51 The Defendant also argued that the fact that the Claimant had said that dirty clothes cannot touch her bed in her letters to Rachel and Eugene showed that she had anticipated him climbing onto her bed. This was in contrast to her AEIC where she said the Defendant had removed his clothes and climbed on the bed “in a matter of seconds” such that she had no time to react. I did not find this to be an inconsistency of any substance. As the Claimant recounted in her letters to Rachel and Eugene, this had been said to the Defendant in the expectation that he would give up and leave. Given that her back was to him, the Defendant’s reaction was therefore unexpected, giving her little time to react.
(h) Inaccuracy in what she told Jeremy and Rachel about a second occasion of unwanted physical contact
52 Jeremy recounted that the Claimant had told him that the Defendant had groped her breast in a lift[note: 38]. On the stand, the Claimant said that this was inaccurate as the Defendant had put his hand up the back of her shirt and that Jeremy could have misinterpreted it when she told him that the Defendant had put his hand up her shirt[note: 39]. When Jeremy was cross-examined, Jeremy testified that he may have misunderstood or misinterpreted what the Claimant told him[note: 40] and misremembered, given that he is hearing it second-hand from the Claimant[note: 41].
53 In the Claimant’s letter to Rachel, she stated that the Defendant kept trying to feel her up in an elevator.
54 The Defendant gave evidence that he was questioned by the police about the Claimant’s allegations that he had reached out to touch her exposed back as she was wearing a top with a low-cut back[note: 42]. He did not recall the police questioning him about any allegations by the Claimant that he had touched her breasts in the hotel lift[note: 43].
55 This incident was not mentioned in the Claimant’s email to MINDEF or Dr Lee’s reports but mentioned in her letter to Rachel and her police report. It was also not mentioned in her statement of claim or in her affidavit.
56 Given the Defendant’s evidence, I find that Jeremy must have mis-interpreted the Claimant’s account of the second incident. The Claimant’s evidence that the Defendant had touched her back was consistent with her account in the letter to Rachel as well as her report to the police, as evidenced by the questions posed by the police to the Defendant. The very discrepancy between the Claimant’s and Jeremy’s accounts suggests independent recollection as opposed to coordinated or rehearsed testimonies and lends authenticity to their evidence. Given that this second incident is not part of the claim, it was not unreasonable for the Claimant to omit it from her statement of claim or her AEIC. Similarly, the Claimant’s failure to mention it in her email to MINDEF or to Dr Lee does not go to her credibility given that the purpose of those communications differ and context may demand the emphasis of different aspects.
(i) Stating that Eugene and Jeremy had helped her to avoid the Defendant at the workplace and social gatherings outside work after the incident which Eugene and Jeremy have no recollection of
57 Dr Lee had stated in his first report[note: 44] that the Claimant had shared her experiences with a few close co-workers at MINDEF and was able to avoid encountering the male colleague at the workplace and during social gatherings with the help of these co-workers. When cross examined on the stand, the Claimant mentioned that Eugene and Jeremy were the ones who were helping her to avoid the Defendant at the workplace and during social gatherings[note: 45]. While Eugene[note: 46] and Jeremy[note: 47] could not recall such instances, Eugene explained that he may not have remembered such instances even if the Claimant had indeed sought his assistance in avoiding the Defendant. However, in the Claimant’s letter to Eugene dated 22 November 2020, the Claimant had mentioned that Eugene had been sensitive enough to ask the Claimant whether she could breathe the same air as the Defendant which suggests that the Claimant had previously shared with Eugene her discomfort around the Defendant. There is also mention in Rachel’s evidence[note: 48] and the Claimant’s letter to Rachel dated 15 November 2020[note: 49] that there continued to be social gatherings involving the Claimant and the Defendant even after the Defendant left DPO in January 2017, one of which was an “end of bond” party on 15 June 2019 where the Claimant had been upset with Rachel for allowing the Defendant to attend, even after she had told Rachel about the incident in January 2018. Correspondingly, even though Eugene and Jeremy could not recall helping the Claimant to avoid the Defendant, this did not affect the credibility of the Claimant’s account that there had been social gatherings after she had shared her experiences with her co-workers at MINDEF where the Defendant had been present and where she had avoided him.
58 While the Defendant had tried to cast the Claimant’s feelings towards the Defendant after 10 July 2016 as one in which she was fearful of him and whom she wanted to avoid at all costs, this was not an accurate characterisation of her evidence. In her AEIC[note: 50], the Claimant had explained that in the immediate aftermath of the incident, she was shocked but also felt responsible for upsetting the Defendant. At the same time, she was afraid and worried, given that he had sent angry text messages and returned once, that he might return again to argue with her. When asked if there was any expression of anger in the exchange of texts between the parties immediately after the incident, the Claimant had answered that there was fear in her apologising to the Defendant at 12:07:29 in a bid to de-escalate the situation[note: 51]. After the incident, she admitted that she was extremely confused. While she sought to maintain her relationship with the Defendant as before most of the time, there would also be times where she would remember what had happened and try to avoid him[note: 52]. However, it was not always possible to do so as they were working in the same office, shared the same social circle of mutual friends and were invited to the same social activities[note: 53]. This was therefore not inconsistent with Dr Lee’s first report[note: 54] that the Claimant experienced feelings of tension and discomfort in the presence of the Defendant at the workplace and made efforts to avoid him whenever possible.
(j) Stating in her AEIC that she had kept the incident to herself until December 2017 when she had told her ex-boyfriend about the incident in mid-2017
59 The apparent inconsistency in relation to when she started to tell others about the incident dissolves upon scrutiny. Reading the Claimant’s AEIC carefully, the Claimant had stated that she attempted to tell close friends about the incident but could not find the words or courage to describe what had happened and ended up telling friends vaguely that something bad had happened to her sometime after mid-2017[note: 55]. However, by December 2017, she knew that she could no longer keep the incident to herself and eventually spoke to various friends and family members about what took place on 10 July 2016. On the stand, she explained that when she used the words “By December 2017”, she meant that she had started to tell people before December 2017. Her testimony on the stand that she had tried to tell her ex-boyfriend in mid-2017 and used very few words and was not able to express herself clearly[note: 56] therefore cohered with her evidence in the AEIC that she struggled to find the words or courage to describe what had happened.
