Saying ‘Yes’ To A Definition Of Consent In Singapore?

By Amy Marsh

Winner of the Allen & Gledhill Best Essay Prize for the UKSLSS Essay Competition 2025

‘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.’ [1]

The Association of Women for Action and Research (‘AWARE’)’s statement encapsulates a key critique of Singapore’s consent framework. Yet, Singapore has maintained that codification is unnecessary [2]. This essay will explore the arguments for and against a definition of consent,

ultimately siding with Singapore’s current stance on consent.

The Current Law in Singapore

Singapore’s judicial interpretation of ‘consent’ can be seen in the cases of Pram Nair [3] and Kenneth [4] that consent must be ‘given freely without any fear or misapprehension, and with full knowledge of the risks and consequences’ [5]. However, instead of codifying this positive definition, s.90 of the Penal Code [6] provides a non-exhaustive list of grounds for vitiating consent for non-sexual offences, setting out what consent must not be [7]: consent is vitiated where it is procured through fear of injury or wrongful restraint [8], misconception of fact [9], an inability to understand the nature and consequence of that to which he gives his consent [10], or where it is given by a child below the age of 12 [11].

The elements of valid consent are similar regardless of whether the situation is that of a sexual or non-sexual offence [12], save for s.90(a)(ii), which was displaced by s.377CB, that limited the misconceptions to those relating to the nature [13] or purpose of the act [14], or the identity of the actor [15] for sexual offences.

Arguments in Favour of a Positive Statutory Definition

The first intuitive argument is that it could be of practical help for the courts’ interpretation [16]. The court in Pram Nair had to draw the positive definition of consent from Indian cases, and even when it did, it read as ‘repetitive, convoluted and specifically related to rape cases’ [17]. Thus, one could argue that a positive definition of consent would provide a common starting point and reduce reliance on foreign jurisprudence. If every case required judges to create new definitions of consent, inconsistency would be prominent across cases involving different sexual offences. This is supported by the Law Reform Commission of Ireland, which stated that negative phrases ‘have the disadvantage that they force people to convert to the positive in order to find out what they can do’ [18]. Positive definitions are usually more direct and easier to understand than negative ones [19] possibly aiding the courts’ interpretation of consent.

An easily understandable definition not only assists the courts, but also the victims. It could be argued that the Penal Code is more accessible to the layman compared to caselaw, and thus, how ‘consent’ is worded in the former is gravely important [20]. The current negative definition may leave victims uncertain as to whether their experiences fall within the ambit of the statute, inhibiting them from reporting offences altogether. As a matter of policy, a positive definition should be codified.

The second argument is that s.90 fails to encompass all the possible situations where consent may be invalidated [21].

One example would be a situation where the victim submitted or did not offer resistance to the act [22]. While consent always imports submission, submission does not necessarily import consent [23]. Where a victim submits out of reasons which do not fall neatly within s.90, their non-consent is left unrecognised. As a result, victims may mistakenly believe that their submission precludes a finding of non-consent, discouraging them from reporting the offence. On a tangent, it has been argued that s.90 involves a ‘distortion of the English language’ [24]. The wording, ‘consent is not such a consent’, is conceptually misleading: where the victim submits to sexual intercourse under a threat of harm for example, it would be inaccurate to describe his consent as ‘vitiated’ [25]. In reality, no consent was ever given, and the law should reflect this clearly [26].

Another example would be a situation where one party consented to touching, but not sexual intercourse, but the other party proceeds with the latter [27]. It is unclear to the victim as to whether his/her initial consent was a continuing one [28]. Assuming that both the touching and sexual intercourse are of a sexual nature, or for a sexual purpose, the victim will be unable to rely on s.377CB(1)(a) (misconception as to the nature of the act) [29] or s.377CB(1)(b) (misconception as to the purpose of the act) [30], as technically, there were no such misconceptions. Thus, s.90 does not clearly capture situations where consent is withdrawn or confined to a particular sexual activity.

Why a Statutory Definition is Ultimately Unnecessary

In response to the argument that codifying a positive definition would be of practical help to the courts, the Penal Code Review Committee (‘PCRC’) has expressly declared that ‘our courts have not appeared to suffer from the lack of a statutory positive definition of “consent”’ [31]. The current scope of s.90 already covers the key areas: capacity to consent, and the voluntary and informed nature of consent [32]. In other words, there is a lack of obvious utility to including a general definition of consent.

Moreover, whether or not consent would be easily understandable to victims of related incidents may be better achieved by alternative methods of formal sexual education [33]. ‘Education is not the primary purpose of legislation.’ [34] Thus, instead of codification, a review of current sexual education programmes to ensure that the clarification of consent under s.90 and s.377CB may be more fitting.

In response to the argument that s.90 fails to encompass all the possible situations where consent may be invalidated, this essay states that it is precisely because there are too many possible situations that no statutory definition can anticipate the infinite permutations of human intimacy. As the Law Commission of England and Wales opined, sexual relationships are a ‘grey area’, where ‘verbal and non-verbal messages can be mistaken and where assumptions about what is and is not appropriate can lead to significant misunderstanding and, in extreme cases, to forced and unwelcome sex’ [35]. Attempts to enumerate specific scenarios risks either excluding novel forms of forcing the victim to the act or capturing conduct that the parties themselves may have experienced

as consensual, drawing the line between sexual behaviour which is deserving of criminal sanction and that which would be heavily inefficient [36]. Thus, a statutory definition that is too comprehensive risks being overinclusive or underinclusive.

