Section 377A of the Penal Code (Singapore)

Section 377A of the Penal Code of Singapore is a legislation which criminalises sex between mutually consenting adult men. Section 377A has been in the statute books since the 1930s and has been retained even after the Penal Code review of October 2007 where most of the original legislation under Section 377 is repealed.

Origin

To understand Section 377A, the enactment of its mother statute, Section 377, must first be explained. Section 377 criminalised sex "against the order of nature".

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.

Ecclesiastical roots in Britain under Henry VIII

Henry VIII, the monarch who enacted Britain's anti-sodomy laws

An analysis of the origin of British laws that sought to prohibit buggery and their evolution into Section 377 is found in an academic paper entitled 377 and the Unnatural Afterlife of British Colonialism in Asia by Professor Douglas E. Sanders at Thailand's Chulalongkorn University.[1]

In summary, the British anti-buggery law was enacted in 1534, taking over from ecclesiastical law. The wording used, which included "abominable" (taken from the book of Leviticus in the Old Testament), "buggery" (which, by the 13th century, had become associated with sodomy), and "vice", confirms its religious character.[1]:page: 2 It was formulated in the context of King Henry VIII's break from papal authority to establish the Anglican church. Its purpose was to justify the seizure of Catholic monasteries and the confiscation of their other wealthy properties. The pretext was the alleged sexual immorality of those in the religious vocation. Without this anti-Catholic agenda, it seems unlikely that it would have been enacted.[1]:pages: 5–6

Codification of law, particularly criminal law, became a major reform project in Britain in the 19th century, pushed by Jeremy Bentham and the utilitarians. Codes were well-suited to British colonialism, providing a single, orderly written version of areas of law - easy to enact for a colony.[1]:pages: 8–10

The Indian Penal Code

Lord Thomas Macaulay

The British Parliament formed the Indian Law Commission in 1833.[1]:pages: 10–11 Lord Thomas Macaulay was appointed to chair the commission.[1]:page: 11 The 1837 draft of the Indian Penal Code was largely his work.[1]:page: 11 It took 23 years for his work to be reviewed by the commission and the Supreme Court judges in Mumbai, Calcutta, and Madras.[1]:page: 11 The code was adopted in 1860 and took effect 1 January 1862.[1]:page: 11

Macaulay's draft did not reflect existing Indian laws or customs.[1]:page: 11 It was largely a rewrite of the British Royal Commission's 1843 draft code.[1]:page: 11 The adopted draft included a Section 377 (quoted above), but there were many ambiguities in the section, including the question of what had to penetrate what.[2]:page: 18 These in turn let future jurists redefine what these provisions actually punished.[2]:page: 18 Under Hindu law, consensual intercourse between members of the same sex was never an offence. In the new Indian Penal Code, however, Section 377 criminalised "carnal intercourse against the order of nature", derived from words attributed to Sir Edward Coke in the seventeenth century.[2]:pages: 14–15

Section 377A (Outrages on decency) was added to the sub-title "Unnatural offences" in the Straits Settlements in 1938.[2]:page: 20 Both sections were absorbed unchanged into the Singapore Penal Code when the latter was passed by Singapore's Legislative Council on 28 January 1955.

The Labouchere Amendment

The term "gross indecency" used in the statute was based on the wording of the Labouchere Amendment, also known as Section 11 of the Criminal Law Amendment Act 1885 of the UK. It was not a euphemism for buggery or sodomy, which was already a crime but rather, any other sexual activity between men.

It was worded thus:

"Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency shall be guilty of a misdemeanour, and being convicted shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour."

The almost identical phrasing between the Labouchere Amendment and Section 377A is the best evidence that the latter was derived from the former.

The original Section 377 (repealed in October 2007)

Unnatural sex or sodomy was not defined in the Indian Penal Code drafted by the British. Legal records show that Indian legislators in the 19th and early 20th centuries interpreted "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") to include anal sex, bestiality and, often after much courtroom deliberation, oral sex as well, namely, any form of sexual intercourse which did not have the potential for procreation.

Therefore, both heterosexual and homosexual oral and anal sex were criminal offences. In this particular narrow sense, Section 377 did not discriminate against homosexuals. However, 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.