60 Having examined all the inconsistencies raised, they either disappear upon a closer look or represent minor variations natural to human recall. There is neither incoherence nor material inconsistency in the Claimant’s various accounts. The Claimant’s testimony about the incident remained both cogent and compelling.
61 The Defendant argued that the veracity of the Claimant’s recollection in relation to the incident was questionable as she was intoxicated at the material time and there were material inconsistencies in her recounting of the incident relayed for the first time years after the fact. I had already dealt with the issue of inconsistencies. While the Claimant had some to drink before the incident, the Claimant had taken a shower and sobered up enough to ask the Defendant to leave and have an argument with the Defendant, an account which was corroborated by the text messages sent by the Defendant to the Claimant after the incident. There was therefore no basis to claim that the Claimant’s intoxication and fatigue had affected the veracity of her account.
Claimant’s account was corroborated by the Defendant’s text messages
62 Immediately after the incident, the Defendant sent the Claimant a series of text messages that she should not text him again when she is drunk and that she should stop stringing him along if this was going nowhere. He apologised that he “got out of control AGAIN” but suggested that they avoid putting themselves in such situations again.
63 The text messages exchanged between the Claimant and the Defendant later that day corroborate the Claimant’s account that:
(a) she had initially invited the Defendant over to her place to have sex;
(b) she had changed her mind after taking a shower and sobering up;
(c) she had told the Defendant to leave but the Defendant did not do so;
(d) they had a heated conversation;
(e) at some point the Defendant was on her bed; and
(f) the Defendant eventually left in a huff.
64 On the stand, the Defendant accepted that his apology for being childish and throwing a hissy fit was consistent with the Claimant’s account that he had turned emotional and pleaded with her which then escalated into a heated conversation between the two of them[note: 57]. The Defendant also accepted that his message that he should have left the moment she told him to was consistent with the Claimant’s account that she did tell him to leave[note: 58]. The Defendant also accepted that the messages were consistent with the Claimant’s account that at some point in the night, the Defendant was on the Claimant’s bed[note: 59] and that she had changed her mind about wanting to have sex with the Defendant after her shower[note: 60].
65 However, the Defendant disagreed that his apology for getting out of control again was consistent with the Claimant’s account that he had gotten into her bed and digitally penetrated her without her consent. Instead, he was referring to allowing himself to get into a heated argument with her and arguing with her. When he wrote “but let’s avoid putting ourselves in those situations again”, he was referring to being in a position where both of them were tempted to consider committing to a longer-term relationship as opposed to having sex[note: 61].
66 I do not find this to be a credible explanation, given that it was clear at that point that the Defendant was pursuing a long-term relationship with the Claimant. It was therefore difficult to see why the Defendant would want to avoid a situation where both of them would be tempted to consider committing to a longer-term relationship. The Claimant, on the other hand, was not prepared to commit to a longer-term relationship with him even though she may be prepared to have sex with him. It was clear from the text messages between the parties that this had been the case:
(a) On 27 December 2015, the Claimant had messaged the Defendant that she really would like to keep things as co-workers only and that she was not proud of their behaviour and it was evident that they should not be drinking together[note: 62].
(b) The WhatsApp messages on 31 January 2016[note: 63] did not explicitly mention sex but the Claimant and Defendant had apologised to each other with the Defendant saying that he woke up feeling really lousy and guilty because he had already promised to be a better person and not do this when they were drunk. The Defendant asserted in his affidavit that to the best of his recollection, he and the Claimant had sex that night, based on his interpretation of those messages[note: 64]. The Defendant claimed that he had apologised not because the relationship had already ended and he was not supposed to be having sexual intercourse with her. Instead, he was apologising for not holding back and for entertaining being closer physically and emotionally to her instead of keeping a distance[note: 65]. In my view, the Defendant’s explanation that he had to maintain a distance both physically and emotionally only serves to show he understood that they did not have a long-term relationship and should not be having sex.
(c) The Defendant messaged the Claimant on 19 April 2016 to tell her that he continued to like her all the while and that she meant a lot to him. In response, the Claimant messaged the Defendant on 23 April 2016 that he should not expect anything and she feels like they could be great friends[note: 66].
(d) On 1 July 2016, the Defendant exchanged a number of text messages[note: 67] with the Claimant in which he apologised for overstepping. He had touched her on the shoulder to let her know that he cared but the Claimant was upset with him for thinking that he could be intimate with her anytime and for trying to fight it out in the office within earshot of all her cube mates. The Defendant apologised on 2 July 2016 for lashing out but he was frustrated that she would not take a leap of faith with him. The Defendant said that they obviously still have feelings for each other and he believed that they could make it work. He wished the Claimant would have more faith in them and accept that their relationship could be something good in her life.
(e) Based on the text messages exchanged between Gan Su Yi and Jane Sea on 3 July 2016, the Defendant had told Jane that the Claimant was a tough nut to crack and asked Jane to introduce girls to him. On the stand, the Defendant admitted that it was difficult to get the Claimant to get into a long-term committed serious relationship with him[note: 68].
67 These text messages indicate while the Defendant was pursuing a long-term committed relationship with the Claimant, the Claimant was not interested in doing so. Hence, even if I accept that the Claimant would want to avoid a situation where she could be tempted to consider committing to a longer-term relationship, it was unclear why the Defendant would want to avoid this, given that it was his desire to have a long-term relationship with the Claimant. It was therefore difficult to see how he would be referring to this as a situation which both of them do not want to be in. This is especially when he had said later on 10 July 2016 that whatever the Claimant’s emotional state then, it would be better for both of them for her to let him in.
68 Given that there was no change in the status of the parties’ relationship, just a change of the Claimant’s mind as to whether to have sex, these messages sent immediately after the incident could not have been referring just to the emotional aspects of the relationship and not the physical aspects. While the Defendant tried to explain that the Claimant was apologising for her behaviour for allowing herself to be tempted into considering committing to a longer-term relationship with him at some point during the night[note: 69], this was not borne out by the messages sent by the Claimant where the Claimant had changed her mind about having sex after sobering up in the shower because they should not have sex for the wrong reasons and unthinkingly[note: 70]. The Defendant tried to explain that he was apologising for losing control of his emotions for wanting to convince her to commit to a formal relationship and he was upset with her for taking actions that led him to believe that she was prepared to consider being involved in a serious formal relationship[note: 71]. I find this to be a contrived explanation, given that the Claimant’s actions were not so much an indication that she was considering committing to a formal relationship with the Defendant but an indication that she wanted to have sex with him.
