Section 377A of the Penal Code (Singapore)

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Section 377A is a Singaporean law criminalising sex between consenting male adults. The item of legislation was added to the Penal Code in the 1930s. The item remained part of the Singapore body of law after the Penal Code review of October 2007 that removed most of the other provisions in Section 377. The section is entitled Outrages on decency and reads:

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.[1]

Its mother statute, Section 377, criminalised any sexual act that went "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.

Influential historic laws[edit]

The Indian Penal Code[edit]

Lord Thomas Macaulay

The British Parliament formed the Indian Law Commission in 1833.[2]:pages: 10–11 Lord Thomas Macaulay was appointed to chair the commission.[2]:page: 11 The 1837 draft of the Indian Penal Code was largely his work.[2]: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.[2]:page: 11 The code was adopted in 1860 and took effect 1 January 1862.[2]:page: 11

Macaulay's draft did not reflect existing Indian laws or customs.[2]:page: 11 It was largely a rewrite of the British Royal Commission's 1843 draft code.[2]: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.[3]:page: 18 These in turn let future jurists redefine what these provisions actually punished.[3]:page: 18 Under Hindu law, consensual intercourse between members of the same sex was never an offence.[citation needed] 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.[3]:pages: 14–15

Section 377A (Outrages on decency) was added to the sub-title "Unnatural offences" in the Straits Settlements in 1938.[3]: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.[citation needed]

The Labouchere Amendment[edit]

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 on 23 October 2007)[edit]

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:[4]

[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 on 23 October 2007. A new Section 377, which criminalises sex with dead bodies ("Sexual penetration of a corpse")[1], was substituted in its place.

Section 377A[edit]

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

Arguments for and against repeal of Section 377A[edit]

For[edit]

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

Against[edit]

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. Opponents of the repeal also believe that the majority support the retainment of 377A.[citation needed]

Public opinion[edit]

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.

Shortly after the Penal Code review report was released on 9 September 2018[12], a movement known as Ready4Repeal launched a petition to campaign for Section 377A to be repealed, even though MHA and MinLaw said there were no plans to do so. It also held a town hall meeting on 30 September 2018, attracting 44,650 people. In contrast, a petition that wants Section 377A kept attracted more than 109,000 signatures after it closed on 24 September 2018.[13]

Status of Section 377A in other countries[edit]

England & Wales, the former British colony of Hong Kong, 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. India's Supreme Court has also decriminalised sex between two people of the same sex in 2018, which is significant as Section 377A of the Penal Code is similar to Section 377 of the Indian Penal Code.[14] 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.[15]

Constitutional challenges[edit]

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[edit]

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.[16]

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.[17] 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 Lai'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.[18]

Tan's case was finally heard on 6 March 2013,[19] and decided against him by justice Quentin Loh on 2 October 2013.[20] 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.[21]

Lim Meng Suang and another v. Attorney-General[edit]

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.[22][23] The case was heard in camera on 14 February 2013,[24] and decided against them by justice Quentin Loh on 9 April 2013, for much the same reasons as his decision against Tan (above).[25] Lim and Chee appealed to the Court of Appeal on 30 April 2013.[26][27] 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.[28] Goldsmith had agreed to take the case without pay,[29] 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.[30]

On 29 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.[31][32] 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.[31] As in all judgments before, the court held that any legal remedy would have to come about through an Act of Parliament.[31]

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.[33] 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",[34] while Bloomberg published a more neutral piece.[32]

Ong Ming Johnson v. Attorney-General and other matters[edit]

On 29 August 2018, Professor Ho Kwon Ping in his talk questioned the need for Section 377A in Singapore.[35] After India's Supreme Court decriminalised sex between two people of the same sex[36], with Professor Tommy Koh encouraging a constitutional challenge of Section 377A and chief of Singapore government communications Mr Janadas Devan hoping that Section 377A would go[37], several constitutional challenges have been brought to the Supreme Court.

The first challenge after India's ruling was filed on 10 September 2018 by Johnson Ong, known by stage name DJ Big Kid, and was based on Article 9 of the Constitution.[38] The second challenge was filed by LGBT rights activist Choong Chee Hong in November 2018 and argues that Section 377A is inconsistent with Articles 9, 12 and 14 of the Constitution.[39] A third was filed by retired general practitioner Tan Seng Kee on 20 September 2019, also based on Articles 9, 12 and 14 of the Constitution. In addition, he argued that although the Government will not enforce the law on acts done in private, the Public Prosecutor can decide whether to prosecute someone under Section 377A, which would be inconsistent with Section 14 of the Criminal Procedure Code, which requires the police to "unconditionally investigate all complaints of suspected arrestable offences".[40]

On 30 March 2020, justice See Kee Oon consolidated the three challenges into one case and ruled against them, arguing that the law was intended to safeguard morals and prosecute all forms of indecency between men whether in public or private, and not just male prostitution when the law was made in 1938. He also stated that there's no strong scientific evidence that a person's sexual orientation is unchangeable, and once again ruled that Parliament is the proper venue for repeal.[41][42] Appeals were filed on 31 March 2020.[43]

See also[edit]

References[edit]

