But is it true?

Mr Lee Kuan Yew said this in response to a question in 2000: [1]   

“…. we have not prosecuted anybody for homosexuality for the last 40, 50 years. What is on the statute book, and if you molest somebody and try and make him a homosexual, particularly if he's a minor, then the law will be enforced….And if you have consenting adults, well, God bless both of them. “

The Straits Times editorial of 5 July 2003  [2] echoed the same line:

“Homosexual acts will still remain an offence - but as everyone knows, these sections of the Criminal Code are not strictly enforced”

Since everyone knows the Straits Times is our government’s mouthpiece, the line that it pushes, especially in its editorial, must closely reflect official thinking.

But is it true?

Setting aside the charges relating to sexual abuse of the two younger boys, aged 11 and 12, which no sensible person can condone, there is the troubling aspect that the defendant was charged with having “unnatural sex” with a 17-year-old.

It certainly appeared to be consensual, for the details indicated that it was the 17-year-old who penetrated the defendant. If you knew anything about the male body, you would know that unless your mind was quite willing -- in fact, looking forward to it - you would have a hard time getting hard enough to achieve penetration.

Furthermore, the 17-year-old didn’t complain immediately though he would be old enough to speak up if he felt he had been coerced. He was even bringing food to the defendant’s home some months later.

So the pivotal question might be whether, at 17, he was an adult.

And that sets us out on another interesting journey into the muddle called our sex laws.

First, what does our Penal Code say, since he was charged under that old law?

As my lawyer friend advised me, the Penal Code is hardly any help, for it does not make references to “adult” or “minor” without stating the age limits. Take, for example, Section 372:

Selling minor for purposes of prostitution, etc.

372. Whoever sells, lets to hire, or otherwise disposes of any person under the age of 21 years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.

The title is not considered part of the provision. And the age limit applies to this particular clause; it is not applicable to the rest of the Penal Code.

Section 377, which was the section applicable in the case we’re discussing, does not contain any age limits. It is only the government that has been saying that they will use prosecutorial discretion not to charge any adult with consensual sex under that provision. But, since the clause itself provides no age limit, what do they mean by “adult”?

We may wish to look at some other laws for guidance.

The Children and Young Persons Act opens with a list of definitions. Among them are three:

“child" means a person who is below the age of 14 years

"juvenile" means a male or female person who is 7 years of age or above and below the age of 16 years;

"young person" means a person who is 14 years of age or above and below the age of 16 years.

The cut off seems to be 16 years of age.

The Women's Charter also opens with a list of definitions, of which only one is relevant here:

“minor" means a person who is below the age of 21 years and who is not married or a widower or widow.

lready we see some conflict, but as I mentioned above, the matter is not one of law, but of prosecutorial discretion. That being so, a recent letter that the Ministry of Home Affairs sent to the Straits Times might be a useful indicator of where the bureaucrats see the cut-off age.

Anis Abdullah was charged under Section 377 of the Penal Code in November 2003, for having received fellatio from a teenage girl. There was a general outcry from the public that 2 consenting adults should not be illegal.

Was the girl an adult? In the documents presented to the court by the prosecution, her age at the time of the incident was stated to be 16. The press reported that to be her age and the public reacted accordingly.

Under attack from the public, the Ministry of Home Affairs wrote to the Straits Times [3]:

The sergeant was prosecuted because he had oral sex with an underage girl. She had just turned 15 at the time of the offence.”.

[snip]

The statement of facts tendered to the court mistakenly stated that she was 16 years old when, in fact, she had just turned 15. Given this fact, what the sergeant did would have amounted to the offence of indecent assault under Section 14 of the UK Sexual Offences Act 1956.

The maximum punishment for such an offence against a woman over the age of 13 but below the age of 16 is 10 years' imprisonment. In the case of Jacques Adragna (1994) 15 CrApp R (S) 693, the English Court of Appeal dismissed an appeal against a sentence totalling two years' imprisonment by the appellant who had engaged in various sexual acts - sexual intercourse, oral sex and touching breasts - with three willing girls aged 13 to 15.

The court stated that although no coercion was involved, the participation of the girls was the result of the corrupting influence of the appellant.

The law criminalising sexual acts by adults with children and young persons under the age of 16 is expressed in the legislative policy of the Children & Young Persons Act which seeks to protect the interests of such children and young persons.

What the Home Affairs ministry was saying was that even though the facts presented were in error, Anis Abdullah would still have been prosecuted if the facts had been right, because she was in actual fact only 15.

The implication was that if she had been 16, then the public outcry might be justifiable because the act would not have been an offence in the UK.

Admittedly, the bureaucrats didn’t concede that if the girl had really been 16, then Anis should not have been prosecuted (which was what the public were saying), for if they did so, then they would have conceded that the charge should never have been brought.

Yet, the reference to our Children & Young Persons Act (where the cut-off age is 16) in the bureaucrats’ letter indicated that it factored into the bureaucrats’ thinking.

So they did come very close to accepting the same guideline.