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Bread. 17 August 2008
Sodomy law makes you look foolish
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In my essay Here's proof: Section 377A being enforced, I pointed out how discriminatory it was for gay men to have to face an additional charge under Section 377A when straight men in parallel circumstances would not.
While, as the minister said, the charge of 377A was not proceeded with, it was "taken into consideration for purposes of sentencing." This suggests that the sentence meted out to Chan was higher than that which would be meted out to a heterosexual man in a similar case. Is this just? Since my first mention of Chan's case on this site, more details of what happened in the incident has surfaced. I understand from various sources that Chan and the 16 year-old boy indeed had oral sex in September 2007 in a toilet of a shopping mall. Following that, Chan asked the teenager for anal sex. The teenager said no and left. Chan then stalked him around the shopping mall and at some point, the boy complained to a security guard that he felt harassed. It's not clear to me whether it was the security guard who detained Chan and called the police, or whether the teenager then went to the police separately to make a complaint. Later on, during police investigations, it was discovered that Chan had anti-HIV medication in his possession, and that's how the case turned into one under the Infectious Diseases Act. From other sources, I gather that the thinking within the Attorney-General's Chambers was that the stalking of the boy was an aggravating factor and it should justify an additional charge to underline the seriousness of the matter. It seemed to me that almost any additional charge would do -- it could be one of burning your grandmother's bra if there was such a law -- the point being merely to up the sentence. It's a reflection, I suppose, of how fixated our politics is with the question of homosexuality that the additional charge chosen was 377A, and not something else. The two had oral sex, and even though the boy didn't complain about that to the security guard, that's what Chan should be punished for! Did our well-paid people never consider using another law for the additional charge, one far more appropriate to what the victim complained about? In fact, they have a choice of two:
Alternatively,
If they had used either of these laws, no one would accuse the prosecutors of discriminatory action. It would also set a better precedent, making clear that in matters sexual one should always take "no" for an answer. Are they feeling foolish now that they didn't think of the Miscellaneous Offences Act? The use of 377A and Wong Kan Seng's explanation that "if there is a complaint made by a person of an alleged offence under section 377A of the Penal Code, Police will act upon the complaint," has now made things worse. It signals to jilted gay lovers that they can get even with their ex-boyfriends by making police reports against them. After all, didn't Wong say the police will act on any complaint received? * * * * * The charge sheet accused Anwar, 61, of having committed sodomy on Mohd Saiful Bukhari Azlan, 23, under Section 377B of the Malaysian Penal Code on 26 July this year between 3.01 pm and 4.30 pm at Unit 11-5-1 of the Desa Damansara Condominium in Bukit Damansara, Kuala Lumpur.
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Section 377B says,
However, see box alongside.
His accuser, however, insists that it was a case of sexual assault, he having had to submit to sex against his will. Not only did he swear on the Q'uran on 15 August 2008 that he was telling the truth when he accused Anwar of having sodomised him on June 26, he told reporters afterwards: "I strongly emphasise it happened by force and without my consent. This was the first time I was sodomised." [2] First time? This is rather strange. The Bernama report carried by the Straits Times on 2 July 2008 [3] said "Mr Mohd Saiful, 23, lodged a police report on Saturday, alleging that he had been sodomised by his boss, Mr Anwar, several times." Others noticed this discrepancy too. On the blogsite of The Star newspaper is a 16 August 2008 comment by "abanglokman" who wrote:
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The other thing strange about Saiful's claims was that he
was forced to submit. Malaysian bloggers wrote:
Whichever way it is, it just shows the damage that a sodomy law inflicts, and how it makes anyone resorting to it look foolish. * * * * * " The occasion was the 17th International Conference on Aids in Mexico City. Ramadoss called on the courts to scrap the sodomy law which he said drove gays and lesbians under ground, hindering the country's efforts to prevent the spread of HIV and treat those with HIV and AIDS. "The key to overcoming the HIV epidemic is to take HIV services to those on the margins of society and we can only do that in an enabling environment," he explained. There are other perverse effects. Arvind Narrain, an attorney for the Alternative Law Forum, a Bangalore-based human rights group, explained that on a daily basis, Section 377 "is used very much against gay men, lesbians and transgender people in a big way to extort, blackmail and harass." Narrain says in India criminal gangs often extort large sums of money from gays and lesbians by threatening to "out" them to their families, the community and the police. The minister however, is at odds with his own colleague in the cabinet. India's Home Minister is defending Section 377, the subject of a suit in the Delhi High Court, where an Aids advocacy group, the Naz Foundation, has filed a challenge to the constitutionality of the law. Calling the contradiction "serious", the court has asked the two ministries to sit together and sort out the matter. The case would be heard next on 18 September 2008. It is difficult to predict how the court will eventually rule, or what will happen on appeal (if it goes to appeal). In the meantime, word is surfacing that the government may be changing its position. Aditya Bondyopadhyay, a gay activist, recently reported that he had heard from Anand Grover, the UN special rapporteur for health and rights, something "mysteriously about inter ministerial discussions to which we, the general public cannot be privy, but which safely points to, in his opinion, that 377 is on its way out in the near future." Does that mean the Indian government is about to abandon its defence of Section 377? * * * * * In the months since they nailed their Victorian conservative colours to the mast, we've seen them buffetted by waves from California's decision in favour of gay marriages (Oh dear, what are we going to do with same-sex couples from the US whom we need as foreign talent?), and from the Anwar case making a mockery of anti-gay laws. Now, there's the possibility of India chucking theirs out. Singapore may soon be left in the company of countries like Uganda,
Zimbabwe and Saudi Arabia as places that continue to outlaw gay men. Great
advertising, that. © Yawning Bread
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Footnotes
Addenda None
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Nominated Member of Parliament Siew Kum Hong asked in Parliament recently
what the rationale was for charging Chan Mun Chiong under section 377A of
the Penal Code. This, especially in view of the Prime Minister’s statement to Parliament
last year that the provision would not be proactively enforced. The Deputy Prime
Minister and Minister for Home Affairs, Wong Kan Seng, replied:
