RSS FeedSniffing Armpits a Capital Offence
A 36-year-old man in Singapore has been jailed for 14 years for molesting residents of the country over the past 15 months.
His offence was forcefully sniffing the armpits of random women.
As you can probably expect, mental illness is suspected. But the court also sentenced him to 18 strokes to his buttocks with a cane.
From a Canadian perspective this seems strange - beyond the odour fetish - as we require moral responsibility for criminal sanctions.
How ethical is it to punish an offendor who is unlikely to grasp the significance of the punishment, or have it deter them from future reoffending?
Moral culpability in Canada is negated by incapacity, because there is no assertion of choice. The appropriate defence is found in the Criminal Code:
Defence of mental disorder
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Further details are found in Part XX.1 of the Code.
Sanctions for Mental Disorders
A Not Criminally Responsible (NCR) defendant may still be committed, but this is to protect the public from harm and provide treatment, and not for punitive reasons.
NCR outcomes were found constitiutional in Winko v. BC (1999) SCC, where an NCR defendant that does not pose a public risk is provided an absolute discharge,
There is no presumption that the NCR accused poses a significant threat to the safety of the public. Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat. The court or Review Board cannot avoid coming to a decision on this issue by stating, for example, that it is uncertain or cannot decide whether the NCR accused poses a significant threat to the safety of the public. If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public.
Rights to NCR Defence
The issue of NCR can be raised at any time. The Crown can also raise it under certain circumstances.
R. v. Swain (1991) SCC ruled that a mental disorder has a prejudicial effect on the jury and affects the right of the accused to control their own defence. As a result, the Crown can only raise the NCR when:
- The accused’s own evidence tends to put his mental capacity into question
- After a finding of guilt, but before sentencing, the Crown can raise the issue.
But what exactly constitutes a mental disorder?
R. v. Simpson (1977) Ont. C.A. ruled that personality disorders could qualify as diseases of the mind. Medical evidence may be used in part, but this issue is a question of law.
Strangely, Canadian courts have not yet ruled as to whether armpit sniffing is a personality disorder that would qualify for the NCR defence.
Evaluating the NCR Defence
Cooper v. R (1980) SCC and R. v. Abbey (1982) SCC found that the defendant must appreciate the nature and the quality of the act. Appreciate means to estimate and understand the consequences, but does not include the need to appreciate the penal consequences.
If someone is sniffing armpits for 15 months, it’s not likely they appreciate that this is probably not a welcome gesture.
A more useful test might be found in R. v. Chaulk and Morrisette (1990) SCC. Appreciation of whether something is wrong is more than just legally wrong,
…if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society.
Omar’s Corner
We do know that men who eat meat have smellier armpits to women who sniff them, but we have no indication of the opposite effect.
Scientists have revealed that armpit odours do indicate female fertility, and ovulating women smell much better than those who are menstruating.
Occasionally we lapse into relationship advice here on Law is Cool more frequently than we should.
Still, a woman’s position in her menstrual cycle is typically information revealed well after a first date, at least, and the reasonable standards of a society even in Singapore would indicate that coming on this strong is definitely wrong.
The court did consider that the defendant would likely reoffend.
But punishing him with a sore bum is not likely to discourage or rehabilitate him in any way, and the most women in Singapore will probably see is deodorant sales skyrocket.
h/t Ismaeel Babur of UWO Civil Engineering and Internatlonal Development
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