Here's proof: Section 377A being enforced

Tucked away in the fine print of a Straits Times news story was the fact that a man has been charged under Section 377A for the crime of "gross indecency" just months after the Prime Minister alluded to the law being a dead letter.

It didn't make the headline because what the man did wrong -- and he told the court that he intended to plead guilty -– was to have sex with another person when he was HIV-positive. For that, he was charged under Section 23 of the Infectious Diseases Act, and rightly so. I fully support such a charge.

What I am upset about is that he was also charged for "gross indecency". As many readers know, the law on "gross indecency" (Section 377A of the Penal Code) only applies to sexual relations between men -- in effect an anti-gay law.

Here is the story:

8 May 2008
The Straits Times

HIV man didn't tell teen partner

First to be prosecuted for not disclosing status, he faces hefty fine, 2 years' jail

By Elena Chong, Court Correspondent

In the first case of its kind, a chef infected with HIV was charged in court yesterday with engaging in oral sex with a 16-year-old without first informing him of the risks of contracting the virus that causes Aids.

Chan Mun Chiong, 43, pleaded guilty to that charge as well as to another of committing an act of gross indecency with the teen.

The Ministry of Health summons charge said he had oral sex without first telling the teenager about the HIV risk. He also failed to get him to voluntarily agree to accept that risk. The offence carries a fine of up to $10,000 or up to two years in jail, or both.

The sex charge said that the bespectacled, spiky-haired man and the boy performed the sex acts in a cubicle of a men's toilet at the Northpoint Shopping Centre in Yishun on Sept 15 last year. For the gross indecency charge, he faces a jail term of up to two years.

Chan, who did not have a lawyer, was released on $10,000 bail. He is expected back in court today for his case to be dealt with.

[truncated]

Section 23 of the Infectious Diseases Act, as at the time of his offence, said,

Sexual intercourse by person with AIDS or HIV Infection

23. ­(1) A person who knows that he has AIDS or HIV Infection shall not have sexual intercourse with another person unless, before the sexual intercourse takes place, the other person ­

(a) has been informed of the risk of contracting AIDS or HIV Infection from him; and

(b) has voluntarily agreed to accept that risk.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both.

(3) For the purposes of this section, a person shall not, only by reason of age, be presumed incapable of having sexual intercourse.

(4) For the purposes of this section and section 24, a person shall be deemed to know that he has AIDS or HIV Infection if a serological test or any other prescribed test for the purpose of ascertaining the presence of HIV Infection carried out on him has given a positive result and the result was communicated to him.

(5) In this section, "sexual intercourse" means ­

(a) sexual connection occasioned by the introduction into the vagina, anus or mouth of any person of any part of the penis of another person; or

(b) cunnilingus.

This law has since been amended such that anyone who has reason to believe that he could be HIV-positive, and still has unprotected sex without informing his partner of it, could be, on being found guilty, jailed up to 10 years and/or fined up to $50,000. However, Chan's offence took place before the amendment came into effect.

It was certainly very culpable of Chan to have sex with the boy in the way he did. Since he was charged under the old version of the Act, we can surmise that he knew for certain he was HIV-positive.

How this case came to the authorities' attention is not something I can disclose since it was mentioned to me in confidence. What I can say was that the pair of them were not caught in the act in situ, and that Chan was only found out as a result of police investigations.

I have also been trying to enquire, out of concern, whether the teenager tested positive too. While I do not have a definitive answer, what I am told suggests that it was unlikely. If he had been infected, it  would have been tragic and I would personally throw the book at Chan.

* * * * *

 
But fairness is a discipline. No matter how monstrous we think a person is, morality demands that we treat him fairly. Tacking on an additional charge under Section 377A of the Penal Code is an act of discrimination.

It's like this: Suppose a 43-year-old man like Chan engaged in oral sex with a 16-year-old girl, would he face an additional charge on top of the one based on the Infectious Diseases Act? No, he wouldn't because at 16, a girl is above the age of consent. Their having oral sex would not be a crime, only his failure to inform her of his HIV status was.

Ditto, if an HIV-positive adult woman had sex with a 16-year-old boy. Would the woman be faced with an additional charge? Again, no, for the same reason that their tryst would have been legal.

Therefore, on what yardstick of fairness is the additional charge that was laid on Chan justifiable?

As I indicated on the opening sentence of this essay, this case proves how empty the prime minister's words are. When he spoke in Parliament during the debate on amendments to the Penal Code on 23 October 2007, he said, "We do not harass gays. The Government does not act as moral policemen. And we do not proactively enforce section 377A on them."

He was repeating the same phrase as first appeared in the government's consultation paper in November 2006, when it tried to justify the retention of this section -– that the law would not be "proactively enforced".

Or course, one can argue that Chan's case could not be described as a "proactive" one, since the police didn't go out of their way to spy on him and catch him in the act, but this is semantics. What it shows is that if somebody else -- as was in this case -- reports to the police that so-and-so has engaged in homosex, the state will follow up and charge that person under Section 377A. For the Prime Minister to imply that gay citizens don't have to fear being caught by the law is thus clearly misleading, since "proactive enforcement" would not cease. It would only be outsourced by the police to other agencies or private vigilantes. This is another example of evasion of responsibility.

But what should the police and Attorney-General's Chambers (AGC) do if someone calls their attention to a violation of the law? Should they just ignore it? The proper answer ought to be: No. The police and the AGC should do their jobs without fear or favour; they should investigate conscientiously and prosecute if the evidence is good. They should not be using excessive administrative discretion and pick and choose what cases they will pursue, for if such a culture develops, then next thing we know, they'll pick and choose which corruption cases to pursue, or not to pursue.

This principle of professional conscientiousness should apply whatever the law is. The problem, as opponents of Section 377A have been pointing out ever since the debate started, lies in having the law in the first place. If the government wants to assure gay men that they need not fear being caught under the law, then they should repeal the law, not pass the buck to the police and AGC to NOT enforce the law.

The latter would have the effect of asking them to act arbitrarily ("close one eye") and undermine the integrity of the law and justice system.

Two other possibilities:

Firstly, that the government knew all along that despite their public pronouncements in their attempt to deflect criticism over keeping 377A on the books, the law would in fact be enforced from time to time. If so, then this is gross insincerity -– to suggest one thing, when fully aware that it will not be so.

Secondly, that the government didn't know that such a scenario might occur: a third party reporting a case of homosex to the police and this leads to a person being charged in court. If the government tries to plead ignorance of such a possibility in order to claim that they were sincere at the time when they spoke of no "proactive enforcement", then they can only be said to be unusually blind and incompetent in scenario planning.

The whole thing stinks. It stinks of confusion and incompetence, insincere wordplay and a cowardly evasion of responsibility at the very top. The right thing to do is to repeal Section 377A. It was right before, and this case demonstrates how right and urgent it is now. 

© Yawning Bread 

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