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Should Singapore's Gay Sex Law Be Repealed?

Aug 17, 2007
Singapore is a conservative country, its government repeated many times when the subject of its gay sex law is being discussed. The government explained that because of conservative population, it will not decriminalize the country's gay sex law or at least not in the near future.

On April 12, 2007, Singapore Law Society tells the government that the retention of gay sex laws cannot be justified. The existing gay sex law with comments are as follows:

Singapore Penal code section 377 states that - Whosoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, 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 a fine.

Comments - The term 'unnatural sex' has been settled by Singapore courts as to mean sodomy and oral sex. So if the penis goes into another person's anus or mouth, this clause will apply, even if both are adults and consenting. This could also mean that a heterosexual couple engaging in oral or anal sex may also be committing a criminal act.

377(A) of the same penal code went on to state that - Any male person who, in public or private, commits or abets the commission of or procures 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.

This clause is unique in that it specifically applies to gay men only and not to women or lesbians. The term 'Gross indecency' is a wide term which, from past legal precedents, covers mutual masturbation, indecent physical contact to the groin, or even indecent behavior without physical contact. Again the law applies even if the acts are done between consenting adults, and whether or not the act was committed in private.

Is Singapore's gay sex law to archaic and needs to be repealed? The Singapore Law Society certainly thinks so when it wrote to the government to review and to make changes to the existing penal codes. It released a statement disagreeing with the Ministry of Home Affair's proposal to retain the country's laws against gay sex. Here is excerpts from some published reports:

The Law Society of Singapore, at the invitation of the Ministry of Home Affairs (MHA) last November to comment on the government's proposed amendments to the Penal Code has advised the government that the retention of s.377A in its present form cannot be justified.

Last November, MHA announced their intention to retain gay sex laws although laws which criminalize anal and oral sex between consenting heterosexual adults will be repealed as part of Singapore's first major penal code amendments in 22 years.

Section 377A currently makes 'gross indecency' between two males an offence punishable by up to 2 years imprisonment. The Law Society, the professional association of lawyers in Singapore, which formed an ad hoc committee of 16 members to study the matter has issued a report that stated that the majority of the Council considered that the retention of section 377A in its present form cannot be justified.

This does not entail any view that homosexuality is morally acceptable, but follows instead from the separation of law and morals and the philosophy that the criminal law's proper function is to protect others from harm by punishing harmful conduct.

Private consensual homosexual conduct between adults does not cause harm recognizable by the criminal law. Thus, regardless of one's personal view of the morality or otherwise of such conduct, it should not be made a criminal offence.

Moreover, the assurance given by the Ministry of Home Affairs in the Explanatory Notes to Proposed Amendments to the Penal Code that were initially issued by MHA that prosecutions will not be proactively prosecuted under this section is an admission that the section is out of step with the modern world.

The retention of un-prosecuted offences on the statute book runs the risk of bringing the law into disrepute. The council also recognized that the above view did not necessarily represent the views of its members collectively. A significant minority of Council members as well as members of the Law Society at large has an opposing view, which strongly supports the retention of section 377A gay sex law of the Singapore Penal Code.

They took the view that the criminal law can and should be deployed to define what the majority or a significant proportion of society believe to be unacceptable conduct even when it takes place in private between consenting adults, and that there are sufficient jurisprudential and logical grounds for this. Differing views were expressed on the constitutionality of section 377A.

In other jurisdictions, legal discrimination based on sexual orientation has been considered against constitutional guarantees of equal protection. The council did not come to a concluded view on the constitutionality of section 377.

So in this country, engaging in gay sex is a criminal offence with imprisonment as a form of punishment, at least for the time being until the penal code is revised.
About the Author
Chris Chew is a researcher. More articles at
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