Penal Code section 377A


 

 

In 2007, the government reviewed the Penal Code and introduced Penal Code (Amendment) Bill which proposed significant changes to the law.  The topic that caught much attention was section 377 which prohibited oral and anal sex between consenting adults.  The Bill proposed the repeal of section 377, but opted to keep section 377A which prohibited similar acts between homosexuals.  This decision was hotly debated by gay supporters who claimed the clause is discriminatory and by their opponents who supported the retention of section 377A.   

Background
In November 2003, a police officer (Annis Abdullah vs PP) was found and convicted under the Penal Code section 377 for having oral sex with a teenager, although there was consent from both parties.  The decision caused much debate from the public and the media on whether oral sex should be considered as an offence and criticism for what they perceived as following a law which had not kept up with modern times.  The law in contention was the Penal Code of the Straits Settlement which was enacted in 1871 during the colonial administration.  It mirrored the Indian Penal Code and was the primary criminal statute in Singapore.  

Arising from the case, the Ministry of Home Affairs began a comprehensive review of the Penal Code and in October 2007, submitted the Penal Code (Amendment) Bill to Parliament which proposed seventy amended provisions and four repealed provisions.  One of the changes was to decriminalize oral and anal sex between a male and a female (section 377).  However, section 377A which prohibited oral and anal sex between two males was retained.

Description
Section 377 of the Penal Code stated that “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.”  This clause was repealed in the Penal Code (Amendment) Act in 2007 and a new section 377, which criminalizes sex with human corpse, was substituted in its place.   

Within the same Act, section 377A which stated that “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” was retained in the same 2007 Penal Code review.   Whether the act is performed privately or publicly is not relevant in the eyes of the law.    

In the second reading in Parliament to amend the Penal Code on 22 October 2007, the Senior Minister of State for Home Affairs Associate Professor Ho Peng Kee laid down the justifications for the retention of the clause, saying that Singapore is generally still a conservative society and the majority of the people still find homosexual behaviour unacceptable.  Hence, the government has chosen to allow section 377A to remain status quo to maintain the country’s social cohesion and let the situation evolve naturally.  

The Ministry’s proposal to keep the clause sparked strong comments and protests from the gay supporters and attracted wide media coverage.  Prior to the second reading of the Bill in Parliament, an open letter was sent to the Prime Minister and an online petition site Repeal377a.com was set up and 2,341 signatories was collected to appeal against the retention. 

The petition was then presented to the Parliament by the Nominated Member of Parliament (NMP) Siew Kum Hong on 22 October 2007.  In the petition, the petitioners argued that the clause discriminated against homosexuals and bisexuals and was a “unconstitutional derogation” from the Constitution which provides that all persons are equal before the law and entitled to equal protection of the law [Article 12(1)].  In his speech to Parliament, the NMP argued that a private consensual act between adults should not be treated as a criminal act as it did not harm others, regardless of one’s view on homosexuality.  However, another MP rebutted him on the interpretation of Article 12(1) and said it was taken out of context. 

After two days of debate, Parliament concluded with the view that legislation has to reflect both the societal norms and the views of the majority and opted to keep section 377A.  PM Lee also spoke on the issue and expressed that the social norms in Singapore call for heterosexual and stable family units, but he impressed on the fact that the government acknowledged homosexuals’ contributions in society and assured that section 377A will not be actively enforced.   He highlighted that people on both sides hold strong fundamental views on the matter and discussions will not bring the views of the two groups any closer, and hence it is better to stay status quo.    

On the other hand, another group who called itself “The Majority” also set up a similar website Keep377a.com to collect signatures in a call for the Government to keep the clause.  The group argued that by repealing the section, it is to force homosexuality on conservative Singaporeans who are not ready for homosexuality.  This could lead to far reaching consequences where advocators will call for equal rights to homosexual couples such as same-sex marriages and adoption by same-sex couples to be accorded.   By removing the clause, it may be seen as an endorsement or support and could divide the society.

