The email from a reader came to me with the header, "You're not very
bright, are you?" The writer was referring to the Attorney-General
(A-G) Walter Woon.
In a Straits Times interview (discussed
in the article Where's the line between serving the
state and serving the party?) besides talking about human rights and
freedom of speech, Woon also raised the subject of Section 377A of the
Penal Code, which criminalises "gross indecency" between men.
A petition was sent to Parliament in 2007
to repeal this law, but failed.
Woon, in his newspaper interview,
regurgitated the government's line:
As far as I'm concerned, it's still
against the law and we still prosecute if there's a need. The Prime
Minister said that, if it's consensual between two adults, we're not
going to go after them if nobody complains.
-- Straits Times, 4
July 2008, 'Human rights'
label often abused
But what if one side, adult though he may
be, complains, motivated by whatever private reasons he may have, e.g.
blackmail or revenge for being jilted? Or, as the latest controversy in
Malaysia illustrates (see Sodomy, corruption and Malaysia's Penal Code),
for political advantage? By the above words, the state will prosecute.
The law puts gay men in jeopardy in many
ways, and it is the A-G's responsibility to express the view to the
government that this is bad law, since it does not serve justice.
Moreover, the A-G's job is supposed to be an
independent one. He is supposed to apply the law as appropriate, not to do
the government's bidding. This distinction can be seen in a situation
where a Prime Minister is accused of corruption. Should the A-G wait for
the Prime Minister to greenlight the prosecution?
However, this was not what the Yawning
Bread reader referred to. Instead, he was flabbergasted at Woon's other
comment on Section 377A:
Straits Times: What is the difference
between breaking the law through acts of civil disobedience and people
who do things that are against laws such as 377A, but are not going to
be prosecuted?
Woon: People break the law all the
time. Take jaywalking. I've seen people who do it right in front of the
old Supreme Court. If we spend our time prosecuting such cases, we will
do nothing but that. So there is always a public-interest element when
we decide whether or not to prosecute.
In the case of 377A, for example, we
are prosecuting some cases, such as where you have older men preying on
young, underage boys. If it's two consenting adults, technically it's an
offence but, if nobody complains, the police aren't going to beat the
bushes in the parks to spy on you. If somebody does complain, then the
question is: Do we want to prosecute or do we just warn? Very often, we
warn rather than prosecute.
-- ibid
There you go again, the red herring
about older men preying on minors, commonly used to demonise gay men and
to justify this archaic law. There is the pretense that this law is
still needed on this account, but as my reader says, "You're not
very bright. Are you?"
Is the A-G not aware that there is
another law to deal with such cases? It is Section 376A of the Penal Code
which says,
376A. (1) Any person (A) who
(a) penetrates, with A’s penis, the
vagina, anus or mouth, as the case may be, of a person under 16 years
of age (B);
(b) sexually penetrates, with a part
of A’s body (other than A’s penis) or anything else, the vagina or
anus, as the case may be, of a person under 16 years of age (B);
(c) causes a man under 16 years of
age (B) to penetrate, with B’s penis, the vagina, anus or mouth, as
the case may be, of another person including A; or
(d) causes a person under 16 years of
age (B) to sexually penetrate, with a part of B’s body (other than B’s
penis) or anything else, the vagina or anus, as the case may be, of
any person including A or B,
with or without B’s consent, shall be
guilty of an offence.
(2) Subject to subsection (3), a person
who is guilty of an offence under this section shall be punished with
imprisonment for a term which may extend to 10 years, or with fine, or
with both.
(3) Whoever commits an offence under
this section against a person (B) who is under 14 years of age shall be
punished with imprisonment for a term which may extend to 20 years, and
shall also be liable to fine or to caning.
OK, you say, but the above is for
penetrative acts only. What if it is fondling? Wouldn't 377A still be
necessary?
Again, Woon as Attorney-general should
know that under the Children and Young Persons' Act, there is this:
7. Any person who, in public or private
(a) commits or abets the commission of
or procures or attempts to procure the commission by any person of any
obscene or indecent act with any child or young person; or
(b) procures or attempts to procure the
commission of any obscene or indecent act by any child or young person,
shall be guilty of an offence and shall
be liable on conviction to a fine not exceeding $5,000 or to
imprisonment for a term not exceeding 2 years or to both and, in the
case of a second or subsequent conviction, to a fine not exceeding
$10,000 or to imprisonment for a term not exceeding 4 years or to both.
In short, the Attorney-general should not
be using 377A at all and should not be defending the need for it on the
basis of sexual abuse of minors. 
© Yawning Bread
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