69 Reading the series of text messages that the Defendant sent immediately after leaving the Claimant’s place as a whole and taking into consideration the context of their relationship at that time, his messages were more likely to mean that she should not be texting him when she is drunk where they may be tempted to have physical relations despite not being in a long-term relationship, a situation which they had regretted as indicated in the text messages on 31 January 2016. The apology for getting out of control yet again was therefore likely to have been a hark back to the incident on 1 July 2016 where the Defendant had overstepped the Claimant’s physical boundaries.
70 In this regard, I find the Defendant’s inability to recall the events of 10 July 2016 to be more convenient than credible. The Defendant testified that he could recall that he and the Claimant had consensual sexual relations in the early hours of 14 October 2015 based on the Claimant’s message dated 14/10/15 timestamp 09:44:02 where she said that if “her period started last tues it shd be okay right”[note: 72]. During cross-examination, the Defendant conceded that someone reading the text messages between him and the Claimant on 14 October 2015 would not be able to discern that they had consensual sexual intercourse[note: 73]. Based on the messages, the Claimant did not appear to know what had happened the night prior because she was just passed out on the floor which was how the Defendant found her and she did not know what time the Defendant came over and what time he left. Similarly, the WhatsApp messages on 31 January 2016[note: 74] did not explicitly mention sex, yet the Defendant was able to recall that he and the Claimant had sex that night, based on his interpretation of those messages[note: 75]. Given that the Defendant could recall that he and the Claimant had consensual sexual relations on 14 October 2015 and 31 January 2016, which were dates preceding the incident on 10 July 2016, simply from an interpretation of the messages on those dates even though there was nothing that explicitly stated that they had consensual sexual intercourse and there was nothing significant about the two instances that would leave an imprint in his memory, there was no reason why he could not recall what had happened on 10 July 2016, a date which was later in time and on which he had sent several messages suggesting a heated argument in the Claimant’s room and which would have better registered in his memory.
The Claimant’s interactions with the Defendant after the incident
71 The Defendant argued that the Claimant’s account was not credible because the Claimant did not try to avoid the Defendant after the incident and even attempted to restart a relationship with him.
72 In relation to the Defendant’s submissions, it is accepted that victims of sexual assault may not behave in a stereotypical way. As the Court in PP v Yue Roger Jr [2019] 3 SLR 749 observed at [33] - [34]:
Thus, in the present case, the fact that the Victim did not complain in a timely manner and remained in contact with the Accused over the extended duration of the abuse did not rob her of credibility; I accepted that the Victim was focused on her continued participation in the private rope skipping team, and did not know what to do about the Accused’s sexual advances. I accepted her explanation that she did not resist or report the offences to a teacher or family member as rope skipping was her priority at that time and she feared that her place on the private rope skipping team would be jeopardised were she to do so. I also accepted that she had not reported the offences to her family or the police as she felt ashamed.
Similarly, the fact that the Victim was not driven into despair or helplessness was also not by itself a ground for disbelief of her evidence. People react in different ways to sexual abuse and may compartmentalise or rationalise their reactions. A calm disposition may generally incline the court to conclude that no wrong was committed, but it is not necessary for a complainant to be distraught for her to be believed.
73 The belief that victims of sexual assault will react in a uniform, specific or predictable manner and that differences in victims’ responses to the assault are probative of their credibility or lack thereof has also been referred to as unjustified and a harmful stereotype in Thangarajan Elanchezhian v PP [2024] SGHC 306 at [72].
Immediate reaction after the incident
74 The Defendant suggested that inconsistent with the Claimant’s account that she was in fear of the Defendant in the immediate aftermath of the incident, the Claimant did not consider her safety and opened the locked door to her home for the Defendant to take his belongings that he forgot. I had earlier dealt with the characterisation of the Claimant’s evidence. A careful reading of the Claimant’s AEIC would show that the Claimant was afraid that the Defendant was angry and worried that he would return to argue with her as opposed to being fearful of her physical safety.
75 The Defendant suggested that the Claimant’s conduct after the incident was atypical of her usual reaction where she was unafraid to express her displeasure when he did something that upset her. The Defendant pointed to two instances. On 19 April 2016, the Claimant accused the Defendant of being insensitive and trivialising her trauma when she mentioned that she had been hit on by a married man[note: 76]. On 1 July 2016, she had reacted when the Defendant touched her in the office because she did not want him to think that he could be intimate with her anytime[note: 77]. In contrast, when she messaged the Defendant on 10 July 2016 after the incident, there is no mention that he had touched her without her consent, restrained her against her will or violated her bodily integrity in any way. Instead, she had apologised[note: 78]. The Defendant suggested that if the Defendant had indeed digitally penetrated her without her consent, she would have expressed her unhappiness[note: 79] and the fact that she did not do so suggested that any sexual contact had been consensual[note: 80].
76 During re-examination, the Claimant explained that she had apologised because she wanted to de-escalate the situation and placate him as she was afraid that he was still upset with her, given that the Defendant had sent her angry text messages shortly after he left and had slammed her front door on his way out[note: 81]. She agreed that her silence was uncharacteristic as she was confused and shocked about what had happened to her. Nothing like this had happened to her before so she could not understand what had happened and was therefore unable to speak up about it[note: 82].
77 I did not accept the Defendant’s suggestion that the fact that the Claimant did not confront the Defendant about the incident meant that the incident did not happen. This was because the Defendant was the one who had first reacted after the incident. The Defendant had been upset at the situation and expressed his displeasure immediately after the incident. If the sexual contact had been consensual, there would have no reason for the Defendant to be upset and to send the series of messages in the early hours of 10 July 2016 after he left the Claimant’s house. As the Defendant’s position was that he could not recall what happened that night, there was also no explanation for what had caused him to eventually leave in a huff without taking his belongings after he had initially refused to leave when the Claimant told him to do so.
78 In view of the series of angry text messages where the Defendant blamed the Claimant for texting him when she is drunk and stringing him along, I accept the Claimant’s evidence that her apology had been instinctive in an effort to placate the Defendant.
