Bread. May 2007
Why Section 377A is redundant
Section 377A of the Penal Code, which criminalises gross indecency between
2 males, regardless of age, has long been used to prosecute a variety of
cases, some of which are quite outside the common perception of
"homosexuality". For example, it has been used in cases that
laymen would think of as molest and paedophilia, albeit that they involved
If we repealed this law, would that mean that these crimes would go unpunished?
The list of s.377A cases researched by Mohan Gopalan will prove useful to this discussion, providing real examples of how the law has been used in the last 15 years or so. I will show that in all these cases, either they should not have been prosecuted, or if they ought to be prosecuted, other laws could have been used. In other words, we never needed s.377A.
First, however, a big, big caveat. Mohan Gopalan extracted his information from available public records. Even so, the totals he obtained were well short of the totals that Minister for Home Affairs Wong Kan Seng provided to Nominated Member of Parliament Siew Kum Hong just a week ago.
For the 10-year period 1997 - 2006, Wong's data indicated an aggregate of 185 persons convicted under s.377A. For the same period, Mohan only managed to discover 28 cases from a search of public records -- less than 20 percent .
Why this big gap? The more I think about it, the more I reckon that the main reason why there is a difference between the minister's figures and Mohan's is due to the fact that most defendants plead guilty. In such instances, there is no court judgement lodged and often, there may not even be a reporter in the courtroom to file a story.
Consequently, when we analyse Mohan's data for trends, we must be careful not to draw conclusions on the assumption that they are exhaustive or even representative.
However, my main purpose is not to look for trends, but to mine the data to see what different situations s.377A has been used for. Then to discuss whether such prosecutions were justified, and if so, what other laws should have been used.
The great difficulty with attempting an interpretation of Mohan's table is that no two cases are the same. However, I have bravely classified the 58 cases from 1992 to 2006 into seven categories (explained below), in order to draw up this bar chart .
The overall pattern seems to be that cases have been gradually declining in number. This is consistent with the minister's figures which also showed a steady decline in convictions over the years.
What is interesting is that the mix has changed over the period. Where in the 1990s, the law was used in many different situations, after 2001, the cases only involved minors or extortion.
Let me now explain and discuss the various categories, starting with entrapment, then going from consensual to non-consensual:
Mohan's table only shows 4 police entrapment cases, all in 1994. However, as detailed in the essay The good ol days of jail and caning for immorality, there were many more entrapment cases in the early 1990s. The reason they don't show up in Mohan's research is because in most instances, the accused were not charged under Section 377A, but under other laws. The details are in that other essay.
Needless to say, entrapment is wrong. These prosecutions should never have been pursued. Fortunately, People Like Us have not seen any such cases since the mid 1990s.
After entrapment tailed off, the police seemed to have directed their moralistic urges towards male prostitution. Four cases from 1996 – 1999 were reported by Mohan. They went after a pimp 3 times and a procurer once, charging them under Section 377A with abetment of gross indecency.
Neither sex workers nor clients were prosecuted.
What is the point of spending state resources on this? Prostitution, especially male prostitution, is a highly consensual activity and the sex that results takes place in private. Typically, all parties involved do it out of free will. Unlike pimps who run girlie outfits, who often resort to coercion to keep their "girls" under control, if you talk to any pimp who runs a gay male team, he'll tell you his biggest headache is keeping his "boys". They come and go as they please like stray cats. In fact, in the gay male business, the "boys" are often free agents, sans pimp, advertising via the internet.
The police seem to have realised the futility of such an enforcement campaign by 2000, and I haven't heard of any fresh cases since.
These cases involve adult consenting partners who engage in sexual activity, often in public toilets, changing rooms or swimming pools. Typically, they are caught by shopping centre security guards or lifeguards and handed over to the police.
