SEXUAL GROOMING AS AN OFFENCE IN SINGAPORE

• Author: S Chandra MOHAN LLB (Hons), LLM (University of Singapore), PhD (London); Advocate and Solicitor (Singapore); Adjunct Associate Professor, Singapore Management University. LEE Yingqi BComm Studies (Hons) (National Technological University), JD (Singapore Management University).
• Published date: 01 December 2020
• Date: 01 December 2020

The offence of sexual grooming of a minor under 16 was introduced in the Singapore Penal Code (Cap 224, 2008 Rev Ed) in 2007. It was designed to protect the growing number of young Internet users from adult sex predators prowling the online platforms. However, there have been very few reported cases of sexual grooming under s 376E of the Penal Code and a noticeable dearth of any local legal comment on this provision. Until the review by the Penal Code Review Committee in 2018 and the consequent legislative changes in May 2019, the offence of sexual grooming has not received much public attention. This article seeks to examine the nature and rationale of the offence as provided in s 376E of the Penal Code, its origins and how the Singapore provision presently compares with that in the UK from where it was imported, and with similar provisions in Canada, Australia and neighbouring Malaysia. Finally, the article considers the recommendations of the Penal Code Review Committee and if the consequent 2019 amendments to s 376E and related sections prevent and punish online sex predators more effectively.

I. Introduction

1 “Sexual grooming” is not easy to define. This is because the grooming process can take place over a period of time and may involve many different acts. It has, however, been variously described as “a process by which a person prepares a child, significant adults and the environment for the abuse of this child”,1 or “a process by which a child is befriended by a would-be abuser in an attempt to gain the child's confidence and trust,

enabling them [sic] to get the child to acquiesce to abusive activity”.2 Grooming, therefore, involves a careful process of seduction and manipulation, often through a non-sexual approach, aimed at enticing a child into a sexual encounter. According to Berson, the inhibitions of a child are lowered through “active engagement, desensitization, power and control. It is often characterized as a seduction, involving a slow and gradual process of learning about a child and building trust”.3 The ultimate objective of the groomer is to create a bond with the victim who is then more likely to comply with his or her wishes.

2 There are some obvious difficulties in defining sexual grooming precisely and consequently in identifying and legislating against it. It has, therefore, been suggested that it is perhaps best that two individual criteria be met for behaviour to be considered “grooming”, namely, “(a) the behaviour being evaluated must in and of itself be inappropriate and a case for this inappropriateness must be made, and (b) a sound argument must be presented that the behaviour or behaviours increases the likelihood of future sexual abuse”.4 With the advent of the Internet, the concept of grooming has noticeably extended its reach to the online arena. This has compelled the intervention of the criminal law in many countries including Singapore.5

3 As sexual grooming involves merely preparatory acts, the distinction between these and attempts, which traditionally determine criminality, is irrelevant. Such difficulties, both factual and evidential, in determining between a mere preparatory act and an attempt requiring acts towards committing the crime proper, therefore, cease to be important for the offence of sexual grooming. On the other hand, preparatory conduct includes a variety of acts such as gathering necessary information, making and establishing contact with potential victims and obtaining necessary materials to execute a criminal plan, most of which may not necessarily indicate a criminal motive.6 Particularly in sexual offences such as sexual

grooming, when can it be said with certainty that a person is making preparations to commit a crime as opposed to merely indulging in sexual fantasy or even in innocuous behaviour with a child? However, if “sexual grooming” is ill defined or is a vague general provision, it runs the risk of becoming a drift-net law to capture all sorts of acts involving children and adults, thus presenting considerable difficulties in detection and prosecuting criminal activity.

