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 constitutional 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 with the genders reversed.
Scientists have revealed that armpit odours do indicate female fertility, and ovulating women smell much better to men 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
We have no evidence that the man suffered from a mental disorder to the degree necessary to meet the section 16 (NCR) requirements.
A mere fetish for armpits would not qualify him.
According to Cooper, the accused must be suffering from “any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of insanity the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong” (at p. 1159).
This man’s fetish would not really be a personality disorder, but would rather be classified as one of the “paraphilias.” While both personality disorders and paraphilias can qualify, it is very very unlikely that they would.
For example, take the paraphilia of “Frotteurism” as defined in the DSM-IV (Code #302.89). This disorder involves fantasizing about and/or actual rubbing up against people who do not consent. Like that creepy guy who always seems to be riding Toronto subways. Frotteurism by definition requires the individual to suffer impairment in social or work functioning, but can we really say that the person’s mind is impaired?
Whether something constitutes a disease of the mind is a question of law, not of fact. It is a determination only partly based on medical/psychiatric evidence. Ultimately, it’s up to the judge to decide whether the disorder impairs the human mind and its functioning. Even if a court does decide that Frotteurism is such a disease of the mind, it would never pass the second branch of the section 16 test.
Unlike the classic section 16 disorders such as paranoid schizophrenia, sexual disorders of this kind are not severe enough for the individual to be rendered “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”
Great picture by the way… that’s just nasty.
I didn’t see much evidence of a mental disorder at all, aside from a news story indicating that this was a concern. The details of his specific condition were not available to me. But thank you greatly for the elaboration Lawrence.
A simple paraphilia alone seems unlikely, as there are plenty of people who apparently share the fetish (as I discovered in the research). Few, however, feel that social norms find it reasonable to actually take free samples from the general public.
From your article:
The types of options for rehabilitation of even severe cases of paraphilia such need for medications suggest that his extreme condition might at least give rise to the question of an NCR defence.
More importantly, the ability for rehabilitation indicates that punitive sanctions are still a less than optimal solution, based on these limited facts we have available.
By the way, I met that guy on the Toronto subway earlier this morning.
Photo courtesy of Bright Lights Film.
hi. its sad that this guy got a long jail term. The max should have been a year. As someone who gets turned on at the smell of women in general and particularly that of young women – a mixture of some cologne and sweat, Im sure that an absolutely normal person can have have his own pet arousal projects. This guy actively sought armpits. So long as violence is not there, its just a minor crime. And to be treated as such. Anyway, i do love beautiful women’s sweaty armpits. yummy. am i crazy. not much. a little offbeat.
I just noticed the article says he FORCEFULLY did this….. I didnt know he did it FORCINGLY..
Thats wrong……..
BWAHAHAHA