AWARE’s public response to this case is delayed as it was submitted to The Straits Times, but rejected for publishing. Click here to read the AGC’s official statement on their decision not to appeal against the sentence.

The statement offered by the Attorney-General’s Chambers (AGC) on the Joshua Robinson case points to the need for a clearer legal definition and public understanding of consent in sexual assault cases.

Consent to sexual activity must be fully voluntary agreement, untainted by factors like coercion or abuse of authority.

Singapore’s case law is fairly nuanced.  The courts have recognised, for instance, that consent initially given can be later withdrawn during sexual activity, and that consent to one form of intimacy, such as kissing, is not consent to other forms of intimacy, such as intercourse.

However, case law is not accessible to most people.  There is no single statutory definition of “consent” which clearly lays out all the key points of the law.

Section 90 of the Penal Code non-exhaustively states some factors which vitiate consent, such as the fear of injury, or misconceptions of fact.

For instance, saying “yes” to sexual activity out of fear that intimate videos will be circulated should not amount to consent.

Yet in our experience, the absence of a single clear and comprehensive statutory definition can lead to public confusion, including among sexual assault survivors and agencies who may encounter them.

The AGC has introduced a further disquieting element, by characterising sexual activity between an adult and minors aged 15 as “consensual”.

In our view, minors under the age of 16 should not ever be said to have legally consented to sexual activity with adults, given the significant and unavoidable power imbalance between the parties.

This is surely the entire principle underlying the existence of Section 376A of the Penal Code, which criminalises sexual penetration of a minor.  The act constitutes an offence precisely and only because the vulnerability of the minor and the adult’s position of authority together prevent the minor from giving fully voluntary agreement.

The AGC’s statement may have the troubling effect of deterring minors from reporting sexual abuse by adults, because they may believe these will be seen as “consensual”.

We urge proper codification of the law of consent, including a clear recognition that minors cannot be understood to consent to sexual activity with adults.  Any review of criminal justice responses should proceed on this basis, and with close attention to evidence-based best practice in other jurisdictions, including options such as restorative justice sentencing and background checks for those working with young people.