By Michael Hor
Curiously, the Penal Code (Amendment) Bill of 2007, proclaimed as the result of only the second comprehensive review of Singapore’s 136 year old criminal code, is likely to be remembered more for what it did not do than for what it did.
To be sure, there is much reform in the Bill, and much that is uncontroversially needed. Many of the changes are technical in nature and would require some acquaintance with the intricacies of criminal law to appreciate.
Not so the issue of whether consensual gay sexual activity between adults ought to continue to be criminalized. When the proposed amendments were unveiled in November last year, few other matters in the document so dominated public discourse. Yet after many months, much feedback and careful deliberation, nothing has changed.
The now famous, or infamous, section 377A which prohibits “gross indecency” between men, is to be preserved. The press release in conjunction with the introduction of the Bill contains no more than two cryptic sentences explaining why this position was finally taken.
How is the line to be drawn between what is a crime and what is not? Criminal lawyers speak of the two elements of harm and culpability. We are concerned here only with the first – criminal activity must entail some sort of recognizable and more or less tangible harm to others. The criminal law declares it to be a crime, as notice to all that if anyone wishes nonetheless to engage in them, there will be consequences. The rules of criminal procedure and evidence prescribe the manner in which someone is to be prosecuted and found guilty of a crime.
Ultimately, the rules of sentencing and punishment govern how the criminal offender is to be punished. The reason for criminal punishment has been variously explained as incapacitation, deterrence and rehabilitation of the offender, deterrence of would-be offenders, and satisfaction of the victim and of the public.
Does 377A match up?
Just how far 377A is from this model of criminality is striking.
The government has been strangely silent about the harm that 377A is intended to prevent. Indeed consistent statements over a number of years from the highest officials of the land lead any reasonable observer to think that the government no longer believes, if indeed it did before, that the sort of activity contemplated by 377A is harmful at all. If corroboration were required, it lies in the repeated assurances of the government that 377A will not be enforced – apparently because there is no harm to be prevented, no offender to be rehabilitated, no potential offender to be deterred, and no victim to be satisfied.
One might, of course, disagree with the government’s position on the harmfulness of 377A activity, but once that position is taken, how can it be right for 377A activity to remain a crime? The fact that “public feedback” had been “emotional, divided and strongly expressed” is interesting, but surely not the end of the matter – for informed lawmaking must critically examine why there is such a difference of opinion.
Those who seek the repeal of 377A have rather less to explain – if it is the official position that the activity concerned is not harmful, or sufficiently harmful to require penal consequences, it does seem to follow that it ought no longer to be a crime. Those who advocate the retention of 377A are in a more difficult position, for any convincing argument for their view must rest on a belief which is contrary to the implicit official one – that 377A activity does indeed involve a significant enough harm. The government’s decision to retain 377A in the light of its rejection of the principle argument for its retention – that of harm to the community – is surprising.
It was not retained because it has any merit in itself, or because the government buys into the arguments of those seeking its retention. It was left in the Penal Code because of a desire not to offend those who seek its retention. Yet the management of activity which does not really harm but merely offend ought surely to involve a balance of interests – between the interests of those who want to engage in the activity and those who are offended by others engaging in it.
How do the advocates of retention benefit by leaving 377A in the books? Not much at all – for the “prohibition” will not be enforced, people will continue to engage that activity and they will, presumably, continue to be offended.
The power of symbolism?
But would the mere existence of 377A not be a needed symbol, in their view, of disapproval?
Perhaps, but what a tattered and confused symbol it will be – there is not to be, and has never been, such a symbol for “gross indecency” between two women, nor is there any for “gross indecency” between a man and another man who has been sexually reassigned surgically as a woman, and what one might have thought to be a far less controversial symbol of “family values” – the offence of enticing a married woman in order to commit adultery with her – is to be repealed, apparently without the objection of those who argued for the retention of 377A.
On the other side of the equation, how does retention of 377A harm those who might engage in activity “prohibited” by that provision? It is true that there are these assurances of non-enforcement, but this is not the same as a repeal of 377A. The present policy of non-enforcement can be changed, and changed without notice for whatever reason the government of the day deems fit.
More than that, while 377A may not be enforced, discriminatory policies can potentially be built on the logic of its existence – thus public “entertainment” licences can conceivably be denied to speakers who are thought to be sympathetic to 377A activity, on the basis that it is, after all, still criminal. Societies seeking the repeal of 377A can be denied registration on a similar ground.
The balance of interests that is struck by the retention of 377A is not a happy one. In order to spare the feelings of those who object to such activity, which the government acknowledges to be insufficiently harmful to be enforced, 377A is to remain, with the potential to be used without notice, and to be invoked as the basis of other discriminatory policies.