In the Singaporean context, the Court of Appeal had held that heterosexual fellatio was exempted if indulged in as foreplay which eventually leads to coitus:[3]

[I]t is a fact of life, in humans as well as in animals, that before the act of copulation takes place there is foreplay to stimulate the sex urge. Kissing is the most common although there are several others…

Of course, this form of contrectation [fellatio or cunnilingus] may not recommend itself to everyone for stimulating the sex urge. Even a man and a woman engaged in consensual sexual intercourse may draw the line at fellatio or cunnilingus. But the fact remains that it is practised by some. We note…that [there is] some statistical evidence…of these forms of oral sex being practised in Singapore. We cannot shut our minds to it.

[W]hen couples engaged in consensual sexual intercourse willingly indulge in fellatio and cunnilingus as a stimulant to their respective sexual urges, neither act can be considered to be against the order of nature and punishable under s 377 of the Penal Code. In every other instance the act of fellatio between a man and a woman will be carnal intercourse against the order of nature and punishable under s 377.

The Singaporean margin note of the original Section 377 further explained that mere penetration of the penis into the anus or mouth even without orgasm would constitute the offence. The law applied regardless of the act being consensual between both parties and done in private.

Section 377 was repealed in October 2007. A new Section 377, which criminalises sex with dead bodies ("Sexual penetration of a corpse"), was substituted in its place.

Section 377A

Section 377A was introduced into the Singapore Penal Code in 1938 to criminalise all other non-penetrative sexual acts between men. It is descended from the Labouchere Amendment.[4]

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.[5]

In the local context, "gross indecency" is a broad term which, from a review of past cases locally, 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 not, nor has there ever been, any law in Singapore equally specific to non-penetrative lesbian sex.

Arguments for and against repeal of Section 377A

For

Advocates of the repeal often cited reasons of civil liberty, human rights, and increasing scientific evidence that homosexuality was inborn [6] and found in nature.[7]

Against

Opponents of the repeal believe that a repeal of Section 377A would result in a breakdown of the family unit, compromise Singapore's position on procreation, and lead to the approval of bestiality and paedophila. Opponents of the repeal also believe that the majority support the retainment of 377A.

Public opinion

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.[8] The MHA also said that it recognised that "we are generally a conservative society and that we should let the situation evolve".

On 3 October 2007, an online appeal was launched via the "Repeal 377A" website [9] 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 "Keep 377A" [10] was set up to give citizens a channel to voice support for the Government's retention of the law. By 1:30 p.m. on 20 October, Keep377A had overtaken Repeal377A by 7,068 to 7,058 signatories.[11] (The content of the Keep377A.com website was removed in 2009, although its web address remains.)

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.

Status of Section 377A in other countries

England & Wales, 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. Elsewhere in East and South-east Asia, apart from Singapore, only Myanmar, Malaysia and Brunei, all former British colonies, and recently Indonesia's Aceh province (applicable only to Muslims), continue to criminalise sex between men.[12]

Constitutional challenges

Section 377A has been repeatedly challenged before the courts of Singapore as being unconstitutional. So far, all of the challenges have been chiefly based on Article 12 of the Constitution of Singapore, which guarantees all persons equality before the law, and Article 9 of the Constitution of Singapore, which guarantees all persons the right to life and the right to personal liberty.

Tan Eng Hong v. Attorney General

On 24 September 2010, criminal lawyer M. Ravi filed an application in the High Court to challenge the constitutionality of Section 377A on behalf of his client Tan Eng Hong, who was charged for allegedly having oral sex with another consenting adult male in a locked cubicle of a public toilet.[13]

On 19 March 2011, Tan's case was thrown out of court by High Court justice Lai Siu Chiu, citing "a lack of a real controversy" for the court to deal with.[14] This is important, as according to the Supreme Court of Judicature Act of Singapore Rules of Court (Cap. 322 § 80, O 18 r. 19, 1996 Rev. Ed.), only cases which are not "frivolous" may be argued. However, on 21 August 2012, the Court of Appeal reversed Chiu's decision, ruling that 377A did "affect the lives of a not insignificant portion of [Singaporeans] in a very real and intimate way" and that the case would proceed once again in the High Court.[15]

