CLD Criminal Law Basics
Voyeurism: Key Changes to the Law
Ms Monica Baey had sparked a national debate after bringing to light her experiences with sexual harassment on campus. She was a victim of voyeurism, where her harasser deliberately and wilfully intruded upon her privacy when he secretly filmed her while she was showering. Voyeurism, an act that has recently gained traction in the local discourse about sexual misconduct since the Monica Baey exposé, will now be punishable under section 377BB of the Penal Code.
Changes to statutes
To better combat offences relating to voyeurism, the new section 377BB was introduced with effect from 1 January 2020, which establishes a specific offence for voyeurism. This provision was enacted due to the recent rise in voyeurism cases, as well as the increasing use of technology to commit such offences.
s 377BB’s gender neutral language recognises the reality that any individual, regardless of their gender, can potentially be a victim of voyeurism. To this end, the word “woman” used in s 509 has been replaced with “person” in s 377BB.
Here is a rough breakdown of s 377BB:
- At its most basic level, s 377 BB(1) makes it an offence for a person (A) to observe another person (B) doing a private act without B’s consent (and with the knowledge or belief that B does not consent).
- The other subsections ss 377BB(2) and (3) gradually build on this by targeting voyeurism which is achieved either through operating equipment to observe person (B) or in situations where person (A) intentionally or knowingly records person (B).
- ss 377BB(4) and (5) deal with the aggravated situation where person (A) operates equipment to observe or record (B)’s private parts.
Changes to sentencing
The maximum sentence that can be imposed on an individual who is found guilty under s 377BB is 2 years’ imprisonment. This is double the previous 1 year maximum jail term for the offence of insulting modesty under s 509. In addition, a fine or caning, or any such combination of all three punishments can also be imposed. Where the offence is committed against a person below 14 years old, imprisonment will be made mandatory. The prevalence of voyeurism cases imposes the need for a higher punishment to deter the proliferation of voyeuristic recordings.
Motivations behind these changes
Previously, voyeurism was dealt under s 509 ‘Insulting the Modesty of a Woman’ in the Penal Code. This section provided as such:
“Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.”
While there were only 8 charges under s 509 between 2001 and 2008, the number of charges surged between 2008 to 2021, reaching a whopping total of 2826 charges. The increase in prosecutions can most likely be attributed to the advancements in technology. However, there was no specific provision to deal with this contemporary problem of voyeurism through technology, leading to s 509 being used instead. For instance, in PP v Chandran s/o Natesan  SGDC 33, the Defendant was charged under s 509 for the offence of uttering words intended to insult the modesty of a woman. Similarly, in PP v Tan Huat Heng  SGMC 1, the Defendant who was found guilty of the more severe offence of using his camera phone to take “up-skirt” videos of several women, was also charged under s 509.
Furthermore, since voyeurism was dealt under ‘Insulting the Modesty of a Woman’, the accused could not be charged under s 509 if the victim was male. Instead, the accused would be charged with another offence. While male victims of voyeurism are rare, they still exist. For example, Mr Koh Kah Hock had filmed men showering in a clubhouse without their knowledge and kept their obscene videos on his laptop. For his acts, since Mr Koh could not be charged under s 509, he was merely charged with making obscene films.
The key problems of s 509 can be summarised as follows:
- As a repurposed piece of legislation, it was not adequately equipped to deal with voyeurism. Since the offence was gender-specific, voyeuristic videos taken of men without their consent could not be prosecuted under section 509 and had to be dealt with potentially under the films act, which led to different sentencing outcomes.
- It does not contemplate the myriad of ways voyeurism could be committed. Hence, all offenders were subjected to the same range of punishments and the Courts were left to rely on aggravating factors to distinguish between varying degrees of culpability.
In formulating its recommendations on the voyeurism offence, the Penal Code Review Committee studied other countries’ approaches, namely England, Wales, Scotland, Canada, New Zealand, and Australia. This comparative approach to legislating is crucial to bring the law in line with contemporary social values and norms – for example, Ms Monica Baey revealed that she decided to speak out when a friend from an American university told her that the offender would have faced much harsher punishment in the USA.
The PCRC also considered the increasing ubiquity of image-capturing devices, which amplifies the potential harm arising from voyeurism. Technological improvements would mean that such crimes were no longer being contained between the victim and perpetrator, since the potential for mass dissemination is much higher. Technology has also caused the proliferation of sexual violence in cyberspace, and many people must deal with unwanted sexual massages and calls, non-consensual sharing of intimate images, voyeurism, harassment and objectification. Institutional processes must accordingly keep up with the times. The new offence of voyeurism reflects the gravity of the offence and has doubled the maximum imprisonment term from one to two years and provided for the possibility of caning as well.
