AWARE: Need for clearer legal definition and public understanding of consent in sexual assault cases

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AWARE has responded to Attorney's General Chamber (AGC) statement's on Joshua's Robinson case which pointed to the need for a clearer legal definition and public understanding of consent in sexual assault cases.

AGC's statement was delivered to local media on Wednesday (8 March) stating that the Public Prosecutor has decided not to appeal against the four-year sentence for 39-year-old American Joshua Robinson who had sex with two 15-year-old girls and filmed them.

AGC said in its statement that the sentences imposed were "broadly in line with relevant sentencing precedents".

AWARE stated that its statement was delayed as it was submitted to The Straits Times. However, the piece was being rejected for publishing.

In its statement, it stated that consent to sexual activity must be fully voluntary agreement, untainted by factors like coercion or abuse of authority.

According to AWARE, Singapore’s case law is fairly nuanced.  The courts have recognised, for instance, that consent initially given can be later withdrawn during sexual activity, and that consent to one form of intimacy, such as kissing,

For instance, AWARE noted that the courts have recognised that consent initially given can be later withdrawn during sexual activity, and that consent to one form of intimacy, such as kissing, is not consent to other forms of intimacy, such as intercourse.

However, it said that case law is not accessible to most people, adding that there is no single statutory definition of “consent” which clearly lays out all the key points of the law.

"Section 90 of the Penal Code non-exhaustively states some factors which vitiate consent, such as the fear of injury, or misconceptions of fact," AWARE said.

For instance, AWARE said that saying "yes" to sexual activity out of fear that intimate videos will be circulated should not amount to consent.

"Yet in our experience, the absence of a single clear and comprehensive statutory definition can lead to public confusion, including among sexual assault survivors and agencies who may encounter them," AWARE noted.

AWARE then stressed that the AGC has introduced a further disquieting element, by characterising sexual activity between an adult and minors aged 15 as "consensual", which in its view, minors under the age of 16 should not ever be said to have legally consented to sexual activity with adults, given the significant and unavoidable power imbalance between the parties.

AWARE then stated that this is surely the entire principle underlying the existence of Section 376A of the Penal Code, which criminalises sexual penetration of a minor, saying that the act constitutes an offence precisely and only because the vulnerability of the minor and the adult’s position of authority together prevent the minor from giving fully voluntary agreement.

It said that the AGC’s statement may have the troubling effect of deterring minors from reporting sexual abuse by adults, because they may believe these will be seen as “consensual”.

"We urge proper codification of the law of consent, including a clear recognition that minors cannot be understood to consent to sexual activity with adults," AWARE said.

"Any review of criminal justice responses should proceed on this basis, and with close attention to evidence-based best practice in other jurisdictions, including options such as restorative justice sentencing and background checks for those working with young people," it added.