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More adventurous than the average bear

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Thursday, May 17, 2018

In for a finger, in for a cock

Ng Jun Xian v Public Prosecutor [2016] SGHC 286

"I am in full agreement with the Prosecution’s submission as summarised at above that the court must be slow to assume that the offence of digital penetration is always less severe than that of rape and thus attracting a lower sentence. The harm and consequences of digital penetration cannot be underestimated or understated. It represents a very serious violation of the bodily integrity and privacy of the victim, and is undoubtedly an act deserving of severe punishment. I also agree that the punishment for an offence of digital penetration simpliciter (ie, without aggravating factors) should be closer to that of rape simpliciter (ie, Category 1 rape)."

This was however more extensively qualified in Pram Nair v Public Prosecutor [2017] SGCA 56:

"At the highest level of abstraction, there is an intelligible difference between penile penetration of the vagina and digital penetration of the vagina. There are at least two reasons for this.

(a) One, penile penetration carries the risk of unwanted pregnancy and of transmitting sexual diseases. The cases and authorities all recognise this as a relevant consideration even if they regard it as insufficient to justify a differentiation in benchmark sentences (see the Sentence GD at [56]; R v Hibberd at [19], and the UK Sentencing Council’s guideline at p 29). It cannot be denied that an unwanted pregnancy and contracting a sexually-transmitted disease would have far-reaching consequences for the victim. The knowledge that she would be at risk of becoming pregnant or contracting a sexually-transmitted disease would itself inflict an extra level of trauma on the victim.

(b) Two, penile penetration is a more intimate act than digital penetration. The abuse of such an act therefore represents a greater degree of intrusion into the sexual autonomy of the victim. Also, an offender derives more gratification from penile penetration than digital penetration. There is therefore a greater degree of exploitation by the offender of the victim...

As a matter of case law, our courts have always said that rape is generally regarded as "the most grave of all the sexual offences”"

In a more day-to-day context, we can see that a reasonable man would agree: a teenage girl may allow her boyfriend to finger (aka digitally penetrate) her, but not fuck her (aka engage in penile penetration), since the former is considered less intimate and sexual than the latter.
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