Section 377A of the Penal Code (Singapore)

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Section 377A of the Penal Code of Singapore is the main remaining piece of legislation which criminalises sex between mutually consenting adult men.

Section 377A ("Outrages on decency") states that:

Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

Contents

[edit] Origin

To understand the background of section 377A, the enactment of its mother statute, the original section 377 which criminalised sex "against the order of nature" and was popularly known as the "unnatural sex" law, must first be explained.

The Singapore Penal Code, Chapter XVI (Offences Affecting the Human Body), Section 377 (Cap. 224) stated that:
"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.
Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."

The rationale behind this law was originally based on English criminal law which sought to prohibit sodomy. It was incorporated by the British colonial administration in the late 1850s, in particular by Lord Thomas Macaulay who drafted the Indian Penal Code to replace Hindu criminal law which had hitherto held sway in the greater part of India. Under Hindu law, consensual intercourse between members of the same sex was never an offence. In Macaulay's draft however, section 377 criminalised "carnal intercourse against the order of nature" which became punishable by harsh penalties.

Section 377 became effective as part of the new British-imposed Indian Penal Code from January 1, 1862, and was adopted by the colonial masters, also as Section 377 into the Straits Settlements Penal Code in 1871. The cloned and transplanted law came into operation in the Straits Settlements of Singapore, Penang and Malacca on September 16, 1872. Repealed in October 2007 for Singapore only.

Section 377A (Outrages on decency) was added to the sub-title "Unnatural offences" in the Straits Settlements in 1938. Both sections were absorbed unchanged into the Singapore Penal Code when the latter was passed by Singapore's Legislative Council on January 28, 1955.

Similarly-worded legislation was also introduced by the British into their other Asian colonies such as Hong Kong (repealed since 1991), Malaya (now Malaysia) and Burma in the late 19th century.

[edit] Scope

[edit] Section 377 (repealed in October 2007)

Sodomy was not defined in Indian statutory law, so Indian legislators in the 19th and early 20th centuries extended its meaning to cover fellatio, buggery and bestiality as well, although early cases tried in India mainly involved forced fellatio with unwilling male children and one unusual case of sexual intercourse with the nostril of a buffalo[citation needed].

From legal precedent in India, "carnal intercourse against the order of nature" between individuals (of all sexes - the law being non-gender specific with its use of the word "whoever") has been interpreted to include anal sex and, often after much courtroom deliberation, oral sex as well; namely any form of sexual intercourse which does not have the potential for procreation.

However, recent Singaporean cases have established that heterosexual fellatio is exempted if indulged in as foreplay which eventually leads to coitus. The Singaporean margin note further explains that mere penetration of the penis into the anus or mouth even without orgasm would constitute the offence. The law applies regardless of the act being consensual between both parties and done in private. However, section 377 was repealed in October 2007. A new section 377, which criminalises sex with dead bodies, was substituted in its place.

[edit] Section 377A

Section 377A was introduced in 1938 to criminalise all other non-penetrative sexual acts between men. 'Gross indecency' is a broad term which, from a review of past cases in Singapore, has been applied to mutual masturbation, genital contact, or even lewd behaviour without direct physical contact. As with the former section 377, performing such acts in private does not constitute a defence. There is, nor has there ever been, any law in Singapore equally specific to non-penetrative lesbian sex. Although section 377A has been in the statutes since the 1930s and has been retained even after the Penal Code review of October 2007, it has rarely been enforced.

[edit] Repeal or retention

The movement to repeal section 377 was galvanised by the Anis Abdullah case. In November 2003, police constable Anis Abdullah was found guilty of oral sex with a 16-year-old girl and sentenced to 2 years' jail. Although it was consensual, he was charged under section 377. Many letters were written to the press, shocked that in this day and age, consensual oral sex was still a criminal offence. In response to the public outcry, the Ministry of Home Affairs said that they were reviewing this aspect of the law. In January 2004, the Minister of State for Home Affairs, Ho Peng Kee reiterated in Parliament that the decriminalisation of oral sex was under review, but only for heterosexuals.

In 2006, the Ministry of Home affairs announced that it would be carrying out a review of the entire Singapore Penal Code. The exercise took over a year and gathered extensive feedback from the public via the press, the internet and live forums. The most heated debate was not over which laws were to be repeal or amended, but over the statute which would be retained, i.e. section 377A, the anti-gay law.

