§ 40H — Consent of alleged victim to undergo FME required in certain circumstances

40H.—(1) Subject to subsections (2) and (3), a police officer must not, under section 40F, require an alleged victim to undergo an FME unless —(a)

in the case where the alleged victim has reached 16 years of age — the alleged victim consents;

(b)

in the case where the alleged victim has not reached 16 years of age but has reached 14 years of age — both the alleged victim and the alleged victim’s parent or guardian consent; and

(c)

in the case where the alleged victim has not reached 14 years of age — the alleged victim’s parent or guardian consents.

(2) Where a police officer acting under section 40F has reasonable grounds to believe that —(a)

the alleged victim mentioned in subsection (1)(a) or (b) is unable to give consent to undergo an FME within a reasonable time due to any physical or mental condition (whether permanent or temporary); and

(b)

any delay in carrying out the FME on the alleged victim may result in any loss, degradation or contamination of any evidence that is relevant to the investigation of the offence committed against the alleged victim,

then —

(c)

in relation to the alleged victim mentioned in subsection (1)(a) —(i)

the alleged victim’s consent to undergo the FME is not required; but

(ii)

the alleged victim’s deputy or donee (as the case may be), if any, must consent to the alleged victim undergoing the FME; and

(d)

in relation to the alleged victim mentioned in subsection (1)(b) —(i)

the alleged victim’s consent to undergo the FME is not required; but

(ii)

either the alleged victim’s deputy, or if there is no such deputy, the alleged victim’s parent or guardian, must consent to the alleged victim undergoing the FME.

(3) Despite subsections (1) and (2), the consent of an alleged victim’s parent, guardian, deputy or donee (as the case may be) under those provisions is not required if —(a)

the police officer acting under section 40F has reasonable grounds to believe that any delay in carrying out the FME on the alleged victim may result in any loss, degradation or contamination of any evidence that is relevant to the investigation of the offence committed against the alleged victim; and

(b)

any of the following applies:(i)

the consent of the alleged victim’s parent, guardian, deputy or donee (as the case may be) cannot be obtained despite all reasonable efforts;

(ii)

the police officer acting under section 40F has reasonable grounds to believe that there is no parent, guardian, deputy or donee (as the case may be) of the alleged victim who can give such consent;

(iii)

the parent, guardian, deputy or donee (as the case may be) of the alleged victim who can give such consent —(A)

is being investigated in relation to the offence committed against the alleged victim;

(B)

is a person whom the police officer acting under section 40F has reasonable grounds to believe has a motive to conceal the commission of the offence against the alleged victim; or

(C)

has abstained from giving consent for the FME to be carried out on the alleged victim.

(4) In this section —(a)

an alleged victim is unable to give consent where he or she is unable to understand the nature and consequence of the FME that is to be carried out;

(b)

“deputy”, in relation to an alleged victim, means a deputy appointed or deemed to be appointed by the court under the Mental Capacity Act 2008 with power in relation to the alleged victim for the purposes of this section; and

(c)

“donee”, in relation to an alleged victim, means a donee under a lasting power of attorney registered under the Mental Capacity Act 2008 with power in relation to the alleged victim for the purposes of this section.[Act 5 of 2024 wef 26/05/2025]

—(1) Subject to subsections (2) and (3), a police officer must not, under section 40F, require an alleged victim to undergo an FME unless —(a)

in the case where the alleged victim has reached 16 years of age — the alleged victim consents;

(b)

in the case where the alleged victim has not reached 16 years of age but has reached 14 years of age — both the alleged victim and the alleged victim’s parent or guardian consent; and

(c)

in the case where the alleged victim has not reached 14 years of age — the alleged victim’s parent or guardian consents.

(2) Where a police officer acting under section 40F has reasonable grounds to believe that —(a)

the alleged victim mentioned in subsection (1)(a) or (b) is unable to give consent to undergo an FME within a reasonable time due to any physical or mental condition (whether permanent or temporary); and

(b)

any delay in carrying out the FME on the alleged victim may result in any loss, degradation or contamination of any evidence that is relevant to the investigation of the offence committed against the alleged victim,

then —

(c)

in relation to the alleged victim mentioned in subsection (1)(a) —(i)

the alleged victim’s consent to undergo the FME is not required; but

(ii)

the alleged victim’s deputy or donee (as the case may be), if any, must consent to the alleged victim undergoing the FME; and

(d)

in relation to the alleged victim mentioned in subsection (1)(b) —(i)

the alleged victim’s consent to undergo the FME is not required; but

(ii)

either the alleged victim’s deputy, or if there is no such deputy, the alleged victim’s parent or guardian, must consent to the alleged victim undergoing the FME.

(3) Despite subsections (1) and (2), the consent of an alleged victim’s parent, guardian, deputy or donee (as the case may be) under those provisions is not required if —(a)

the police officer acting under section 40F has reasonable grounds to believe that any delay in carrying out the FME on the alleged victim may result in any loss, degradation or contamination of any evidence that is relevant to the investigation of the offence committed against the alleged victim; and

(b)

any of the following applies:(i)

the consent of the alleged victim’s parent, guardian, deputy or donee (as the case may be) cannot be obtained despite all reasonable efforts;

(ii)

the police officer acting under section 40F has reasonable grounds to believe that there is no parent, guardian, deputy or donee (as the case may be) of the alleged victim who can give such consent;

(iii)

the parent, guardian, deputy or donee (as the case may be) of the alleged victim who can give such consent —(A)

is being investigated in relation to the offence committed against the alleged victim;

(B)

is a person whom the police officer acting under section 40F has reasonable grounds to believe has a motive to conceal the commission of the offence against the alleged victim; or

(C)

has abstained from giving consent for the FME to be carried out on the alleged victim.

(4) In this section —(a)

an alleged victim is unable to give consent where he or she is unable to understand the nature and consequence of the FME that is to be carried out;

(b)

“deputy”, in relation to an alleged victim, means a deputy appointed or deemed to be appointed by the court under the Mental Capacity Act 2008 with power in relation to the alleged victim for the purposes of this section; and

(c)

“donee”, in relation to an alleged victim, means a donee under a lasting power of attorney registered under the Mental Capacity Act 2008 with power in relation to the alleged victim for the purposes of this section.[Act 5 of 2024 wef 26/05/2025]