Mohan's table indicated that such cases tailed off after 2001. Why, is not immediately clear, but my guess would be because gay bathhouses sprang up from around then. My theory is that casual, anonymous gay sex subsequently migrated indoors into these places from toilets and swimming pools. The police have generally been quite indulgent about letting bathhouses be, which is the smart thing to do since they serve a useful purpose, removing a source of conflict between horny gay men and the general public.
But what if some people still engage in sex in public? Shouldn't we still retain Section 377A?
The better question should be: What law would be used if a heterosexual couple engaged in sex in public? Very likely, Section 20 of the Miscellaneous Offences Act, which says,
This law serves both heterosexual and homosexual situations equally.
Mohan's table included 3 cases where one of the partners was either 16 or 17 years old. In each case, the older partner was prosecuted.
I find this problematic. In heterosexual situations, someone who is 16 years old is deemed old enough to give consent. Nor does the law have anything to say if girls of this age have sex with each other or with older women.
Why are 16 and 17-year-old boys treated unequally?
I would argue that we don't need 377A in such cases, simply because such cases shouldn't be prosecuted.
5. Cases involving
extortion, robbery or deceit - brown squares
Nine cases in Mohan's table came into this class. Most fit a pattern where a couple first engage in consenting sexual activity, then one party turns around and demands money, threatening to report the other party to the police if he doesn't pay up.
This was probably what happened to lawyer Ashok Kan in 1996 (item #31 in Mohan's table). The police went along with it and prosecuted him. Fortunately, the court acquitted Kan on the basis that there was reasonable doubt that sexual activity ever took place. Kan's defence that the other party asked for money greatly undermined the credibility of the prosecution's case.
The world over, when anti-gay laws exist, the unscrupulous will see in the law an opportunity to extort. It is particularly rife in India, for example, but clearly it is present in Singapore too.
In two of Mohan's cases, I noticed that the complainants were themselves police officers claiming to be on undercover anti-gay operations: the better to strike fear in their victims' hearts perhaps? One policeman was even found to have fabricated evidence! (Item #40, 1998)
See the corrupting effect of Section 377A?
Common sense tells us that if someone tried to extort, then you should go after the extortionist, and not charge the victim for engaging in gross indecency as happened these few cases.
We have Section 383 of the Penal Code to deal with extortion or attempted extortion. It prescribes a penalty of 2 to 7 years in jail with caning. That's the law we should use, not 377A against the victim.
Then there was the case of Teo Tong Lock (item # 29, 1995) which almost seemed like a joke. Captain Teo of the Singapore Armed Forces was charged under 377A for engaging in sexual activity with a sergeant. The captain apparently used deceit or inducement to get the sergeant to oblige.
That's not very nice of him, no doubt, but we really should ask ourselves, would a similar heterosexual situation become a criminal matter? All over the world, casanovas promise gullible women all their hearts' desires in order to bed (and leave) them.
For goodness sake, surely a sergeant should have been able to defend himself if he really didn't want to do something? If he foolishly believed the proffered inducements, giving himself over to the captain's pleasure, well, that's his business, not the state's.
Do we need to retain 377A in order to protect gullible, defenceless sergeants? Surely not!
There were 4 such cases in Mohan's table. All of them could have been prosecuted using Section 354 of the Penal Code, which imposes a jail term of up to 2 years for outrage of modesty. Caning can also be added under Section 354, unlike Section 377A which does not have this option -- not that Yawning Bread agrees with caning as punishment.
The chart above shows a steady number of such cases almost every year. Needless to say, nobody in his right mind would suggest that such behaviour should be condoned. That being the case, some people may argue that Section 377A should be retained for this reason. On the contrary, 377A is not needed since there is the Children and Young Persons Act, in which Section 7 says,
In addition, for more serious sexual offences, i.e. involving penetration, there is, among the proposed amendments to the Penal Code, a new clause 376A which addresses this need. Any man who inserts his penis into the vagina, mouth or anus of a person (male or female) under 16 years of age can be jailed up to 10 years. For details, see box at right.
In conclusion, we don't need Section 377A at all.
© Yawning Bread