Tan's case was finally heard on 6 March 2013,[16] and decided against him by justice Quentin Loh on 2 October 2013.[17] In his ruling, Loh wrote that the issue was one of "morality and societal values" and if it were to be changed, it would have to be by Singapore's Parliament. Tan appealed the ruling to the Court of Appeal, and his case was joined at his request as an intervening party with Lim Meng Suang and another v. Attorney-General (below), which was also pending before the Court of Appeal, on 11 October 2013.[18]

Lim Meng Suang and another v. Attorney-General

After Tan's successful appeal to be heard by the court, a separate constitutional challenge was filed on 30 November 2012 on behalf of Lim Meng Suan and Kenneth Chee Mun-leon, a gay couple of fifteen years, by attorney Peter Low.[19][20] The case was heard in camera on 14 February 2013,[21] and decided against them by justice Quentin Loh on 9 April 2013, for much the same reasons as his decision against Tan (above).[22] Lim and Chee appealed to the Court of Appeal on 30 April 2013.[23][24] In July 2013, after a successful crowdfunding campaign, they hired two highly esteemed lawyers: Deborah Barker, Senior Counsel at KhattarWong LLP, and British lawyer, Debevoise & Plimpton partner and former Attorney General for England and Wales Lord Peter Henry Goldsmith.[25] Goldsmith had agreed to take the case without pay,[26] but that September was disallowed from arguing the case before the court by Justice V. K. Rajah, as he believed that the legal issues were arguable by domestic lawyers, which is preferred by Singapore law.[27]

On 28 October 2014, more than four years after the original challenge by Tan, the Court of Appeal, the highest court in Singapore, rejected Lim and Chee's challenge, finally ending the case.[28][29] The court held that 377A was consistent with Article 9 as it is meant to protect against unlawful imprisonment, and that it was consistent with Article 12 as it only mentions religion, race and place of birth—not gender, sexual orientation, or sex.[28] As in all judgments before, the court held that any legal remedy would have to come about through an Act of Parliament.[28]

Compared to news of LGBT rights in other nations such as Russia and the United States, the case and final appeal received little attention outside Singapore.[30] The Huffington Post featured Chee and Lim's story prominently under the headline "How One Of The World’s Richest Countries Is Limiting Basic Human Rights",[31] while Bloomberg published a more neutral piece.[29]

