January 2004

Don't turn the doorknob!

 

  

 

 
Is it just our heightened awareness of the issue, or it is true that in the months after the government said they were reviewing the law on oral sex, there has been a rash of Section 377 cases before the courts? 

On 17 January 2004, there were two such cases reported in the Straits Times. 

One involved a 40-year-old man and 3 younger males, aged 11, 12 and 17. It throws up the question of the age of majority, which I will ponder over in Is it true that consensual homosex is no longer prosecuted?. 

The one I will touch on here (reported on 17 January) is actually the more interesting of the two. For the gist of the case, see the pale yellow box on the right. 

 

The first question one would have is, why was the woman not charged too? There was no evidence that she was doing it against her will, so one has to assume it was consensual. If it wasn’t, the man should have been charged with molest or rape. 

The Straits Times report said, “Deputy Public Prosecutor Christina Koh showed the accused still pictures of footage from the surveillance cameras and pointed out that the woman did not seem as enamoured with him as he made her out to be.” 

This is nothing more than writhing in the mud of insupportable arguments. Haven’t we all had sex with someone where the other party was totally cold and mechanical about it? Or just lay there like beached dolphins? But did the lack of passion mean there was no consent? 

Was the Deputy Prosecutor trying hard to imply a lack of consent, without saying there was a lack of consent (for then, her charge would be shown to be badly framed!) 

Yes, she was. 

Further on in the report, it said “The DPP argued that he had taken advantage of her mental condition and had persuaded her to perform oral sex on him even though she did not like it.”

There! She’s trying to imply a lack of consent again, this time on the basis that she was mentally retarded.

That’s a very tricky position, the more so for the woman’s son.who reported the incident to the police. In fact, in the first newspaper report about the case, the mental condition of the woman was much highlighted, to make it sound like she was a victim of the older man’s predatory instincts.

But if it is true that because of her mental retardation, she is not able to give consent, then these conclusions must arise: 

1.  She was incapable of giving consent to marriage. Therefore her marriage to her son’s father, albeit decades ago, was null and void. 

2.  She was incapable of giving consent to any act of sex. Hence, the sexual act with the “husband” that led to the conception of the son was rape. 

* * * * * 

In this case too, the joke that had long been waiting to be played out, finally happened. 

In 1997, in a separate case, the Court of Appeal had ruled that oral sex in itself was within the scope of Section 377, “against the order of nature”, if it did not permit the possibility of conception. However, if it was as foreplay and a prelude to insertive vaginal sex, then it wasn’t illegal [1]

In this case, the defence argued that the great-uncle had intended on both occasions to follow on from oral sex to vaginal penetration. 

“While not denying that they had oral sex, he told the court he had wanted to have sex with the woman, but was twice thwarted,” the Straits Times reported. 

On the second of the two occasions, the defendant was rudely interrupted and prevented from continuing on to insertive vaginal sex by the son opening the door to confront him. That external event thus converted a legal act into an illegal one. 

One can therefore argue that the great-uncle wasn’t responsible for the crime, but the son, whose doorknob action it was that precipitated the illegality. 

* * * * * 

An adjective comes to mind when describing our sex laws: surreal.

© Yawning Bread 

 

The gist of this case is as follows: 

An adult son thought his 56-year-old mother had begun to act strangely. He was concerned for her because she was mildly retarded. He suspected that she was receiving visitors while he was out at work. This could put her in danger. 

He then decided to install surveillance cameras in his own home to monitor his mother’s activities. 

On 10 March 2003, he caught a whiff of a man’s perfume when he returned home. Sure that the mother was receiving a visitor, he charged into her room. He was shocked to see his mother performing oral sex on his 65-year-old great-uncle. 

On reviewing the videotape, the son also saw a similar event a month earlier, on 19 February.

The 65-year-old great uncle was then charged with “carnal intercourse against the order of nature”.

 

Footnotes

  1. The appeal of Kwan Kwong Weng. See http://www.geocities.com/law4u2003/kwankwongweng.htm

    2. Paragraphs 29 - 31 of the Appeal Judges' decision:

    29.So, prima facie, fellatio between a man and a woman would be carnal intercourse against the order of nature. However, it 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. And here we quote from the well known treatise, Psychology of Sex by Hamelot Ellis (12th Ed) at p 41 (also quoted by Sheth J in Lohana )

     

    While the kiss may be regarded as the typical and normal erogenic method of contrectation for the end of attaining tumescence, there are others only less important. Any orifical contact between persons of the opposite sex is sometimes almost equally as effective as the kiss in stimulating tumescence; all such contacts indeed, belong to the groups of which the kiss is the type. Cunnilinctus (often incorrectly termed cunnilingus) and fellatio cannot be regarded as unnatural for they have their prototype forms among animals, and they are found among various savage races. As forms of contrectation and aids to tumescence they are thus natural and are sometimes regarded by both sexes as quintessential of sexual pleasure, though they may not be considered aesthetic. They become deviations, however, and thus liable to be termed `perversions` when they replace the desire of coitus.

     

    30.Of course, this form of contrectation 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 from Lai Kew Chai J`s judgment in PP v Tan Kuan Meng that in that case some statistical evidence was given of these forms of oral sex being practised in Singapore. We cannot shut our minds to it.

    31.Approaching the question as we have done, consent becomes a material element for when 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.

 

Addenda

None