79 In relation to the incident on 1 July 2016 where the Defendant had touched the Claimant in the office and the Claimant had reacted because she did not want him to think that he could be intimate with her anytime, it would appear from the WhatsApp messages[note: 83] that it was the Defendant who had first raised the issue and proffered the apology. The messages also suggest that it was the Defendant who had lashed out and tried to fight it out in the office within earshot of the Claimant’s cube mates. The Claimant had also in the messages put it down to her fault that she was a mess and would be better off on her own and for his own good. The characterisation that the Claimant was unafraid to express her displeasure when the Defendant did something that upset her was therefore not strictly accurate in relation to the 1 July 2016 incident.
80 Correspondingly, I did not think that the fact that the Claimant did not raise the sexual assault with the Defendant immediately after the incident suggested that any sexual contact had not taken place or was consensual. The Defendant conceded that he was upset with the Claimant and had told her so in his text messages where he had highlighted the portions in which he felt the Claimant had contributed to his actions[note: 84]. As the Claimant explained, she felt responsible for hurting the Defendant’s feelings and blamed herself for provoking him. She therefore did not revisit the issue[note: 85].
The Claimant’s conduct in August 2016 to January 2017
81 The Defendant also pointed to the fact that the Claimant had voluntarily invited the Defendant to shop with her on 4 August 2016[note: 86], to meet with her at Somerset on 7 August 2016[note: 87], and to give her a wake-up call on 11 August 2016[note: 88]. On 12 August 2016, she also invited him to her house for drinks on the night of 13 August 2016[note: 89] and had initiated a conversation with the Defendant on 16 August 2016 at 2:26 a.m..
82 The Defendant’s Counsel also pointed out that the Claimant did not ask her friends to stop teasing her and the Defendant about their romantic relationship when such teasing continued as of 3 September 2016[note: 90]. The Defendant also alluded to an instance in September 2016 where the Claimant had invited him to spend the night at her place and greeted him dressed only in her undergarments.
83 As of October 2016, the Claimant felt that the Defendant could be trusted and counted on and in fact remained in friendly contact with the Defendant[note: 91]. The Defendant pointed out various instances in which the Claimant had reached out to or interacted with the Defendant after the alleged sexual assault including the following:
(a) On 22 October 2016, the Claimant had also asked the Defendant if he wanted to hang out that weekend or the next[note: 92].
(b) The Claimant had indicated on 28 October 2016 that she wanted to talk to him in person[note: 93].
(c) On 3 November 2016, the Defendant relayed to Jane that the Claimant had asked him if he would try to do anything if she was in her underwear in front of him.
(d) As at 14 November 2016, the Claimant was willing to share a ride in a car with the Defendant[note: 94].
(e) On 23 December 2016, the Claimant asked the Defendant out for dinner and asked the Defendant if he was ignoring her[note: 95].
(f) On 24 December 2016, the Claimant asked the Defendant about her relationship with Josiah and stated that she did not think he cared at all[note: 96].
(g) On 31 December 2016, the Claimant sent the Defendant a WhatsApp message that she felt sad that he felt distant and cold[note: 97] and sought to get him to open up to her about who he was romantically interested in. She admitted that she had been mean to him all year and that she was afraid to mean nothing to him which was ironic after how she treated him[note: 98].
(h) Between 2 January and 4 January 2017, the Claimant was keen to meet up with the Defendant over lunch or dinner[note: 99]. When the Defendant replied that he was unavailable on 2 January 2017, the Claimant commented that he was “really being very cold” and wanted to assume that he was giving his friends the same treatment and not punishing her.
(i) On 5 January 2017, the Claimant expressed sadness that the Defendant was leaving their office[note: 100].
(j) The Claimant and the Defendant met for dinner on 10 January 2017. She had heard that he was dating Jane and was keen to find out whether he was dating and who he was dating[note: 101].
(k) On the evening of 15 January 2017, the Claimant and the Defendant had a talk and the Defendant rejected the Claimant’s proposal to consider giving the relationship between the two of them one last shot[note: 102].
(l) On 20 January 2017, the Claimant sent the Defendant a WhatsApp message that she hoped that he was not with Jane to escape the Claimant and that he was not just her rebound[note: 103].
(m) On 27 January 2017, the Claimant sent a message to the Defendant to say that it was nice seeing him that day[note: 104].
(n) The Claimant and the Defendant continued to attend the same parties on 4 February 2017 and 25 February 2017[note: 105].
84 The Defendant suggested that the reason for this continued closeness was because the Defendant did not in fact make any unwanted sexual contact on 10 July 2016.
85 The Claimant explained that she always knew that the Defendant’s act of digital penetration on 10 July 2016 was non-consensual and wrong but did not have the words in her vocabulary to describe it until May or June 2017[note: 106]. She was shocked and did not have the full appreciation of how much she was going to be affected by it[note: 107]. She did not fully realise it because she was in denial. While she knew the act had happened, she could not believe it had happened and did not want to believe it happened to her. Up until mid-2017, she was unable to reconcile the fact that the non-consensual digital penetration by the Defendant constituted sexual assault because the Defendant was someone known to her, a person whom she had an existing relationship with and someone whom she thought loved her[note: 108].
86 The Claimant explained that in a mix of confusion and denial, she was just trying to act and believe that nothing had happened. While there were a lot of different feelings coming up at different times, most of the time, she would just try to normalise the relationship and talk to him the same way that she would have talked to him to put it out of her mind that something had happened. However, there would be times where she would remember what had happened and she may want to try and avoid him[note: 109]. The Claimant explained that she did not try to stop her friends from teasing them as their friends had been doing so for a long time. It would have been weird if she had suddenly objected to them doing so and she saw no point in trying to stop them[note: 110]. The Claimant also explained that she had wanted things to be normal so that he would not confront her about it and it would not cause a rift in her social circle and she wanted her life to go back to normal so that she could feel normal again[note: 111].
87 The Claimant explained that it would be awkward to avoid the Defendant such as refusing to take the same escalator with him[note: 112]. Even when she organised a surprise party for one of their close friends, Amanda pressured her into inviting the Defendant and she did not have any good reason not to invite the Defendant without having to then tell them what happened[note: 113].
