SINGAPORE: Theft victims are often asked whether they left their belongings unattended. Scam victims are often blamed for being too gullible to spot red flags. Even with sexual offences, some may not see it as victim-blaming to raise questions about the victim’s circumstances and actions.
Tinder “ain’t no LinkedIn”. The woman was “not exactly a babe in the woods”. These are some of the now-infamous comments made by lawyer Chia Boon Teck, in response to the conviction of former Wah!Banana actor Lev Panfilov for raping a woman he met on dating app Tinder.
Mr Chia’s comments were overwhelmingly seen as victim-blaming, drawing widespread backlash and outrage from the public, including members of the legal fraternity and women advocacy organisations. The Law Society asked him to resign as vice-president. Even Law and Home Affairs Minister K Shanmugam weighed in, stating that “shaming and blaming victims steps over the line” and that “any misogyny should have no place in our society”.
Yet there are those in the comments section and online forums who seem to agree that Mr Chia was raising “reasonable questions” and that his mistake was doing so on a public platform as a senior lawyer.
Yes, the accused ought to be able to fully defend themselves. Mr Shanmugam also noted that, while society needed to protect women in sexual assault cases, it did not mean that every allegation by a woman against a man should be taken at face value.
There have been past cases involving false or fabricated allegations. It is unclear how prevalent these are, but research suggests that people consistently overestimate how frequently such false or fabricated claims occur.
Defending themselves from accusations of sexual assault often requires accused persons to cross-examine the complainant. This would invariably involve asking the complainant about the circumstances surrounding the incident and her actions at the time.
However, victim-blaming carries outsized repercussions and has been shown to discourage victims, who are usually women, from reporting sexual assaults. Only three in 10 sexual violence survivors at AWARE’s Sexual Assault Care Centre file official reports about their experiences. Victim-blaming also often causes re-traumatisation, negatively affecting recovery and treatment.
How then do defendants ask such questions without being accused of “victim-blaming”? Put differently, where does defending oneself end and victim-blaming start?
The courts have recognised that striking the right balance between an accused’s right to a fair trial and protecting the interests of the complainant in this regard is not easy.
The rules regarding the types of questions that can be asked during cross-examination must first be explained.
Generally, the law permits questions that test the accuracy, veracity or credibility of the complainant’s evidence. Questions that are indecent or scandalous, or those intended to insult and annoy, are prohibited.
For trials involving sexual offences, unless expressly permitted by the court, questions about the complainant’s sexual behaviour, including sexual history, or physical appearance are also prohibited.
Questions that are relevant to the issues would be permitted, even if these may cause discomfort to the complainant. Such questions would not be considered victim-blaming.
Former Wah!Banana actor and Singapore permanent resident Lev Panfilov leaving the High Court on May 16, 2023. (Photo: CNA/Marcus Mark Ramos)
Two cases illustrate this point. First is the case of the former Grab driver who was accused, and subsequently acquitted, of attempting to rape an intoxicated 19-year-old passenger in 2018.
The defence argued that the sex acts were consensual, relying on the woman’s participation in oral sex and that moaning was heard in in-car audio clips. The defence argued that, even if the sex acts were not consensual, the man was mistaken and held the reasonable belief that she consented. It would thus have been necessary to question the complainant on her actions that would have given rise to his belief, mistaken or otherwise, that she had consented.
Second is the case of the tutor who was convicted of molesting a 10-year-old student. Questions about the victim’s attire had been permitted because they were in relation to an inconsistency regarding whether the offender had touched her over or under her dress. These questions, opined Justice Vincent Hoong, did not perpetuate the harmful stereotype that sexual assault is provoked by what the victim wears.
So, whether a line of questions crosses the line is highly fact-specific and depends entirely on whether it is relevant to the accused’s defence. What is appropriate in one case may not be for the next.
In Panfilov’s case, questions may have included some of the factors raised by Mr Chia. For example, Panfilov’s lawyer raised several issues regarding the victim’s evidence, such as her giving Panfilov her home address so that he could call a private-hire vehicle to send her home after the incident. In convicting Panfilov, however, the court found that the victim had reasonable explanations for most of these difficulties.
It can also be argued that is in the accused’s interest not to be seen as victim-blaming.
Should the accused be convicted of the offences, the court may consider the accused’s conduct at trial when determining the appropriate sentence to be imposed. An accused who conducted defence in a scurrilous, scandalous or vexatious manner may be deemed as unremorseful, resulting in a higher sentence being imposed.
It is also in the defence counsels’ interest not to ask questions that are found to be victim-blaming, as disciplinary action may be taken against them if they are found to have crossed the line.
In 2018, a lawyer was suspended from practising law for five years for his “cruel and humiliating” behaviour during a trial involving outrage of modesty.
He argued that women wearing low-cut tops made them more likely targets of molestation and asked the victim to stand up and sit down to assess her attractiveness, while scrutinising her chest. Chief Justice Sundaresh Menon found no plausible basis to justify the lawyer’s behaviour, and concluded the questions were intended to humiliate the victim.
The judiciary has implemented measures such as assigning certain cases involving sexual offences to specially trained judges and using enhanced pre-trial checklists that would allow the court to identify the relevant issues that will be raised during the trial, thus determining what types of questions can be asked of complainants.
Balancing the rights of the accused and protecting victims requires a nuanced approach. Ignoring one in favour of the other will achieve neither.
Mark Yeo is a Director at Fortress Law Corporation. He was formerly a Deputy Public Prosecutor with the Attorney-General’s Chambers.
