In November 2006, the Ministry of Home Affairs released a draft Penal Code (Amendment) Bill along with a Consultation Paper on the proposed amendments. The MHA invited public feedback on these proposed amendments which if successfully tabled in Parliament, will be the most extensive change made to our criminal legislation since 1984.

The proposed amendments cover a wide range of offences — they seek primarily to expand and modify existing offences, introduce new offences and repeal certain offences. Changes have also been proposed to the current sentencing levels of certain offences and to the penalties for newly created offences.

SEX-RELATED OFFENCES

The proposed amendments in this category appear to be due to changing social norms. A liberal approach can be detected, and there is also recognition that certain groups of individuals require greater protection by the law.

Carnal offences
The current s.377 has often been criticised for the vagueness of the term “carnal intercourse against the order of nature”. The amendments would see the repeal of s.377 entirely, re-scoping the realm of such offences.

With this repeal, oral and anal sex between consenting adult heterosexual couples would no longer be criminalised. For the acts of bestiality and necrophilia (which are encompassed within the current s.377), separate sections would be enacted dealing specifically with these offences. A new offence of sexual assault by penetration would be introduced. This coversnon-consensual penetrative acts such as oral and anal sex using the penis, or any other body part or object. This is necessary due to the decriminalising
of oral and anal sex.

Marital rape
Currently a husband enjoys marital immunity if he engages in non-consensual sexual intercourse with his wife (aged 13 years and above). Given the “changed status of women and the evolving nature of the marital relationship”, it has been proposed that this immunity be taken away. This would however, occur only if certain prescribed conditions are met, i.e., the spouses are living apart or if the wife has an injunction or protection order against her husband.

Minors
Several proposals have been made with the aim of protecting minors from sexual exploitation.

  1. For outrage of modesty under s.354, higher penalties would apply if the victim is below 14 years of age.
  2. Sexual penetration of a minor below 16 years of age would be an offence regardless of consent.
  3. For the new offence of sexual assault by penetration, the offender is subject to a minimum jail sentence of 8 years and at least 12 strokes of the cane, if the victim is below 14 years of age.
  4. It would be an offence to obtain or takes steps to obtain the sexual services (for consideration) of a minor below 18 years of age under s.367B.Singaporeans or PRs who perform such acts are also liable under s.367C and subject to the same punishments.
  5. On a similar note, s.367E protects persons with mental disabilities from being exploited sexually. The rationale is similar for like minors, they are vulnerable due to a lack of mental capacity.

OTHER CHANGES

While the amendments attracting the most public attention are the sex related ones, significant changes to other important aspects of the criminal law have also been proposed.

Unlawful assembly
The current s.141 falls under the group of offences relating to public tranquility. The proposal is to make clear that an assembly of 5 or more people would be an unlawful one if the aim is to commit any offence and not just one relating to public tranquility.

Religious and racial harmony
In light of the recent incident of the racist bloggers, the current s.298 is to be expanded to include the “wounding of racial feelings” of any person. The new s.298A also deals with individuals who attempt to cause disharmony between groups on the grounds of race or religion. This would provide a more appropriate alternative to the Sedition Act in such matters.

Electronic crimes
Due to technological advances, the proposals include expanding various offences to include their commission via electronic mediums. Examples are s.292 (sale of obscene books) and s.499 (defamation).

Fines
Fines in the Penal Code were last increased more than 50 years ago. In order to adjust the levels to today’s standards, it is proposed that fines be increased by a factor of 3, based on the Consumer Price Index (CPI). For offences where greater deterrence is desired, the fines may be increased by an even larger factor.

It was stressed that an increase in jail sentences and caning was avoided, and only the maximum fine levels would be increased. Judges therefore are not compelled to but have the discretion to impose a higher fine where they deem fit.

Due to the immense scope of the proposed changes, only the more significant proposals have been mentioned. For more details please refer to the following website: http://www.reach.gov.sg/olcp/asp/ocp/ocp01d1.asp?id=3683.

Kishan Pillay is a third year law student and a senior editor of the Singapore Law Review. — Juris Illuminae Vol. 3 Issue 3 (January 2007)