Balancing sensitivity and fair trial in sexual assault cases

Govt looking at how female victims are treated during the whole process, not just in court

When lawyer Edmund Wong recently defended his client's molestation charge by focusing on the victim's breasts and attractiveness, many people were outraged, including Law Minister K. Shanmugam.

The victim cried and the judge rapped Mr Wong's conduct in six out of 44 pages of his grounds of decision.

Mr Shanmugam, who is also Home Affairs Minister, said the Government has been looking at how female victims of sexual assault are treated, not just in court, but through the entire process.

"It is not just what happens in court. The whole sequence after a sexual assault - what happens at the police station, how the examination is done at the hospital, how sensitive we are through the whole process," the minister said in a recent interview with The Straits Times.

Mr Shanmugam had earlier in the year asked his officials to look into the way investigations and trials are conducted. The review is in its early stages, he added.

CHALLENGE

I don't underestimate the difficulties - it is not an easy balance to achieve through written rules.

LAW MINISTER K. SHANMUGAM, on the need for a better way to ensure sensitivity to the victim and fair trial for the accused.

Lawyers contacted said the processes could be more sensitive to female victims. For example, they could take the stand via video-conferencing so they need not face the accused; defence lawyers could run certain lines of questioning before the judge in private; and the number of times a victim has to recount her ordeal could be reduced.

Said criminal lawyer Sunil Sudheesan: "Currently, there would be at least four times when a witness needs to recount the event. That, on its own, is harrowing."

Mr Sudheesan was referring to these: police taking the statement from the victim, the prosecutor interviewing her for trial preparation, the victim recounting her ordeal in court, and getting cross-examined.

The Association of Women for Action and Research, which has been in regular consultation with the Government, suggested that everyone who has to interact with a victim of sexual assault be put through sensitivity training.

When it comes to cross-examination, lawyers said that while there is a need to ensure sensitivity towards the alleged victim, the accused's right to a fair trial and to pursue all avenues of defence cannot be compromised.

Criminal lawyer Amolat Singh said: "If cross-examination is allowed to go on without parameters or boundaries, rape victims might not want to come forward. That, I think, would be a greater injustice.

"But what about the accused person's right to a fair trial and to pursue all possible defences?"

Singapore had in 2012 repealed Section 157(d) of the Evidence Act so a rape victim's sexual history is no longer allowed in court to show she is of "immoral character".

But lawyers said sexual history can be relevant in some cases, to show there might have been consent. Said Mr Singh: "The facts of each case are different. If we are not allowed the latitude to put the character of the victim in question, it may result in the defence being handicapped."

Singapore Management University law don Eugene Tan said a judicious balance needs to be struck, "but the central question is one of relevance, which the prosecution has to be acutely sensitive to".

Mr Shanmugam said the Government will look into how women are cross-examined in court. He said: "In court, how do we get to the position whereby proper cross-examination is allowed, but which doesn't in every case give leave and licence for there to be wide-ranging examination of the lady's sexual history, or other attacks.

"The conduct of the case is within the province of judges and they take this approach to cases. But we want to see if there is a possibility of underpinning that approach with some rules."

Under the current system, the judge can halt lines of questioning and the prosecution can object, along with the prohibition against vexing questions.

This is not the first time Mr Shanmugam has spoken about the issue. In a Facebook post on June 22 on a Stanford University sexual assault case - in which the female victim was subjected to an offensive line of questioning in court - Mr Shanmugam said that in Singapore, "we need to work at making it easier for women to report and undergo examination when they have been victims of sexual violence".

In an Aug 5 Facebook post on Mr Wong's unacceptable behaviour in court, Mr Shanmugam mentioned the Stanford case again, noting the need for a better way to ensure sufficient sensitivity to the victim and fair trial for the accused.

In the interview with The Straits Times, Mr Shanmugam said: "I don't underestimate the difficulties - it is not an easy balance to achieve through written rules."

A version of this article appeared in the print edition of The Straits Times on August 20, 2016, with the headline 'Balancing sensitivity and fair trial in sexual assault cases'. Print Edition | Subscribe