(Disclaimer: I am not a lawyer, and even if I do become one eventually the area of law which I have the best understanding of is NOT criminal law.)
So the Penal Code is undergoing some changes, going to be updated for modern times. Given that my training in criminal law is under the Victorian Crimes Act 1958, a simple comparison will leave one with an indelible impression that Singaporean criminal laws dealing with sexual offences are not just “archaic”, as put so eloquently by ChannelNewsAsia, but positively medieval.
There are two very glaring examples, based on the CNA news report. First is on the issue of rape, within the marriage context.
Current laws do not allow for prosecution against a husband for raping his wife because he enjoys marital immunity.
The new Penal Code aims to remove this legal protection, on the condition that the wife is legally separated from her husband, or has taken a Personal Protection Order to prevent her husband from having sex with her.
While the prior law was mediaevally patriarchal (yes, you ladies belong to your husbands as chattel, which is why he can do with you as he wish), the updated position is just plain ludicrous.
If the “wife” is legally separated from “her husband”, then its no longer a marriage issue, but a simple case of rape by one individual of another. How does this qualify as an “update”?
The idea that a woman would have to take out a personal protection order first before she can receive legal protection against rape by her husband is crazy. Women who face rape from their husbands are more likely to be from lower socio-economic backgrounds. How likely are they to have full awareness of their legal rights, and that they have to take out a PPO first before the police will pursue criminal charges against the perpetrator?
The second glaring issue is the one regarding the criminalisation of homosexual acts.
On sex between homosexuals, the Ministry has plans to keep the status quo.
“These should essentially be seen as private matters within the home. One of the bigger issues is whether this is a signal by the Government of greater acceptance of homosexuality in Singapore,” says Associate Prof Kumaralingam Amirthalingam.
“I don’t think the Government is prepared to make a statement on this. But if you look at the history of prosecution under Section 377, which is the relevant provision here, I don’t think you’ll find any prosecutions of homosexual sexual activity between consenting adults within the home.”
“So in that sense, it’s a typical Singapore way of managing this issue without getting embroiled in the political and social problems that we’re not ready to face,” adds the law lecturer.
In other words, its ok to be gay, as long as you don’t actually have sex or anything. Or if you DO do it, make sure that no one else finds out, otherwise people will complain, and we will have to do something about you doing icky gay stuff.
Not enforcing the law is not a good reason for keeping the law on the books. In fact, this line of reasoning makes a mockery of the law: what is the purpose of the law if it is not enforced? It hangs like the Sword of Damocles over the head of consenting adults engaging in private behaviour that has nothing to do with the government.
I know that in all likelihood this result is more of a compromise to appease those elements of our society who are “conservative” and frown upon such things. The question is, is it proper that legislative policy be held hostage by religious fundamentalist, slack-jawed mouth-breathers?
9 Comments
i agree with you about the stupid updates.
Just 2 cents
“If the “wife” is legally separated from “her husband”, then its no longer a marriage issue, but a simple case of rape by one individual of another. How does this qualify as an “update”?”
Well currently one only falls outside the martial rape immunity if he’s legally divorced from his wife. So it’s technically an “update”, a stupid one at that.
“In other words, its ok to be gay, as long as you don’t actually have sex or anything. Or if you DO do it, make sure that no one else finds out, otherwise people will complain, and we will have to do something about you doing icky gay stuff.”
Actually i believe what the Associate Prof is trying to say (apart from covering his backside) is that - well it is technically illegal to have homosexual sex, but the state doesn’t really go after you; unless of course you’re caught in public (in which case it is illegal to have heterosexual sex in public too).
“Not enforcing the law is not a good reason for keeping the law on the books. ”
Sg is famooose for doing this. Hahaha…. so many draconian laws/penalties that aren’t enforced/used, and ironically it’s serves as the gov’s justification for keeping it on the books.
I actually don’t have a problem with the good Professor, because from what he says, I get the feeling that he is quite sympathetic towards more complete legal reforms.
Sry for 2 posts. Just wanted to segment it.
What i find interesting about the updates is that “[a]nal and oral sex will no longer be illegal unless the person is forced to perform the act without his or her consent, or if the person is under 16 years of age.” If so, then i think it might just cause problems to the existing s377 that states “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.”
Arguably the effect of the 2 (plus the suggestion that homosexual sex would still be illegal) suggests that one has to conclude that heterosexual anal intercourse is legal (by reason of the update) and also not “against the order of nature”, but homosexual anal intercourse is “against the order nature” and thus falls foul of s377; that to me would introduce an uneasy tension in the law and make it arguably discriminatory (in the constitutional sense*), ie. for cases of anal sex, heterosexuals and homosexuals are not treated alike.
