Written by Cheryl Ng, Criminal Defence Advocate
What is sexual assault by penetration?
Sexual assault by penetration is when a person sexually penetrates another person's vagina or anus — using a part of the body (other than the penis) or an object — without that person's consent. It also covers forcing or causing another person to carry out such an act. Unlike rape, this offence is gender-neutral: both the offender and the victim may be a man or a woman (section 376 of the Penal Code). Where the other person is below 14 years of age, it is an offence whether or not that person agreed, because the law treats a person below 14 as unable to give consent for this purpose. Penetration of the mouth or anus with the penis is dealt with separately, as rape (section 375).
Maximum punishment
A person convicted of sexual assault by penetration can be sentenced to up to 20 years' imprisonment, and may also be fined or caned (section 376(3)). 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.
The law treats certain cases more seriously and fixes a higher minimum punishment. This applies where the offender, in order to commit the offence, voluntarily causes hurt to any person, or puts any person in fear of death or hurt; or where the offence is committed against a person below 14 years of age without consent; or where it is committed against a person below 14 with whom the offender is in a relationship that is exploitative of that person (section 376(4)). In these situations the punishment starts at a minimum of 8 years' imprisonment, rising to a maximum of 20 years, together with caning of at least 12 strokes.
Defences
The main defence is a mistake about consent — where the accused genuinely believed, by reason of a mistake of fact made in good faith, that the other person was consenting (section 376(5)). It is for the accused to prove this, and the belief must be genuinely and honestly held. This defence is not available where the other person was below 14 years of age.
Where the complainant had been drinking or was intoxicated, whether he or she was capable of giving consent is a question of fact. There is no fixed rule, and the court decides it based on the particular facts and circumstances of each individual case.
How the court decides the sentence
Within the range set by law, the actual sentence depends on the seriousness of the offence and the circumstances of the offender. The Court of Appeal set out the approach in Pram Nair v Public Prosecutor [2017] SGCA 56. Because this offence is regarded as less grave than rape, the sentencing bands are set a little lower. The court first places the offence into one of three bands, according to how it was committed and the harm caused, to arrive at an indicative starting sentence, and then adjusts that figure up or down to reflect factors personal to the offender, such as previous convictions, genuine remorse, or a plea of guilt.
| Band | Seriousness | Indicative sentence |
|---|---|---|
| Band 1 | Lower end of seriousness; no offence-specific aggravating factors, or only to a very limited extent | 7 to 10 years' imprisonment and 4 strokes of the cane |
| Band 2 | More serious; usually two or more offence-specific aggravating factors | 10 to 15 years' imprisonment and 8 strokes of the cane |
| Band 3 | The most serious cases of sexual assault by penetration | 15 to 20 years' imprisonment and 12 strokes of the cane |
If you are being investigated for, or have been charged with, sexual assault by penetration, 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.