Section 377A (Singapore)

The Singapore Penal Code, Chapter XVI (Offences Affecting the Human Body), Section 377 (Cap. 224) states 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.

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.

Origin

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 offense. In Macaulay's draft however, section 377 criminalized "carnal intercourse against the order of nature" which became punishable by harsh penalties. It may be of interest to note that Lord Macaulay remained single throughout his life - an unusual situation for a man in his position during the Victorian era.

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.

Section 377A (Outrages on decency) was added to the sub-title "Unnatural offenses" 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, Malaya and Burma in the late 19th century.

Scope

Section 377

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.

From legal precedent in both India and Singapore, "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.

Further, by a stretch of the imagination, penetrative lesbian sex via the use of implements like dildoes, fingers, or the tongue could theoretically be criminalised by this law although historically, no act of lesbian sex has ever been charged under section 377.

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 section 377, performing such acts in private does not constitute a defence. There is no law in Singapore equally specific to non-penetrative lesbian sex.

Repeal

The 2007 review of the Penal Code of Singapore did result in the repeal of section 377 (carnal intercourse against the order of nature) but not section 377A (gross indecency between men). The previous review took place 22 years ago and it is feared by some that it would take another 22 years for the next review.

The Ministry of Home Affairs (MHA) was quoted as saying in the Straits Times today that public feedback on the issue had been “emotional, divided and strongly expressed,” with the majority calling for the section to be retained. "MHA recognises that we are generally a conservative society and that we should let the situation evolve," MHA said (see video).

Prime Minister Lee Hsien Loong explains the Government's decision not to repeal section 377(A) of the Penal Code, even as it introduced to Parliament recently a raft of proposed changes to that law: "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."

Ms Indranee Rajah, former chairman 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.

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, only Malaysia and India, both of which are former British colonies, continue to criminalise sex between men.

On 3 October 2007, an online appeal to the Prime Minister of Singapore was launched via the website www.repeal377a.com to gather as many signatories as possible to an open letter to be presented to the Prime Minister of Singapore after 19 October 2007 to advocate for the repeal of section 377A. As at 13 October 2007, 4085 signatures were obtained.

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!. In response to the video, a counter-petition was launched by an independent focus group Familyoverfreedom. This awareness campaign, dubbed the 'Families Petition', aimed to educate the middle ground of undecided Singapore voters about the potential long-term impact of such a repeal on the institution of family. The concern was that with alternative lifestyles eventually enshrined in marriage, children or childbearing would lose their unique place in the definition of family.

On 22 October 2007, Nominated Member of Parliament Siew Kum Hong will table a Parliamentary Petition to the Parliament of the Republic of Singapore to repeal section 377A. The petition is required to pass through the scrutiny of the Public Petitions Committee in order for the issue to be fully debated in Parliament.

See also

• Criminal law of Singapore
• Gay rights in Singapore
• Penal Code (Singapore)
• Sodomy law
• Paragraph 175

External links and references

• "Official version". Singapore Statutes Online. Retrieved 2005-11-18.
• A list of all Singaporean cases tried under section 377 and section 377A, compiled by Yawning Bread from a paper by Lynette J Chua Kher Shing:
  • Lynette J Chua Kher Shing (2003). "Saying No: Sections 377 and 377A of the Penal Code". Singapore Journal of Legal Studies: pp. 209-261. {{cite journal}}: |pages= has extra text (help)

• A lengthy discourse by a judge, with references to historical Indian and Singaporean precedents, on whether heterosexual non-consensual fellatio is covered by section 377 may be found in the case Public Prosecutor v Kwan Kwong Weng, Singapore Court of Appeal- Criminal Appeal No. 30 of 1996:[1]

• Reviews of Singaporean cases on Yawning Bread:[2], [3], [4] and [5].

• A review of all Singaporean laws governing homosexual behaviour by Lim Wee Kuan during a groundbreaking lecture on 1 October 2002:[6]

• A comprehensive academic paper on the worldwide history of section 377 by Prof. Douglas Saunders entitled, "377 - and the unnatural afterlife of British colonialism".

• "Gay Sex Laws To Stay: Singapore Govt" on Fridae.com, September 18th 2007: [7]

• Campaign to repeal Section 377A [8]