See also

References

  1. 1 2 3 4 5 6 7 8 9 10 11 "377 and the Unnatural Afterlife of British Colonialism in Asia", Asian Journal of Comparative Law, Douglas E. Sanders, Professor Emeritus, Faculty of Law, University of British Columbia; LL.M. Professor, Chulalongkorn University, Thailand; Academic Committee Member, Doctoral Program in Human Rights and Peace Studies, Mahidol University, Volume 4, Issue 1, 2009
  2. 1 2 3 4 "This Alien Legacy: The Origins of 'Sodomy' Laws in British Colonialism", Human Rights Watch, 2008
  3. ↑ Public Prosecutor v Kwan Kwong Weng [1997] 1 SLR(R) 316 at [29]–[31].
  4. ↑ http://yawningbread.wordpress.com/2010/11/21/romantic-rabble-v-coy-court/
  5. ↑ Penal Code (Cap. 224, 2008 Rev. Ed.) § 377A
  6. ↑
  7. ↑
  8. ↑ http://www.foxnews.com/story/2007/10/22/singapore-lawmakers-debate-petition-to-abolish-gay-sex-ban.html
  9. ↑ "Repeal377A.com". Archived from the original on 2007-10-11.
  10. ↑ "Keep377A.com". 2007. Archived from the original on 16 May 2008.
  11. ↑ "keep377a overtakes repeal377a". Family&Freedom. 20 October 2007.
  12. ↑ Homosexuality laws of the world#East Asia
  13. ↑ Keat, Leong Wee (29 November 2010). "Lawyer challenges gay sex law". TODAYonline. Today. Archived from the original on 29 November 2010. Retrieved 10 December 2016.
  14. ↑ Waipang, Alex Au (19 March 2011). "High Court waves away 377A controversy". Yawning Bread. Retrieved 10 December 2016.
  15. ↑ Andrew Phang Boon Leong JA, V K Rajah JA and Judith Prakash J (21 August 2012). "Tan Eng Hong v Attorney-General". www.singaporelaw.sg. Court of Appeal of Singapore. Retrieved 2016-12-10.
  16. ↑ "Second of two 377A challenges may have to wait a long time for a decision". Yawning Bread. 2013-03-10. Retrieved 2016-12-10.
  17. ↑ "Singapore High Court upholds anti-gay law in Tan Eng Hong's case". Fridae: Connecting Gay Asia. 2 October 2013. Retrieved 10 December 2016.
  18. ↑ "Court of Appeal Does Right By Tan Eng Hong: Joint hearing for section 377A appeals". IonSG. 11 October 2013. Retrieved 2016-12-10.
  19. ↑ "Singapore couple sue to end sodomy law". San Diego Gay and Lesbian News. 2012-12-01. Retrieved 2016-12-10.
  20. ↑ Waipang, Alex Au (2 December 2012). "New constitutional challenge to Section 377A filed". Yawning Bread. Retrieved 10 December 2016.
  21. ↑ Lim, Leonard (2013-02-14). "Legal challenge to Section 377A begins in the High Court; judgment reserved". The Straits Times. Retrieved 2016-12-10.
  22. ↑ Wong, Tessa (2013-04-09). "High Court upholds anti-gay sex law, dismisses legal challenge". The Straits Times. Retrieved 2016-12-10.
  23. ↑ "Gay Singaporean couple file appeal over ban on private consensual sex". LGBT Weekly. Retrieved 2016-12-10.
  24. ↑ AndrewPhang Boon Leong JA, Belinda Ang Saw Ean J and WooBih Li J (28 October 2014). "Lim Meng Suang and another v Attorney-Generaland another appeal and another matter". www.singaporelaw.sg. Court of Appeal of Singapore. Retrieved 2016-12-10.
  25. ↑ Xin, Sia Ling (9 July 2013). "S'pore gay couple hire top lawyers for Section 377A appeal". Yahoo! News Singapore. Retrieved 2016-12-10.
  26. ↑ Kriegler, Yun (2013-07-11). "Goldsmith to challenge Singaporean government on anti-gay laws". The Lawyer. Retrieved 2016-12-10.
  27. ↑ Burton, Lucy (2013-09-20). "Goldsmith kicked off anti-gay challenge by Singapore High Court in favour of local counsel". The Lawyer: Advancing the business of law. Retrieved 2016-12-10.
  28. 1 2 3 Lum, Selina (2014-10-29). "Court of Appeal rules that Section 377A that criminalises sex between men is constitutional". The Straits Times. Retrieved 2016-12-10.
  29. 1 2 Tan, Andrea (29 October 2014). "Singapore's Ban on Gay Male Sex Is Upheld by Top Court". Bloomberg.com. Retrieved 2016-12-10.
  30. ↑ Allegretti, David (2016-06-22). "What It's Like to Be Young and Gay in Singapore". VICE. Retrieved 2016-12-10.
  31. ↑ Mosbergen, Dominique (2015-10-13). "How Singapore Is Limiting Basic Human Rights". The Huffington Post. Retrieved 2016-12-10.

Further reading

  • Young, Ted (24 October 2007). "Our Time Has Come". Trevvy. Retrieved 2007-10-24.
  • Original PDF version of the academic paper, "377 and the unnatural afterlife of British colonialism" by Douglas Saunders, August, 2007:.
  • Au, Alex (May 2007). "Why section 377A is redundant". Yawning Bread. Retrieved 2007-10-20.
  • Gopalan, Mohan (May 2007). "A heftier list of s. 377A cases". Yawning Bread. Retrieved 2007-10-20.
  • Au, Alex (March 2005). "The picture that emerges". Yawning Bread. Retrieved 2007-10-20.
  • Au, Alex (March 2005). "List of section 377 and 377A cases". Yawning Bread. Retrieved 2007-10-20.
  • Chua, Lynette J. Kher Shing (2003). "Saying No : Sections 377 and 377A of the Penal Code". Singapore Journal of Legal Studies: 209&ndash, 261. .
  • [Lim], Wee Kuan (2002-10-01). "Gay law : Emancipation and emasculation". Safehaven, Free Community Church. Retrieved 2007-10-20. A review of all Singaporean laws governing homosexual behaviour.

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