  1. ^ Penal Code (Cap. 224, 2008 Rev. Ed.) § 377A
  2. ^ a b c d e f g "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
  3. ^ a b c d "This Alien Legacy: The Origins of 'Sodomy' Laws in British Colonialism", Human Rights Watch, 2008
  4. ^ Public Prosecutor v Kwan Kwong Weng [1997] 1 SLR(R) 316 at [29]–[31].
  5. ^ "Romantic rabble v coy court". Yawning Bread. 21 November 2010. Retrieved 18 October 2019.
  6. ^ "Singapore Penal code 377A: Retain or Repeal?".
  7. ^ "Do Animals Exhibit Homosexuality?".
  8. ^ "Singapore Lawmakers Debate Petition to Abolish Gay Sex Ban". Associated Press. 25 March 2015. Retrieved 18 October 2019.
  9. ^ "Repeal377A.com". Archived from the original on 11 October 2007.
  10. ^ "Keep377A.com". 2007. Archived from the original on 16 May 2008.
  11. ^ "keep377a overtakes repeal377a". Family&Freedom. 20 October 2007.
  12. ^ Mokhtar, Faris (9 September 2018). "Penal Code set to undergo overhaul, to better protect vulnerable victims against abuse and sexual crimes". Today. Retrieved 3 October 2019.
  13. ^ Chua, Alfred (30 September 2018). "Activists submit online petition, but Govt has 'no plans' to repeal S377A". Today. Retrieved 3 October 2019.
  14. ^ "India's top court lifts ban on gay sex in landmark ruling". The Straits Times. 6 September 2018. Retrieved 1 October 2019.
  15. ^ Homosexuality laws of the world#East Asia
  16. ^ 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.CS1 maint: BOT: original-url status unknown (link)
  17. ^ Waipang, Alex Au (19 March 2011). "High Court waves away 377A controversy". Yawning Bread. Retrieved 10 December 2016.
  18. ^ 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. Archived from the original on 23 November 2016. Retrieved 10 December 2016.
  19. ^ "Second of two 377A challenges may have to wait a long time for a decision". Yawning Bread. 10 March 2013. Retrieved 10 December 2016.
  20. ^ "Singapore High Court upholds anti-gay law in Tan Eng Hong's case". Fridae: Connecting Gay Asia. 2 October 2013. Retrieved 10 December 2016.
  21. ^ "Court of Appeal Does Right By Tan Eng Hong: Joint hearing for section 377A appeals". IonSG. 11 October 2013. Retrieved 10 December 2016.
  22. ^ "Singapore couple sue to end sodomy law". San Diego Gay and Lesbian News. 1 December 2012. Retrieved 10 December 2016.
  23. ^ Waipang, Alex Au (2 December 2012). "New constitutional challenge to Section 377A filed". Yawning Bread. Retrieved 10 December 2016.
  24. ^ Lim, Leonard (14 February 2013). "Legal challenge to Section 377A begins in the High Court; judgment reserved". The Straits Times. Retrieved 10 December 2016.
  25. ^ Wong, Tessa (9 April 2013). "High Court upholds anti-gay sex law, dismisses legal challenge". The Straits Times. Retrieved 10 December 2016.
  26. ^ "Gay Singaporean couple file appeal over ban on private consensual sex". LGBT Weekly. Retrieved 10 December 2016.
  27. ^ 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 10 December 2016.
  28. ^ Xin, Sia Ling (9 July 2013). "S'pore gay couple hire top lawyers for Section 377A appeal". Yahoo! News Singapore. Retrieved 10 December 2016.
  29. ^ Kriegler, Yun (11 July 2013). "Goldsmith to challenge Singaporean government on anti-gay laws". The Lawyer. Retrieved 10 December 2016.
  30. ^ Burton, Lucy (20 September 2013). "Goldsmith kicked off anti-gay challenge by Singapore High Court in favour of local counsel". The Lawyer: Advancing the business of law. Retrieved 10 December 2016.
  31. ^ a b c Lum, Selina (29 October 2014). "Court of Appeal rules that Section 377A that criminalises sex between men is constitutional". The Straits Times. Retrieved 10 December 2016.
  32. ^ a b Tan, Andrea (29 October 2014). "Singapore's Ban on Gay Male Sex Is Upheld by Top Court". Bloomberg.com. Retrieved 10 December 2016.
  33. ^ Allegretti, David (22 June 2016). "What It's Like to Be Young and Gay in Singapore". VICE. Retrieved 10 December 2016.
  34. ^ Mosbergen, Dominique (13 October 2015). "How Singapore Is Limiting Basic Human Rights". The Huffington Post. Retrieved 10 December 2016.
  35. ^ Ho, Olivia (29 August 2018). "Businessman Ho Kwon Ping opens up on his ISA detention at packed ST Book Club event". The Straits Times. Retrieved 1 October 2019.
  36. ^ "India's top court lifts ban on gay sex in landmark ruling". The Straits Times. 6 September 2018. Retrieved 1 October 2019.
  37. ^ Yahya, Yasmine (7 September 2018). "Tommy Koh's Facebook comment reignites debate on Singapore's gay sex law". The Straits Times. Retrieved 1 October 2019.
  38. ^ Chua, Alfred (12 September 2018). "Repeal of section 377A will end 'online vitriol and abuse' against LGBTQ community, says DJ who filed legal challenge". Today. Retrieved 1 October 2019.
  39. ^ Alkhatib, Shaffiq (22 January 2019). "LGBT rights advocate files case against Attorney-General, stating Section 377A of Penal Code is void". The Straits Times. Retrieved 3 October 2019.
  40. ^ Kurohi, Rei (25 September 2019). "LGBT activist and retired GP Roy Tan files new court challenge against Section 377A". The Straits Times. Retrieved 3 October 2019.
  41. ^ Kurohi, Rei (30 March 2020). "High Court dismisses challenges against law that criminalises sex between men". The Straits Times. Retrieved 30 March 2020.
  42. ^ Ong Ming Johnson v Attorney-General and other matters, 2020 SGHC 63 (High Court of the Republic of Singapore 2020-03-30).
  43. ^ Kurohi, Rei (31 March 2020). "Two men file appeals against High Court decision to dismiss Section 377A challenge". The Straits Times. Retrieved 19 April 2020.

Further reading[edit]

External links[edit]