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What Are The Legal Insights And Punishments For Voyeurism?

Jan 09, 2024

Voyeurism

Voyeurism can generally be understood as the observance and recording of someone who is engaged in circumstances of undress or intimacy. In recent years, Parliament has enacted several laws to target the scourge of voyeuristic offences in Singapore, with the guidance of criminal lawyers. Prior to the recent amendments, the Courts, one of the parties involved in the Criminal Justice System, relied on a patchwork of laws, including insult of modesty under the now-repealed Section 509 of the Penal Code and Section 30 of the Films Act, to punish voyeurs.

This article will focus on Section 377BB of the Penal Code, the relevant parts of which can be summarised as follows:

a. A person (A) commits voyeurism if A intentionally observes another person (B) doing a private act without B’s consent AND knows or has reason to believe that B does not consent to being observed.

b. A person (A) commits voyeurism if A operates equipment with the intention of enabling A or another person to observe a third person (B) doing a private act without B’s consent AND knows or has reason to believe that B (whether B’s private act was recorded or not) does not consent to A operating equipment with that intention.

c. A person (A) commits voyeurism if A intentionally or knowingly records another person (B) doing a private act without B’s consent AND knows or has reason to believe that B does not consent to A recording the act.

d. A person (A) commits voyeurism if A operates equipment without another person’s (B) consent with the intention of enabling A or another person (C) to observe B’s genital region, breasts if B is female, or buttocks (whether exposed or covered) in circumstances where the genital region, breasts, buttocks or underwear would not otherwise be visible AND knows or has reason to believe that B (whether B’s image was recorded or not) does not consent to A operating the equipment with that intention.

e. A person (A) commits voyeurism if A intentionally or knowingly records without another person’s (B) consent an image of B’s genital region, breasts if B is female, or buttocks (whether exposed or covered), in circumstances where the genital region, breasts or underwear would not otherwise be visible AND knows or has reason to believe that B does not consent to A recording the image.

Generally speaking the provisions from (a) – (c) will cover voyeuristic offences committed in places such as a victim’s own home or a toilet cubicle in a shopping centre. In contrast, the provisions from (d) – (e) are designed to cover voyeuristic offences such as ‘up-skirt’ recordings.

It should be noted that Section 377BB(9) provides a presumption, which can be summarised as such:

If a person (A) has made a recording of another person (B) doing a private act or of B’s genital region, breasts (if B is a woman), or buttocks (whether exposed or covered), in circumstances where the genital region, breasts or buttocks would not otherwise be visible, it shall be presumed that B did not consent to A making the recording until the contrary is proven otherwise.

The punishment for voyeurism is found in Section 377BB(7) of the Penal Code, which provides for an imprisonment term which may extend to 2 years, or a fine, or with caning, or with any combination of the three.

There is an enhanced punishment for voyeuristic offences committed against a victim who is below 14 years of age. The relevant provision is Section 377BB(8) of the Penal Code, which provides for:

a. A mandatory imprisonment term which may extend up to 2 years; and

b. Fine or Caning

Sentencing Guideline

What then is an appropriate sentence? Some guidance was provided by the High Court in a Section 377BB(4) offence (i.e., offence (d) above). In coming to an appropriate sentence, the Courts will apply the following framework.

At the first step, the Court will consider the offender’s culpability and the harm caused by the offence. The relevant factors are summarised in the table below:

Factors that goes towards Harm
Degree of the invasion of the victim’s privacy – generally the more intrusive the observation, the greater the harm caused
Whether Physical contact was made with the victim
Whether humiliation, alarm or distress was caused to the victim
Factors that goes towards Culpability
Whether the offender actually knew, or merely had reason to believe, that the victim had not consented to be observed
Degree of premeditation and planning
Stalking or following victim
Type and sophistication of equipment used and whether it was concealed
Breach of relationship of trust with the victim
Steps taken to evade detection
Motivation for the offence
Persistence of the offending conduct that is the subject of the charge

At the second and third steps, the court will identify the applicable indicative sentencing range before proceeding to identify the appropriate starting point within that range. The following table illustrates the starting points:

At the fourth step, the court will adjust the starting point sentence having regard to the aggravating and mitigating factors:

AggravatingMitigating
Offences taken into consideration for sentencing purposesRelevant antecedentsEvident lack of remorseOffending while on bail or probationGuilty pleaCooperation with authoritiesOffender’s apologyPsychological factors with causal link to the commission of the offence

The addition of voyeuristic offences to the Penal Code makes it clear that Parliament is anxious to combat the rise in the number of cases of voyeurism. Indeed, debates in Parliament have shown that voyeuristic offences will be treated seriously. Crucially, it was stated in Parliament that mitigation pleas based on the offender’s educational qualifications or academic potential will carry less weight where voyeuristic offences are concerned.

Taking heed of Parliamentary intention, the High Court has very recently commented that deterrence is generally the dominant sentencing consideration where an adult offender (i.e., above 21 years old) had committed a voyeuristic offence (even if the offender had an extremely strong propensity to reform), and it would rarely be the case that emphasis would shift away from deterrence to rehabilitation. 

That said, if a youth offender (i.e., below 21 years of age) commits a voyeuristic offence, rehabilitation will still be the starting point. Much will ultimately depend on the facts of the case.

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