How are Sexual Offenders with Special Needs Penalised?

Persons with special needs refer to persons with disability who face more difficulty in handling intellectual tasks, such as understanding concepts or solving problems. Such intellectual disability affects their mental development and impairs their ability to adapt to society.

While uncommon, persons with special needs sometimes run afoul of the law.

For example, in 2018, a person with special needs was convicted of rape and sexual assault. The court sentenced him to reformative training. This raises the question of the types of sexual offences that a person with special needs can be convicted of and the kinds of punishments that they can be sentenced to.

This article will explain:

• What are some of the offences sexual offenders with special needs can be found guilty of?
• How are sexual offenders with special needs sentenced in Singapore?
• What should you do if you are a victim of a sexual offence, or know someone with special needs who has been charged with a sexual offence?

What are Some of the Offences Sexual Offenders with Special Needs Can be Found Guilty of?

Persons with special needs can be found guilty of any of the sexual offences in Singapore’s Penal Code such as rape, molest, or sexual assault. The Penal Code only differentiates between offenders who are:

• Under the age of 10; or
• Between the ages of 10 and 12 who do not yet understand the nature and consequences of their actions.

The Penal Code will not consider offences committed by these offenders as a crime because of their age and inability to understand their actions. However, the court noted that “age” refers to the physical age of the offender, and not the mental age.

Thus, a person with special needs who is physically 14 years old, but has a mental age of between 8 and 10 years old, cannot rely on the above exceptions to avoid conviction.

How are Sexual Offenders with Special Needs Sentenced in Singapore?

In general, the courts have not treated sexual offenders with special needs differently from intellectually-abled offenders. Similar to intellectually-abled offenders, the sentencing approach differs according to the offender’s age.

Older offenders with special needs

For older offenders with special needs, the court will weigh both the mitigating and aggravating factors in their cases to determine the appropriate sentence.

Here, the court will consider whether the offender’s intellectual disability affected his culpability, or degree of guilt, to such an extent that it justifies a lighter sentence. The court will also examine whether the offender, despite his intellectual disability, was aware that the act was wrong and that he may face punishment as a result of his actions.

While a young mental age is not a factor in convicting an offender, it may play a part in determining his culpability. However, this must be balanced with the life experiences of the offender.

For example, an offender who has lived 20 years as an adult will have more life experiences. This increases his ability to understand the nature and consequences of his actions than his mental age would suggest. This makes his mental age less of a mitigating factor in determining his culpability.

The court will also examine whether there were any aggravating factors to the crime. In doing so, the court will look at how the offence had been committed, whether any violence was involved, and the offender’s previous convictions. Primarily, the court is looking at how serious the offender’s behaviour had been and whether there were signs of repentance or remorse.

Young offenders with special needs

Similarly, young offenders with special needs are not treated any differently from other young offenders when it comes to sentencing. A young offender refers to an offender under the age of 21, but older than 10 or 12 years old as discussed earlier.

In the 2019 case of PP v ASR, the Court of Appeal decided that the sentencing framework for young offenders committing a serious crime will also apply to young offenders with special needs. There, a 14-year-old person with special needs had molested a 21-year-old victim and raped a 16-year-old intellectually disabled girl while out on bail for the molestation offence. He was sentenced to reformative training.

The sentencing framework used to sentence a young offender with special needs consisted of 2 parts.

First, the court must decide whether the rehabilitation of the young offender is the main aim of sentencing. Here, the court will consider whether it is in society’s best interests for the offender to be rehabilitated. To determine this, the court will look mainly at the culpability of the offender. It will also consider the seriousness of the offence, the severity of the harm caused and whether the offender had shown remorse.

In PP v ASR, the culpability of the young offender rested on his knowledge of the offence, whether he knew it was legally and morally wrong, his intellectual disability, and whether there was a causal link between his intellectual disability and the offence. The court decided that these factors pointed to the young offender’s reduced culpability. This was because the offender’s intellectual disability made it difficult for him to control his impulses. It also limited his understanding of the legal and moral wrongness of his actions. Therefore, the main aim of sentencing remained that of rehabilitation.

Second, if rehabilitation remains the main aim of sentencing, then the court must decide on the most suitable rehabilitation method. Usually, this is a choice between probation or reformative training. At this stage, the court will consider whether these methods would be viable for an offender with special needs.

The court stressed in PP v ASR that the court’s task was not to identify the best form of rehabilitation. Even if customised reformative training was not the best sentencing option, this should not prevent the court from choosing it if it was the only one available for the offender. Further, the progress the young offender with special needs had made in his rehabilitation while being remanded at the Boys’ Home proved that reformative training was a viable option.

Probation, on the other hand, was ruled inappropriate as it would not sufficiently recognise
the seriousness of the offender’s offences. It would also not provide the structured environment needed to manage his risk of re-offending. This was also the case in another 2022 incident where a teenager with special needs pleaded guilty to multiple charges including molestation and sexual penetration of a minor. In this case, both the prosecution and defence agreed that probation was inappropriate due to the severity of the teenager’s offences.

What Should You Do If You are a Victim of a Sexual Offence, or Know Someone with Special Needs Charged with a Sexual Offence?

For victims

If you are a victim of a sexual offence, you should take the following steps:

• Get to safety. This can involve physical distancing, and avoiding other forms of contact with the offender, such as using social media or texting the offender. You may inadvertently leak your location to the offender on social media or text and put yourself in danger. You can also call the police if you’re in immediate danger.
• See a doctor. This is especially if you have suffered serious physical injury. Nevertheless, you may still want to get yourself tested for sexually transmitted diseases or unwanted pregnancy.
• Collect evidence. For example, you may want to take photos of your physical injuries and the location where the incident happened, write down a detailed description of the evidence, and store worn clothing or sheets at the time of the incident in a sealed plastic bag. You may also want to obtain DNA evidence of the sexual assault when seeing a doctor (above).
• Call the police.

You can also try seeking compensation for the offence. This can be done either via a lawsuit, a court order under the Criminal Procedure Code, or both.

For families and friends of someone with special needs charged with a sexual offence

If a family member or friend with special needs has been charged with a sexual offence, you may want to contact a criminal lawyer for assistance on behalf of the accused should he/she be unable to understand the nature of his/her actions or rights.

A criminal lawyer can guide you and the accused through the criminal litigation process and help the accused get a fair outcome.