Are you a victim of sexual assault or harassment?

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If you are a victim of sexual assault or harassment, the first thing you should do is immediately tell someone you trust and go to make a police report.

However, there is more you can do to secure justice for yourself against your attacker or harasser if the criminal process proves to be too daunting or inadequate in advancing your interests.

Stories of victims coming forward to out their attackers and harassers have been in the forefront over the last few years as a result of the #metoo movement, with varying success in securing convictions against those attackers and harassers.

Earlier this year, a female university student in Singapore reported being spied on by a peeping tom in her dormitory’s shower room, resulting in public outcry over the perceived leniency of the sentence that he ultimately received. Public comment also focused on the perceived inadequacy of the institutional disciplinary sanctions that were taken against the offender by the university in question. This prompted a dialogue on reforms to universities’ internal disciplinary procedures in cases of sexual offences by students in Singapore.

Absent from that discussion, however, was an exploration of the alternative legal avenues for redress that are available to victims of sexual offences in Singapore. These avenues are the focus of this article.

The criminal process

The police should ideally be your first port of call if you have been the victim of a sexual offence and you should aim to make a police report as soon as physically possible after the offence. Some victims are, for a variety of reasons, reluctant to approach the police after suffering a sexual assault or sexual harassment and studies suggest that the vast majority of sexual offences go unreported [1]. However, a criminal prosecution represents the only possibility of getting your attacker or harasser off the streets and behind bars, and going to the police is the only realistic way of commencing a criminal prosecution that has significant potential of resulting in a conviction [2].

If for any reason, you feel anxious about going to a police station to report a sexual offence against you, there are a few things you can do to make this easier on yourself.

You can bring a friend along with you for emotional support and ask that they be allowed to stay with you for as much of the process as possible. If you do not have someone you can trust to come with you, you can reach out to AWARE [3], whose Sexual Assault Care Centre provides a ‘befriender’ service for a volunteer to accompany you to the police station and hospital. You can ask to discuss your situation only with a female officer. You can even go and see a criminal lawyer first if you like. While it is completely unnecessary to see a criminal lawyer before making a police report, for anyone who expects to experience anxiety or distress in the environment of a police station, speaking to a criminal lawyer first might help.

A criminal lawyer can give you a preview of what you can expect to experience at the police station and may sometimes even agree to accompany you to the police station to help you make the police report. Sometimes, having a criminal lawyer with you can help to ensure that the way in which you tell your story in your police report addresses all the important facts that can support elements of specific offences that the lawyer has in mind. This may make it easier for a prosecutor to look at the report and be able to frame the most appropriate charges.

However, no matter how good your police report is, you have to be aware that there are many reports of sexual offences that do not end in prison sentences, or even convictions, for the offender. There are a number of very good reasons for this. Sexual offences often do not take place in well-lit public places with witnesses. There is often no extrinsic physical or forensic evidence, particularly if the offence was reported a few days or more after it took place.

As a result, many cases become a “he said she said” battle in which only unusually convincing victim testimony can secure a conviction if the prosecutor is of the opinion that there is sufficient basis to make out the charge. The determination of “unusually convincing” testimony depends on how consistent, forthright and honest you seem in telling your story to the police over and over. Ultimately, if the prosecutor decides to go to trial, you will need to be prepared to give sworn testimony under oath at a trial that may take place a year or several years after the offence took place and be cross-examined on the minute details of your story [4]. This prospect, unfortunately, deters many victims from coming forward at all. Don’t let it deter you.

Finally, the prosecution has to prove beyond a reasonable doubt that the offender committed the offence, which is a high threshold to meet. Often, much of the pressure to meet it is on the victim in how he/she performs under cross-examination. All these challenges combined can make the criminal process daunting for a victim of a sexual offence.

The Protection from Harassment Act (POHA)?

Irrespective of any ongoing criminal investigation or prosecution of the offender, if you have a legitimate fear for your safety, or if the offender is causing you distress or alarm, you can apply for a protection order against the offender. A lawyer can advise you on how to put forward the best possible application for a protection order. If you succeed, a court will make an order prohibiting the offender from doing whatever it is he/she is doing to you, failing which he/she will have committed an offence for which he/she can be prosecuted for. In addition, POHA allows you to sue the offender for monetary damages resulting from the distress or alarm that he/she has caused to you. Again, if this is something you would like to explore, approach a lawyer to discuss your options.

