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FEATURE |
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Oral Sex — A Case of Criminality or Morality? |
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The article explores the
extent to which s 377 of the Penal Code (Cap 224), which criminalises unnatural
offences, should be amended, if at all.
Over much of January to March 2004, Singaporeans were talking about the case of Annis bin Abdullah v PP1 where a former police sergeant was jailed two years for having oral sex with a teenage girl.2 The conviction led to outrage of the Singapore public and the press at what they perceived as an antiquated law.3 This outrage was compounded by the media reporting that there was consent between both parties, and that the girl, reported to be a 16-year-old, was of an age at which the law enables her to give her consent. There were cries to abolish the s 377 offence on the ground that it interferes with what is essentially a private, consensual act between adults. Such concerns have led to a joint law review by the Home Affairs Ministry, the Law Ministry and Attorney-General’s Chambers, which will be completed soon.4 The Senior Minister of State for Law and Home Affairs, Mr Ho Peng Kee, said that the government is considering decriminalising consensual oral sex between men and women but leaving the ban on homosexual oral sex unchanged.5
This is a classic example of the shortcoming of a code, especially one which was codified some 130 years ago.6 If such a Code is not updated to keep up with contemporary values and expectations, it might lose its relevance and, in some cases, be oppressive. The ideal is for constant review by the legislature, but notwithstanding that, the wording of s 377 affords some leeway for judicial interpretation. However, in this case, the Chief Justice has said that the courts will continue to be guided by the Code ‘unless Parliament decides otherwise’.7
It appears to be the practice in Singapore, pertaining to s 377, to prosecute only non-consensual cases or to protect the young.8 Lynette Chua, citing numerous examples of s 377 cases,9 observes that ‘in most of the post-1991 reported and unreported cases involving section 377... the accused had applied force or threatened to use force in procuring the sexual act, or the sexual partner was a young person,10 or the court believed that the complainant did not consent11 to the act’. Given this practice, it is not surprising that the public is outraged by the harsh decision in Annis12 since both parties had consented to oral sex and no vulnerable party was harmed or prejudiced.13
This article will proceed on the assumption that the current governmental review will leave the protective function of s 377 unchanged14 and will undertake reform only where it pertains to private, consensual sexual acts between mature adults. I shall consider the relevance of the continued existence of s 377 as it pertains to State paternalism over what it considers are right morals.15
Part II will examine the elements of s 377, its history and the deficiencies inherent within it, along with a comparison with the law of Malaysia.16 Part III will compare s 377 with other jurisdictions17 that have reformed their law on unnatural offences. It would be beneficial to examine the principles which these jurisdictions have based their reforms on, to see if they shed any light on the Singapore situation. With the lessons learnt, Part IV will suggest that s 377 should remain unchanged, save for a lesser punishment to be attached to the offence.
Section 377 provides:
Unnatural offences
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.
Explanation
Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The prosecution must prove:18
(i) that the accused had carnal intercourse with a man, woman, or animal;
(ii) that such intercourse was against the order of nature;
(iii) that the accused did the act voluntarily; and
(iv) that there was penetration.19
A straight reading of s 377 reveals several difficulties with interpretation. While the mens rea requirement is straightforward and is fulfilled if a person commits the act voluntarily,20 the actus reus is problematic due to the uncertainty of certain key terms. The term ‘carnal intercourse against the order of nature’, which is not defined in the Code, has baffled many a law student and practitioner.21 What is the order of nature? What sexual acts are covered by this provision?
While it is now clear that the offence can be committed between two persons of opposite sex,22 the current governmental review to decriminalise oral sex only between persons of opposite sex, leaving homosexual oral sex still a crime, might be regarded as arbitrary line drawing that would affect the manner in which ‘intercourse in the order of nature’ may be interpreted.
