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Section 377 in Singapore
Recently there has been a great public outcry in Singapore on
section 377 and 377A of the penal code. The reason for this is the recent penal
code amendment bill that has been introduced in Parliament which seeks to review
the penal code in 22 years.
Among the good points of the amendment bill, it seeks to punish sexual grooming
and also child sex tourism extending to acts performed overseas. Singapore
like many other countries in South and Southeast Asia which have been British
colonies in the past has an age old Victorian law in the form of Section 377
which says, ‘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’. It further explains that ‘penetration is sufficient to
constitute the carnal intercourse necessary to the offence described in this
section’. Section 377A says ‘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’. Whereas
the amendment bill amends section 377 of the penal code, it retains section 377A
thus discriminating against homosexual and bisexual men (Section 377 has been
replaced with a new law which criminalises sex with dead bodies). Apart from
being discriminatory, this amendment bill is unconstitutional as the
constitution provides for equality and equal protection of all persons under the
law.
There has been a parliamentary debate on the overhaul of the criminal law in
Singapore. Under the proposed changes, oral and anal sex between consenting
heterosexual adults will no longer be considered an offence. However, the same
acts between men will remain illegal with a maximum penalty of two years in
jail. Gay rights activists and advocates have called for a protest against this
archaic law which discriminates against same-sex desiring people. Further it
fails to differentiate private consensual sex between adults from non-consensual
acts.
Section 377 as a law in many countries of South and Southeast Asia is ambiguous
and left to the interpretation of lawyers and judges. Though it is known as a
law which criminalises sodomy, it does not explicitly say so. The law in its
explanation necessitates penetration to constitute crime and by that logic
leaves lesbians from its purview. The law has however been used by police and
other State agencies to harass and discriminate against people who do not
conform to heteronormative sexual and gender norms. Further, it serves as an
important tool in the hands of the State to enter people’s bedrooms and makes
one question the need for such a law. It is absurd to have such a law still
exist in countries which have been British colonies when Britain itself has done
away with the law in question. Worldwide, there are demands for a discrimination
free environment for all, including same sex desiring people and this cannot
happen as long as LGBT people have to live with the fear of persecution by the
State.
It is interesting how recent Singaporean cases have established that oral and
anal sex between heterosexual people have been exempted when people have
participated in it as part of foreplay leading to sexual intercourse. This
points to the oft-held assumption that penetrative sexual activity is ‘real’ sex
or that people engage in sexual activity with the sole idea of procreation.
According to a petitioner, this amendment is a regressive step for the
Government to take when Singapore is in the process of updating its criminal
laws in keeping with its image of a modern, developed and contemporary country.
The amendment will only lead to more homophobia. There have been recent attempts
to ban gay events in public parks in August 2007, refusal to allow an LGBT book
reading event as a part of Gay Pride celebration, the closure of a photography
exhibition of gays and lesbians by the police etc.
There have been massive protests by many Singaporeans calling for the Government
to decriminalise homosexual sex. A protest was launched by many of Singapore’s
LGBT organisations, including an online petition to Singapore Prime Minister Lee
Hsien Loong, which had gathered nearly 2,500 signatories. Although there have
been reassurances by the Primer Minister that there would not be any active
persecution, the gay community obviously feels that that is not be enough. The
online petition says that ‘it is the responsibility of any democratically
elected government to protect minorities from the tyranny of the majority’. The
State must realise here that the criminalisation of gender and sexually
marginalised communities in a State is detrimental to the overall atmosphere of
equality, fairness and non-discrimination towards all citizens.
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