Policy Alert: Section 377 in Singapore

Recently there has been a great public outcry in Singapore on section 377 and 377A of the penal code. The reason for this is the recent penal code amendment bill that has been introduced in Parliament which seeks to review the penal code in 22 years.

Among the good points of the amendment bill, it seeks to punish sexual grooming and also child sex tourism  extending to acts performed overseas. Singapore like many other countries in South and Southeast Asia which have been British colonies in the past has an age old Victorian law in the form of Section 377 which says, ‘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’. It further explains that ‘penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section’. Section 377A says ‘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’. Whereas the amendment bill amends section 377 of the penal code, it retains section 377A thus discriminating against homosexual and bisexual men (Section 377 has been replaced with a new law which criminalises sex with dead bodies). Apart from being discriminatory, this amendment bill is unconstitutional as the constitution provides for equality and equal protection of all persons under the law.

There has been a parliamentary debate on the overhaul of the criminal law in Singapore. Under the proposed changes, oral and anal sex between consenting heterosexual adults will no longer be considered an offence. However, the same acts between men will remain illegal with a maximum penalty of two years in jail. Gay rights activists and advocates have called for a protest against this archaic law which discriminates against same-sex desiring people. Further it fails to differentiate private consensual sex between adults from non-consensual acts.

Section 377 as a law in many countries of South and Southeast Asia is ambiguous and left to the interpretation of lawyers and judges. Though it is known as a law which criminalises sodomy, it does not explicitly say so. The law in its explanation necessitates penetration to constitute crime and by that logic leaves lesbians from its purview. The law has however been used by police and other State agencies to harass and discriminate against people who do not conform to heteronormative sexual and gender norms. Further, it serves as an important tool in the hands of the State to enter people’s bedrooms and makes one question the need for such a law. It is absurd to have such a law still exist in countries which have been British colonies when Britain itself has done away with the law in question. Worldwide, there are demands for a discrimination free environment for all, including same sex desiring people and this cannot happen as long as LGBT people have to live with the fear of persecution by the State.

It is interesting how recent Singaporean cases have established that oral and anal sex between heterosexual people have been exempted when people have participated in it as part of foreplay leading to sexual intercourse. This points to the oft-held assumption that penetrative sexual activity is ‘real’ sex or that people engage in sexual activity with the sole idea of procreation.

According to a petitioner, this amendment is a regressive step for the Government to take when Singapore is in the process of updating its criminal laws in keeping with its image of a modern, developed and contemporary country. The amendment will only lead to more homophobia. There have been recent attempts to ban gay events in public parks in August 2007, refusal to allow an LGBT book reading event as a part of Gay Pride celebration, the closure of a photography exhibition of gays and lesbians by the police etc.

There have been massive protests by many Singaporeans calling for the Government to decriminalise homosexual sex. A protest was launched by many of Singapore’s LGBT organisations, including an online petition to Singapore Prime Minister Lee Hsien Loong, which had gathered nearly 2,500 signatories. Although there have been reassurances by the Primer Minister that there would not be any active persecution, the gay community obviously feels that that is not be enough. The online petition says that ‘it is the responsibility of any democratically elected government to protect minorities from the tyranny of the majority’. The State must realise here that the criminalisation of gender and sexually marginalised communities in a State is detrimental to the overall atmosphere of equality, fairness and non-discrimination towards all citizens.