Section 377A of the Penal Code (Singapore)

Origin

To understand Section 377A, the enactment of its mother statute, Section 377, must first be explained. Section 377 criminalised sex "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.

Ecclesiastical roots in Britain under Henry VIII

An analysis of the origin of British laws that sought to prohibit buggery and their evolution into Section 377 is found in an academic paper entitled 377 and the Unnatural Afterlife of British Colonialism in Asia by Professor Douglas E. Sanders at Thailand's Chulalongkorn University.

In summary, the British anti-buggery law was enacted in 1534, taking over from ecclesiastical law. The wording used, which included "abominable" (taken from the book of Leviticus in the Old Testament), "buggery" (which, by the 13th century, had become associated with sodomy), and "vice", confirms its religious character. It was formulated in the context of King Henry VIII's break from papal authority to establish the Anglican church. Its purpose was to justify the seizure of Catholic monasteries and the confiscation of their other wealthy properties. The pretext was the alleged sexual immorality of those in the religious vocation. Without this anti-Catholic agenda, it seems unlikely that it would have been enacted.

Codification of law, particularly criminal law, became a major reform project in Britain in the 19th century, pushed by Jeremy Bentham and the utilitarians. Codes were well-suited to British colonialism, providing a single, orderly written version of areas of law - easy to enact for a colony.

The Indian Penal Code

The British Parliament formed the Indian Law Commission in 1833. Lord Thomas Macaulay was appointed to chair the commission. The 1837 draft of the Indian Penal Code was largely his work. It took 23 years for his work to be reviewed by the commission and the Supreme Court judges in Mumbai, Calcutta, and Madras. The code was adopted in 1860 and took effect 1 January 1862.

Macaulay's draft did not reflect existing Indian laws or customs. It was largely a rewrite of the British Royal Commission's 1843 draft code. 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. These in turn let future jurists redefine what these provisions actually punished. Under Hindu law, consensual intercourse between members of the same sex was never an offence. 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.

Section 377A (Outrages on decency) was added to the sub-title "Unnatural offences" 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 28 January 1955.

The original Section 377 (repealed in October 2007)

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.

Theoretically, even lesbian sex which involved penetration, e.g. of a finger or sex toy into the vagina or anus, would be covered under the law, although there are no records of any judge in India or any other British colony interpreting the law to include sex between women.

In the Singaporean context, recent cases had established that heterosexual fellatio was exempted if indulged in as foreplay which eventually leads to coitus. 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.

Owing to overwhelming public support and the realisation by the politico-legal system that the statute was no longer relevant to contemporary society, Section 377 was repealed in October 2007. A new Section 377, which criminalises sex with dead bodies ("Sexual penetration of a corpse")[3], was substituted in its place.

Section 377A

Section 377A was introduced into the Singapore Penal Code in 1938 to criminalise all other non-penetrative sexual acts between men. Research is currently underway, facilitated by the digitisation of local newspapers in 2008, to fathom the reasons why the colonial administration sought to enact such a law here when there were more pressing concerns in an era when civilised nations were on the brink of the second World War.

One hypothesis is that prostitution, including that by transvestites, was rife during the early decades of the 20th century. In endeavouring to curb it, the British must have found it difficult to use Section 377 to prosecute cross-dressers, who were legally men, for having sex with their male clients if prima facie evidence of anal or oral sex could not be found. In these cases, a new law such as Section 377A which was vague enough to convict any form of non-penetrative sexual activity between men, or more accurately, a cross-dressing man and his outwardly male partner, could be used as a backup. The fact that two "men" were found naked together in an enclosed space would be sufficient for a charge to be made against them.

The Labouchere Amendment

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.

Wording

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.

Reason for enactment

In the 1880s, Britain was in the grip of a moral panic about the extent of prostitution. At the time, it was legal to have sex with teenage girls as young as 13 years of age, while a thriving trade buying and selling girls for prostitution alarmed many middle-class citizens. The Criminal Law Amendment Bill was thus drafted in 1881 to combat this. However, it languished for four years until a new scandal in July 1885—a newspaper undertaking investigative journalism managed to buy a girl—roused parliament into renewed action.