The government displays much wisdom in letting “the situation evolve”, but situations like these do not evolve by the force of nature. It is trite that in a democracy conflicting ideas and those who hold them contend for the community’s acceptance. The role of government, where no sufficient harm is involved, must be to be neutral, allowing both parties to try to persuade the public of their views. Neutrality is not achieved by retaining 377A, but by its repeal.
Employment of the criminal law to prohibit activity which the government does not really think ought to be prohibited, on the sole basis that “the majority” wants it to be prohibited, is fraught with danger. The moral force of the criminal law is blunted if there are crimes which are, the government assures the public, never to be enforced, and its “perpetrators” never brought to court and punished.
It demeans the individual to have his behaviour, which is presumably important to him and which the government does not think is harmful to society, to be labeled a crime, and him a criminal. The criminal laws are the ground rules of our society and if it is to be accorded the respect it deserves, it must be reserved for conduct which the government considers to be clearly harmful to society.
About the author: Professor Michael Hor teaches at the National University of Singapore Faculty of Law. His areas of research include criminal law, evidence and constitutional law. Professor Hor contributed this article to TOC in his personal capacity.
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“A clear distinction needs to be drawn between accepting gays and accepting their lifestyle”
I really don’t see how there can be a distinction drawn between a homosexual and his/her “lifestyle”. Do you mean members of which sex one sleeps with? Or do you mean something like a promiscuous lifestyle? If it’s the former, then you are not accepting gays, because one’s sexuality is not separate from one. And if it is the latter, then it would be tarring a entire demographic with the same brush obviously. There is no unilateral gay “lifestyle”, just as there isn’t a singular heterosexual “lifestyle”.
Shoestring,
When you post an article that seeks to demonize, exaggerate and seeks to say that “mom” and “dad” are now taboo (now it’s implying that somehow, heterosexual relationships are now subservient to homosexual relationships which is absurd in the face of legislation, what now “mom and mom” should be used instead? – then again, how in the world is a law that prohibits discrimination against sexual orientation make “mom and dad” taboo? You give us the premises and the conclusion and we’ll see whether there’s any logical follow-through of the argument).
Any by the way, I do believe that everyone has the right to an opinion. But that should not prevent me from disagreeing with opinions when I feel that those opinions are wrong. If there is a law that seeks to diminish heterosexuality, to make it subservient to homosexuality (which is not the same thing as preventing discrimination against homosexuality), then I would be against that as well.
As a social liberal, I question my beliefs every single day when I take in opinions from others. I’ve only just recently agonised over the issue of abortion. And the labeling part? Look up social liberalism for me. I have no qualms of labeling people. You seem to have no qualms either.
And finally, I don’t think governments should have a say in private morality. So when you argue about morals and standards, I believe that issues such as abortion, homosexual acts, suicide should be legalized. I think abortion is abominable but that right of a woman should not be taken away from her.
Shoestrings,
You said: “As in what has happened in the US California where “mom” and “dad” are now considered taboo because they are offensive to gays? When the rest of society has to reorder their lives to the whims and fancies of the gays?”
Immediately after that, you quoted the following article which is not even factually true.
“‘Mom’ and ‘Dad’ banished by California
Schwarzenegger signs law banning anything perceived as negative to ‘gays’
Don’t you think you have to at least verify the credibility of this article article before even you quote it to support your view. What view? Now, I have to ask to shed more light of what is your intention even though I think it is clear enough. Why do you asked the above questions followed by quoting of the above-mentioned article? You mean, this is for asking for the right to speak up? How so?
Shoestring said:”Lastly, the fact that gay activists run gay baths and provide facilities for gay sex is extremely relevant. Why is it so urgent a matter to repeal the act? Is it really because gays are so oppressed and persecuted that it is a matter of life and death, that they can’t function as human beings? No. There are gays out there who aren’t as vocal who feel perfectly safe and accepted here, who have other priorities in life than pressing for gay rights incessantly. So why does this group of activists feel so compelled? They have special extraordinary needs? Or is it because the law is an obstacle that prevents them from operating their businesses the way they want?”
So you are admitting that you like gays that aren’t vocal and quietly accepting all prejudices thrust onto them? That is just simply injustice. Period.
WeiHan,
First, I am straight. So, I don’t like gays. I like the opposite sex.
Secondly, the article is not a fake. The it is the reporting that gives it a slant. Nothing wrong with that. If you accept what bloggers write, you should accept the reporter’s perspective to.
