The Rainbow After the Storm
INTRODUCTION The past decade has marked an incredible change in attitudes towards homosexuals all across the globe. Earlier this year, the Illinois Senate approved a bill for same-sex marriage on Valentine’s Day itself, a romantic gesture for many homosexual couples who chose the special day to commemorate their case for the right to marry. Elsewhere, the United Kingdom has passed the (Same Sex Couples) Act 2014 legalising same-sex marriage, which came into effect on 13 March. On the flipside, many countries are still far from legalising same-sex marriage. Some Commonwealth states even continue to criminalise consensual homosexual sexual activity. Singapore is one such country— consensual homosexual male sexual activity is criminalised under Section 377A of the Penal Code. Numerous organisations around the world have tried to alter such seemingly discriminatory legislation, such as the Human Dignity Trust,1 which provides homosexuals with funds for litigation in hopes to legalise consensual homosexual sexual activities in Commonwealth jurisdictions. The following will be a series of arguments for and against criminalising homosexual sexual activities in Singapore. This article will place greater emphasis on homosexual sexual activities as a direct consequence of Section 377A in Singapore, and laws to legalise same-sex marriages, as a likely follow-up in time, should Section 377A be repealed. Subsequently, a comparison will be made between Singapore’s circumstances and other countries that have legalised homosexual consensual activity to evaluate those arguments. HISTORY OF 377A IN SINGAPORE The concept of Section 377 originated from the British antibuggery laws in 1534.2 In 1985, renowned author Oscar Wilde was convicted under UK’s Criminal Law Amendment Act for indecent behaviour with other men. That very Amendment Act was subsequently incorporated in the laws of countries in the Straits Settlements- the British Colonies in Southeast Asia, consisting of Singapore, Malaysia and Penang. Even though the UK has since progressed to remove all laws that criminalise homosexual sexual activity, many of their former colonies, including Singapore, retain the law. Section 377A in Singapore’s Penal Code criminalises sex between mutually consenting adult men. Section 377A reads: “Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.” Peculiarly, 377A only prosecutes gay men while lesbianism seems to be overlooked by the statute completely. This unusual phenomenon is possibly reflective of the patriarchal notions 1 UK-based organisation that seeks to alter laws in the Commonwealth that criminalise homosexual sexual acts. Read more at http://humandignitytrust.org. 2 D. E. Sanders, ‘377 and the Unnatural Afterlife of British Colonialism in Asia’ [2009] AJCL 1.
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of human sexuality expressed by former British colonists, who did not consider lesbian sex “proper sex”.3 The notion harboured then was that of sex being a largely “penis-driven” activity.4 Accordingly, the statute does not account for sexual acts between women, such as cunnilingus and fingering, which do not involve a penis. Discreetly, this demonstrates that while general sexual preferences have developed considerably, the law on sexual acts amongst homosexuals in Singapore still remains unchanged and is based on archaic notions. RELEVANCE OF 377A AGAINST THE BACKDROP OF CHANGING ATTITUDES TOWARDS HOMOSEXUALITY Compared to the predominantly Western countries that have legalised same-sex marriage, Singapore has a larger Asian majority. In defence of retaining 377A, the government often espouses the so-called more conservative “Asian values” and “Asian traditions” as justifications. It has been suggested that because of these values, ideas such as homosexuality are a taboo topic in Singapore. Time and again Singapore’s politicians have used the “conservative” card to justify the state’s reluctance towards legalising homosexual behavior. At the World Human Rights Conference in Vienna, former Foreign Minister Wong Kan Seng claimed, “Homosexual rights is a Western issue, and are not relevant at this conference.” 5 More recently, Mr Goh Chok Tong, during his National Day Rally speech, also stressed that he did not “encourage a gay lifestyle, as Singapore is still a traditional, conservative Asian society.”6 In 2007, Prime Minister Lee Hsien Loong reiterated the same themes when the repeal of 377A was ruled against. However, is Asian culture that conservative and traditional? Deconstructing the Singaporean myth of Asian sexuality exposes several illogical points:7 It is a gross generalisation to assume that Asians are virtuous and sexually conservative as opposed to Westerners (and indeed, circular reasoning to presume that homosexuality lacks virtue). The notion of conservative Asian values is a concept that is in denial of the past and the present. Western history has its fair share of conservativeness, evidenced by Victorian England and the Judaeo-Christian tradition. In contrast, the growing sex industry in Southeast Asia and, for example, the creative sexual preferences of the Japanese fail to lend support to the notion that Asians remain sexually conservative. Still, perhaps isolated examples are not sufficient to disprove the general trend and both sides do field strong arguments. Perhaps the question to consider is not at all about the conservativeness of Asian culture. Hri Kumar makes an interesting point about the existence of 377A in our laws.8 The gist of his argument was that s377A exists because it was 3 Gabrielle Chong , ‘Of Penal Code 377, Lesbian Sex and Patriarchy’ (Tilted World: A Malaysian LGBT Community Project 2009) <http:// tiltedworld.org/2009/04/20/of-penal-code-377-lesbian-sex-and-patriarchy/> accessed 31 Jan 2014. 4 ibid (n 3). 5 Wong Kan Seng, 1993. 6 Goh Chok Tong, 2003. 7 L. Leong, ‘Asian Sexuality or Singapore Exceptionalism?’ [2012] LLR 11. 8 Hri Kumar, Parliamentary Reports 22 October 2007.