88 The Claimant admitted that she would sometimes avoid the Defendant and would sometimes make sporadic romantic advances towards the Defendant in her state of confusion[note: 114]. The Claimant did not deny that in January 2017, she tried to rekindle a romantic relationship with the Defendant[note: 115]. The Claimant stated that it was a very confusing period for her and that she thought she was in a state of denial. If they had resumed a romantic relationship, she would have found it easier to forgive what he had done and to say to herself that it was a one-time mistake and that building on a relationship was more important than just one mistake[note: 116]. She had lost romantic interest in the Defendant but the rekindling of the relationship was a way of trying to justify and minimise what had happened to her. While it was something that happened between the two of them, it was something that she also took responsibility for because she felt that she had pushed him over the edge until he lost control[note: 117].
89 The Claimant explained that she did not raise the incident to the Defendant because she was in shock and did not know what had happened to her. There was also a lot of guilt where she felt responsible for not acceding to him and getting back into a relationship when he asked[note: 118]. By the time she was able to articulate what had happened to her in May 2017, they were no longer in contact and the Defendant had entered into a new relationship. She did not think that he would do this to her again or to anyone else. Hence she did not see a need to confront the Defendant or warn people about him[note: 119].
90 As set out earlier, there is no typical, proper or normal response to a sexual assault. In the present case, underlying the Defendant’s argument is the belief that the Claimant would be expected to avoid the Defendant if the non-consensual digital penetration had happened on 10 July 2016. This however did not take into account the fact that the Claimant and the Defendant were in a close relationship, had previous instances of consensual sex and were part of the same social circle that hung out frequently outside of work. Given that the act happened after the Claimant had initially invited the Defendant to her place for sex but subsequently changed her mind, I accepted her evidence that she struggled with guilt and shame and to process what had happened to her. She may not have immediately recognised that she was the victim of a sexual assault given their relationship and blamed herself for what had occurred, as indicated by her instinctive apology immediately after the incident. Viewed through the overlapping lens of confusion, denial and self-blame, the continuation of usual interactions with the Defendant, including initiating contact with him and making sporadic romantic advances in an attempt to rekindle their relationship to justify and normalise the incident may be a more attractive option than for her to suddenly cut off the Defendant which would invite questions from their group of friends for which she was ill-prepared. This was illustrated by the fact that when she omitted to invite the Defendant to Josiah’s birthday party, Amanda had asked her about the omission[note: 120].
91 Given the context in which the incident had taken place and the relationship between the parties, I did not find the Claimant’s explanations for her behaviour to be implausible or improbable. There are myriad ways in which a victim of a sexual assault would respond, including shock, denial, dissociation, guilt, self-blame and shame.
92 The Defendant submitted[note: 121] that the Claimant had studied and stayed overseas for several years and had a history of consensual sexual intercourse with the Defendant at the time of the alleged incident. Her subsequent behaviour in initiating contact and outings with the Defendant, inviting him to spend the night with her and greeting him in her undergarments at the door was conduct that fell outside the range of behaviours contemplated as atypical responses. I did not accept such an argument because no evidence was tendered that one’s educational background or previous sexual relations would necessarily be correlated to their response to sexual assault, whether in terms of the time they take to process such incidents or the manner in which they would respond to such incidents. It was also important to highlight that the fact that the Claimant and Defendant have had consensual relations on previous occasions did not mean that any sexual contact on 10 July 2016 would have been consensual and the Defendant conceded the same on the stand[note: 122].
93 In this regard, it is noted from the Claimant’s email to MINDEF senior management that the Claimant had taken 6 months to process a 2020 incident where which a senior colleague had touched her buttocks at a party[note: 123]. There was also evidence from the Claimant’s letters to Rachel and Eugene that the Claimant had taken some time to process as well as articulate, not just what had happened to her on 10 July 2016, but also the reasons for why she was upset with Rachel and Eugene in terms of their lack of support. The Defendant was posted out in January 2017 and their final text to each other was on 20 February 2017[note: 124]. The Claimant’s evidence that she had carried on with her usual interactions with the Defendant for the 6 months after the incident as she was still processing what had happened in an attempt to normalise things was therefore consistent with her course of conduct in relation to the processing of similar incidents. By the time she was able to articulate what had happened to her, she was no longer in contact with the Defendant and did not see the need to confront him[note: 125].
94 Given that victims of sexual assault respond in diverse and unpredictable ways, the Claimant’s behaviour in the 6 months post-incident was both plausibly and cogently explained. Her subsequent interactions with the Defendant therefore did not detract from her credibility, when assessed against the context of how the incident happened, the relationship between the parties and the tight social network to which they belong and her failure to characterise the incident as a sexual assault.
Delay in making a police report
95 The Defendant also suggested that the Claimant’s account was not credible as she did not make a police report until 26 March 2021.
96 The Claimant explained that she had struggled for the longest time to start to even describe what had happened to her as it was extremely embarrassing and shameful to be able to say it out loud[note: 126]. Initially she was unable to explain what had happened to her and it was only after a few more times of trying that she found that an easier way of saying it without describing uncomfortable details would be to say that someone forced himself on her or that she was sexually assaulted[note: 127].
97 The Claimant stated[note: 128] that the silence from some of her friends felt like an affirmation that she was to be blamed for what the Defendant had done to her. The initial reaction of her friends was corroborated by Rachel and Eugene as well as the letters that she wrote to Rachel and Eugene:
(a) Rachel gave evidence[note: 129] that when the Claimant first shared that she had been sexually assaulted by the Defendant on 28 January 2018, the atmosphere turned tense and heavy. She was shocked and overwhelmed and did not say much at the time. She also did not speak about the incident with the Claimant until the Claimant passed her a letter on 20 December 2020, which silence was interpreted as a lack of support by the Claimant[note: 130].
(b) Eugene received a letter dated 22 November 2020 from the Claimant where she expressed her disappointment in his response to her when she first told him about the sexual assault because he implied that she was partially to blame[note: 131]. On the stand, Eugene testified that he could not remember his initial response but understood that he could have been more sensitive[note: 132].
98 The Claimant also felt trapped as she and the Defendant still shared the same social circle and she feared that making a report would harm the Defendant or cause a rift between their mutual friends. She was also afraid that the Defendant would blame her for ruining his reputation and come after her. She also weighed that the Defendant had only assaulted her because she had upset him and he did not get his way but given that he was in a new relationship, the risk of him assaulting anyone was extremely low.