[edit] Arguments raised

Advocates of the repeal often cited reasons of civil liberty, human rights, and increasing scientific evidence that homosexuality was inborn[1] and found in nature[2]. Opponents of the repeal based their arguments on the conviction that to decriminalise homosexuality would result in a breakdown of the family unit, compromise Singapore's position on procreation, and lead to future undesirable scenarios such as the approval of bestiality and paedophila.

Opponents of the repeal also emphasised the wishes of the putative conservative majority to retain 377A. This was despite there being no formal survey or census done specifically on the topic. In various Singaporean online forums, such as Reach, and the AsiaOne Forum, strong opinions such as homosexuality being genetic disease, the existence of a militant gay agenda originating from the West, homosexuality being a product of Western decadence incompatible with Singapore, were repeatedly posted. Conversion treaments, such as those by NARTH, were also recommended.

The Ministry of Home Affairs (MHA) was quoted in The Straits Times of 18 September 2007 saying that public feedback on the issue had been "emotional, divided and strongly expressed", with a majority of people calling for section 377A to be retained.[1] The MHA also said that it recognised that "we are generally a conservative society and that we should let the situation evolve".[2]

The prospect for the repeal of both sections 377 and 377A in Singapore captured the attention of gay activists worldwide. In August 2007, on a visit to Singapore, award-winning movie star and thespian Sir Ian McKellen made an appeal to the authorities to get rid of this remnant of British colonial law, just as his country of origin had done (see video).

Britain, the former British colony of Hong Kong, and Australia have since repealed laws prohibiting sex between men in 1967, 1991 and 1997 (in the state of Tasmania, the last Australian state to do so) respectively. In Asia, apart from Singapore, only Malaysia and India, both of which are former British colonies, continue to criminalise sex between men.

On 3 October 2007, another online appeal was launched via the website Repeal377a.com to gather signatories for an open letter to the Prime Minister calling for the repeal of section 377A. In response, a counter-petition on the website Keep377a.com was set up by entrepreuneur Martin Tan to give citizens a channel to voice support for the Government's retention of the law.[3] By 1:30 pm on 20 October, Keep377a had overtaken Repeal377a by 7,068 to 7,058 signatories in just two days of its launch.[4]

On 12 October 2007, leading members of Singapore's arts fraternity, both gay and straight, took part on a promotional video titled Repeal 377A Singapore!. Concerned with the video's narrow presentation of issues, a "Families Petition"[5] was launched by an independent focus group Familyoverfreedom to run until 9 August 2015 as an awareness campaign aimed at educating the middle-ground of undecided voters on the potential long-term impact of a repeal on the institution of the family.

[edit] Credibility of keep377a.com and repeal377a.com

As online petitions, both websites suffered the same doubts regarding the credibility of the numbers of their signatories. There was no mention of whether technical measures were taken to ensure that multiple-voting by the same person was prevented.

In addition, the opening page ofkeep377a.com was amended to include the following conclusion:

"Take time to hear from friends who are gay so that we too can understand their point of views personally. In our democracy, we can learn to agree to disagree, peacefully and respectfully."

The statement was incongruous with forum postings in other parts of the site which repeatedly used derogatory terms, and called for section 377A to be actively enforced.

[edit] Research Cited by keep377a.com

One of the references cited within keep377a.com was a research article titled "Singaporeans’ Attitudes toward Lesbians and Gay Men and their Tolerance of Media Portrayals of Homosexuality."[6] Written by Benjamin H. Detenber and Mark Cenite of the Wee Kim Wee School of Communication and Information, Nanyang Technological University, the article researched on the attitudes of Singaporeans towards homosexuals, with an emphasis towards the comfort of viewing homosexual acts in the mass media The conclusion highlighted a significant level of negativity. It was not, however, mentioned in the article at all whether this negativity translates into a specific desire to criminalise homosexual acts. The objectives of the research also did not involved the area of legislation.

As of November 2007, neither the research fellows involved, the school, or Martin Tan has issued any statement regarding this.

[edit] Copycat Sites

Towards the end of October 2007, at least one copycat site emerged - support377a.com. Created in virtually the same format as its predecessors, it nevertheless only features letters to forums against the repeal, and supposed church sermons given on the subject by Cornerstone Community Church and Church of Our Saviour, Singapore.