On 6 August 1885, a member of parliament, Henry Labouchere, proposed a last-minute amendment to the bill making "gross indecency" between males an offence. There was hardly any debate although one member of parliament, Charles Warton, questioned whether Labouchere's amendment had anything to do with the original intent of the bill, namely, the prohibition of sexual assault against young women, and prostitution. Speaker Arthur Peel responded that under procedural rules any amendment was permitted as long as Parliament permitted it.

Without a record of a debate, it is difficult to know what the UK Parliament’s intention was with respect to the "gross indecency" clause. But if one considers that the Amendment Bill as a whole was designed to address prostitution and human trafficking, and if one realises that not only was female prostitution rife, but so was male prostitution, one can more or less guess why. The main part of the Criminal Law Amendment Act was gender-specific about girls as victims. Without the Labouchere Amendment, it would not have addressed male prostitution at all.

Punishment

The former Attorney-General, Sir Henry James, while supporting the amendment, objected to the leniency of the sentence, and wanted to increase the penalty to two years' hard labour. Labouchere agreed, and the proposed amendment was tacked onto the full Criminal Law Amendment Bill. The latter was rushed through and passed as the Criminal Law Amendment Act in the early hours of 7 August 1885.

Vagueness

As a result of the vagueness of the term "gross indecency," this law allowed juries, judges and lawyers to prosecute virtually any male homosexual behaviour where actual sodomy could not be proven. The sentence was relatively light compared to sodomy, which remained a separate crime.

Prosecutions

Lawyers dubbed the Labouchere Amendment or Section 11 of the Criminal Law Amendment Act 1885, the "Blackmailer's Charter." It was ceremoniously invoked to convict the celebrated author Oscar Wilde ten years later, in 1895. Wilde was given the most severe sentence possible under the act, which the judge described as "totally inadequate for a case such as this." The famous mathematician, logician, cryptanalyst and computer scientist Alan Turing was convicted under the same law in 1952 and sentenced to chemical castration with female hormones, as an alternative to a prison sentence.

Repeal

The law was repealed in part by the Sexual Offences Act 1967 when homosexual acts were decriminalised in England and Wales, with remaining provisions being deleted later.

Singapore's Section 377A

Singapore's Section 377A is descended from the Labouchere Amendment.[4] There is no compelling evidence to support the legend that lesbians were not included in similar legislation all across the Commonwealth because Queen Victoria refused to believe that they were capable of such behaviour.

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. There is not, nor has there ever been, any law in Singapore equally specific to non-penetrative lesbian sex. Section 377A has been in the statute books since the 1930s and has been retained even after the Penal Code review of October 2007.

After the erstwhile Section 377 was replaced by the current law criminalising sex with corpses, it has become a standing joke in the LGBT community that in the Penal Code, gay sex (377A) is now sandwiched between sex with dead bodies (the new Section 377) and sex with animals (Section 377B, "Sexual penetration with a living animal").

Arguments raised

Advocates of the repeal often cited reasons of civil liberty, human rights, and increasing scientific evidence that homosexuality was inborn and found in nature. Opponents of the repeal based their arguments on the conviction that to decriminalise homosexuality would result in a breakdown of the family unit, compromise Singapore's position on procreation, and lead to future undesirable scenarios such as the approval of bestiality and paedophila.

Opponents of the repeal also emphasised the wishes of the putative conservative majority to retain 377A. This was despite there being no formal survey or census done specifically on the topic. In various Singaporean online forums, such as Reach and the AsiaOne Forum strong opinions such as homosexuality being a genetic disease, the existence of a militant gay agenda originating from the West, homosexuality being a product of Western decadence incompatible with Singapore, were repeatedly posted. "Conversion treatments", such as those by NARTH, were also recommended.

Forums organised

In the lead-up to the overhaul of the Penal Code, forums were organised to discuss the issue of homosexuality in Singapore and the repeal of Section 377A.

A seminar entitled, "Christian Perspectives on Homosexuality and Pastoral Care" was organised by Safehaven, a ministry of the Free Community Church. It was held at the Amara Hotel on 10 May 2007.

During the dialogue, Dr. Tan Kim Huat, the Chen Su Lan Professor of New Testament and Dean of Studies at Trinity Theological College said, "Singapore is a pluralistic society...There must be spaces for it", referring to homosexuals in society. This was the reason he gave for supporting the repeal of Section 377A.[5]

Another forum to discuss the repeal of Section 377A was organised on 15 July 2007 by theatre company W!ld Rice in conjunction with Happy Endings: Asian Boys Vol 3, a gay play then being staged. The forum, held at the National Library, attracted some 250 participants.

