§ 377BM — Defences to offences relating to intimate image or recording and voyeurism

377BM.—(1) It is a defence to a charge for an offence under section 377BD of having possession of or gained access to an image or a recording obtained through the commission of an offence under section 377BB or an intimate image or recording mentioned in section 377BD(1)(b) for the accused person to prove that the accused person —(a)

did not intentionally come into possession of or gain access to the image or recording; and

(b)

on becoming aware of having come into possession of or gaining access to the image or recording, as soon as it was practicable to do so, took all reasonable steps in the circumstances to cease possession of or access to the image or recording.[15/2019]

(2) It is a defence to a charge for an offence under section 377BB, 377BC, 377BD or 377BE(1) if —(a)

the act that is alleged to constitute the offence was done for any of the following purposes without intent to cause injury to the person (B) mentioned in section 377BB(1), (2), (3), (4) or (5), 377BC(1) or (2) or 377BE(1) or the person depicted in the intimate image or recording mentioned in section 377BD(1)(b), and with reasonable cause:(i)

the prevention, detection, investigation or punishment of any offence;

(ii)

the conduct of contemplated or pending proceedings in any court or tribunal or to obtain evidence for the purpose of contemplating such proceedings;

(iii)

safety or national security; and[Act 23 of 2021 wef 01/03/2022]

(b)

the image or recording (if any) obtained through the commission of an offence under section 377BB or the intimate image or recording (if any) mentioned in section 377BD(1)(b) or 377BE(5) was not kept for a period longer than what was reasonably necessary or required for the purposes mentioned in paragraph (a).Illustrations

(a) A, a caregiver is concerned that B, an elderly person has been in the toilet for an unusually long period of time. Despite A knocking several times, there is no response from B. As A is concerned for B’s safety, A forcefully opens the toilet door to find B in a state of undress. A has committed no offence as the act was done for the purpose of ensuring B’s safety.

(b) A notices that a stranger is using a mobile phone taking an upskirt photograph of a woman in the mall. A confronts the stranger who flees and drops his mobile phone. A keeps the mobile phone with the upskirt photograph with the intention of reporting the offence to the police. A hands over the phone to the police when he makes the police report. A has committed no offence as the act of possession of the upskirt photograph was done for the purpose of assisting the detection or investigation of the offence.

[15/2019]

—(1) It is a defence to a charge for an offence under section 377BD of having possession of or gained access to an image or a recording obtained through the commission of an offence under section 377BB or an intimate image or recording mentioned in section 377BD(1)(b) for the accused person to prove that the accused person —(a)

did not intentionally come into possession of or gain access to the image or recording; and

(b)

on becoming aware of having come into possession of or gaining access to the image or recording, as soon as it was practicable to do so, took all reasonable steps in the circumstances to cease possession of or access to the image or recording.[15/2019]

(2) It is a defence to a charge for an offence under section 377BB, 377BC, 377BD or 377BE(1) if —(a)

the act that is alleged to constitute the offence was done for any of the following purposes without intent to cause injury to the person (B) mentioned in section 377BB(1), (2), (3), (4) or (5), 377BC(1) or (2) or 377BE(1) or the person depicted in the intimate image or recording mentioned in section 377BD(1)(b), and with reasonable cause:(i)

the prevention, detection, investigation or punishment of any offence;

(ii)

the conduct of contemplated or pending proceedings in any court or tribunal or to obtain evidence for the purpose of contemplating such proceedings;

(iii)

safety or national security; and[Act 23 of 2021 wef 01/03/2022]

(b)

the image or recording (if any) obtained through the commission of an offence under section 377BB or the intimate image or recording (if any) mentioned in section 377BD(1)(b) or 377BE(5) was not kept for a period longer than what was reasonably necessary or required for the purposes mentioned in paragraph (a).Illustrations

(a) A, a caregiver is concerned that B, an elderly person has been in the toilet for an unusually long period of time. Despite A knocking several times, there is no response from B. As A is concerned for B’s safety, A forcefully opens the toilet door to find B in a state of undress. A has committed no offence as the act was done for the purpose of ensuring B’s safety.

(b) A notices that a stranger is using a mobile phone taking an upskirt photograph of a woman in the mall. A confronts the stranger who flees and drops his mobile phone. A keeps the mobile phone with the upskirt photograph with the intention of reporting the offence to the police. A hands over the phone to the police when he makes the police report. A has committed no offence as the act of possession of the upskirt photograph was done for the purpose of assisting the detection or investigation of the offence.

[15/2019]