SINGAPORE - Less than three years after he was released from prison for raping his then underage stepdaughter, a man sexually assaulted his two grand-nieces – who were nine and 11 years old – and admitted to the offences in 2021 after he was found out.
But while he had been sentenced to 19 years’ jail and 24 strokes of the cane for his earlier sexual offences, the diagnosed paedophile could be certain that he would get a sentence without caning for these other offences, as he had passed the age of 50.
This is ironic and not a desirable state of affairs, given that the man is a repeat offender, Bukit Batok MP Murali Pillai said during a debate in Parliament in 2021 when the Government amended the law to increase penalties for certain sex crimes.
“I do not see why Parliament should presume in his favour, in favour of a repeat sex offender, that he is not fit to be caned when he is clearly fit to commit those heinous acts,” Mr Murali said.
The man was sentenced to the maximum 20 years’ preventive detention in May.
The issue of judicial caning – and the age limit of 50 that was set during colonial rule – was in the spotlight last week after President Halimah Yacob called for a review of the age limit for caning rapists.
Rapists over the age limit could escape the pain caused by caning despite the lifetime of severe trauma and irreparable damage they inflicted on their victims, Madam Halimah said.
Her Facebook post on the issue followed a spate of rape and sex abuse cases in the news that involved young children and that were perpetrated by relatives and trusted adults.
Some legal experts and lawyers The Sunday Times spoke to supported the removal of the age limit, while others called for a holistic review or the consideration of other options for effective deterrence.
Caning’s history here
But how did the age limit come about?
The punishment of caning was first codified during colonial rule in the 19th century, when Singapore enacted its Penal Code. The Criminal Procedure Code in 1900 stipulated the age limit of 50 for such punishment, at a time when life expectancy was about 48½ years.
The age limit was probably instituted as caning a male criminal who was 50 years or older in that era could have been life-threatening, said Singapore Management University’s associate professor of law Eugene Tan.
Besides having the age limit, the law exempts two other groups from caning: women, and men on death row.
The law also states that a person can be caned only after a medical officer has certified that he is healthy enough to undergo such punishment.
In 2014, convicted drug trafficker Yong Vui Kong appealed against his sentence of 15 strokes of the cane, on grounds including the argument that caning in Singapore is discriminatory as it is not used on men over 50 and women.
The Court of Appeal ruled in 2015 that the use of age as a convenient proxy to screen out those likely to be unfit for caning is reasonable, as is the exclusion of women, given their physiological differences from men.
The court also noted that there has been “clear legislative effort to inject parity” into the sentencing regime in other ways.
In 2010, amendments to the Criminal Procedure Code gave the courts discretion to impose a jail term of up to 12 months in lieu of caning, in cases where a person is exempted from caning.
Caning is applicable to more than 30 offences in Singapore, and is compulsory for crimes such as vandalism, robbery and drug trafficking.
Calls for review
Lawyers The Sunday Times spoke to were generally in agreement that there was no need to widen the scope of caning to include women, or to adjust the age limit for caning for other serious crimes such as robbery or possession of firearms, as the current punishment regime for those crimes is sufficient.
A number of experts, including Mr Paul Cheong Yuen, a senior lecturer at the Singapore University of Social Sciences’ law school, felt that the time was ripe to debate the age exemption in the caning of rapists, as abhorrent crimes warrant severe punitive measures that express society’s condemnation of such offences.
Instead of raising the age limit for caning rapists – which kicks the can down the road to another age marker – he suggested that the age exclusion be removed entirely.
His view echoed Law and Home Affairs Minister K. Shanmugam’s response to Mr Murali in 2021 that raising the age limit may not solve the problem.
“When you shift the line, the problem may also shift,” said Mr Shanmugam, adding that the Government has been cautious about expanding the categories of people who can be caned.
Law Society of Singapore president Adrian Tan had also expressed support for the removal of the age limit.
“If you’re fit enough to rape, you should be fit enough to be caned,” he said in a LinkedIn post.
“For violent crimes, such as rape, people feel that an appropriately violent punishment must be inflicted on the wrongdoer. Otherwise, the punishment is inadequate, and society and victims won’t feel that justice is done.”
Doing away with the age limit altogether would ensure greater consistency in sentencing, said Associate Professor (Practice) Mervyn Cheong from the National University of Singapore’s law school.
Determining one’s suitability for caning via medical health rather than an arbitrary age limit would be more appropriate, he added.
Criminal lawyer Johannes Hadi also called the age limit of 50 “an arbitrary line in the sand” and said the exemption of female convicts altogether is based on sexist ideas of supposed differences between men and women.
If one accepts that caning is a legitimate punishment, there is no principled reason why men over 50 and women should be excluded, he said, though any proposed changes to the law should be based on evidence and seriously debated in Parliament.
Criminal lawyer Rajan Supramaniam, however, felt things should be kept as they are. Speaking from his experience as a former prison officer, he said some offenders had told him that they preferred caning to jail time because they wanted their freedom.
Victims whose perpetrators are family members or people known to them may also be reluctant to report the crimes if caning is imposed on those aged 50 and above, due to the violent nature of the punishment, he added.
Other lawyers, like Ms Gloria James-Civetta, cited the need for supporting statistics and evidence for the law to be reviewed.
She called for a study to first be done, and suggested looking into numbers from Malaysia on whether the lifting of the age limit there has made a difference to crime rates.
In 2006, Malaysia amended its laws to allow convicted rapists above 50 years old to be caned.
In a 2008 case, The Star newspaper reported that a 56-year-old man with six previous convictions and who was convicted of raping a relative thrice was given 57 years’ jail and 12 strokes of the cane.
Prof Tan said there is always value in reviewing Singapore’s penal laws, but any review should not be confined to just age suitability. It should also look at whether raising the age limit would have the desired deterrent effect, he said.
He noted that in the 19th century, the administration of criminal justice was primarily motivated by retribution and deterrence.
“That is still relevant today, but there are also other considerations such as rehabilitation,” he said. “There is also the relationship between corporal and capital punishment.”
Besides a greater focus on rehabilitation, some experts suggested exploring treatment as a sentencing component, such as psychiatric help for sex offenders.
A sex offenders registry would provide protection to potential victims, as those on the list would not be allowed to work with children, said Mr Supramaniam, although this could affect offenders’ potential livelihoods.
The police now maintain a non-public record of people convicted of major offences, including crimes of a sexual nature.
The record is accessible by some agencies, such as the Ministry of Education and the Ministry of Social and Family Development, to screen prospective employees applying for jobs involving children, Mr Shanmugam said in a parliamentary reply in April 2021.