Month: November 2011

157. The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him:

…(d) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

The announcement by the Law Minister that they would move to repeal Section 157(d) of the Evidence Act was the result of many small efforts.

It started with Aloysius Chang. He probably doesn’t even know he had anything to do with the repeal. But in February 2010, he wrote an article for the Singapore Law Review’s newsletter Jurris Illuminae which mentioned the problematic section:

It is submitted that this statutory provision seems to adopt a very strange line of reasoning: that a woman’s past sexual history or reputation would deem her to be immoral, and thus there is reason to believe that she somehow consented to the alleged act. This notion of “immorality” seems archaic by modern times, and there is no way of ascertaining any objective standard of what “immoral” means.

In September of that year, Rachel Lim, an AWARE intern, came across Chang’s article while researching rape crisis procedures around the world. Her report became a key reference for AWARE’s initiative to create a sexual assault support service.

After Section 157(d) was brought to our attention, AWARE shared details about the offensive section on our social media platforms. But the matter largely remained dormant until the SlutWalk movement encouraged interest in the prevalence of victim-blaming.

This in turn prompted Lisa Li, a writer for the newly formed Public House website, to write an article highlighting the issues faced by victims of sexual assault in Singapore. She interviewed AWARE executive director Corinna Lim, who encouraged her to look at Section 157(d).

After the article was published, Andrew Loh, the founder and editor of Public House, sent it to relevant ministries, asking them if they would like to publish a reply.

There was no response except for one: The Ministry of Law.

But the Ministry of Law didn’t want to reply. They wanted to meet. Loh declined, saying that Public House was not the expert on this subject. He encouraged the Ministry to talk to AWARE instead, as we were doing the ground work on this issue.

AWARE got the call. Would we be willing to meet with the Law Minister? Yes. AWARE President Nicole Tan and executive director Corinna Lim met Mr K Shanmugam at his office. During the meeting, the Minister was responsive and supportive. He concurred with the view that the law was archaic. He offered to help move toward its repeal.

The outcome of the meeting was officially announced on November 25 at the launch of AWARE’s Sexual Assault Befriender Service.

Each person involved in this chain of events had no idea that their individual efforts would result in the imminent repeal of this law. But they did it anyway. Individual efforts matter. And they can add up to great things.

The following is the speech given by Minister for Foreign Affairs and Law, Mr K Shanmugam, at the official launch of AWARE’s Sexual Assault Befrienders Service.

Ms Nicole Tan, President of AWARE,

Ms Corinna Lim, Executive Director of AWARE,

Members of AWARE,

Ladies and gentlemen,

The 25th of November is a significant date for activists working to protect the safety, welfare and rights of women around the world, not just Singapore.

It is the International Day for the Elimination of Violence against Women.

Today also marks AWARE’s 26th anniversary.

AWARE’s Sexual Assault Befrienders Service

I am glad that AWARE is officially launching its Sexual Assault Befrienders Service today.

AWARE’s Service will provide a very useful avenue for sexual assault victims to receive help and counsel.

The Befrienders will also assist them in getting medical attention and in reporting such cases to the police.

I, quite frankly, have not been aware of the issues relating to this field. I first became aware of them when I read an article by Andrew Loh. It talked about the process that the woman has to go through to file a report in rape cases. And quite frankly, I was a little taken aback and surprised at the process and procedures. So, in the meantime, civic group, No To Rape, mass emailed a number of MPs and Ministers and again, I decided to meet them to understand the issues better. I talked to them and AWARE. I have to say these gave me a much better understanding, as a result of which I offered to put AWARE in touch with the Police on the processes.

I do not think there is a government-society or government-women divide in these things. I think it is really a question of understanding, trying to make sure that the processes work for everyone, and having really an equality of understanding and knowledge. I think we are all on the same side on these issues. It cannot be on different sides. And I think the police have agreed to meet with AWARE. My colleagues and I will be quite happy to assist in the process as it goes along. I can understand the Police’s perspective – they have a framework to work with, and there are limitations to what they can do. But I think within that framework, I am sure they will try and help.

I am happy to support the Sexual Assault Befrienders Service by AWARE, which is part of AWARE’s long-running efforts to eliminate violence against Women in Singapore, including:

a) the launch of the AWARE helpline in 1991;

b) the commencement of regular dialogues on sexual assault cases with the Singapore Police Force in 1993, and

c) the White Ribbon Campaign in 2004 to end violence against women.

History of Section 157(d), Evidence Act

The Ministry of Law (MinLaw) regularly conducts reviews of our laws to ensure that they remain relevant and progressive. For example, in 2009 to 2010, we conducted a fairly extensive feedback process to amend the Criminal Procedure Code, and we consulted lawyers, practitioners, people from the Bar, people from the Criminal Bar and the academia. We put all of them together in the same room, and worked it out over a period of nine to 10 months. The final result did not necessarily take into account every feedback we received, but it can honestly be described as a work that most people signed off on, and accepted as one that fitted within the framework that we have. That has always been my approach at MinLaw, and the public consultation for the Evidence Act has taken the same approach. We have seriously consulted, with the view that any feedback that is direct and relevant, we will look into it seriously, and where we can implement it, we will do so.

During the consultation exercise, AWARE made a submission to repeal section 157(d) of the Evidence Act.

Section 157(d) provides that “when a man is prosecuted for rape…, it may be shown that the prosecutrix was of generally immoral character” in order to impeach the credibility of an alleged rape victim.

There is a history to this section. Singapore’s Evidence Act is based on the Indian Evidence Act of 1872, which in turn was based on the English common law of that time.

The term “generally immoral character” in Section 157(d) was assumed to be a proxy for sexual promiscuity.

Underlying Section 157(d) was an assumption – old common law.

These assumptions are:-

a) a woman who is sexually experienced is less credible as a witness; and

b) a woman who is sexually experienced is more likely to have consented to sexual activity.

In like vein, Sir William Blackstone’s Commentaries on the Laws of England, written in 1753, stated that the testimony of a rape victim of “evil fame” was presumed to be false or feigned.

One has got to only state these propositions to see how antediluvian and repugnant they are. The Canadian Supreme Court has called them the twin myths.

Proposed Repeal of Section 157(d)

I thank AWARE for raising it. And I really do not think that these assumptions, myths and repugnant views should find any expression in our laws.

As part of the upcoming round of amendments to the Evidence Act, MinLaw intends to repeal Section 157(d) of the Evidence Act. It is certainly my view that this section should not exist. The approach we should take to this, whether it is a man or a woman – matters relating sexual history, just like a man who has been previously accused, whether that should or should not be taken into account – sexual history of either party can only be taken into account if it is relevant for that particular case. So, we really ought to leave it to the courts. Neither should we say it is completely irrelevant. It really depends on the facts, and it cannot just be the woman. That must be the right approach.

Like all other evidence, matters relating to a victim’s sexual history must satisfy the threshold of relevance before they can be introduced, rather than as dictated by Section 157(d).

Conclusion

Let me conclude by commending AWARE and its volunteers for setting up the Sexual Assault Befrienders Service, and wish it every success in fulfilling its mission.

Thank you.

Read the speech here.

On November 25, AWARE officially launched the Sexual Assault Befrienders Service (SABS) after a 6-month pilot period. The following is the speech given by AWARE Executive Director Corinna Lim at the launch event.

Our Guest of Honour, Minister of Foreign Affairs and Law, Mr Shanmugam, members of the press, friends of AWARE:

Good morning everyone.

Mr Shanmugam, thank you for supporting the launch of the Sexual Assault Befrienders Service today. We know you have a very busy schedule and we are really glad that the Government is taking the issue of sexual assault seriously. It is a much overlooked area which requires some attention.

Being sexually assaulted is a terrifying experience for a woman whatever her level of sexual experience. The aftermath can be almost as traumatic, if one has to go through this alone.

I would like to quote the experience of a woman who has given us permission to share her story. She was a tourist outside Singapore when the incident happened . She came to see us for advice on how she could seek justice . We put her in touch with lawyers in the country where it happened and this started a chain of events which eventually led to the capture of a serial rapist:

“What I found most challenging after the assault, was the fact that exactly when you are most impacted and impaired by the incident, you have to go through further invasions which involve making crucial and far-reaching decisions. You have to get medical treatment for the injuries, address the risk of pregnancy and sexually transmitted diseases, decide if you want to report the incident to the police and, if you wish to proceed with police action, you have to get the DNA samples from your private parts. And ideally, all of this should happen as soon as possible and no later than 72 hours after the incident.”

Women have called the AWARE helpline 5 years, 10 years and even 16 years, after they were sexual assaulted, to talk about what happened. Time did not heal their wounds. They were still suffering from panic attacks, flashblacks and nightmares. And some were depressed. Sometimes their partners or boyfriends, desperate to find a solution, called us for help.

These Helpline cases indicated to us that many victims did not have the support they needed after the assault to find closure and to move on.

It is these very cold calls – in rape vocabulary, anything beyond the first 72 hours is considered cold – that prompted us to create the Sexual Assault Befriender Service – a specialized, comprehensive support service for sexual assault survivors.

In May this year, we launched the Sexual Assault Befriender Service or SABS (for short).

What is SABS?

SABS comprises a dedicated Helpline, counselling, legal counselling and Befriending services.

These are all services that we offer for other types of cases. However, the SABS Helpline runs from 10 am to 9.30 pm, longer hours than our regular Helpline which operates from 3 pm to 930 pm.

SABS clients get to see our legal counsellor within three days (depending on the urgency) instead of waiting 2 weeks for our Legal Clinic.

We can send a SABS Befriender down to the police station almost immediately, if necessary.

Also, we follow up with the client a lot more actively, keeping in touch with them to see how they are doing and following up on their police case.

SABS Pilot

To carry out the SABS pilot, we equipped 7 Befrienders and 4 counsellors with specialized information and skills to provide support for sexual assault victims. These were people who had already gone through Helpline training or were professional counsellors. So, they had a basic background in providing emotional support.

We also set up a new section of resources on our website, where we offer the most comprehensive information available on rape in Singapore.

The objectives of the pilot were:

• To assess the demand for such a service
• To assess what we might need to roll out the service fully
• To develop our experience working with sexual assault victims, supporting them through the medico-legal processes
• To find out what issues might arise in providing this service.

We did not publicise this service in the media. We announced it on our website and to our database.

The results of the pilot told us there is a real need for SABS.

Demand
During the six-month pilot, we received 24 calls about sexual abuse cases i.e. rape, molest, extortion. This is roughly double the number of sexual abuse calls that we usually receive on our regular Helpline over a six-month period.

Of the 24 calls received, 14 were rape cases.

We met with 10 of the 24 callers and provided them with counselling, befriending and/or legal counselling services.

So, yes, there was a demand in terms of numbers.

More importantly, there was a demand in terms of the amount of help needed for each case. The demand on our team was much more intense than what is required in supporting non-SABS cases.

Some clients came in twice a week to see our counsellor.

Legal counselling usually took 1.5 hours instead of 30 minutes. Befriending would typically take 3 – 5 hours per visit.

So, it is a lot of hours of support for one person. But if this is what it takes to help a sexual assault survivor to heal and recover rather than to go through years or a lifetime of self-blame, fear, anxiety, self-abuse and depression, it is more than worth it.

What we need to roll out

A new counselling room, given the number of contact hours. We will be renovating our back room for this purpose.

An additional social worker to manage this service.

A dedicated SABS number.

More volunteers to be trained as Befrienders.

Outreach and publicity, mainly through working with partners. We hope to partner with the Police and hospitals in particular, to reach out to “hot” cases (cases in the first 72 hours).

We need to get the word out in the media, the Internet, to other VWOs and to the public in general that there is now a specialized service for this.

We need money to fund all this. We would like to thank the Margaret Mary Wearnes Charitable Trust and the Chen Su Lan Trust for ensuring that we have funding to provide this service for a year. But of course, we need more money for longer sustainability.

Issues

I would like to talk briefly about three things:

Date rape

Most rape is acquaintance rape, and more often than not it is date rape. To give you an idea – of the 34 rape calls that we received on our Helpline over the past two years, where information about the relationship between the perpetrator and the victim was made available to us, there was only 1 case in which the woman was raped by a stranger. In all the other cases, the rapists were people the victims knew.

Date rape is especially confusing for the victim as there is some level of consent to the situation and there is often an issue of evidence.

Even though the victim did not consent to the sexual penetration, she may have consented to meeting the accused at a late hour alone, to drinking and often to a certain degree of intimacy with the perpetrator, short of sexual intercourse. Although she is clear that she did not consent to sex, she feels partly responsible for the situation.

In date rape cases, we will provide the victim with information as to how the law defines rape and consent. We will support her to deal with feelings of guilt and shame, and sometimes, the adverse judgments of her family and friends.

Our role as Helpliners, Befrienders and Counsellors in the case of a date rape is to be empathetic and supportive.

We say “It’s not your fault” and we work from there.

As a Befriender, I have seen with my own eyes the difference these words “It’s not your fault” make to a sexual assault survivor. They can be life-saving.

Police procedures

The Police are generally the first point of contact for sexual assault victims. In Singapore, a rape victim will have to
make a police report before she can get a Rape Kit done at the hospital. A Rape Kit is the collection of DNA samples for forensic testing.

When the victim first goes to the Police station, she is usually in a state of trauma and confusion. The Police thus have an extremely challenging role as they have to take a report on highly sensitive and personal matters from victims when they are at their most distressed.

A negative experience at this critical stage may re-traumatize the victim and/or deter the victim from proceeding with the report or the prosecution.

This is where the Befriender can be of enormous help to the victim and the Police. Based on our experience of working with sexual assault victims, we believe that our Befrienders’ support of the victims will assist the Police in carrying out their investigative roles more effectively while, at the same time, ensure that the victim receives the emotional support that she needs during this time.

The Police have to be impartial fact finders. They cannot be the people to tell the victim “It’s not your fault”. But the victim is at a stage where she really needs to be believed and supported, and our Befriender can play this role.

The Minister has kindly facilitated a meeting between AWARE and the Police to discuss this next month and we sincerely hope that we will be able to work out an arrangement with the Police whereby we can be there to support the victims from the time they make the police report.

The low rate of reporting

Of the 24 calls that came in during the SABS pilot period, only 6 victims had made police reports.

This is not surprising. It stems from a few factors. In the case of date rape, victims are not sure if a crime has taken place, are afraid of not being believed, feel that they have no evidence or are too ashamed to bring it up.

Victims may also be fearful of victim-blaming – factors such as how they dressed and behaved and their past sexual history may be used against them.

When we started to research rape laws and procedures, we came across Section 157(d) of the Evidence Act, which allows a woman’s past ‘immoral’ history to be used against her. The law had in fact codified victim blaming.

We approached the Minister about this and I am happy to say that he will be announcing some good news about this issue a little later.

We are most heartened by how open and responsive the Government has been to our feedback in this area. We look forward to a closer engagement between civil society and the government.

I will end with another quote from the same survivor that I quoted before:

She says:

“ I did not have the knowledge, experience, or -after what had happened- the self-assurance to proceed but the fact that I did, with the emotional and professional support of AWARE, is the very reason that today I can face life at eye level again. ……Considering the shame, humiliation and helplessness that the victims often experience, I think it is important to look at SABS not as a charitable service but as a necessary institution that can make all the difference when it matters most.”

So, this is the start of a long process. AWARE celebrates its 26th birthday today. We have with us our past presidents, Constance Singam and Dana Lam, and founding member, Margaret Thomas, to share this special day. We are also joined by some members of the SABS team and many other committed volunteers who have contributed their talents and time to AWARE.

We hope to be around for another 26 years, and then some. For the immediate future, our aim is to make sure that survivors of sexual assault know that they can turn to SABS for immediate help and support, and do not have to struggle alone with their pain for months or years.m

On Sept 30, 2011, the Ministry of Law called for public feedback on the proposed amendments to certain sections of the Evidence Act.

AWARE has made a submission that relates to Section 157(d) of the Evidence Act, which makes it possible to discredit an alleged sexual assault victim through her sexual history.

While Section 157 (d) lies outside the ambit of the current proposed amendments, we believe that this law is outmoded and needs to be repealed. We also believe that effective rape shield laws should be implemented to give sexual assault victims necessary legal protection.

WHY SECTION 157(D) NEEDS TO GO

Section 157 (d) of the Evidence Act states:

“The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him:
….
(d) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”

It is not clear what is meant by the phrase “generally immoral character”. The drafting history suggests that it was originally targeted at “unchaste” women.

This means that victims of rape or attempted rape can be discredited in court on the basis of “generally immoral character”. This provision implies that a chaste woman is more likely to have lodged a legitimate claim of sexual assault while an unchaste woman is either a) an untrustworthy witness or b) likely to have consented to the defendant’s advances and then lied about it at a later date.

Generally, the main purpose of admitting prior sexual history of the complainant is to impeach the credibility of the complainant and/or to support a consent defence.

The above provision embeds a requirement that women maintain an ideal of sexual abstinence to obtain legal protection. It rests on what the Canadian Supreme Court has called the twin myths – first, that “unchaste women [are] more likely to consent to intercourse” and secondly, in any event, they are “less worthy of belief”.

This “chastity” requirement, which is based on common law, is clearly outmoded and has been reversed by statute in most common law jurisdictions i.e. USA (1974), UK (1976), Hong Kong (1978), Malaysia (1988), Canada (1992), India (2002) and New Zealand (2006).

Singapore is a laggard in this regard.

It is not the function of rape evidence law to perpetuate and enforce moral judgments on women’s sexual lives but to promote the discovery of the truth.

Where credibility is concerned, the reasoning seems to be that promiscuity is a form of dishonesty and hence lessens a victim’s credibility. The rationale is fundamentally flawed; it is biased against women and against victims.

Where consent is concerned, it is illogical and unreasonable to make any inferences about the complainant’s consent to have sex with the defendant on the basis of the complainant’s sexual conduct with other third parties. Consent is not transferable from one party to another. Consent in a rape case must be specific to the accused.

Even if it can be argued that a promiscuous woman is more likely to engage in sexual intercourse in general and is probative of her having given consent in the specific case, when an accused argues consent in rape trials, he is in fact implying that apart from consenting, the complainant also gave false testimony about the incident to the police thereafter and is lying under oath about her experience at the trial. Thus, the accused needs to prove not just a pattern of prior sexual conduct but also a pattern of prior false accusations.

In fact, research has shown that sexually experienced women are:

• Not more likely to make false accusations of rape
• Less likely to perceive non-consensual sexual encounters as rape.

Furthermore, it has also been widely observed that, at least, in jury trials, admitting evidence of complainant’s prior sexual conduct can be extremely prejudicial to the complainant, creating an unfair bias against her in the court’s decision-making process.

The complainant’s promiscuity or perceived promiscuity with third parties subverts the truth-seeking process by creating a perception of the woman as having failed to live up to a certain societal ideal of female modesty.

Finally, it is a well known fact that rape is generally one of the most under-reported crimes. In the UK, it is estimated that 75% to 95% of rape cases go unreported. In the US, it is estimated that 60% of sexual assault crimes go unreported. Rape is likely to be heavily under-reported in Singapore as well.

This is not surprising. Not only is rape an extremely traumatic experience for the victim, a victim’s decision to report the crime to the police involves a cost – social recrimination and lost privacy, with no guarantee of offender apprehension.

One barrier to reporting sexual violence is the perception that the complainant and her behaviour are put on trial, rather than that of the accused. Section 157(d) entrenches this and the risk of humiliation and loss of privacy.

It is in the public interest to repeal Section 157(d) of the Evidence Act because:

• It is based on the outmoded concept that only “chaste” women should be afforded legal protection
• The moral or immoral behaviour of a woman in general has no logical link to her credibility or to the question of whether she consented to sexual intercourse in the specific case
• Admitting evidence of a complainant’s prior sexual conduct can be extremely prejudicial to her and create an unfair bias against her in the court’s decision-making process
• It entrenches the risk of public humiliation to and scrutiny of a victim’s behaviour and deters rape reporting, which is already very low
• It codifies victim-blaming
• All or most other common law jurisdictions have already repealed this law.

A woman’s sexual history should not be used against her in a way that is discriminatory and demeaning to her. The existence of this section and the spectre of a woman’s sexual history being used against her add further obstacles to the reporting of rape crimes.

Finally, the Evidence Act already contains general provisions in Sections 150, 153 and 154 which impose limitations on the extent to which counsel can attack the character of a witness. The problem is that Section 157(d) explicitly gives the accused the right to attack the creditability of the victim of rape or attempted rape by showing that she is of “generally immoral character”. It is arguable that the explicit provision in Section 157(d) is not limited or excluded, by implication, by Sections 150, 153 and 154.

IMPLEMENT RAPE SHIELD LAWS

Rape Shield Laws are laws which prescribe or guide when and how previous sexual conduct could be used by a defendant at trial. Many common law jurisdictions have enacted Rape Shield Laws, including Canada, Malaysia, Hong Kong, New Zealand, UK and USA.

These provisions were implemented to reduce the trauma and humiliation that a rape victim may face in court, to encourage the reporting of rape and to prevent misleading evidence from being adduced in court.

Even with the offending section 157(d) repealed, counsel for the accused is normally given a wide latitude to attack the general credit and credibility of the complainant. The enactment of a Rape Shield Law would make it clear that the latitude given in cross examination does not extend to sexual history unless it is sufficiently relevant to the charge.

The courts had in the past increased the sentence of an accused where the defence lawyer had “annoyed, embarrassed and humiliated the victim” during cross examination. Increasing the sentence is an after-the-event deterrence: it deters others from embarking on overly intrusive cross-examination of sexual complainants. It is better to prevent such cross-examination from occurring by disallowing overly intrusive questions from being put to the complainant by Rape Shield Laws.

Read AWARE’s full submission to the Ministry of Law here.