Public space, private space

The gay question in Singapore has seldom hinged on the issue of privacy. This is understandable because Sections 377 and 377A of the Penal Code, which criminalise homosex directly, make no allowance as to where homosex has taken place. It is an offence even if you've done it behind your locked bedroom door.

However, in the recent case of the two guys caught having sex in a sauna [see the article The arrests at One Seven and Section 20], the charges were brought under Section 20 of the Miscellaneous Offences Act – indecent behaviour in a public place. This has now rendered pertinent the question of what constitutes a public space.

I will argue here that it is more important to pay attention to the intentions and precautions taken by the occupants of the space; moderated by

(a) whether the occupants have rightful use of the space, and

(b) the social custom of according the occupants the freedom to use any particular space exclusively, i.e. the custom of not barging in and looking away.

My view is that as much as we wish individuals to act "appropriately" in public in the interest of reducing social conflict, we must equally grant people the space and freedom to act "inappropriately" where there is no public. We need to be quite generous in granting that privacy otherwise it shouldn't surprise us that "inappropriate" behaviour spills over to our overly-broad definition of "public space".

The simplistic approach of classifying spaces without regard to customary usage and the precautions taken by occupants is flawed and this is easily demonstrated. For example, I understand from my lawyer friends that a hotel is deemed a public space. Even the rooms.

This flies against common sense. Most of us would treat a locked hotel room (provided we are properly registered as the occupant of that room) as equivalent to our own bedroom at home. We'd do there what we would do in our bedroom: read porn, gossip privately over the phone, examine our flab, have threesome sex.

The reasonable precautions taken – registering as guests in the room, locking the door, keeping the noise level down, closing windows if other neighbours are close enough to look in – should be sufficient to make the room a private space.

Bellboys would knock if they wanted to deliver luggage to the room. Chambermaids would check that the occupants have left the room before they entered to clean up. In other words, there is a social custom of not barging in.

If the law doesn't recognise what people recognise, then there is something cretinous about the law.

In one respect at least, Singapore law does take into consideration the matter of precautions. Take for example a couple who know very well that their block of flats is built rather close to another, and that neighbours can look into their bedroom, especially at night when the exterior is dark, and the room lit. Yet, with the window open and all lights on, they make out on their king-sized bed. A neighbour complains, "My children saw it all!"

In Singapore, the couple will be in breach of the law. They have not taken due care to avoid causing offence to others.

However, I wonder how we would treat a slightly different example:

Another couple does the same thing – window open, all lights on. However, their block of flats overlooks a park, and the nearest other block is 200 metres away. Yet someone from that other block complains that public sex is taking place. How? He saw it all through his telescope.

Almost all of us would say the couple didn’t act unreasonably. The observer (some might call him a voyeur) was being inexcusably intrusive. Instead of the couple having sex "in public", the observer, most commonsensical people would say, invaded their privacy.

Would the police act on the telescopist's complaint, I wonder?

Here's a guy standing at a urinal and masturbating. Someone complains he is doing it in public. Fair enough, you'd say.

Another guy is in a locked lavatory, sitting on the bowl and masturbating. Is he doing it in private? A security guard climbs over the partition and makes a citizen's arrest of sexual behaviour in public. Is this fair? Couldn't the occupant rely on the social custom of not climbing over partitions and peeping under doors? Isn't that what parents teach their children as courtesy? By taking the trouble to climb over and peep, who is intruding into whose space? Who is the one who set out to cause conflict?

Conflict - that's the key issue.

The purpose of laws regarding proper behaviour in public spaces is to enhance the peace of the public domain by reducing conflict between individuals with different habits and preferences. The question should be asked: Has the occupant taken the trouble to avoid conflict with others by properly securing his space? If he has, then, in my view, he has made it a private space. If conflict still arises because some busybody has consciously intruded, the place is still private, and the culprit is the one who set out to intrude.

That is the principle I'd apply. Look at intention and action.

© Yawning Bread 

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