailed for up to 5 years or fined or caned (or any combination of these).
If the voyeuristic content is of a victim below the age of 14 years, imprisonment for up to 5 years is compulsory, and you will also be either fined or caned.
Possession of, or access to, voyeuristic or intimate content
Under section 377BD of the Penal Code, it is an offence to be in possession of, or have access to, voyeuristic or intimate images or recordings of a victim.
Intimate images refer to images of someone’s private areas (breasts/genitals etc) whether bare or clothed, or images of someone performing a private act.
You can also be found guilty of an offence under section 377BD of the Penal Code if you have reason to believe that the intimate images or recordings are in your possession without the consent of the victim who appears in the image or recordings, and such possession would cause distress, alarm or humiliation to them.
You are deemed to have possession of the images or recordings if you control access to their electronic versions, such as by viewing them online or sending them to yourself. It does not matter that you do not have physical possession of the electronic image or recording.
If you possess such voyeuristic or intimate images or recordings, you can be jailed for up to 2 years or fined or caned (or any combination of these). If the victim in the recordings or images is below the age of 14 years, imprisonment of up to 2 years is compulsory, and you will also be either fined or caned.
Possession of obscene films
Besides the Penal Code, your possession of the voyeuristic content may result in you being charged under section 30 of the Films Act for the possession of obscene films.
An “obscene” film refers to a film that tends to deprave or corrupt individuals who are likely to see or hear the film. An example of an obscene film would be recordings of the victims fully nude with moving images of their private parts, such as breasts.
If you are found to be possessing obscene films, you can be fined up to $20,000 and/or jailed for up to 6 months. If you are found to have known or to have had reasonable cause to believe, that the film in your possession was obscene, then the maximum penalties are doubled (for first-time offenders) or quadrupled (for repeat offenders).
If you are a victim of voyeurism, you should make a police report as soon as possible and hand over any evidence you may have to the police for the purposes of investigation.
In the event that the police decide not to pursue the matter upon investigating it, you can consider engaging a criminal lawyer who can assist you in seeking private prosecution against the offender.
Private prosecution are proceedings initiated by the victim to take criminal action against the offender.
If you have been charged with voyeurism, it is not compulsory to engage a criminal lawyer to represent you as you can represent yourself in court. However, engaging a criminal lawyer might be a wise decision.
The criminal lawyer will be able to review your case and advise on whether you may be able to have the charges dropped, or assist you with obtaining a lighter sentence.
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