4 In respect of online sexual grooming, research7 has identified seven stages in this process. These are the friendship-forming stage, the relationship forming-stage, risk assessment stage, exclusivity stage, sexual stage, fantasy re-enactment stage and the damage limitation stage. Until the sexual stage is reached, there might be insufficient evidence to warrant an arrest and conviction for a sexual offence. However, research also suggests that by the time the sexual stage is reached, there is rapid progression towards the commission of the offence and the child needs immediate protection.8 Online grooming is in particular difficult to identify early as it may involve a variety of processes and be prolonged in duration. One study of transcripts of online communications between the offender and the children revealed three main themes in online grooming, namely, rapport building, sexual content and assessment.9

II. Sexual grooming in Singapore

A. The rationale of the offence

5 The offence of “sexual grooming of a minor under 16”10 was introduced in Singapore as part of the amendments to the Penal Code11 in 2007,12 in response to the increase in Internet-related sexual crimes.13

Section 15 of the UK Sexual Offences Act 2003,14 on which our s 376E was drafted, had been introduced in the UK to “strengthen Police's hand in preventing any harm from befalling the victim”.15 In 2006, the number of molestations and rapes in Singapore in which the victims had met their perpetrators over the Internet or phone chat lines had increased, and teenagers made up 64% of molestation victims and 84% of rape victims.16 Although the increase in numbers in Internet-related crimes was not considered to be significant,17 they suggested a need to have in place provisions for the protection of minors.

6 Further, household access to the Internet in Singapore had seen a significant increase from 64% in 2004 to 74% in 2007.18 This rapid adoption of the Internet raised concerns in Parliament about possible “sex predators prowling the online landscape for prey under the guise of making friends”.19

7 More recently, in 2013, Singapore was reported to be have the world's second highest social media penetration rate at 59%, more than double the global average of 26%.20 In January 2017, this figure increased to 77%, well surpassing the global average of 37%.21 In January 2019 the rate stood at 79%.22 As high as 90% of youths aged 15 to 19 use social networking sites such as Facebook, Twitter or Instagram.23

8 Anecdotal evidence seems to support a trend of sex predators increasingly leveraging the Internet to carry out grooming activities. For example, in March 2015, an engineer who had sexually groomed 31 boys on Facebook and had either sodomised or had oral sex with the boys at his rented flat, in hotels and at a swimming complex, was convicted of 12 charges of sexual penetration of a minor and sentenced to 30 years in prison.24 This was described by the prosecutors as the “worst case of sexual offences against pubescent males”.25 In January 2016, a freelance badminton coach was sentenced to five years' imprisonment for sexually grooming his young student and pressuring the 14-year-old boy to engage in sexual activities. He was charged with 15 counts under the Penal Code for the sexual assault of a minor and one count for the possession of obscene films.26 Also in January 2016, a 39-year-old married man was charged with statutory rape and the sexual grooming of a 12-year-old girl after he had had sex with her in the backseat of his car, three days after meeting her through a mobile phone messaging application, in what Prosecutors described as “every parent's nightmare”. He was sentenced to 12 years' jail and nine strokes of the cane.27 A similar sentence was imposed on a 21-year-old man in 2018 for grooming and sexually assaulting a 12-year-old girl.28 A construction worker who had groomed and raped a 12-year-old was sentenced to 22 years in prison and given 18 strokes of the cane in 2019.29 Offenders have been reported to use popular social media sites such as Friendster, Facebook and dating applications to contact and exploit victims.30

9 These are but a few examples of how sex predators are trawling the Internet for easy prey amongst the technologically savvy and sexually curious children and young persons. The urgency to seek preventive rather than reactive measures was accentuated by a combination of the

easy accessibility of mobile technology, the façade of anonymity, the ease at which sex predators prowl for easy prey, and the naivete and curiosity of the youths in sexual matters.31

B. The statutory provision

10 The offence of “sexual grooming of a minor under 16”, under s 376E of the Penal Code as drafted in 2007 provides as follows:

Any person of or above the age of 21 years (A) shall be guilty of an offence if having met or communicated with another person (B) on 2 or more previous occasions —

(a) A intentionally meets B or travels with the intention of meeting B; and

(b) at the time of the acts referred to in paragraph (a) —

(i) A intends to do anything to or in respect of B, during or after the meeting, which if done will involve the commission by A of a relevant offence;

(ii) B is under 16 years of age; and

(iii) A does not reasonably believe that B is of or above the age of 16 years.

[emphasis added]

11 As originally defined in s 376E, sexual grooming essentially involves preparatory acts of meeting or communicating, on at least two previous occasions, with a minor below 16 years of age and meeting or travelling to meet the minor with the intention of doing an act in respect of a prescribed sexual offence including rape and sexual assault.32 As explained in Parliament in 2007, the rationale for the provision is to allow law enforcement...