Currently, s.377 criminalises all forms of carnal intercourse against the order of nature, other than vaginal intercourse, between a man, woman, or an animal, regardless of whether consent was obtained or if the act was performed in a public or private place. It is proposed that s.377 be re-scoped such that anal and oral sex, if done in private between a consenting adult heterosexual couple aged 16 years old and above, would no longer be criminalised. As part of the re-scoping, the obsolete term ‘carnal intercourse against the order of nature’ will be removed.

Reading the above, one was left with the impression that Section 377 would be reworded to exclude heterosexuals from its scope. Same-sex couples would still be committing an offence if they had anal or oral sex.

The consultation paper made no mention of Section 377A (for its text, see box on the right) which makes all other, non-penetrative, forms of sexual contact between men criminal. The consultation paper's silence on 377A indicated that this law would remain unchanged.

Taken together, one got the impression that the government was making a retrograde move. Where sodomy was criminal for both heterosexuals and homosexuals under the current Section 377, they intended to decriminalise it for heterosexuals only. This could only be described as a highly discriminatory change.

No doubt, it would please the anti-gay crowd, but I don't know whether it would please the Christian fundamentalists; if they are what they say, they should be demanding that heterosexual sodomisers (this term includes those who perform oral sex) be equally strung up to hang.

The proposed amendment to the law began creating buzz in the gay and lesbian community over the weekend. People were upset that instead of moving forward, Singapore was moving backward.

Then a funny thing happened.

Quietly, under the cover of night, the Ministry of Home Affairs issued "explanatory notes" to a few newsrooms after office hours on 7 November 2006.

This is the relevant portion:

9. Section 377 and Homosexuality

The law on sexual offences deals with sexual relationships and embodies what society considers acceptable or unacceptable behaviour.

2. When it comes to homosexual acts, the issue is whether Singaporeans are ready to change laws to bring them in line with heterosexual acts. Singapore remains, by and large, a conservative society. Many do not tolerate homosexuality, and consider such acts abhorrent and deviant. Many religious groups also do not condone homosexual acts. This is why the Government is neither encouraging nor endorsing a homosexual lifestyle and presenting it as part of the mainstream way of life. We should not be hasty to act in this area. Hence, we are leaving section 377A as it is. Our enforcement approach also remains the same i.e. we will not be proactive in enforcing the section against adult males engaging in consensual sex with each other in private.

3. Section 377 will be repealed. Hence, sex between an adult male and female involving penile penetration of the mouth or anus in private will no longer be an offence. There will be a new offence of sexual assault by penetration to cover oral and anal sex done without consent. A new offence of sexual penetration of minors will also be introduced to protect minors under 16 years of age, following the repeal of section 377. There will also be a new offence of necrophilia (engaging in penetrative sexual acts with a corpse). The offence of bestiality, currently covered under section 377, would be criminalised under a separate section 377B.

The journalist who passed this to me for my comment told me that she too thought it rather strange how different it seemed from the consultation paper. Through this note, the government is clearly saying they will repeal Section 377 in its entirety, not merely reword it.

They will however keep Section 377A.

• "We should not be hasty to act in this area", which one can interpret to mean they dare not do any more than this for fear of the dinosaurs, or that they are open to further movement in future; 
   
• "We will not be proactive in enforcing..." meaning the continuation of the present policy of not pursuing cases against adult consensual gay sex done in private.

Yawning Bread sees this as somewhat positive, even though these half-measures are nowhere near satisfactory. For the first time, after many years of protesting many homophobic moves or statements from our government we are (we think) seeing movement in the right direction in terms of the law.

* * * * *

Yet we should note that it's nowhere near enough. As the gay and lesbian advocacy group People Like Us said in its press statement, with respect to the bit about not enforcing Section 377A against adult males engaging in consensual sex with each other in private,

Such assurance does not have the weight of law; it is therefore unsatisfactory and legally, cannot be relied upon.

We recognise that non-use has been a policy for some time now. Indeed, People Like Us knows of no prosecution involving adult consensual situations in recent years, but non-use argues for its repeal, not its retention, since it plainly demonstrates that Singapore society does not need to go around prosecuting gay men.

The retention of s.377A, even if not enforced, will signal to many that homophobia is justifiable and acceptable and has the support of the State.

In other words, saying that retaining Section 377A is only for its symbolic value is itself a problem, when its symbolism is meant to support homophobic prejudice and discrimination.

As People Like Us' press statement says,

If the government aims for an open, inclusive society, it should be doing all it can to overturn prejudice and discrimination, rather than give people reason to remain closed-minded through retaining s.377A for symbolic purposes.

Prime Minister Lee Hsien Loong told a roomful of foreign and local correspondents on 6 October 2005 that his government was not homophobic. "I don't think we are homophobic," he said. Deliberately retaining Section 377A proves him wrong.

* * * * *

The whole thing is very confusing. Either I am wrong to see any progress at all, or the government is going out of its way to deny (through the media it controls) that there are any changes with respect to homosexual sex.

If the latter, this indicates that they are anticipating strong opposition from the Christian fundamentalists and other die-hard conservatives. A friend messaged me earlier tonight to say that "certain quarters are planning to oppose seriously the unnatural sex changes in the new penal code."

Now, you may think that by "certain quarters" he was referring to religious fundamentalists, but no, he later clarified that he was referring to PAP members of parliament, though in many cases, as I've long suspected, there may be no meaningful distinction between the two attributes.

This prospect of ferocious opposition is real, so we should still be ready to speak up and fight back, and by "we" I don't mean the gay Singaporeans; I mean anyone who cares for a more open, liberal and inclusive society.

But as I have argued elsewhere, feint and hide is not the right way for the government to conduct itself. If they truly believe that Singapore needs to be a really open, cosmopolitan society, in the interest of our future, then the government should stand up and make a proper case for it. Speak up against the nay-sayers rather than pander to them.

Moreover, we should consider the unintended consequences of doing things in this makeshift way, for example, leaving section 377A unchanged but unenforced. My friend Vernon pointed out that such habits will "demean the integrity of legislation and send mixed signals as to the boundaries of legal or illegal activity."

In a similar vein, another friend of mine thought it a bad precedent for Singapore's constitutional development that the executive should blatantly "pervert the will of the legislative branch." If Parliament passes a law, it is the responsibility of the executive to live up to it, whether it is to levy a tax, to conduct elections fairly or to go after drug traffickers.

In this particular matter however, since the government now recognises that it is morally impossible to prosecute gay people for their private consensual activity, they should find a little courage and do the principled thing: repeal Section 377 and 377A together.

© Yawning Bread