Most importantly, a definition may also not be the panacea for all conceptual difficulties. This can be seen from the current law regarding consent in England and Wales. As of today, the Sexual Offences Act 2003 in England and Wales defines consent:

74. ‘For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’ [37]

Yet, the words ‘freedom’ and ‘capacity’ do not hold any codified definition, and Ashworth and Temkin have criticised this as involving two ‘ideas which raise philosophical issues of such complexity as to be ill suited to the needs of criminal justice’ [38]. Those two words clearly do not refer to total freedom or choice, which raises questions as to what satisfies the definition [39].

The case of R v A(G) [40] gave some insight as to the definition of ‘capacity’: civil and criminal jurisdictions should adopt the same test for capacity to consent to sexual relations, and the approach should be guided by the Mental Capacity Act 2005 (‘the Act’) [41]. S.2(1) of the Act provides that a person lacks capacity if he is ‘unable to make a decision for himself...’ [42], and s.3(1) adds another layer of interpretation to that phrase [43].

Crucially, R v A(G) has not been commented on by the higher courts. This shows that despite the existence of a positive statutory definition, both the courts and the public must still look beyond the provision to understand what ‘freedom’ and ‘capacity’ entail.

Moreover, juries will have their own basic understanding of ‘freedom’ and ‘choice’ [44]. For the layperson, this layered and unresolved legal landscape does little to enhance their understanding of consent.

In the end, the introduction of a definition of ‘consent’ in England and Wales failed to resolve the ambiguities about its meaning and scope [45]. The purpose of the law to protect the most vulnerable may be ‘lost in consideration’ of whether or not consent was actually consent [46].

It is therefore questionable if having a statutory definition is the be-all and end-all.

Conclusion

This essay agrees with the PCRC that there is a ‘lack of any obvious faults with our current legislation on consent, and the lack of any obvious utility to including a general definition of consent’ [47]. While the concerns regarding accessibility and the victim’s understanding of consent are legitimate, this essay has argued that such concerns are better addressed through education. The law in England and Wales further demonstrates that a positive statutory definition does not eliminate ambiguity, and may introduce new conceptual and evidential difficulties, which risk obscuring the protection of victims.

As of now, it is not necessary for Singapore to say ‘yes’ to a definition of consent.

References

[1] AWARE, ‘AWARE response to AGC statement (Joshua Robinson case)’ (AWARE, 13 March 2017) <https://www.aware.org.sg/2017/03/aware-response-to-agc-statement-joshua-robinson-case/> accessed 23 November 2025.

[2] Penal Code Review Committee, Penal Code Review Committee Report (Ministry of Law, August 2018) 252.

[3] Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (‘Pram Nair’).

[4] PP v Chong Chee Boon Kenneth [2021] 5 SLR 1434 (‘Kenneth’).

[5] Halsbury's Laws of Singapore – Criminal Law vol 8, para 90.030.

[6] Penal Code 1871 (2020 Revised Edition), s.90.

[7] Penal Code Review Committee (n 2) 252.

[8] Penal Code 1871 (2020 Revised Edition), s.90(a)(i).

[9] ibid s.90(a)(ii).

[10] ibid s.90(b).

[11] ibid s.90(c).

[12] Kenneth (n 4) [40].

[13] Penal Code 1871 (2020 Revised Edition), s.377CB(1)(a).

[14] ibid s.377CB(1)(b).

[15] ibid s.377CB(1)(c).

[16] Stanley Yeo, Neil Morgan, Chan Wing Cheong, Criminal Law in Singapore (LexisNexis, 2022) paras 19.18 and 19.40.

[17] ibid. The full definition of ‘consent’ in Pram Nair can be found at [93]: ‘Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent ... A woman is said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a power she wanted. Consent implies the exercise of free and untrammeled right to forbid or withhold what is being consented to; it is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.’

[18] The Law Reform Commission, Consultation Paper on Statutory Drafting and Interpretation: Plain Language and the Law (LRC, CP14, 1999) para 5.31.

[19] ibid.

[20] AWARE, ‘Proposed Amendments to the Penal Code: AWARE’s submissions to the Government consultation’ (2018) AWARE <https://www.aware.org.sg/wp-content/uploads/Public-consultation-on-the-Penal-Code-review-2018_-AWAREs-comments-and-recommendations-final.pdf> accessed 17 December 2025, section 23.6.

[21] ibid.

[22] Yeo, Morgan, Chan (n 16) para 19.43.

[23] ibid.

[24] ibid para 19.41.

[25] ibid.

[26] ibid.

[27] AWARE (n 20) section 23.6.

[28] ibid.

[29] Penal Code 1871 (2020 Revised Edition), s.377CB(1)(a).

[30] ibid s.377CB(1)(b).

[31] Penal Code Review Committee (n 2) 252.

[32] ibid.

[33] ibid.

[34] ibid.

[35] Home Office, SETTING THE BOUNDARIES Reforming the law on sex offence (Home Office, Vol. 1, 2000) para 2.10.1.

[36] Jonathan Herring, Vulnerable Adults and the Law (OUP 2016) 192.

[37] Sexual Offences Act 2003, s.74.

[38] J. Temkin and A. Ashworth, ‘The Sexual Offences Act 2003 (1) Rape, Sexual Assaults and the Problems of Consent’ [2004] Crim. L.R. 328, 336.

[39] ibid.

[40] R v A(G) [2014] EWCA Crim 299.

[41] ibid [18]-[19].

[42] Mental Capacity Act 2005, s.2(1).

[43] ibid s.3(1).

[44] Temkin and Ashworth (n 38) 336.

[45] Penal Code Review Committee (n 2) 253.

[46] House of Commons Library, The Sexual Offences Bill [HL]: Policy Background (House of Commons Library, Research Paper 03/61, 2003).

47 Penal Code Review Committee (n 2) 252.