99 The Claimant stated that she had never considered filing a police report until she was strongly encouraged to do so by MINDEF[note: 133]. The Claimant explained that after her email to MINDEF management leaked, people who were not the recipients of the email came to know of it, causing a rift in the social circle. She had been strongly persuaded to file the police report by people telling her that she would get justice and it would be her way of getting closure, moving on with her life and recovering from it. It was therefore extremely shocking and distressing when she found out that the police and AGC decided not to take any further action. As she had left the service at that point, she realised that it was truly up to her to try and find recourse for herself, which was when she decided to file a civil suit[note: 134].
100 It is clear that a delay in reporting sexual assault by a complainant is not, on its own, reason to disbelieve the complainant and her allegations. Instead, the explanations proffered by the complainant for her delay in reporting the assault are to be considered by the court in determining the impact of the delay, if any, on the credibility of the complainant: PP v Mohd Ariffan bin Mohd Hassan [2019] 2 SLR 490 at [66] – [67].
101 In the present case, the Claimant’s failure to disclose the incident until years later did not make her evidence less credible as she had offered reasonable explanations for her conduct. I accept the Claimant’s evidence that she did not intend to make a police report in the first place and had to be persuaded to do so. While she first confided in her friends in January 2018, the lack of support from her friends, the fact that the Defendant was someone she knew and shared the same social network, and the concern that she may have contributed to the incident which was unlikely to recur were some of the factors that went to her reluctance to report the incident. It was not until November 2020, after another incident of sexual assault in 2020, that she took the step of writing about the incident on 10 July 2016 to her friends, Rachel and Eugene. Her MINDEF email which set off a chain of events that eventually led to her filing of a police report was sent on 2 March 2021. The email did not name the Defendant or any of the other counterparties to the other “unpleasant encounters” and was sent only to the senior management and a few other recipients. Its tenor suggested that the purpose of the email was to highlight issues faced by victims of sexual assault and suggest improvements on how to better support them as opposed to meting out punishment to the parties involved.
102 I am satisfied that the delay in the Claimant’s disclosure and her reluctance to report the incident earlier were based on legitimate and credible reasons. Hence, I find that the Claimant’s delayed disclosure did not undermine her credibility.
103 As for the police’s decision to take no further action, no evidence was offered as to the reasons behind this decision. As such, it is not determinative as to the truthfulness of the Claimant’s claim. It would be speculative for the Court to infer from such a decision that the Claimant’s allegations are untrue or fabricated.
Lack of Motive
104 During re-examination, the Defendant postulated that the Claimant had convinced herself that the incident happened because she was not able to cope with him losing interest in her after 18 months of pursuing her and being very accommodating. Bringing this case was therefore her way of trying not to lose, in line with her character of not wanting to lose[note: 135].
105 I had considerable difficulty in accepting this as a plausible motive. I had earlier dealt with the Claimant’s evidence on how this case was eventually brought before the Courts. If the allegations were fabricated and bringing this case was a way of trying not to lose, there was no reason why the Claimant would delay for so long in bringing the case to light or why the Claimant would choose to take such an indirect route to do so. As highlighted earlier, the matter came to light only after the Claimant wrote an email to MINDEF’s Senior Management to highlight issues faced by victims of sexual assault and suggest improvements to make and even then, the Claimant did not reveal the Defendant’s identity in her email.
Finding on liability
106 In summary, this was a case in which the Claimant had a detailed and substantiated rendition of events as against a Defendant who maintains that he does not remember the events surrounding the incident and so does not advance a competing account of what transpired. While the Defendant’s inability to recollect is superficially plausible, given that the incident had occurred some years ago, this was ultimately found to be lacking in credibility. After a detailed scrutiny of the evidence, the Claimant’s recollection of the events that unfolded in the early hours of 10 July 2016 emerged as cogent and convincing. It was corroborated by the contemporaneous text messages exchanged between the parties. A strong thread of consistency also ran through her textured accounts to Rachel, Eugene and Jeremy, which were congruent with her testimony in court. Her interactions with the Defendant in the 6 months after the incident and the delay in bringing the matter to light had been adequately explained and did not detract from her credibility. I thus find that the Claimant has proven on a balance of probabilities that the tort of battery had occurred on 10 July 2016 and move to consider the quantum of damages.
Quantum of Damages
107 The Claimant claimed the following damages:
(a) pain and suffering;
(b) loss of amenities;
(c) psychiatric and psychological harm;
(d) aggravated or punitive damages;
(e) medical and related expenses amounting to $8,687.39 as at 2 November 2023 including the Claimant’s consultation with the homeopath, counselling sessions with the sexual assault care centre at the Association of Women for Action and Research and her consultation and therapy sessions at Resilienz Clinic;
(f) future medical and related expenses; and
(g) pre-trial loss of earnings.
Pain and Suffering
108 It is not necessary to prove actual physical damage in battery. Damages may be recoverable in battery in respect of injury to feelings, including the indignity, mental suffering, humiliation or distress that may be caused as well as anger or indignation arising from the circumstances: The Law of Torts in Singapore (Second Edition) by Gary Chan Kok Yew at 02.021 and 02.027.
109 The Claimant has given evidence on the bodily pain as well as mental and emotional distress that she suffered in struggling to come to terms with what had happened. Her evidence in this regard was corroborated by Jeremy who had observed the toll of the incident on her mental and emotional well-being subsequent to January 2018[note: 136].
110 The Claimant did not make any submission on the appropriate quantum under this head of damages or submit any relevant local cases in relation to the same. In EB v Haughton [2011] EWHC 279 (QB), the Claimant who was 28 years of age claimed that over about a year when she was 10 and 11 years old, the Defendant, who was her mother’s business associate, subjected her to the following assaults of a sexual nature: (a) stroking her leg when she was a front seat passenger in the Defendant’s car on some occasions when he was driving her to and from riding stables; (b) fondling her breasts when standing behind her as she stood at a gate looking at animals; and (c) fondling her under the guise of massaging her and penetrating her vagina with his fingers. The sexual abuse was found to be the main cause of and trigger for the Claimant’s persisting mental health problems namely the anxiety and consequent psychosomatic complaints, sexual problems and post-traumatic stress disorder. Taking into account the fact that the Defendant had betrayed the trust the Claimant put in him by abusing her, the Court awarded £28,000 in general damages.