Aftermath
One of the NMPs Professor Thio Li-Ann reported that she received hate mails for her stand on homosexual issues.  In particular, she received an email full of obscene and vulgar language in which a police report was made.  It was found out that the author of the mail was a poet and playwright Alfian Sa’at who admitted that he wrote the email in a fit of anger, thinking she had made a police report which led to the cancellation of a National Day picnic organized by gay activists.   The NMP dropped plan to sue the poet after he wrote an apology email to her.   Shortly after she delivered a strongly worded speech in Parliament against repealing section 377A, she received another mail threatening her and her family with bodily harm.   Another NMP Siew Kum Hong was also targeted by some netizens who insinuated that he is promoting a homosexual lifestyle and taking sides where he should remain neutral as an NMP.   In defending their strong grounds on the issue, some have said that both parties have alienated the moderate majority.   

Timeline
9 Nov 2006 :        MHA released public consultation paper on amendments to Penal Code
17 Sep 2007 :     First reading of Penal Code (Amendment) Bill by Minister of Home Affairs Wong Kan Seng
22 – 23 Oct 2007 :    Second and third reading; Clause 377A to remain



Author
Lim Puay Ling



References
Chia, S.A. (2009, May 15). NMP candidates attacked online. The Straits Times. Retrieved 15 January, 2010, from Factiva database.

Chong, C.K. (2007, October 30). Police question poet over e-mail to NMP. The Straits Times. Retrieved 15 January, 2010, from Factiva database.

Chua, H.H. (2007, October 12). NMP to submit Parliamentary Petition to repeal against gay sex law.  The Straits Times.  Retrieved 8 January, 2010, from Factiva database.

Ex-cop appeals against jail term for oral sex. (2003, November 19). The Straits Times.  Retrieved on February 8, 2011, from NewspaperSG.

Henson, B. (2006, November 9).  Sweeping changes to Penal Code proposedThe Straits Times. Retrieved on February 8, 2011, from NewspaperSG.

Kevin, Y.L.Tan. (2005). Essays in Singapore Legal History.  Singapore: Marshall Cavendish Academic and the Singapore Academy of Law. (Call no.: RSING 349.5957 ESS)

Li, X.Y. (2007, November 1). Poet sends ‘civil’ e-mail apology so NMP drops plan to sue him. The Straits Times. Retrieved 15 January, 2010, from Factiva database.

Li, X.Y. (2007, November 8).  NMP Thio files 2nd police report after getting threat.  The Straits Times. Retrieved 15 January, 2010, from Factiva database.

Lydia, L. (2005, March 19). Time to reach out and talk? The Straits Times. Retrieved on February 8, 2011, from NewspaperSG.

Ngansley, A. (2007, October 19). Keep377a.com vs Repeal 377a.com; Group sets up site urging S’pore to keep gay sex ban.  Today. Retrieved 8 January, 2010, from Factiva database.

Ngansley, A. (2007, October 25). Gay debate takes ugly turn; But a few black sheep in cyberspace do not mean S’poreans can’t hold a mature dialogue: Analysts. Today. Retrieved 8 January, 2010, from Factiva database.

Oral sex may be changed. (2004, January 7). The Straits Times. Retrieved on February 8, 2011, from NewspaperSG.

Pang, A.L. (2007, October 9). Singaporeans petition against gay sex laws ahead of parliament debate.  Associated Press. Retrieved 8 January, 2010, from Factiva database.

Parliament of Singapore (2007, October 22-23). Penal Code (Amendment) Bill.  Retrieved 20 January, 2009, from http://www.parliament.gov.sg

‘16-year-old’ girl had just turned 15. (2003, November 15).  The Straits Times.  Retrieved on February 8, 2011, from NewspaperSG.




The information in this article is valid as at 2010 and correct as far as we are able to ascertain from our sources.  It is not intended to be an exhaustive or complete history of the subject. Please contact the Library for further reading materials on the topic.

Subject
Law and government>>Criminal law
Criminal law--Singapore
Politics and Government

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