Section 377A of the Penal Code (Singapore)

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Section 377A is a Singaporean law introduced under British colonial rule that criminalises sex between consenting male adults. It was added to the Penal Code in 1938 by the colonial government. It 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.

Contents

The law, while retained de jure in the Penal Code, is de facto not enforced – there has been no convictions for sex between consenting male adults in decades. [1] On 28 February 2022, the Court of Appeal of the Supreme Court of Singapore reaffirmed that 377A cannot be used to prosecute men for having gay sex. [1] That same year, an Ipsos survey found that 44% of Singapore residents supported retaining the law, with 20% opposing it and the remaining 36% being ambivalent. [2]

On 21 August 2022, Prime Minister Lee Hsien Loong announced during the annual National Day Rally that the government intends to repeal Section 377A, effectively ending criminalisation both de facto and de jure. [3] [4]

Introduction

The Indian Penal Code

Lord Thomas Macaulay Thomas Babington Macaulay, Baron Macaulay by John Partridge.jpg
Lord Thomas Macaulay

The British Parliament formed the Indian Law Commission in 1833. [5] : pages: 10–11  Lord Thomas Macaulay was appointed to chair the commission. [5] : page: 11  The 1837 draft of the Indian Penal Code was largely his work. [5] : 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. [5] : page: 11  The code was adopted in 1860 and took effect 1 January 1862. [5] : page: 11 

Macaulay's draft did not reflect existing Indian laws or customs. [5] : page: 11  It was largely a rewrite of the British Royal Commission's 1843 draft code. [5] : 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. [6] : page: 18  These in turn let future jurists redefine what these provisions actually punished. [6] : page: 18  Under Buddhist and Hindu law in most of Asia, 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. [6] : pages: 14–15 

Section 377A "(Outrages on decency" was added to the sub-title "Unnatural offences" in the Straits Settlements in 1938. [6] : 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.

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.

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.[ original research? ]

Original Section 377

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: [7]

[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 in the Penal Code (Amendment) Act 2007 [8] and replaced with a new Section 377 criminalising sex with dead bodies ("Sexual penetration of a corpse"), which was substituted in its place. [9]

Section 377A

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. [10] [ unreliable source? ]

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. The law does not criminalise sex between females, only between males. [11]

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. [12]

— Outrages on decency, Section 377A, Singapore Penal Code

Its original mother statute, Section 377 (since repealed), criminalised any sexual act that went "against the order of nature": [13]

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.

— Singapore Penal Code, Section 377

Public opinion

In 2018, an Ipsos survey found that 55% of Singapore residents supported retaining Section 377A. [14] In 2022, Ipsos made another survey, noting that this figure had dropped to 44%, amid changing attitudes towards same-sex relationships. [2]

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. [15] 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 [16] 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" [17] 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. [18] (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, [19] a movement known as Ready4Repeal launched a petition to campaign for Section 377A to be repealed, even though MHA and Ministry of Law 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. [20]

In November 2018, Singapore based LGBT+ publication Dear Straight People held a photoshoot called #Reasons4Repeal, calling for the repeal of Section 377A. The photoshoot featured over 70 participants, including public figures such as actor Julian Hee and Paralympic medalist Theresa Goh.

Status of Section 377A in other countries

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 consensual 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. [21] Elsewhere in East and South-East Asia, Myanmar, Malaysia and Brunei, all former British colonies, and recently Indonesia's Aceh province (applicable only to Muslims), continue to criminalise sex between men. [22]

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 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

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. [23]

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. [24] 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. [25]

Tan's case was finally heard on 6 March 2013, [26] and decided against him by justice Quentin Loh on 2 October 2013. [27] 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. [28]

Lim Meng Suang and another v. Attorney-General

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. [29] [30] The case was heard in camera on 14 February 2013, [31] and decided against them by justice Quentin Loh on 9 April 2013, for much the same reasons as his decision against Tan (above). [32] Lim and Chee appealed to the Court of Appeal on 30 April 2013. [33] [34] 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. [35] Goldsmith had agreed to take the case without pay, [36] 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. [37]

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. [38] [39] 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. [38] As in all judgments before, the court held that any legal remedy would have to come about through an Act of Parliament. [38]

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. [40] 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" [41] and Bloomberg also published an article on the ruling. [39]

Ong Ming Johnson v. Attorney-General and other matters

On 29 August 2018, Professor Ho Kwon Ping in his talk questioned the need for Section 377A in Singapore. [42] After India's Supreme Court decriminalised sex between two people of the same sex, [21] 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, [43] 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. [44] 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. [45] 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". [46]

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. [47] [48] Appeals were filed on 31 March 2020. [49]

On 28 February 2022, it was ruled by the Court of Appeal that, because the law is not enforced, the constitutional challenges against it had failed. [1] [50]

Proposed repeal of Section 377A

On 21 August 2022, Prime Minister Lee Hsien Loong announced during his National Day Rally speech for 2022 that section 377A would be repealed by the government. Lee stated that “I believe this is the right thing to do and something that most Singaporeans will now accept. This will bring the law into line with current social mores and, I hope, provide some relief to gay Singaporeans.” [3] [4]

See also

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References

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  2. 1 2 Yuen-C, Tham (16 June 2022). "Support for Section 377A drops as attitudes towards same-sex relationships shift, survey finds | The Straits Times". www.straitstimes.com. Retrieved 28 June 2022.
  3. 1 2 "NDR 2022: Govt to repeal Section 377A, amend Constitution to protect marriage definition from legal challenges". TODAY. Retrieved 21 August 2022.
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  20. ↑ Chua, Alfred (30 September 2018). "Activists submit online petition, but Govt has 'no plans' to repeal S377A". Today. Retrieved 3 October 2019.
  21. 1 2 "India's top court lifts ban on gay sex in landmark ruling". The Straits Times. 6 September 2018. Retrieved 1 October 2019.
  22. ↑ Homosexuality laws of the world#East Asia
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  26. ↑ "Second of two 377A challenges may have to wait a long time for a decision". Yawning Bread. 10 March 2013. Retrieved 10 December 2016.
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  37. ↑ 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.
  38. 1 2 3 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.
  39. 1 2 Tan, Andrea (29 October 2014). "Singapore's Ban on Gay Male Sex Is Upheld by Top Court". Bloomberg L.P. Retrieved 10 December 2016.
  40. ↑ Allegretti, David (22 June 2016). "What It's Like to Be Young and Gay in Singapore". VICE. Retrieved 10 December 2016.
  41. ↑ Mosbergen, Dominique (13 October 2015). "How Singapore Is Limiting Basic Human Rights". HuffPost. Retrieved 10 December 2016.
  42. ↑ 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.
  43. ↑ 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.
  44. ↑ 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.
  45. ↑ 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.
  46. ↑ 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.
  47. ↑ Kurohi, Rei (30 March 2020). "High Court dismisses challenges against law that criminalises sex between men". The Straits Times. Retrieved 30 March 2020.
  48. ↑ Ong Ming Johnson v Attorney-General and other matters,2020 SGHC 63( High Court of the Republic of Singapore 30 March 2020).
  49. ↑ 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.
  50. ↑ "Singapore's top court dismisses attempt to overturn gay sex ban". Reuters. 28 February 2022.

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