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Tinder “ain’t no LinkedIn”. The woman was “not exactly a babe in the woods”. These are some of the now-infamous comments made by lawyer Chia Boon Teck, in response to the conviction of former Wah!Banana actor Lev Panfilov for raping a woman he met on dating app Tinder.
Mr Chia’s comments were overwhelmingly seen as victim-blaming, drawing widespread backlash and outrage from the public, including members of the legal fraternity and women advocacy organisations. The Law Society asked him to resign as vice-president. Even Law and Home Affairs Minister K Shanmugam weighed in, stating that “shaming and blaming victims steps over the line” and that “any misogyny should have no place in our society”.
Yet there are those in the comments section and online forums who seem to agree that Mr Chia was raising “reasonable questions” and that his mistake was doing so on a public platform as a senior lawyer.
LINE BETWEEN DEFENCE AND VICTIM-BLAMING
Yes, the accused ought to be able to fully defend themselves. Mr Shanmugam also noted that, while society needed to protect women in sexual assault cases, it did not mean that every allegation by a woman against a man should be taken at face value.
There have been past cases involving false or fabricated allegations. It is unclear how prevalent these are, but research suggests that people consistently overestimate how frequently such false or fabricated claims occur.
Defending themselves from accusations of sexual assault often requires accused persons to cross-examine the complainant. This would invariably involve asking the complainant about the circumstances surrounding the incident and her actions at the time.
However, victim-blaming carries outsized repercussions and has been shown to discourage victims, who are usually women, from reporting sexual assaults. Only three in 10 sexual violence survivors at AWARE’s Sexual Assault Care Centre file official reports about their experiences. Victim-blaming also often causes re-traumatisation, negatively affecting recovery and treatment.
Related:
How then do defendants ask such questions without being accused of “victim-blaming”? Put differently, where does defending oneself end and victim-blaming start?
The courts have recognised that striking the right balance between an accused’s right to a fair trial and protecting the interests of the complainant in this regard is not easy.
ALL ABOUT RELEVANCE
The rules regarding the types of questions that can be asked during cross-examination must first be explained.
Generally, the law permits questions that test the accuracy, veracity or credibility of the complainant’s evidence. Questions that are indecent or scandalous, or those intended to insult and annoy, are prohibited.
For trials involving sexual offences, unless expressly permitted by the court, questions about the complainant’s sexual behaviour, including sexual history, or physical appearance are also prohibited.
Questions that are relevant to the issues would be permitted, even if these may cause discomfort to the complainant. Such questions would not be considered victim-blaming.
Former Wah!Banana actor and Singapore permanent resident Lev Panfilov leaving the High Court on May 16, 2023. (Photo: CNA/Marcus Mark Ramos)
Two cases illustrate this point. First is the case of the former Grab driver who was accused, and subsequently acquitted, of attempting to rape an intoxicated 19-year-old passenger in 2018.
The defence argued that the sex acts were consensual, relying on the woman’s participation in oral sex and that moaning was heard in in-car audio clips. The defence argued that, even if the sex acts were not consensual, the man was mistaken and held the reasonable belief that she consented. It would thus have been necessary to question the complainant on her actions that would have given rise to his belief, mistaken or otherwise, that she had consented.
Second is the case of the tutor who was convicted of molesting a 10-year-old student. Questions about the victim’s attire had been permitted because they were in relation to an inconsistency regarding whether the offender had touched her over or under her dress. These questions, opined Justice Vincent Hoong, did not perpetuate the harmful stereotype that sexual assault is provoked by what the victim wears.
VICTIM-BLAMING ISN’T IN THE ACCUSED’S INTERESTS
So, whether a line of questions crosses the line is highly fact-specific and depends entirely on whether it is relevant to the accused’s defence. What is appropriate in one case may not be for the next.
In Panfilov’s case, questions may have included some of the factors raised by Mr Chia. For example, Panfilov’s lawyer raised several issues regarding the victim’s evidence, such as her giving Panfilov her home address so that he could call a private-hire vehicle to send her home after the incident. In convicting Panfilov, however, the court found that the victim had reasonable explanations for most of these difficulties.
Related:
It can also be argued that is in the accused’s interest not to be seen as victim-blaming.
Should the accused be convicted of the offences, the court may consider the accused’s conduct at trial when determining the appropriate sentence to be imposed. An accused who conducted defence in a scurrilous, scandalous or vexatious manner may be deemed as unremorseful, resulting in a higher sentence being imposed.
It is also in the defence counsels’ interest not to ask questions that are found to be victim-blaming, as disciplinary action may be taken against them if they are found to have crossed the line.
In 2018, a lawyer was suspended from practising law for five years for his “cruel and humiliating” behaviour during a trial involving outrage of modesty.
He argued that women wearing low-cut tops made them more likely targets of molestation and asked the victim to stand up and sit down to assess her attractiveness, while scrutinising her chest. Chief Justice Sundaresh Menon found no plausible basis to justify the lawyer’s behaviour, and concluded the questions were intended to humiliate the victim.
The judiciary has implemented measures such as assigning certain cases involving sexual offences to specially trained judges and using enhanced pre-trial checklists that would allow the court to identify the relevant issues that will be raised during the trial, thus determining what types of questions can be asked of complainants.
Balancing the rights of the accused and protecting victims requires a nuanced approach. Ignoring one in favour of the other will achieve neither.
Mark Yeo is a Director at Fortress Law Corporation. He was formerly a Deputy Public Prosecutor with the Attorney-General’s Chambers.
Continue reading...