A response to “Section 377A: A contemporary, important law”, published in The Straits Times (Paywall), by James Wong.
I refer to “Section 377A: A contemporary, important law” written by Professior Thio Li-ann (Oct 7). While I generally agree that the practice of no-platforming and shouting down opposing views has gotten out of hand, I was troubled by some of her arguments, and wish to make the following points in response:
Homosexuality should not be equated to incest
First, the argument that homosexual sex should be decriminalised does not solely revolve around consent. Professor Thio raises the example of incest as the logical consequence of the consent argument. However, the prohibition against incest, unlike s 377A, is readily justified by consequentialist reasoning. It is born out of the fear that debilitating medical conditions will manifest in (and therefore harm) subsequent generations of in-bred children. Thus, s 376G of the Penal Code only prohibits sexual relations between a man and his “grand-daughter, daughter, sister, half-sister, mother or grandmother” (which, of course, applies mutatis mutandis to women and their male family members). Sexual relations between cousins, who presumably have greater genetic diversity, are not caught by s 376G. For obvious reasons, this concern does not apply to homosexual men.
Further, the ban on incest also stems from concerns over the unequal power dynamics between parent and child, and the consequent potential for abuse (for e.g. sexual grooming of daughters). Insofar as homosexual relations do not, at the same time, constitute consanguineous relations, these issues do not arise. Drawing superficial comparisons between the two (and, not to mention, bestiality and paedophilia) to evoke a visceral response is inaccurate and misleading.
A good reason must nonetheless be given to criminalise innate characteristics
Second, while it is true that it “does not follow that the law should not regulate innate or genetically determined behaviours or traits”, the point remains that a good reason must be given for criminalising such behaviours or traits. Otherwise, these characteristics are, to quote Mr V.K. Rajah, “no different from all other distinctive attributes that each of us is born with”, such as being born left-handed or of a different skin colour. Professor Thio rightly points out that the law regulates innate traits such as murderous tendencies, but the case for criminalising murder is an obvious one, owing to the great harm such a heinous act causes to society at large. The same goes for addiction and drug-related offences. On the other hand, it is by no means obvious or universally agreed that the same level of harm flows from private and consensual sex between adult men, or that it deserves the same level of moral opprobrium.
Freedom of religion is not absolute and must be balanced with competing interests
Third, Professor Thio argues that the real issue is whether the law serves the common good of society and secures the liberties of others. She goes on to argue that freedom of religion was curtailed in countries where, amongst other things, sodomy was decriminalised. However, this seems to assume that in a situation where there are competing interests and views between the religious and the secular, one’s freedom to practise his or her religion ought to prevail, when a balance must always be struck between the two. Professor Thio has given examples in Canada and the United Kingdom on how the balance has been struck, but it does not inexorably follow that Singapore will follow suit. It is up to each individual State to determine how best to balance these competing interests. I note in this regard that the Supreme Court of the United States ruled 7–2 in favour of a Colorado baker who had refused to make a wedding cake for a gay couple on religious grounds. This suggests that religious objections to gay marriage may be protected forms of expression in the United States.
More fundamentally, while religious citizens are free to participate in democratic processes, expressing one’s religiously influenced views in public debate does not, without more, make the case for imposing moral rules unique to certain religions on the whole of society. Just as the religious resent having rules that they fundamentally disagree with apply to them, can the same courtesy and reasoning not be extended to homosexual men?
S 377A being of colonial origin is of high importance in this debate
Fourth, far from being a red herring, the colonial origins of s 377A is important for two reasons. Firstly, as stated by Mr V.K. Rajah, the presumption of constitutionality should not readily apply to a pre-Constitution law enacted in dubious circumstances. Indeed, the Court in Lim Meng Suang v AG seemed to prefer a less stringent version of the presumption of constitutionality for pre-Independence laws. Secondly, it discredits lazy (but oft-seen) attempts to bifurcate the debate into the vague, amorphous and seemingly dichotomous concepts of ‘Western’ and ‘Asian’ values, without any real interrogation as to what exactly those labels entail.
Just because the law is not enforced now does not mean it will never be enforced
Finally, and perhaps most importantly, Professor Thio’s comment reiterates that it is “within the executive’s discretion to determine what resources to commit to enforcing various offences”. As the Attorney-General has himself confirmed, the Attorney-General’s discretion is not fettered by the policy of non-enforcement and he (or she, as the case may be one day) is entitled to exercise his discretion afresh. While the current policy is that prosecutions under s 377A for private and consensual sex between adult men are not in the public interest, a subsequent Attorney-General could well take an opposing view. In the meantime, gay men go about their daily lives with the Sword of Damocles hanging over their heads, all the while hoping that the State is, and will remain, charitable enough not to cut the string. Viewed in this light, regardless of whether one thinks homosexual conduct is moral or not, if the general consensus is that gay men should not be charged or face criminal penalties for private and consensual acts, why keep s 377A?
Swing is unequivocally for the repeal of 377A. We maintain that it is a bigoted, colonial imposition that only serves to divide society unhealthily.
James is a recent law graduate who is currently studying for the bar exam. During his free time, he likes learning foreign languages.