* it seems warped i know, for currently the law is (imho) discriminatory already. However it seems that the Sg courts have an interesting test for discrimination that validates the current standing. This new update would however introduce a tension in the law, that might cause s377 to fall afoul of the the interesting test the Sg courts adopt.
just a short note.
unless the government/(or majority of the electorate if you’re looking at the democracy) is ready to say that homosexuality is perfectly fine, it should not repeal s377 as one of law is itself an influential social tool (there are other purposes to law apart from just enforcing them). in the sense that to repeal a law is to endorse positively (in the eyes of the public) whatever it had once prohibited, even if it really is just neutral about it.
boo:
to a certain extent that is true. However, would you say that downloading is wrong too? Time has passed and the social landscape has changed, to which i feel the pertinent question is not if the gov/society is ready to accept homosexuality, but rather it should be asked if society should accept homosexuality.
My answer to the latter question is a resounding yes and thus i feel the gov should repeal s377 - it’s precisely because the law is an influential social tool that i feel the gov should send a signal.
Side pt: Do you see society as feeling that there is a threat stemming from communism? If no, then why still the ISA? (There are numerous other examples) Perhaps our country uses the law (more extensively than other countries) to influence the social landscape instead of reflecting it.
It is very poor justification to say that since the law can be an influential social tool, it should be used for social purposes.
As the Straits Times quoted law professor Michael Hor today,
“Law professor Michael Hor questioned the validity of the reasons given for not decriminalising homosexual acts. ‘For example, adultery is similarly unacceptable, not tolerated and abhorrent, but there is no suggestion that adultery ought to be criminalised,’ he said.”
We have been very reticent about using law this way. So why on homosexuality does the State want to use it as a social tool? The selectivity is suspicious of deeper motives, namely the government’s own homophobic agenda.
Another example of selectively is this: the excuse is made that the retention of Section 377A is to reflect society’s anti-gay values. But Section 377A only criminalises gay men, not gay women. The misfit between ascribed justification and actual scope of the law tells you the ascribed justification is probably a cover for some other motive.
(Section 377 which may affect gay women in addition to heterosexuals is going to be repealed completely)
Secondly, use of law as a social tool should not contravene law’s other purposes - for justice and equity. In this case, this clearly violates it.
“but rather it should be asked if society should accept homosexuality…My answer to the latter question is a resounding yes”
what is the justification for this? if you are talking about a democracy, what makes a minority able to impose their ideals on the rest? i’m not advocating intolerance here. i’m talking about homosexuality as something that is unnatural in the society’s eyes and many would find it unacceptable (singapore, not the US or other countries). why should the government send a signal in repealing s 377 then? to impose the idea that it thinks that homosexuality is okay even when most people wouldn’t think so? wouldn’t it be even more imposing on the majority of the citizens?
on one hand you say that the government is unfair and is not concerned about what the people want, but the fact is that majority of the society would be abhorrent to the idea of homosexuality (no offence to anyone) and hence the government, who is supposedly neutral, has to reflect the people’s wants. viewing it in this way, what other deep and darker motives does the government have in retaining 377 than reflecting the society’s morality?
not mentioning ISA and other laws which don’t concern the unnatural and natural. i personally do not see it as a threat stemming from communism, but you could look at another perspective and say that a threat to the society’s morality. and that laws are often an indication of moral norms.
what signal is the government supposed to send?
that said, i agree that the penal code is rather bias towards women, also in the rape sections. and perhaps the committee has yet to reviewed this. but in terms of homosexuality, whatever consipiracy and agenda aside, the government is still has to respect the (majority of) community’s views.
rather than harping on why hetereosexuals and not homosexuals can have their oral or anal sex. i say the real debate would be why homosexuals? why give the right to do wrong (in society’s eyes)?
p.s. i’m aware that there are homosexuals commenting here, but i assure you i am not advocating intolerance but just saying what i objectively think is right (because we all think our views are objective). thanks for reading my views, and countering them.
boo:
I think you have to explain how does allowing gays to have sex become IMPOSING ideals upon non-gays.
Yes but democracy is no justification for a majoritarian tyranny either.
If you wish to present this argument, then you have to explain how do gays having sex translate to a threat on society’s morality.
The question you want to ask yourself is, what is the purpose of the law? If you argue that laws are an indication of “moral norms”, then the question is, whose “moral norms”? Where do those “moral norms” come from?
Your argument is weak for a very simple reason: you contradict yourself.
I can easily argue that the vast majority of the population support marital immunity against rape for husbands (there are sizable segments of the female population in Singapore that actually subscribe to patriarchal dominance), but does this mean that it is right?
I think you have to return to the definition of “moral norm” and ask yourself, WHAT is the actual content of moral norms. Does the norm of a majority authorise the imposition of their norms upon a minority, given that the norms of the majority are NOT affected by the norms of the minority?
Correction on one my points. It seems that s377 is to be entirely repealed. That it seems would lessen the tension in the law. However there could still be the probability that s377A would now be discriminatory w/o s377 in force. In the past, all anal intercourse was illegal, however now it is illegal only under s377A which specifically targets gay men. While the wording of s377A makes it’s discriminatory intent very apparent, ironically it might lead the court (if subject to challenge) to construe gay men as a class, and as all gay men are treated equally under s377A, there is no violation of the equality guarantee in the Constitution.