From 1 January 2020, Singapore’s Penal Code provides for a specific offence of voyeurism. Previously, voyeurism-type offences were dealt with as “insult to modesty of women”, “making or possessing an obscene film”, or “transmission of obscene material by electronic means”.
Modern technology makes it easier for perpetrators to breach people’s privacy and sexual integrity. Parliament recognised that the existing laws were inadequate to address offences involving observing people in circumstances where the person could expect privacy, and the making and distributing of voyeuristic recordings.
This article gives an overview of the new section 377BB of the Penal Code and related offences, plus the harsher penalties introduced for the offence of voyeurism. It will also discuss factors considered for sentencing and possible defences.
What acts are categorised as voyeurism?
Section 377BB defines voyeurism as the following acts.
(1) A person intentionally observes another person 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.
(2) A person operates equipment with the intent to enable themselves 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 your operating equipment with that intention. This is an offence regardless of whether the private act was recorded.
If recorded, section 377BB(3) creates a separate offence of intentionally or knowingly recording a private act without consent.
(3) A person operates equipment without the victim’s consent with the intent to enable themselves or another person to observe the victim’s genital region, breasts (where the victim is female) or buttocks (exposed or covered) in circumstances where the genital region, breast, buttocks, 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 genital region, breasts or buttocks were recorded or not.
If recorded, section 377BB(5) creates a separate offence of intentionally and knowingly recording images of the victim’s genital area, breasts or buttocks without consent.
(4) Any person who installs equipment or constructs or adapts a structure or part of a structure with the intent to enable themselves or another person to commit any of the above acts is also guilty of an offence under section 377BB(6). This could include installing cameras or adjusting curtains or air vents, for example, to enable the above acts.
In 2018, for example, a man placed a pen with a pinhole camera in a basket of brushes in his in-laws’ bathroom, capturing two of his sisters-in-law using the toilet and showering. He was charged with insulting a woman’s modesty. After 2020, similar acts can be charged under section 377BB.
Some people use the terms “upskirt” or “downblouse” offences when referring to voyeurism.
A gender-neutral offence
Previously, voyeuristic acts were covered under the “insult to modesty of women” offence – implying that men could not be victims of this offence. Perpetrators had to be charged under another offence. The definition of voyeurism in sec 377BB refers to a “person”, meaning the offence can now be committed against both women and men.
Offences related to voyeurism
In addition to sec 377BB (voyeurism), the amendments also introduced other offences relating to voyeurism.
Sec 377BC – Distribution of voyeuristic images or recordings
This offence covers situations where a person intentionally and knowingly distributes or possesses a recording for the purposes of distribution, knowing or has reason to believe that the recording was obtained through voyeurism and that the victim did not consent to the distribution.
If convicted, the perpetrator can be sentenced to a maximum of five years imprisonment, or a fine or caning, or any combination thereof. If the victim is younger than 14 years old, imprisonment is mandatory, and the perpetrator will be fined or caned.
Sec 377BD – Possession of or gaining access to voyeuristic or intimate images or recordings
A person is guilty of an offence if the person is found in possession of a voyeuristic image or recording or has gained access to such image or recording of another person, and knows or has reason to believe that:
- the image or recording was obtained through voyeurism; or
- it is an intimate image 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.
Sec 377BE(5) defines “intimate image or recording” as an image or recording of:
- a person’s genital or anal area (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 was altered in any form, as long as a reasonable person would still believe that it depicts the victim.
If the image is in an electronic form, the person is deemed to be in possession of the image or recording if the person controls access to the electronic image or recording, even if not in physical possession of the electronic image or recording.
The penalty for conviction under this section is a maximum of two years imprisonment, or a fine, or both. If the victim is younger than 14 years old, imprisonment is mandatory, and the perpetrator will be fined or caned.
Sec 377 BE – Distribution or threatening to distribute an intimate image or recording
Anyone who intentionally or knowingly distributes or threatens to distribute an intimate image or recording of another person, without that person’s consent to distribution, 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.
The same applies to threatening to distribute such an image or recording without the person’s consent, knowing that the threat will cause or is likely to cause the victim humiliation, alarm, or distress.