A civil suit for assault or battery?

Whether or not you decide to pursue criminal charges against the offender, you also have the option of a civil suit for damages against the offender in addition to any criminal prosecution that might materialise in the future or that might already have concluded. Whilst having a successful criminal prosecution makes a civil suit a lot easier, it is not strictly necessary in order to mount a successful claim for damages.

Although there are not any reported cases of full-blown civil suits for a case of sexual assault in Singapore, these are not uncommon elsewhere in the common law world and there have been cases in other countries where a criminal conviction against an offender could not be secured but a civil award for damages could. This is because of the lower standard of proof required in civil court. In civil court, you would only have to prove your case on a balance of probabilities instead of beyond a reasonable doubt, meaning that evidence that might not be quite sufficient in criminal court, might be sufficient in civil court.

The law exists in Singapore to bring offenders to justice in civil court and make them pay you monetary damages for what they have done. The reason we may not be seeing any reported cases could be because an overwhelming majority of civil cases settle out of court before trial which is another feature of a civil suit that makes it less daunting to some victims than a criminal prosecution. In a civil suit, the chances of having to go on the stand and be cross-examined in court under oath on the details of your experience are probably lower than in a criminal prosecution. In a criminal prosecution, at least for serious sexual offences such as rape where the potential sentences are high, the accused is less likely to plead guilty and waive their right to trial.

If you were to consider suing your attacker, the main two causes of action under which you would sue would probably be battery and/or assault.

  • Battery

An act would constitute battery if a person directly and intentionally caused unwanted contact with your body. Therefore a rape, for example, would meet the definition of battery as it would include a direct and intentional contact by the offender with your body without your consent. Acts that would be referred to as ‘outrage of modesty’ in criminal court would also constitute battery, even if the offender only touches you with minimal force.

  • Assault

An act would constitute assault if a person directly and intentionally caused you to reasonably believe that he/she was going to touch you without your consent. Assault is actionable per se meaning that you do not need to have suffered an injury to prove assault. Therefore, if a person has threatened to touch, kiss, hug, grope, slap, push or punch you without your consent or made any physical movements that suggest that he/she was about to do any of those things, assuming you had already made it perfectly clear that you would not consent to such things, that would constitute assault and you can sue that person for monetary damages.

Conclusion

As seen above, there are various remedies which victims can seek in order to hold offenders accountable. While it may be daunting, there is a collective responsibility to act and effect change. As shown by the #metoo movement, there is strength in numbers. The more survivors come forward, the more likely it is that society will witness a shift in a system that can sometimes make it difficult for victims to get justice.

If you need emotional support, reach out to AWARE [3]. If the criminal justice system is not delivering the kind of justice you had hoped for, and you would like to explore your options to sue your attacker or harasser, reach out to a lawyer with civil litigation expertise.

[1] One study in Singapore suggests as many as 81% of sexual offences go unreported: https://sg.yougov.com/en-sg/news/2019/07/30/quarter-singaporean-women-have-experienced-sexual-/. In 2011, 1,546 cases of sexual offences were reported to the police. If only 19% of victims reported the crime that year, that means that 8,137 sexual offences took place, of which 6,590 cases went unreported: https://data.gov.sg.

[2] International data suggests that an average of about 62% of crimes reported result in prosecutions: https://dataunodc.un.org/. However, prosecutions may not always lead to convictions. In 2016, Singapore’s High Court heard 16 cases of sexual offences, of which 11 cases ended in conviction (69%). In the same year, Singapore’s State Courts heard 233 cases of sexual offences, of which 190 cases ended in conviction (82%).: https://www.straitstimes.com/singapore/courts-crime/rise-in-sex-crimes-over-past-5-years-state-courts.

[3] Association of Women for Action and Research: http://sacc.aware.org.sg/.

[4] Recent criminal procedure reforms now allow victims to give their evidence over a video link so that you don’t have to physically face the offender in court. See for example, Section 281 of the Criminal Procedure Code (CAP. 68)

THIS IS A REPRODUCTION OF AN ARTICLE WRITTEN BY NADIA MOYNIHAN WITH THE ASSISTANCE OF NUR SHUKRINA AND FIRST PUBLISHED BY ASIA LAW NETWORK. THE ORIGINAL ARTICLE CAN BE FOUND HERE.
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