S’pore court ‘will not tolerate’ questions on attire that imply victims invited sexual assaults

A High Court judge said that it is acceptable for lawyers to ask victims of sexual crimes about their clothing if this sheds light on how the offence was committed, but the court will not tolerate questioning that implies the victim’s attire had encouraged unwanted attention.

Justice Vincent Hoong made this point on Aug 29 as he issued written reasons for dismissing the appeal of a tutor who was handed 16 months’ jail for molesting a 10-year-old pupil at the tuition centre he operated.

Giving an example of what is acceptable, Justice Hoong said that questions to establish whether touching was above or under the victim’s clothes are necessary to provide the court with the proper context in which the offence was committed.

“However, the inquiry becomes objectionable when it is premised on, or leads to, the submission that the victim’s attire had, in some way, invited the sexual assault,” said the judge.

In the current case, the tutor was accused of touching the victim’s breast over her clothes, placing his hand on her thigh, touching her crotch area, and kissing the back of her neck.

This took place on Dec 12, 2018, when the victim was the only pupil in the man’s English lesson.

Later that evening, the victim told her father about the incident. He took her to lodge a police report the next morning.

The tutor, who was represented by Mr Jeffrey Beh, denied molesting the victim.

He contended that he had only patted her on the shoulder, or on the back, to offer her encouragement as he explained some worksheets to her.

A district judge found him guilty after a trial and sentenced him to 14 months’ jail, with an additional two months’ jail in lieu of caning. The man cannot be caned as he is above the age of 50.

The conviction and sentence was upheld by Justice Hoong on April 2.

He issued written grounds to set out detailed reasons for his decision and the appropriate conduct of counsel when cross-examining victims of sexual offences.

The judge noted that the victim, who was 14 years old when she testified at the trial, was questioned on her attire at the time of the incident.

The issue of her clothing arose when she testified that she was then wearing a black top under her pink dress, and that the tutor had touched her breast over the black top but under the dress.

In cross-examination, the man’s lawyer zeroed in on the fact that she did not mention the black top in her police statement, and questioned her on this inconsistency.

The victim’s eventual account was that the man had touched her over the pink dress.

While asking her about the black top, the lawyer stated that “in a case of an allegation of molest, it would have been important to know what clothing was being worn”.

Justice Hoong cautioned lawyers against making such “broad, unnuanced statements”.

But the judge said that while the lawyer’s comments to the victim could have been “much better articulated”, he was of the view that the questions did not cross the line and did not perpetuate the harmful stereotype that sexual assault is provoked by what the victim wears.

Justice Hoong added that this line of inquiry was relevant in view of the victim’s testimony on the manner in which the offence was committed, and the DNA evidence relied upon by the defence.

One of the defence’s arguments was that a test carried out on the victim’s dress did not detect the man’s DNA.

Justice Hoong also addressed the fact that the defence had objected to the prosecution’s application for shielding measures to be implemented while the victim was testifying on the stand.

Under the law, certain victims, such as those below 18 years old, can be allowed to testify with a screen to shield them from seeing the accused.

The defence had objected to this, arguing that a shielding measure implied that there had been “some sort of threat made to the victim”.

Justice Hoong said that an application for shielding measures did not necessarily imply that a threat was made to the victim.

He said that it is well recognised that giving testimony can be re-traumatising, and measures like shielding serve to mitigate the trauma associated with the experience of testifying in the same physical space as the accused. 

He said that in the face of objection, judges who implement shielding should explain that such measures do not negate the presumption of innocence, but rather, seek to address the potential for harm in cases involving vulnerable witnesses.

Source: Straits Times © SPH Media Limited. Permission required for reproduction.

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