Ex-Chief Justice Chan Sek Keong Says 377A Is Outdated, Outlawing Of Sex In Private Needs Revisiting In Court
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Chan Sek Keong, best known for serving as Chief Justice of Singapore from 2006 to 2012, recently wrote a paper arguing against the current reading of Section 377A (S377A) of the Penal Code, which criminalises sexual contact between males.
Former Chief Justice Chan Sek Keong
Source
Titled “Equal Justice under the Constitution and Section 377A of the Penal Code” and published online on the Singapore Academy of Law (SAL) Journal, Chan argues two major points:
According to a SAL spokesperson, the paper was taken down due to a few grammatical errors, and as of 3pm, 15 Oct, the paper is back online.
S377A existed because of rampant male prostitution in the 1930s
S377A, Chan writes, was not created because Singapore society did not accept homosexual conduct.
There was rampant male prostitution and soliciting in public areas such as cafes and amusement parks, and existing laws weren’t enough to punish them.
Source
Crime Reports from the 1930s show that S377A was created to target a specific problem from that time period.
However, Chan believes this issue no longer exists in Singapore society.
He writes,
Inequality in S377A also a concern
Secondly, Chan argues that the law also covers only males, which would be considered unequal before the law and would go against a specific article of the Singapore Constitution, Article 12(1).
Article 12(1) states that there must be equality in applied laws, i.e. regardless of gender.
Currently, S377A states that the law applies to males in particular.
Pink Dot rally championing the cause to repeal 377A in Jun 2019
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As a result, Chan proposes a change to criminalise only acts of gross indecency in public — regardless of gender.
Section 377 repealed in 2007
The criminalisation of anal and oral sex was covered in Section 377, which was repealed in 2007.
S377 covered sexual intercourse that goes “against the order of nature”, which includes sodomy and fellatio. On the other hand, S377A covers “gross indecency” between males, regardless of their orientation, and they covered acts not already found in S377.
“Gross indecency” includes acts such as sexual touching, petting, and other acts that are not penetrative but sexual in nature.
Crucial to S377A is the inclusion of the word “private”, which would criminalise sexual contact between consenting men, even if it does not include intercourse.
Paper might help challenges to S377A in Nov
The proposed change to S377A would not criminalise gay sex in private, which would be significant for the LGBT community.
Opposition exists towards repealing S377A based on moral concerns, i.e. that sodomy is immoral, but the repeal of S377 already decriminalised anal sex between heterosexual adults.
Based on the interpretation of “gross indecency”, S377A actually doesn’t cover sodomy between males, only other non-penetrative acts.
The opinion of a former Chief of Justice will boost any official challenge to S377A in court. Incidentally, there are 3 challengescoming before the courts in November, as reported in The Straits Times.
Others such as V. K. Rajah, Attorney-General from 2014 to 2017, and Tommy Koh also commented on the issue recently. Changes may be afoot.
Featured image adapted from Wikipedia and Facebook.
mustsharenews.com
Chan Sek Keong, best known for serving as Chief Justice of Singapore from 2006 to 2012, recently wrote a paper arguing against the current reading of Section 377A (S377A) of the Penal Code, which criminalises sexual contact between males.
Source
Titled “Equal Justice under the Constitution and Section 377A of the Penal Code” and published online on the Singapore Academy of Law (SAL) Journal, Chan argues two major points:
- S377A is outdated, and
- S77A discriminates specifically against males, which goes against equal treatment required in criminal law.
According to a SAL spokesperson, the paper was taken down due to a few grammatical errors, and as of 3pm, 15 Oct, the paper is back online.
S377A existed because of rampant male prostitution in the 1930s
S377A, Chan writes, was not created because Singapore society did not accept homosexual conduct.
There was rampant male prostitution and soliciting in public areas such as cafes and amusement parks, and existing laws weren’t enough to punish them.
Crime Reports from the 1930s show that S377A was created to target a specific problem from that time period.
However, Chan believes this issue no longer exists in Singapore society.
He writes,
He then elaborates,
Additionally, he thinks the courts needs to look at the “private” element of S377A, as the Government has made clear its stance to not enforce the law:
Basically, there wouldn’t be a reason to have S377A as it is today.
Inequality in S377A also a concern
Secondly, Chan argues that the law also covers only males, which would be considered unequal before the law and would go against a specific article of the Singapore Constitution, Article 12(1).
Article 12(1) states that there must be equality in applied laws, i.e. regardless of gender.
Currently, S377A states that the law applies to males in particular.
Source
As a result, Chan proposes a change to criminalise only acts of gross indecency in public — regardless of gender.
Section 377 repealed in 2007
The criminalisation of anal and oral sex was covered in Section 377, which was repealed in 2007.
S377 covered sexual intercourse that goes “against the order of nature”, which includes sodomy and fellatio. On the other hand, S377A covers “gross indecency” between males, regardless of their orientation, and they covered acts not already found in S377.
“Gross indecency” includes acts such as sexual touching, petting, and other acts that are not penetrative but sexual in nature.
Crucial to S377A is the inclusion of the word “private”, which would criminalise sexual contact between consenting men, even if it does not include intercourse.
Paper might help challenges to S377A in Nov
The proposed change to S377A would not criminalise gay sex in private, which would be significant for the LGBT community.
Opposition exists towards repealing S377A based on moral concerns, i.e. that sodomy is immoral, but the repeal of S377 already decriminalised anal sex between heterosexual adults.
Based on the interpretation of “gross indecency”, S377A actually doesn’t cover sodomy between males, only other non-penetrative acts.
The opinion of a former Chief of Justice will boost any official challenge to S377A in court. Incidentally, there are 3 challengescoming before the courts in November, as reported in The Straits Times.
Others such as V. K. Rajah, Attorney-General from 2014 to 2017, and Tommy Koh also commented on the issue recently. Changes may be afoot.
Featured image adapted from Wikipedia and Facebook.
