Written by Cheryl Ng, Criminal Defence Advocate
What these offences cover
The Penal Code contains several separate offences dealing with images and recordings of a sexual or private nature. They were introduced by the Criminal Law Reform Act 2019 and took effect on 1 January 2020, in response to the secret recording and sharing of private images, including so-called "revenge porn". The offences are gender-neutral. Broadly, they cover four kinds of conduct: making a recording, possessing or accessing such material, distributing material obtained by voyeurism, and distributing or threatening to distribute intimate images. In practice, each individual image or recording can form the subject of a separate charge, so a person may face multiple charges arising from the same conduct.
Two terms are used. A "voyeuristic" image or recording is one obtained by an act of voyeurism — for example, a secret or upskirt recording. An "intimate" image or recording is one showing a person's genital or anal region or breasts (whether bare or covered by underwear), or the person doing a private act, regardless of how it was obtained. This distinction matters: an image taken with consent — for example, shared willingly between partners — can still give rise to an offence if it is later distributed without consent.
The main offences and maximum sentences
| Conduct | Section | Maximum sentence |
|---|---|---|
| Recording or observing a person (voyeurism, including upskirt) | s377BB | Up to 2 years' imprisonment, a fine, caning, or any combination |
| Possessing, or gaining access to, a voyeuristic or intimate image or recording | s377BD | Up to 2 years' imprisonment, a fine, caning, or any combination |
| Distributing a voyeuristic image or recording | s377BC | Up to 5 years' imprisonment, a fine, caning, or any combination |
| Distributing, or threatening to distribute, an intimate image or recording ("revenge porn") | s377BE | Up to 5 years' imprisonment, a fine, caning, or any combination |
For the distribution offences, the punishment is more severe where the person depicted is below 14 years of age, or where the offence is committed against a person in certain relationships with the offender, such as an intimate or close relationship. In the case of distributing voyeuristic material involving a person below 14, a term of imprisonment is mandatory.
Caning cannot be imposed on women, on men above 50 years of age at the time of sentencing, or on a person sentenced to death.
How the court decides the sentence
For distributing or threatening to distribute an intimate image or recording, the court uses the framework set out by the High Court in Public Prosecutor v GED and other appeals [2022] SGHC 301. As with voyeurism, the court does not use fixed year-bands; it assesses the harm caused and the offender's culpability to fix a starting point within the range, and then adjusts it for factors personal to the offender. Matters that increase the seriousness include how widely the material was shared, how easily the victim could be identified, and whether the motive was to humiliate or punish the victim.
Defences
Consent is central to these offences, and its absence is something the Prosecution must prove. For the distribution offences (sections 377BC and 377BE), the key question is usually whether the person depicted consented to the distribution; the Penal Code also sets out further statutory defences in section 377BM, such as where the conduct was for a genuine and lawful purpose.
For the offence of possessing or gaining access to an image or recording (section 377BD), the Penal Code provides a specific statutory defence for a person who comes into possession of, or gains access to, material without meaning to. It is a defence for the accused to show that he or she:
- (a) did not intentionally come into possession of, or gain access to, the image or recording; and
- (b) on becoming aware of having come into possession of, or gained access to, the image or recording, took all reasonable steps in the circumstances to cease possession of, or access to, it, as soon as it was practicable to do so.
Both limbs must be made out, and it is for the accused to establish the defence. Whether any defence applies depends on the particular facts of each case.
A note on images of minors
Where the person depicted is a minor, separate and more serious offences relating to child abuse material may apply (sections 377BG to 377BK). These carry heavier penalties and are dealt with under their own provisions.
If you are being investigated for, or have been charged with, intimate image offences, the steps you take at an early stage can make a real difference. Contact us to arrange a confidential discussion about your situation.
The information on this page is general in nature and may not reflect the latest developments. The law, including case law, changes and develops over time. Nothing on this page constitutes legal advice, and reading it does not create a solicitor–client relationship. For advice on your own situation, please contact us.