All articles have their own angles, all writers have their opinions that influence their writings. My purpose of quoting the article is as an illustration of what might be the concern of many – slippery slopes. Sooner or later, it will come to pass unless stopped.
Sophie,
So, is taboo the same as a prohibition? The rest is, I am afraid, your own interpretation based on your own bias against “conservatives” etc. You are entitled to it. I don’t like labels because they limits reason by stereotyping and defining people and their behaviour with clear cut lines, which is seldom the case.
And we will all do well to differentiate between main arguments, examples and illustrations. Focus on the main argument. Being anal only leads to tunnel vision and uncalled for bickering.
Biologically speaking, homosexuality is not wrong. It happens in other species.
The crux of the issue here is religion. Mainstream religions condemn (it’s a strong word but that’s what they do) homosexuality. Logic is not involved. So, if you’re even halfway religious, your stand is chosen for you. You can’t pick and choose which part of the Bible/ Quran/ etc you want to accept. That would be hypocritical.
Ivan, other species are known as other species for a reason. Is gay sex a “natural” way to procreate? Hamsters eat their children. Does that make it right for humans?
I would like to ask what are the views regarding bestiality and incest between consenting adults. Seems like the views used to support homosexuality can be applied here too.
For bestiality, since animals can’t give consent, it may amount to raping and harming of the animals. Therefore, it is possible to argue in this line of thought.
Shoestrings,
It is still not a valid argument to support injustice. Even if what is worried in the slippery slop argument stands, it is still always wrong to use injustice as a pre-emptive measure.
How about cases of dogs having sex with a woman? The dog is not being raped.
WeiHan,
You the right to your opinion. I beg to differ.
Btw, my nick is singular, not plural.
By the way, it’s good to find out who you are trying to convince and what they think:
http://www.keep377a.com/Signatures.aspx
Of course, we already know all these arguments in the petition which don’t make sense and will not prevail with time.
Mr Michael Hor,
You wrote that the govt does not enforce Sec 377A because of no harm or insufficient harm by offenders. On what basis do you say that? I believe there is no enforcement because of the Govt’s wish to appear less conservative and less authoritarian to the West, so that, among other things, S’pore still attracts expatriates.
Shianux,
Thank you for your arguments.
I have few gay friends, none of them close friends. And to tell the truth, I am not 100% comfortable with them even though I will be civil and friendly.
But the views of the conservatives strike fear in me. Why? I just think – what if one of my children were gay? They will suffer so much discrimination. The law will tell them that they side the majority against them. The same law which is supposed to protect them. That I cannot accept.
the “what if my children were gay” mentality is absurd. Look at the tv programmes and movies these days. So much emphasis on sex. Are these parents going to protest saying that their children might grow up and become sex maniacs?
Repealing s377A does not equate to championing gay rights. The reason why this issue continues to create endless controversy is precisely because those who fight to retain it equate it as such and start trotting out “we are fighting for the souls of our children” arguments. Let’s step back and look at this issue objectively. If i recall correctly, Gerald and a few others mentioned the effect of “signposting”. But how effective is a signpost when the people who put it up make it common knowledge that they have no intention of enforcing it?
I am very surprised that many of the pro377A people have taken to the moral high ground when there was hardly a whimper on the moral and ethical implications of allowing not one but two casinos to appear.
So there’s nothing wrong with the evil of gambling (which by the way,I believe Jesus took personal action to upturn some of them which were operating close to the temple.) as opposed to the act of expressing your love for someone.
Hmmmmm why is everyone ignoring me? I thought this is supposed to be an open forum?
Can someone please give me a positive reply pls.
*Psylence, this blog site is not for you to solicit information or recommendations on incest. If that is what you are interested in, please go somewhere else. An open forum is not a free for all. You will be under moderation from now on and your posts may never appear here.
My views are similar to KeeN. Thank you for voicing out.
Man-woman is the only combination that I perceive as PREFECT match.
Gerald,
May I ask if you are straight ? Are you attacj=hed to a girl or married with children ?
Thanks.
A very nice read after been away from the country for awhile.
Very interesting perspective to look at, the government’s position to retain 377A and the questions that it raises from the aspect of law and its integrity, placed in the context of harm and culpability.
I guess there are many ways to look at this issue, whether you are a social conservatist, liberal, libertarian, moralist, humanist, heterosexual or even a homosexual yourself, the issue will not just go away simply because it wasn’t repealed in the parliament, whenever or wherever there are homosexuals within our borders, this penal code would still apply to them, and penalising them whether from a social or legal context in Singapore (Even if our law enforcement agency would not uphold them).