For the first time in the history of forums on gay issues in Singapore, a member of parliament from the ruling People's Action Party, Baey Yam Keng, and a Nominated Member of Parliament, Siew Kum Hong, were part of the five-member panel convened to debate the issue. Other members of the panel were Alex Au (gay blogger and co-founder of PLU), Rev. Yap Kim Hao (Free Community Church), and Dr Stuart Koe (CEO & Founder of Fridae.com).

Baey for the first time publicly voiced support for the law to be repealed, saying, "Personally, I think that the whip should be lifted for a very open debate and open expression of opinion by the MPs. And if that is so, I would vote for a repeal of the act."[6]

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

The prospect for the repeal of both Sections 377 and 377A in Singapore captured the attention of gay activists worldwide. In July 2007, on a visit to Singapore, the actor Sir Ian McKellen made an appeal to the authorities to get rid of this remnant of British colonial law, just as his country of origin had done,

England & Wales, 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. 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.

On 3 October 2007, another online appeal was launched via the "Repeal 377A" website 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" was set up by entrepreneur Martin Tan 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. (The content of the Keep377A.com website was removed in 2009, although its web address remains.)

On 12 October 2007, in an initiative headed by impresario Alan Seah, leading members of Singapore's arts fraternity, both gay and straight, took part on a promotional rap video titled "Repeal 377A Singapore!". It was produced and directed by Edgar Tang and theatre celebrity Pam Oei. Concerned with what was perceived as the video's narrow presentation of issues, a "Families Petition" was launched by the independent group "Family&Freedom" to run until 9 August 2015 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.

Credibility of Keep377A.com and Repeal377A.com

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.

In addition, the opening page of Keep377A.com was amended to include the following conclusion:

"Take time to hear from friends who are gay so that we too can understand their point of views personally. In our democracy, we can learn to agree to disagree, peacefully and respectfully."

The statement was incongruous with forum postings in other parts of the site which repeatedly used derogatory terms and called for Section 377A to be actively enforced.

Research cited by Keep377A.com

One of the references cited within Keep377A.com was a research article titled "Singaporeans’ Attitudes toward Lesbians and Gay Men and their Tolerance of Media Portrayals of Homosexuality",[8] written by Benjamin H. Detenber and Mark Cenite of the Wee Kim Wee School of Communication and Information, Nanyang Technological University. The article reported findings on the attitudes of Singaporeans towards homosexuals, with an emphasis on the comfort of viewing homosexual acts in the mass media. The conclusion highlighted a significant level of negativity. It was not, however, mentioned in the article whether this negativity translated into a specific desire to criminalise homosexual acts. The objectives of the research also did not involve gauging attitudes relating to legislation.

As of November 2007, neither the research fellows involved, the school, nor Martin Tan had issued any statement regarding this.

Copycat sites

Towards the end of October 2007, at least one copycat site emerged - Support377A.com. Created in virtually the same format as its predecessors, it nevertheless only featured letters to forums against the repeal, and supposed church sermons given on the subject by the Cornerstone Community Church and the Church of Our Saviour, Singapore.

Constitutional challenges

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 Singaporeans equality before the law, and Article 9 of the Constitution of Singapore, which guarantees Singaporeans the right to life and the right to personal liberty.

Tan Eng Hong v. Attorney General

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.

On 19 March 2011, Hong'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. 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 Chiu'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.

Hong's case was finally heard on 6 March 2013, and decided against him by justice Quentin Loh on 2 October 2013. 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. Hong 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.

Lim Meng Suang and another v. Attorney-General

After Hong'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. The case was heard in camera on 14 February 2013, and decided against them by justice Quentin Loh on 9 April 2013, for much the same reasons as his decision against Hong (above). Lim and Chee appealed to the Court of Appeal on 30 April 2013. 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. Goldsmith had agreed to take the case without pay, 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.

On 28 October 2014, more than four years after the original challenge by Hong, the Court of Appeal, the highest court in Singapore, rejected Lim and Chee's challenge, finally ending the case. 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. As in all judgments before, the court held that any legal remedy would have to come about through an Act of Parliament.

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. 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", while Bloomberg published a more neutral piece.