111 The present case involved a solitary incident. The Claimant did not require psychiatric treatment with medication and her prognosis is favourable. Taking into account these circumstances, I am of the view that the appropriate amount of compensation under this head is $25,000.
Loss of Amenities
112 Loss of amenity refers to the loss of the ability to enjoy life to its fullest: Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd [2022] 1 SLR 689 at [82]. The Claimant stated[note: 137] that the assault in 2016 had negatively influenced her view of relationships with male partners and her ability to trust them and she had developed fears and concerns about her clothing choices. On the stand, she gave evidence that these started after the incident on 10 July 2016[note: 138]. However, from her letter to Rachel, the Claimant was “kind of involved with Jo”[note: 139] in September 2016, and on her own evidence, she had confided in several close male friends about the 10 July 2016 incident, including her ex-boyfriend before December 2017, Jeremy in 2018, and Josiah and Eugene in 2020[note: 140]. She had confided a highly sensitive incident to at least four different men whom she admitted she trusted[note: 141]. It would therefore appear that she had no impairment in interacting with males. During re-examination, she explained that her relationships did not last because she felt like the other partner could not understand how badly it has affected her and she would make sweeping statements about how this is what men do when he was not the person who assaulted her[note: 142]. There is however no supporting evidence in this relation and nothing to indicate that her ability to form long-lasting relationships with male partners has been permanently affected. Dr Lee was aware that the Claimant did have three relationships after July 2016 but did not mention this in his reports[note: 143] and did not explain why despite this, he found the assault in 2016 to have impacted the Claimant’s ability to trust male partners. As such, I disallow this head of damages.
Psychiatric and psychological harm
113 Dr Lee diagnosed the Claimant as suffering from adjustment disorder with mixed anxiety and depressed mood as a result of the assault in 2016.
114 I had difficulties with accepting this for a number of reasons. First, the Claimant only consulted Dr Lee on 24 August 2022, more than 6 years after the incident. The assessment was therefore a retrospective one which would inherently be fraught with difficulties.
115 As mentioned by Dr Lee, adjustment disorder is a psychiatric disorder classified in the Diagnostic and Statistical Manual (DSM 5th Edition, 2013) of the American Psychiatric Association (“DSM-5”)[note: 144]. Under DSM-5, one of the diagnostic criteria of adjustment disorders is the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s)[note: 145]. By definition, the disturbance in adjustment disorders begins within 3 months of onset of a stressor[note: 146]. However, in both reports, Dr Lee did not mention the onset of the adjustment disorder. As Dr Rajesh testified, for Dr Lee to meet the satisfactory threshold in a medicolegal context, Dr Lee would have to delineate the Claimant’s symptoms of depression (such as low mood, loss of interest, fatigue, poor concentration) and anxiety (such as constant feeling of worry, muscle tension, headaches and other symptoms) in the 3 months after July 2016 to support his diagnosis[note: 147]. This was sorely missing in Dr Lee’s reports. Dr Lee did not mention the period when the Claimant was experiencing the symptoms of depression, anxiety and distress and there was no description of how these symptoms evolve, their severity and their link to functional impairment. There was also no reasoning on how he was able to extrapolate his observations based on consultations in August and September 2022 to what the Claimant was suffering from six years earlier. As there is no evidence that the Claimant sought any form of help before July 2020, there was no objective evidence or medical records from the relevant time period in 2016 on which Dr Lee could draw his conclusions, even though he had interviewed the Claimant over several occasions and compared notes with the clinical psychologist to ensure consistency of the Claimant’s account. In addition, there was no contemporaneous evidence or corroborative history obtained as regards the impact on her work productivity or other areas of functioning in the three months after the stressor, whether in the form of performance appraisals or accounts from the Claimant’s family and colleagues as to the Claimant’s emotions or behaviour in the relevant time period[note: 148]. The Claimant continued to work in the same organisation after the tort and there was no objective evidence that her functioning at work and other areas of function were impaired.
116 Dr Lee did not address this deficiency on the stand and acknowledged that the symptoms he was examining in August 2022 could have emanated from other stressors closer in time, including a 2020 incident of sexual assault[note: 149]. He also conceded that the development of symptoms happened over the course of the later part of 2016 towards 2017[note: 150]. This clearly raises issues about whether one of the defined diagnostic criteria of adjustment disorder was met and undermines Dr Lee’s diagnosis. While I accept that the specific diagnostic criteria included in DSM-5 are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a rigid cookbook fashion, it is nevertheless incumbent upon Dr Lee to explain how the criteria is met or why the diagnosis holds even when the criteria is not met. The failure of Dr Lee to adequately explain his reasoning and how he arrived at his assessment made it unsafe for me to rely on his diagnosis.
117 Accordingly, I find that the Claimant has failed to prove on a balance of probabilities that she suffered adjustment disorder as a result of the tort.
Aggravated damages
118 Aggravated damages are awarded to augment a sum awarded in general damages to compensate for the enhanced hurt suffered by the plaintiff due to the aggravation of the injury by the manner in which the defendant committed the wrong or by his motive in so doing, either or both of which might have caused further injury to the plaintiff’s dignity and pride: Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd [2022] 1 SLR 689 (“Noor Azlin”) at [235]
119 Without in any way minimising the unacceptable conduct of the Defendant, I did not think this was an appropriate case for an award of aggravated damages. Damages are ultimately compensatory in nature, to compensate the Claimant for the loss she has suffered as a result of the wrong, so far as money can. Compensation for the mental distress caused has already been reflected in the quantum of general damages. The Claimant has not demonstrated any malice, spite, or contumelious conduct or motive on the part of the Defendant in committing the wrong. Given that this was an isolated incident in the context of the parties’ relationship, I decline to award aggravated damages.