From the legal aspect, should a law which would not be upheld be retained in the first place? That is the very question that Prof Michael Hor is trying to ask in the first place. Consider this, given that 377A is not upheld, what gives the future government, considering a particularly vile one is being elected, would stop them from not upholding other laws that might possibly grant them private economic gains? Such as not upholding our Anti-Corruption Law?
By not upholding a written criminal code brings our law into disrepute, bordering upon travesty under such circumstances without proper legal writings that would provide law enforcement agencies the ambit to act under the right situation. And from that perspective, does that mean that conservative citizens of Singapore upon reporting their homosexual neighbours of an act of gross indecency in private, and our police would not act simply because our government says so? Or would the homosexual couple not be charged under 377A? What are the consequences given such circumstances, could the police, public prosecutors, or even our attorney general have the authority to say that they would not bring charges against them?
That I believe is what we should consider under the sphere of discussion as proposed by the author of this article.
Best Regards,
Azmodeus
Dear Gerald, Shoestring, Kek on the conversative and God stance. Look at the bible carefully if your views stem from christianity. I posted this on two other blogs.
The bible is the word of God but human interpretation can be fallible. The basis of the conservative stand which stems from christianity is that homosexuality is categorically a sin, perverse, deviant etc.
However, after a thorough examination of the bible, I’m not too sure if it is really sin and we need to re-examine our intepretation.
We can see how morality has evolved within the bible itself.
1) After the fall of Sodom and Gomorrah (Gen19), Lot and his daughters commit incest to perpetuate reproduction when Lev 18 and 20 clearly prohibit it. (Gen 19:31). Eventually, this incestuous relation spawned a tribe of Moabites (Ruth). From Ruth’s union together with Boaz (son of the prostitute Rahab) came David and later Jesus.
2) Women were regarded as chattels/property as evidenced in several of God’s laws in the Old testament. Eg when a woman was raped, the rapist had to marry her after paying a sum of money to her father. Women were also regarded as vessels of reproduction. (There was a law in which a widow who had no son had to marry the second son in line to sire a male.) Many of the men in the Old Testament had several wives, Abraham, Issac etc again for the purposes of reproducton. It was only when Jesus came that adulterty was sanctioned and the status of women was elevated.
3) Slavery was allowed in the olden times but it is now clearly “abominable” and “criminal” as is incest and rape.
When the bible is read, it has to be intepreted within its proper context which includes the following:-
a) the point in time in which the book is written;
b) the history, literature and philosophy employed by the writer;
c) the audience that the writer is addressing etc.
In my view, there is a distinction between absolute morality and contextual morality ie you cannot simply superimpose what is infinite onto what is finite.
Most Christians assume that the destruction of Sodom and Gomorrah represents God’s wrath against homosexuality. Unfortunately it is not so.
Ezekial 16: 49 reads: Look this was the inquity of your sister Sodom. She and her daughter had pride, fullness of food, and abundance of idlenes; neither did she strengthen the hand of the poor and needy, and they were haughty and committed abominations..and so I took them away as I saw fit.
Zephaniah 2:8-11: I’ve hear the reproach of Moab…. With which they have reproached my pple, & made arrogant threats against their borders. …..Surely Moah shall be like Sodom, & the people of Ammon like Gomorrah…..because they have reproached & made arrogant threats against the people of the Lord of Hosts” (pride, arrogance and inhospitality but not homosexuality)
Matt 10:11-15: “Now whatever city/town you enter, inquire who is in it is worthy & stay there till you go out & whoever will not receive your words, when you depart that house/city shake off the dust from your feet….Assuredly I say to you, it will be more tolerable for the Land of Sodom and Gomorrah in the day of judgment than for that city!” (Jesus’ words of inhospitality but not homosexuality, see also Mark:6-11, Luke 10:10-12, Luke 17: 26-29, Lamentations 4:3-6,Isiah 13: 11-19 etc)
There are a total of 29 verses pertaining to Sodom and Gomorrah and nowhere is homosexuality mentioned. Hence, christians who maintained that it does have according to the bible, gotten the Gospel wrong.
Interestly is the parallel story in Judges.(Read Judges: 19:11-30)(Gen 19:29). There, the men in Gibeah similarly demanded sex from a travelling Levite who took refuge in an old man’s house. In Gibeah, the men too were offered women which they first spurned but later raped & killed . The offering of women by Lot and the old man was obviously a diversionary tactic and if the men were really gay, then it makes no sense to offer women to them just for them to spurn it. The difference between the two stories is that the travellers in Sodom were angels who blinded them while the Levite in Gibeah was only an ordinary man. Otherwise the men in Sodom would have raped Lot’s daughters. The Levite in Gibeah subsequently chopped up his raped and dead concubine into pieces and distributed them to other people. (This again emphasizes how low the status of women was in that society). Later, the Levite, with the help of the Israelites and God, too destroy the city.
