Penal Code Section 354: Outrage of Modesty Offences

Nov 08, 2023

Outrage of Modesty

Penal Code Provisions

Outrage of Modesty (colloquially referred to as “molest”) is criminalised under Section 354 of the Penal Code, the relevant portion of which reads as follows:

“Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to 3 years, or with fine, or with caning, or with any combination of such punishments.”

Although most would think that an act of molest is a sexual offence, Section 354 is actually classified under the “Criminal Force and assault” category of the Penal Code. Thus, an offence of “molest” is founded upon the non-sexual offences of “criminal force” and “assault”, both of which are respectively defined in Section 350 and 351 Penal Code:

Criminal Force:

“Whoever intentionally uses force to any person, without that person’s consent, in order to cause the committing of any offence, or intending by the use of such force illegally to cause, or knowing it to be likely that by the use of such force he will illegally cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.”

Assault:

“Whoever makes any gesture or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.”

Importantly, because an outrage of modesty offence is founded on the use of Criminal Force and/or Assault, one cannot be guilty of an offence of molest simply by staring at someone. It should also be noted that the offence of outrage of modesty is gender-neutral.

The punishment for committing the offence of Criminal Force and Assault is found in Section 352 of the Penal Code, which provides for an imprisonment term which may extend to 3 months or a fine which may extend to $1,500.00 or both. It thus could be said that an offence of “molest” is an aggravated form of assault or criminal force, given its lengthier prescribed imprisonment term (up to 3 years).

There is no apparent answer as to what constitutes as an outrage of “modesty”. The Penal Code has no provision which addresses this question. However, in practice, this has presented little difficulty. The following are some examples where the Courts have found an offender guilty of committing an offence under Section 354 of the Penal Code:

a. Hugging;

b. Touching the breast(s) of a woman;

c. Squeezing/slapping the buttocks

As is apparent from the forecited examples, what constitutes as “molest” can often be instinctive.

Requisite Intention Element

In the realm of criminal law, the intention – or what legally practitioners refer to as “mens rea” – of the alleged perpetrator must also be considered. What then is the fault element of this crime? The law is clear on this:

The alleged perpetrator must have had the intention to outrage the modesty of the person, or knew that his actions would likely outrage that person’s modesty.

The logic of a requirement of such an intention is apparent.

Clearly, in instances where a husband hugs his wife, he cannot be said to have intended to molest his wife, nor would he have thought that by hugging his wife, her modesty would be outraged.

Sentencing Guideline

The Court would calibrate the sentence based on the following non-exhaustive factors:

a. The degree of sexual exploitation. This includes consideration of the part of the victim’s body that the accused touched, how the accused touched the victim, and the duration of the outrage of modesty.

b. The circumstances of the offence. These include considerations of: (i) the presence of premeditation; (ii) the use of force or violence; (iii) the abuse of a position of trust; (iv) the use of deception; (v) presence of other aggravating acts accompanying the outrage of modesty; and (vi) the exploitation of a vulnerable victim.

c. The physical or psychological harm caused to the victim (which would usually be set out in a victim impact statement).

Based on an analysis of the abovementioned factors, the Court would place the offence in one of the following 3 bands:

Band 1 – less than 5 months’ imprisonment;

Band 2 – five to 15 months’ imprisonment;

Band 3 – 15 to 24 months’ imprisonment.

It is important to note, however, that the forecited “Bands” were fashioned by the Courts before Parliament increased the maximum imprisonment for molest in 2022 (from 2 years to 3 years).  Thus, the imprisonment terms for Band 1 to 3 will, in light of this increase, likely be recalibrated accordingly.

After placing the offence in one of the abovementioned Bands, the Court will then calibrate the final imprisonment term based on “offender-specific” factors – these are factors specific to the offender in question, and would normally include the offender’s antecedents (or lack thereof), young age, and genuine remorse.

It should also be noted that if the act of molest is relatively minor (for e.g., a light touch on the back) an offender might be slapped with a fine instead of a custodial sentence. Ultimately, much will turn on the circumstances and facts of the case.

If you find yourself facing accusations related to outrage of modesty, seeking advice from experienced criminal lawyers can provide valuable legal assistance.