If found guilty of this offence, the perpetrator can be sentenced to a maximum of 5 years in prison, or with a fine, or caning or any combination of such penalties. If the victim is younger than 14 years old, imprisonment of up to 5 years is mandatory, and the perpetrator will be fined or caned.
Penalties for voyeurism
The penalty under sec 377BB is double what it used to be for “insult to modesty of women”. If convicted under sec 377BB, the perpetrator can be sentenced to imprisonment for up to 2 years, or a fine, or caning, or any combination of these.
If the victim is below 14 years old, the punishment is imprisonment up to 2 years, AND a fine or caning. This section formalises age as an aggravating factor in sentencing.
Many cases dealing with voyeuristic type acts finalised during 2020 and 2021 still dealt with acts committed before 1 January 2020, and sentencing was thus based on previous offences. One would expect, however, that the factors taken into account for penalties in “insult to modesty of women” cases would remain relevant, although the court can impose harsher sentences under sec 377BB.
In PP v Chong Hou En  3 SLR 222, an “insult to modesty of women” case, the court discussed some aggravating and mitigating factors that they should consider for sentencing.
Although we could expect harsher penalties in voyeurism cases to act as a deterrent and reflect public policy, the factors discussed in Chong Hu En should remain relevant.
Factors the court could consider when sentencing for voyeurism
- The degree of planning and pre-meditation by the perpetrator – was it well-thought-through or an opportunistic spur-of-the-moment act?
- Duration of the offence – was it committed over a length of time?
- The length of the recording.
- The degree of intrusion.
- Where was the offence committed – could the victim expect to be safe?
- The number of victims, or the number of times a victim was targeted.
- The age of the victims – the Act makes imprisonment mandatory if the victim is younger than 14 years old.
- Equipment used in the commission of the offence.
- Was there a relationship of trust between the victim and the perpetrator?
Some factors might sway the court not to impose the maximum sentence. They include:
- Remorse and admission of guilt.
- A clean criminal record may be an indication that the perpetrator acted “out of character”.
- Prospects of rehabilitation.
- Proof of a relevant mental disorder.
Possible defences against a charge of voyeurism
If you are charged with voyeurism, you may succeed in a defence if you can prove any of the following:
- 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 voyeuristic recordings. You will have to show that you took steps to avoid possession or stop having access to the images or recordings as soon as possible.
- You acted with reasonable cause,i.e., without intent to cause injury to the alleged victim. You had no malice. For example, you caught a stranger who recorded voyeuristic images of a victim, and you took his cell phone to hand it over to the police as proof of voyeurism. You will need to show that you handed it over as soon as possible; you didn’t keep it for longer than necessary.
Recent examples of voyeurism in the news
- A man was detained after being chased from a laundry room at NTU, where he was rummaging through laundry looking for women’s shorts. A 40-second video of an NTU female student changing in her room was found on his cell phone. Investigations revealed that he went to the NTU residential hall where he saw the woman changing and recorded it. After pleading guilty to trespassing and voyeurism, he was sentenced to 6 weeks imprisonment and a fine of S$1,000.
- A woman was arrested for her suspected involvement in a case of voyeurism and distributing videos. It is alleged that she filmed and distributed videos of her bathing her elderly employer. If convicted, she can be sentenced to enhanced penalties under sec 74A of the Penal Code, meaning that she could face imprisonment of up to 4 years, or a fine or both. For distributing the videos, she may be sentenced to up to 10 years in prison or a fine or any combination of the two. The suspect cannot be caned because she is a woman.
It is clear that the Singapore government regards voyeurism as a serious offence. “Upskirt” conduct is never considered a prank, and a conviction on voyeurism or a related offence will have severe consequences for your future. Besides voyeurism being an arrestable offence, a conviction will result in severe penalties and a criminal record.
If you face a charge of voyeurism or any related offences, you should seek legal advice as soon as possible. If you already have a criminal record for voyeurism, you might qualify to have it wiped clean if certain conditions are met.
An experienced criminal lawyer will be able to advise you on your options and the best outcome for your case.
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