The sin in Sodom was inhospitality, not homosexuality. In the olden times, the ancient code of hospitality was sancrosant ie, when a foreigner seeks refuge in your home, you cannot let anything happen to him and this stems from Jesus’ second commandent of loving thy neighbour as thyself. It is repeated several times in the Old Testament:
And, if a stranger dwells with you in your land, you shall not mistreat him. The stranger who dwells among you……you shall love him as yourself; for you were strangers in the land of Egypt: I am the Lord your God” (Lev 19: 33-34, See also Ex 22:21, Deut 14:29, 24:14-22, Rom 12:6-15 etc)
In the olden times, there were dangerous places in various lands & wars and the winner often raped the defeated male enemy for to treat them as women would make them feel inferior. Lot & the old man in Gibeah were merely abiding by the ancient code of hospitality by extending a roof over the angels and Levite (travellers seeking refuge in a foreign land)
Christians who assume that the sin in Sodom was homosexuality have equated the homosexual act/ rape with homosexuality. However, there is a fundamental difference between the two; one is merely an act while the other is a sexual orientation/preference/inclination (whether biological/psycological). As in heterosexual unions, it is not the sex that governs the relationship but the mind and emotions of gay people that governs it. The question is whether the writers at that time had a concept of sexual preference when they penned down God’s word.
Another salient point is that Jesus said nothing on homosexuality. Jesus had plenty to say about adultery but mentioned nothing on homosexuality. If it is really that evil, perverse or dangerous, then it is odd that he said nothing about it. Christians who take that stand have to address this point.
In Matt 19:11-12 Jesus makes the following remark:
All cannot accept this saying but only those to whom it has been given..For there are enunchs who were born thus from their mother’s womb, & there are enunchs who were made enunchs by men……He who is able to accept it, let him accept it.
In the old testament, enunchs were mentioned several times in Esther & Isaiah. (The prophet Daniel too was a enunch). The king in olden times used to get enunchs to look after his concubines. These men were either castrated ones or born enunchs who were the homosexuals….(Others though, take the view that born enunchs are men without testicles). Whatever Jesus meant, it is unclear. However in Isaiah 56:4-8, it is prophesized
To the eunuchs who keep my covenants…I will give in my house…a name, better than that of sons and daughters; I will give them an everlasting name that shall not be taken away.
There were apparently also intimations of homosexual relationships in the bible.
See 1 Sam Chap 18-20, 2 Sam I:26 for the relationship between Jonathan and David:
“…the soul of Jonathan was knit to the soul of David, & Jonathan loved him as his own soul…” (1 Sam 18:1)
” Now Jonathan again caused David to vow, because he loved him; for he loved him as he loved his own soul” (1 Sam 19:17)
“I am distressed for you, my brother Jonathan; You have been very pleasant to me; Your love to me was wonderful, surpassing the love of women” (2 Sam:1:26).
Depending on the version used (the one I quoted above is NKJV), the depth of the relationship differs– the NIV version claims that it was a relationship between best friends. Whichever it is, it begs the question of what exactly about homosexual relationship is prohibited.
I have heard different intepretations of Lev and Romans but will not propose to address them here. (Lev refers to the “Holiness Code” when Moses was bringing his people to the promised land and were surrounded by people who indulged in paganistic practices and idolatry while Romans is linked to Lev). Contrary to what others may think, the bible is actually a moving account of love, compassion, inclusiveness and humanity. The underlying theme from the Old Testament to the New Testament is encapsulated in Jesus’ words:
Matt 22:36-40: Teacher what is the greatest commandment in the law? Jesus said to him, ‘You shall love the Lord your God with all your heart, with all your soul & with all your mind This is the first & great commandment. And the second is like ‘You shall love your neighbour as yourself. On these 2 commandments hang all the law & the Prophets.
I think that before we stand up what what is right and just, in particulary for christians, we have to establish that what we stand up for is indeed the truth. I am not saying that the above is the truth but in the light of so many questionable points, it is really impossible to make a clear stand on this matter.
Finally in Rom 12:9-21 of the behaviour of a christian is stated thus:
“…Be kindly and affectionate to one another with brotherly love, in honour giving preference to one another…Be of the same mind toward one another. Do not set your mind on high things but associate with the humble. Do not be wise in your own opinion…If it is possible, live peaceably with all men…Do not be overcome with evil but overcome evil with good.”
I am a liberal christian
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