Section 377A (Singapore)

Sections 377 and 377A of the Penal Code of Singapore criminalize certain forms of sexual acts. Section 377 of the Penal Code states:

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 or retention

The 2007 review of the Penal Code resulted in the proposed repeal of section 377 but not section 377A.

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

Prime Minister Lee Hsien Loong explained the Government's decision not to propose that section 377A be repealed as follows: "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, a Member of Parliament and 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, apart from Singapore, only Malaysia and India, both of which are former British colonies, continue to criminalise sex between men.

On 3 October 2007, an online appeal was launched via the website Repeal377a.com to gather signatories to an open letter to the Prime Minister advocating the repeal of section 377A. In response, a counter-petition on the website Keep377a.com was set up to give citizens a channel to voice support for the Government's retention of the law. By 1:27 pm on 20 October, Keep377a had overtaken Repeal377a in terms of numbers of signatories in just two days of its launch.

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" was launched by an independent focus group Familyoverfreedom 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.

On 22 October 2007, Nominated Member of Parliament Siew Kum Hong will table a Parliamentary petition to the Parliament of the Republic of Singapore in support of the repeal of 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
• LGBT rights in Singapore
• Penal Code (Singapore)
• Sodomy law
• Paragraph 175

References

• Penal Code (Cap. 224, 1985 Rev. Ed.)

Further reading

• [Lim], Wee Kuan (2002-10-01). "Gay law : Emancipation and emasculation". Safehaven, Free Community Church. Retrieved 2007-10-20. {{cite web}}: Check date values in: |date= (help) A review of all Singaporean laws governing homosexual behaviour.
• Chua, Lynette J. Kher Shing (2003), "Saying No : Sections 377 and 377A of the Penal Code", Singapore Journal of Legal Studies: 209–261.
• "List of section 377 and 377A cases". Yawning Bread. March 2005. Retrieved 2007-10-20.
• "The picture that emerges". Yawning Bread. March 2005. Retrieved 2007-10-20.
• Gopalan, Mohan (May 2007). "A heftier list of s. 377A cases". Yawning Bread. Retrieved 2007-10-20.
• "Why section 377A is redundant". Yawning Bread. May 2007. Retrieved 2007-10-20.
• Sanders, Douglas (October 2007), 377 – and the unnatural afterlife of British colonialism (PDF), Fridae.
• Ng, Ansley (2007-10-19). "Keep377a.com vs Repeal377a.com : Group sets up site urging S'pore to keep gay sex ban". Today. {{cite news}}: Check date values in: |date= (help); Italic or bold markup not allowed in: |publisher= (help)

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"