Mitigating and aggravating factors regarding sentencing
With regards to sentencing under the new s 377BB, there are various aggravating and mitigating factors that can affect the harshness of the sentence handed out. The table below illustrates the types of factors and how they affect sentencing.
Aggravating factors (stiffer sentence)
Existence of planning and pre-meditation
If the offender’s criminal actions were deliberate and well thought through instead of impulsive, their actions would suggest that he had a modus operandi or systematic process in carrying out the offence.
The length of time over which the crime was committed
The longer the time over which the crime was committed, the more it suggests that the offender put in effort to commit the offences and avoid detection.
Number of victims
The greater the number of victims, the more likely the offender will receive a stiffer sentence.
Relationship with victim – was there a breach of trust?
If the offender targeted friends or colleagues, this would suggest a breach of trust and the offender taking advantage of the victims’ friendship, familiarity and/or faith in the offender.
Instruments used to commit the offence
Mobile phones are aggravating factors as offenders can commit offences more easily and replay the videos. Further, the miniaturisation of cameras would make it easier for the offenders to hide them without detection, encouraging them to take more risk to commit the offence.
Mitigating factors (lighter sentence)
Psychological condition of the offender
If there is evidence that proves that the offender is unable to control or stop himself from committing the offence due to an unsoundness of mind, a Mandatory Treatment Order (MTO) would usually be given instead of a jail sentence. A MTO would require the offender to undergo psychiatric treatment at a psychiatric institution for up to 36 months.
Previous criminal records
If the offender had a clean record, it could mean that what he/she did was totally out of character.
However, a clean record may not have much mitigating value if the offender is convicted of a string of offences committed over a period of time because it means that he
How have the changes affected sentencing
While the changes made to the Penal Code are still relatively new, there is a recent case that has applied the updated sentencing principles.
In PP v Sean Lee Yang, the accused had placed a spycam with an SD card in a gym, with the intention of recording men urinating without their consent. By installing a piece of equipment with the intention of enabling himself to commit an offence under s 377BB (3) of the Penal Code, the offender has committed an offence under s 377BB (6), punishable under section 377BB (7).
The prosecution highlighted the following aggravating factors for the offence under s 377BB(6):
- The offender’s great degree of foresight and premeditation, since he had purchased the spycam 2 weeks prior and experimented with it prior to his offence.
- The captured recordings could be repeatedly re-viewed by the offender, or even disseminated to third parties.
- The offence was the last of a course of conduct that took place over one to two weeks involving multiple victims involved who were not identified as the recorded videos were not recovered.
- The use of miniaturised, disguised, or hidden cameras to record films of unsuspecting men in public/private toilets.
The defence counsel highlighted the following mitigation factors to urge the court to place the offender on probation or under an MTO.
- The offender’s previous sexual assault and PTSD.
- His ongoing treatment in IMH.
Taking into consideration that acts of voyeurism are on an upward trend in Singapore, as well as legislative intent for s 377BB to impose higher penalties to deal with such offences, the court held that the principle of sentencing in this case is predominantly that of deterrence. The culpability of the offender is moderately high, as he had purchased a spy camera that was disguised as an innocuous clothing hook, designed to be inconspicuous and ordinary looking. Furthermore, the offender had bought the item from Lazada, which suggests that such devices are easily accessible to the public. A strong deterrent message needed to be sent out to turn away like-minded persons from being tempted to embark on such a course.
With regards to probation, the court did not find that the offender has demonstrated “an extremely strong propensity for reform”, and thus found that rehabilitation has clearly not displaced deterrence as the primary sentencing consideration. With regards to an MTO, the court found that the offender had clearly acted with deliberation and a composed mind. He did not panic and own up immediately to his wrongdoing but instead was able to process through a plan to try to get away scot-free. Hence, the offender was not suffering from any mental disorder of a kind that could possibly satisfy the criteria for the imposition of an MTO.
Under s 377BB (6), the offender was sentenced to 2 months’ imprisonment, giving a global sentence of 6 months’ imprisonment.
In closing, this article has introduced the offence of voyeurism and highlighted key changes in the law, using a recent case to illustrate the updated sentencing principles for voyeurism cases. It is hoped that these new provisions will curb the uptick in voyeuruism and deter potential offences.
Written by: Nancy Xu
*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.