Outrage of Modesty

In Singapore, acts of sexual molestation are criminalised by section 354 of the Penal Code. It describes outrage of modesty as “assault or use of criminal force to any person, intending to outrage or knowing it to be likely to outrage the modesty of that person.”

You might have read about outrage of modesty cases in the newspapers and wondered what it was all about. The definition in section 354 is not very specific. This article will discuss outrage of modesty and look at the sentencing options when someone is found guilty of the offence.

What does “modesty” mean?

The Penal Code does not define modesty, and there is no straightforward answer. The description is quite broad and leaves the meaning open to interpretation. In practice, each case will be considered on its own circumstances. The court will consider factors such as the context in which the incident occurred, the victim’s religious beliefs, and their race, to decide if the action outraged the victim’s modesty.

Examples of outrage of modesty

Acts of outrage of modesty can happen at any time or place. It can happen on public transport, sports fields, nightclubs, or workplaces, etc.

The courts have held the following acts to be an outrage of modesty in the past.

  • A male offender repeatedly touched the thigh of a sleeping woman on an MRT train.
  • A man rubbed his thigh against a young tutor several times on a bus.
  • Groping a domestic maid in a lift.
  • Touching the buttocks of a 60-year-old woman on a bus.
  • A male exposed himself to a domestic helper.
  • A tutor touching the breasts of a student.
  • Slapping a secretary lightly on the buttocks.
  • Massaging a man’s groin area without his consent.

So, what exactly is the meaning of outrage of modesty?

When looking at past cases and examples of outrage of modesty, there seem to be a few common principles when deciding whether an act constitutes an outrage of modesty.

  • There must be an assault or use of criminal force. This implies that merely looking at someone inappropriately cannot constitute an outrage of modesty.
  • There must be an absence of consent for an act to be an outrage of modesty. For example, if there is consent when a doctor examines a patient, there cannot be an outrage of modesty.
  • The perpetrator must have intent. They must know that their actions will cause outrage or is likely to cause outrage and proceed with their action.

Are “upskirt offences” an outrage of modesty?

Until 2019, upskirt offences were prosecuted as an outrage of modesty offence. However, since 2019, they fall under voyeurism and are now prosecuted under section 377BB of the Penal Code. Section 377BB(4) criminalises using equipment to film someone else’s private parts without their permission.

Can outrage of modesty be committed against a male person?

Yes, outrage of modesty is a gender-neutral offence. Although there are more reported cases with male perpetrators, women can also commit outrage of modesty.

Is attempting to outrage a person’s modesty an offence?

Yes, under section 511 of the Penal Code you can be convicted of attempting to outrage someone’s modesty if you take substantial steps towards committing the offence, even if you fail to do so.

For example, if a male follows a female to the bathroom in a nightclub hoping to touch her inappropriately, but her boyfriend arrives just in time to stop him, the perpetrator can still be convicted of attempted outrage of modesty.

The appropriate sentence for an attempt is up to the court. It can ultimately be the same as sentences prescribed for the offence of outrage of modesty.

What is the punishment if convicted of outrage of modesty?

There is no minimum or mandatory sentencing under section 354(1) of the Penal Code – sentencing will depend on the circumstances and seriousness of your case. An offender may be sentenced to imprisonment, a fine, caning, or any combination of these options. Since March 2022, the maximum jail term is 3 years.

In 2018, the High Court of Singapore created a framework for sentencing in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580. The framework consists of 3 bands. Band 1 is the lowest and will apply to less severe cases where there is little or no harm to the victim. It should be noted that these bands were created before the maximum jail term was increased to 3 years. The courts will adjust the sentencing guideline bands in future.

The general principles, however, remain the same.

Before deciding on an appropriate sentence, the court will consider certain factors.

The severity of the offence

Firstly, the court will consider how the offence was committed when determining the severity. Factors specific to the offence include:

  • The circumstances surrounding the offence.
  • Was it premeditated?
  • The use of force.
  • To what degree was the victim sexually exploited?
  • The level of harm to the victim.

Once the severity of the offence is determined, the court will decide on a sentence based on the 3 bands.

  • Band 1 sentencing usually means less than 5 months in jail and usually no caning. This is applicable when there is no more than one aggravating factor.
  • Band 2 can mean 5-15 months in jail, and caning is usually imposed. Band 2 is applicable when there are two or more aggravating factors. At the lower end of band 2, there will be no skin-to-skin contact. Skin-to-skin contact of the victim’s private parts or deception of the victim will place the offence at the higher end of band 2 sentencing.
  • Band 3 sentencing is applicable when there are three or more aggravating factors. It could include exploitation of a vulnerable victim, serious abuse of a position of trust, and the use of violence or force. Sentencing could range between 15-24 months in jail and caning.

General aggravating and mitigating factors

Once the court has considered all the offence-specific factors to determine the severity of the offence, the court will consider factors specific to the offender to decide on a final sentence.

These factors include:

  • Aggravating factors such as:
  • past offences of the perpetrator;
  • lack of remorse; and
  • more than one charge against the perpetrator.
  • Mitigating factors such as:
  • remorse;
  • a guilty plea; and
  • reduced understanding by the perpetrator due to a mental or intellectual disability.

The court also highlighted in Kunasekaran that when sentencing for outrage of modesty committed on the public transport system, deterrence will be the predominant consideration. It will be regarded as an aggravating factor.

Harsher punishment in certain circumstances

The Penal Code provides for harsher punishment in some instances of outrage of modesty.

Victims younger than 14 years old

Section 354(2) provides that an offender shall be punished with imprisonment up to 5 years, a fine, caning, or any combination of these punishments.

The courts will take the same guidelines into account as with ordinary outrage of modesty, but the three bands are scaled upwards if the victim is younger than 14 years old, and the sentence will be harsher.

  • Band 1 – less than 1 year in jail, generally no caning.
  • Band 2 – 2-3 years in jail, usually caning, at least 3 strokes.
  • Band 3 – 3-5 years in jail, caning at least 6 strokes.

Offences against domestic helpers

Section 73 of the Penal Code provides that when an employer of a domestic worker, a member of the employer’s household, or an employment agent is convicted of an offence under the Penal Code against that domestic worker, the court may sentence the convicted person to twice the maximum punishment for the offence. Since March 2022, that amounts to up to 6 years in jail, a fine, caning, or any combination of these penalties.

Voluntarily causing hurt, wrongful restraint, or causing death to commit or facilitate outrage of modesty

Section 354A provides stricter punishment if the victim died, was wrongfully restrained, or caused harm voluntarily to commit outrage of modesty against the victim. The penalty is imprisonment for a minimum of 2 years, a maximum of 10 years, and caning.

Sec 354A(2) stipulates that if the hurt, restraint or death were committed in a lift in any building, or if the victim was younger than 14 years old, the punishment is imprisonment of at least three years up to a maximum of 10 years, and caning.

Arrest without a warrant

Outrage of modesty is an arrestable offence, meaning that a suspect can be arrested without a warrant. If an aggravated outrage of modesty is alleged, it is up to the police or the court to decide whether the accused should be released on bail. Suppose it is an ordinary outrage of modesty. In that case, the offender can choose to be released on bail or a personal bond.

Can your criminal record for outrage of modesty be wiped clean?

If your criminal record has been registered, your record cannot be wiped clean or treated as “spent”. However, the Commissioner of Police may exercise their discretion not to register your criminal record.

A conviction of outrage of modesty can have severe consequences for your future. If you are facing a charge of outrage of modesty, you should seek the help of an experienced criminal defence lawyer as soon as possible. An experienced lawyer can guide you through your options and assist with getting the best outcome for your case.

Authors

Low Jin Liang

Deputy Co-Head, Family & Divorce Practice Group

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