[edit] Parliamentary Debate

On 22 October 2007, Nominated Member of Parliament Siew Kum Hong tabled a petition to the Parliament of the Republic of Singapore in support of the repeal of section 377A. A petition is required to pass through the scrutiny of the Public Petitions Committee in order for the issue to be fully debated in Parliament. The debate which ensued regarding the petition was the most heated in recent Parliamentary history.

The most vehement opposition to the petition was voiced by fellow NMP Thio Li-ann, imploring the government to retain section 377A.

There were Members of Parliament of the ruling party, however, who spoke up in support of repealing section 377A or to highlight its legal and moral inconsistencies, such as PAP MPs Charles Chong, Baey Yam Keng and Hri Kumar Nair.

Other PAP backbenchers, while endorsing the retention of Section 377A, also offered words of support for the gay community.

Indranee Rajah, a PAP Member of Parliament and former chairperson of the Government Parliamentary Committee for Law and Home Affairs, reiterated the MHA's "assurance" that it would not actively prosecute people under that section. "But in recognition of the fact that there is still quite a strong majority uncomfortable with homosexuality, the section must stay," she said.[7] However, she suggested that Singaporean society could evolve to accept homosexuality in the future.

Opposition MP and Workers' Party chairperson Sylvia Lim did not take a stand regarding the repeal of Section 377A. She proposed the setting up of a Select Committee to scrutinise the wording and execution of the Penal Code and to comprehensively archive and make publicly available feedback from all civic groups.

In his concluding speech, Prime Minister Lee Hsien Loong highlighted the point that Singapore remained, as a whole, a conservative society uncomfortable with the notion of homosexuality. Thus to repeal Section 377A could result in a severe schism within the nation. However, in recognition of the fact that homosexuals do contribute to the country, Section 377A would not be actively enforced. Homosexuals would be left to lead their private lives without harassment.[8] The Prime Minister explained, "The decision on whether or not to decriminalise gay sex is a very divisive one and until there is a broader consensus on the matter, Singapore will stick to the status quo."[9]

The eventual decision by Parliament was to retain Section 377A.

[edit] Aftermath

The debate over whether or not to repeal Singapore's anti-gay law attracted widespread attention from the international media, as it was perceived to be a bellwether of Singapore's human rights record.

In view of the lack of precedent of there being a law in the Penal Code retained only for symbolic reasons, not to be enforced, plus the ambiguity over what constituted "gross indecency", and the repeal of the original Section 377 criminalising carnal intercourse against the order of nature, some academic lawyers have argued that ironically, homosexual anal sex in Singapore was no longer illegal even though the apparently less abhorrent gay oral sex still was.

[edit] See also

[edit] Notes

  1. ^ Soh, Natalie. "Big changes to Penal Code to reflect crime's changing nature", The Straits Times (reproduced on Ministry of Foreign Affairs website), 2007-09-18. 
  2. ^ Loh, Chee Kong. "To fight crimes of the day, Penal Code to get more teeth", Today, 2007-09-18. 
  3. ^ Ng, Ansley. "Keep377a.com vs Repeal377a.com : Group sets up site urging S'pore to keep gay sex ban", Today, 2007-10-19. 
  4. ^ Keep377a overtakes repeal377a. Family&Freedom (2007-10-20). Retrieved on 2007-10-21.
  5. ^ Families over Freedom. Quick Topic. Retrieved on 2007-10-20.
  6. ^ Benjamin H. Detenber, Mark Cenite, et. al., (2007). Singaporeans’ Attitudes toward Lesbians and Gay Men and their Tolerance of Media Portrayals of Homosexuality, International Journal of Public Opinion Research 2007 19(3):367-379
  7. ^ "Gay sex laws to stay : Singapore Govt", Fridae, 2007-09-18. 
  8. ^ Channel NewsAsia, "S'pore to keep balance between conservative society and gays: PM Lee", 2007-10-23
  9. ^ Au Yong, Jeremy. "Views divided, so gay sex law stays", The Straits Times, 2007-09-22. 

[edit] References

[edit] Further reading

[edit] External links

  • Keep377A.com – campaign for the retention of section 377A of the Penal Code
  • Repeal377a.com – campaign for the repeal of section 377A of the Penal Code
  • Family&Freedom – a blog "dedicated to increasing awareness of the potential long term impact of a legal redefinition of natural sex, and eventually marriage, on the institution of family"


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