Outrage of Modesty?

Outrage of modesty appears to be an umbrella term for acts that have violated one’s modesty. Its legal definition as it appears in the Penal Code, however, scopes the acts of ‘outrage of modesty’ more narrowly. In fact, it is usually synonymous to the more commonly known act of molestation.

Section 354 of the Penal Code provides the scope of outrage of modesty, which comprises of the following elements.

  1. There must be an assault or use of criminal force;
  2. There must be an intent or knowledge that outrage of modesty would likely occur.

The definition of ‘modesty’ remains a matter to be decided by the Court, taking into consideration factors such as circumstances of the offence, prevailing societal values and perception of what modesty entails.

 

What then are acts that constitute an outrage of modesty?

Common acts that have been reported in Singapore include kissing, touching at inappropriate areas, and even hugging. As long as there was no consent between the parties, any of such acts will constitute an outrage of modesty.

 

Is outrage of modesty the same as insult of modesty?

There are many other acts such as inappropriate staring and taking up-skirt photographs that have been mistaken to be an outrage of modesty. This can be reconciled with the understanding that these acts do not involve an assault or use of criminal force, and hence do not satisfy the first element of an outrage of modesty.

Nonetheless, these acts can still be criminalized under Section 509 of the Penal Code as insult of modesty:

  1. The insult must take the form of a word, sound, gesture or exhibiting an object;
  2. There must be an intent for the insult to be heard, seen, or intrude upon the privacy of victim.

 

Besides the form of the criminalized act, another distinction between an outrage and insult of modesty lies in the gender of the victims. Unlike the offence of an insult of modesty, victims of an outrage of modesty include both males and females.

 

Punishment for outrage of modesty

Persons convicted under Section 354 of the Penal Code faces a charge of up to 2 years imprisonment or a fine or with caning, or with any combination of such punishments. There are, however, certain circumstances which have warranted harsher sentences.

 

Relevant Legislation Offence Punishment
Section 354
of the
Penal Code
Outrage of modesty offences Up to 2 years imprisonment, or with fine, or with caning, or with any combination of such punishments.
Section 354(2)
of the
Penal Code
Offence involving victims below
14 years of age
Up to 5 years imprisonment, or with fine, or caning, or with any combination of such punishments.
Section 354A
of the
Penal Code
Offence which has voluntarily caused or attempts to cause death, or hurt, or wrongful restraint, or fear of instant death, instant hurt, or instant wrongful restraint 2 to 10 years imprisonment WITH caning
Section 73
of the
Penal Code

Offences involving domestic maids

Enhanced punishment of 1 ½ times

 

 

Sentencing principles

In the recent case of GCO v PP [2019] SGHC 31, the offender had committed an offence under Section 354 arising from the fact that he touched the vagina area of a female school mate. The offender was initially punished with 8 months of imprisonment and three strokes of the cane. However, the punishment of caning was overturned when the matter was brought up to the High Court.

The Court have once again affirmed and adopted the Kunasekaran framework, which has been the approach taken by the Courts, to decide the appropriate sentence for outrage of modesty offences. It involves the following two-step approach.

1. The Court to determine which of the three sentencing bands the offending act falls within by considering the following offence-specific factors:

a. Degree of sexual exploitation;
b. Circumstances of the offence, which include the presence of premeditation, use of force or violence, abuse of position of trust, use of deception, presence of other aggravating acts and exploitation of a vulnerable victim;
c. The harm caused to the victim.

Sentencing Bands:

 

Band 1 Theft of a motor vehicle or any component part
Band 2 5 to 15 months’ imprisonment
Band 3 15 to 24 months’ imprisonment

 

2.The Court will also consider offender-specific factors that are aggravating or mitigating.

With regards to the punishment of caning, the Kunasekaran framework also sets out that caning is typically imposed on offenders in cases when the following circumstances arises on the fact:

a. Where there was skin-to-skin contact;
b. Where the contact was prolonged;
c. Where there was an element of restraint applied to the victim.

 

Looking at offence-specific factors, the Court’s attention was drawn to conclude that there was a high degree of sexual exploitation involving the intrusion into the victim’s private parts while she was asleep and vulnerable. As such, the act fell within Band 2 of the Kunasekaran framework, but not within the upper end of Band 2 due to the absence of skin-to-skin contact with the victim’s private parts. The punishment of caning was also therefore overturned, since there was no skin-to-skin contact.

The High Court then went on to consider offender-specific factors upheld the lower court’s decision on the presence of an aggravating factor, that the offender’s criminal behavior had escalated from one of an insult of modesty, previously committed by the offender, to one of an outrage of modesty. However, being minded that the offender had pled guilty at the first opportunity and had apologized to the victim, the High Court took the view that the aggravating factor had been negated. The High Court therefore upheld the sentence of 8 months’ imprisonment.

 

Please note that this article does not constitute express or implied legal advice, whether in whole or in part. If you require legal advice, please contact me at walter@silvesterlegal.com.