Punitive Damages
120 Punitive damages (also termed exemplary damages) are “meant to punish, deter and condemn” and may be awarded “where the totality of the defendant’s conduct is so outrageous that it warrants punishment, deterrence and condemnation”: Noor Azlin at [234] citing ACB v Thomson Medical Pte Ltd and others [2017] 1 SLR 918 (“ACB”) at [156] and [176]. In ACB at [173], the Court of Appeal referred to the award of punitive damages as having a distinct and important role to play in the context of private law by filling that important interstitial space that exists between those cases where the demands of justice are served purely by the award of a compensatory sum, and those cases which properly attract criminal sanction. Among other things, it permits the private enforcement of important interests (particularly personality interests) without the need for individuals to bring a private prosecution (which is rarely done in practice, outside of cases involving intellectual property violations) and it allows for punishment to be effected without the corresponding stigma of a criminal sanction, which is not always appropriate in all cases of wrongdoing. In considering whether punitive damages ought to be awarded, the court should consider whether there is any need for such an award. In doing so, it will have to consider not only the adequacy of any compensatory award, but also the existence and adequacy of any criminal and/or disciplinary sanctions that might already have been imposed on the defendant which could (in turn) obviate the need for a punitive award: ACB at [180].
121 In the current case, the compensatory award was inadequate to sufficiently serve the aim of punishment. While I recognise that this was an isolated incident, the act of digital penetration constitutes a profound breach of personal autonomy and a deep violation of bodily integrity. It is therefore necessary for the Court to mark the disapprobation of such conduct, to censure the Defendant and to deter other like-minded people from repeating it. I therefore award the sum of $20,000 in punitive damages.
Medical and related expenses
122 The Claimant claimed medical and related expenses in the sum of $8,697.39 comprising the sum of $446.19 for homeopath visit on 10 October 2020; the sum of $730 for counselling with AWARE Sexual Assault Care Centre between 21 July 2021 and 24 June 2022; and consultation and therapy fees with Resilienz Clinic in the sum of $7,521.20 incurred between 24 August 2022 and 28 September 2023.
123 It is undisputed that these expenses were incurred after the 2020 incident where a senior colleague had inappropriately touched the Claimant’s buttocks at a party. While this incident was not mentioned in his initial report of 19 May 2023, Dr Lee dealt with the same in his Supplementary Report dated 8 January 2024. Dr Lee opined that if not for the 2016 incident, the Claimant will not be experiencing the depressive and anxiety symptoms. The 2016 incident was the greater contributory factor and the primary factor leading to the development of her psychiatric symptoms which persisted over the subsequent years. Dr Lee subsequently explained that the reason why he put more weight on the 2016 incident was because the 2020 incident was a trigger and a catalyst which opened the floodgates of the negative emotions which had been pent up over the years and which escalated her psychological difficulties[note: 151]. While I had earlier found that I was unable to rely on Dr Lee’s diagnosis of adjustment disorder due to the failure to satisfy a defined diagnostic criterion, which failure he did not explain, this does not mean that his evidence would be rejected in full. Dr Lee’s evidence that the 2016 incident materially contributed to the Claimant’s depressive and anxiety symptoms was not challenged by Dr Rajesh[note: 152] and I accept the same.
124 Given that the 2016 incident had caused or materially contributed to her depressive and anxiety symptoms for which she sought help in the form of homeopathy relief, counselling and therapy, I am satisfied that these were expenditure that the Claimant actually incurred as a result of the tort and allow the same.
125 As the Claimant testified, she started going for counselling at the AWARE Sexual Assault Care Centre after she had made her police report on 26 March 2021[note: 153] and sought professional help from Dr Lee after commencing this suit. The expenses incurred therefore related to the tort established in this case.
Future medical & related expenses
126 Dr Lee opined in his report of 19 May 2023 that given the anticipated prolonged revisiting of the 2016 incident through legal proceedings, it is likely that the Claimant will require ongoing psychological support. The estimated cost for one year of future psychological treatment is between $10,000 and $12,000. There is no further explanation by Dr Lee on why further treatment for one year is needed when prognosis is favourable and psychiatric treatment with medication is deemed unnecessary. There is also no explanation on what further treatment entails and why it is estimated at $10,000 to $20,000. Given my earlier finding that it is unsafe to rely on the diagnosis of adjustment disorder by Dr Lee and the lack of clarity as to whether this assessment of future treatment stems from his diagnosis that the Claimant suffers from adjustment disorder, I disallow this claim.
Pre-trial loss of earnings
127 The Claimant took a term of absence in March 2021 and eventually resigned at the end of that month. She was unemployed for 10 months from April 2021 to January 2022. Given that she did not see a psychiatrist until 24 August 2022, there was no medical evidence to support her claim that she had stopped work due to her psychiatric condition and was unable to work for those months.
128 In her letter to MINDEF dated 2 March 2021, the Claimant stated that she was “resolved to leave civil service because of how disappointed” she was in some of the civil servants around her. On the stand, the Claimant said that she tried to quit and MINDEF told her to make it a term of absence[note: 154]. The Claimant accepted that MINDEF did not ask her to leave and she was the one who wanted to leave[note: 155]. The Claimant stated that she found it difficult to continue working due to her emotional state[note: 156] but no external or psychiatric assessment of her condition at the time of resignation was tendered to the Court. While she gave evidence that she had broken down while speaking to a colonel because she was unable to continue working on a project until the following year[note: 157], there was no evidence that she was underperforming or that the incident in July 2016 had affected her promotion[note: 158]. It was therefore difficult to attribute her choice to leave MINDEF to an inability to work (for which there was no supporting psychiatric or objective evidence) which can be attributed to the Defendant’s tort.
129 The Claimant gave evidence that she had an opportunity to begin a new job in April 2021 but was unable to accept that opportunity because she felt she needed to prioritise her mental health and wellbeing[note: 159]. Again, this was not supported by any medical diagnosis or advice[note: 160]. She did not apply for any jobs between April and August 2021[note: 161] and did not detail the job applications she put in after August 2021 or provide evidence that her job applications were all rejected[note: 162]. In her LinkedIn profile, the Claimant had indicated that she was a full-time entrepreneur at Antler between May and July 2021[note: 163]. Given that special damages had to be strictly proved, the Claimant has failed to prove on a balance of probabilities that her loss of earnings from April 2021 to January 2022 was caused by the Defendant’s act of battery.
Conclusion
130 In summary, I find that the Claimant succeeds in her claim in the tort of battery against the Defendant and is entitled to general damages assessed in the sum of $45,000 and special damages assessed in the sum of $8,697.39. Interest on the general damages is awarded at the rate of 5.33% per annum from the date of the originating claim to the date of judgment. Interest on the special damages is awarded at the rate of 2.67% per annum from the date of the incident to the date of judgment.
131 The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 2 weeks from the date of this judgment.