Section 377 became law in Singapore with the passage of the Penal Code of the Straits Settlement in 1871.23 This precursor of the Singapore Penal Code, in turn, was derived from the Indian Penal Code of 1860. Thomas Macaulay, the principal drafter of the Indian Penal Code, led the Indian Law Commission in the drafting of the code, drawing some inspiration from the Penal Code of France, Livingston’s Code for Louisiana and the English criminal law.24 The English law, pertaining to unnatural offences, was deeply rooted in Christianity,25 as evident by the fact that sodomy used to be a capital offence there triable only by ecclesiastical courts.26 Christianity’s view of sex and its role in human life27 explains the eventual wording of s 377. It shows that the original provision is not Asian in origin nor does it take into account Asian notions of morality and culture. The deliberate vagueness inherent in this provision is explicable when one considers that it was meant to cover the whole range of sexual acts against the order of nature, the variety of which the drafters recognised and did not wish to limit by words of description.28 As Macaulay, the principal drafter of the Code said:
[It] is desirable that as little as possible should be said ... We are unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject; as we are decidedly of opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.29
The range of sexual acts covered by s 377 will now be examined, assisted by a comparison with Malaysian law. The Malaysian Penal Code31 was derived from the same predecessors as the Singaporean Code and have similar provisions pertaining to unnatural offences. The comparative exercise is particularly useful because the Malaysian legislature amended s 377 in 198932 to clarify its scope. The amendment shows the Malaysian commitment to its own moral sense of what constitutes unnatural sex, apart from the English criminal law origins which influenced the originally inherited s 377.
So far, Singapore courts have accepted anal intercourse33 and bestiality34 as ‘carnal intercourse against the order of nature’. The Malaysian courts have done the same. For example, the former Deputy Prime Minister of Malaysia was found guilty of sodomy in the case of PP v Dato’ Seri Anwar bin Ibrahim.35 However, the Malaysian courts are helped by the 1989 amendments which define, in s 377A, ‘carnal intercourse against the order of nature’ as the act when ‘any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person’.36 Bestiality is also expressly prohibited by the Malaysian s 377’s ‘buggery with an animal’.37
It is noteworthy that the 1989 amendments also added s 377C, an extension of s 377A, which criminalises separately such acts committed ‘without the consent, or against the will, of the other person or by force’.38 In other words, while maintaining the protective function39 of the prohibition on unnatural offences in s 377C, Malaysia has nonetheless seen fit to continue criminalising sodomy, oral sex and bestiality even where consent may be completely present between two mature adults and notwithstanding that no one vulnerable is harmed. Regardless of whatever notions of morality the original s 377 in the Malaysian Penal Code subscribed to, the Malaysian legislature has affirmed its own continued objection to such acts through penal sanctions. This is not surprising considering that Malaysia is a Muslim State, governed by a legislature with a majority of Muslims, whose religion considers such sexual acts as gravely abhorrent.
However, this is where Singapore differs. As a secular State, our legislature does not subscribe to the definition of unnatural sexual acts by any one particular religion. While we share Asian cultures with Malaysia, our legislature will not adopt the Malaysian Penal Code’s definition of unnatural offences in so far as it is driven by religious beliefs. However, this does not preclude us from taking into consideration Asian notions of sexual morality. This will be looked at in more detail in Part III.
There appears to be a
linguistic struggle to include fellatio within the scope of s 377. The
law was clarified in two cases. In the Singapore High Court case of PP v
Tan Kuan Meng,41 Justice Lai, after citing Indian cases,42
held that fellatio ‘between a man and a woman as a lustful substitute for
and not a prelude to and enhancement for natural sex between them is carnal
intercourse against the order of nature’. The Singapore Court of Appeal
affirmed this decision in PP v Kwan Kwong Weng,43 holding
that ‘when couples engaged in consensual sexual intercourse willingly
indulge in fellatio and cunnilingus as a stimulant [foreplay]44
to their respective sexual urges, neither act can be considered to be
against the order of nature. In every other instance the act ... will be
... punishable’.
There are several problems with this approach. First is the definition of sexual intercourse in the order of nature which fellatio, so as to circumvent s 377, must always end with. It was defined by the Singapore Court of Appeal in Kwan Kwong Weng as ‘the coitus of male and female sexual organs’.45 The court rejected the conception model, which defines natural sexual intercourse for the purpose of procreation, and embraced the biological theory, whereby the male and female sexual organs are meant for each other.46 Here, the purpose of such coitus, whether for procreation or pleasure, is irrelevant. However, the biological view, whereby sexual organs are meant for each other, appears to be based on the same idea of sex for reproduction.47
Secondly, the arbitrariness of the definition of the naturalness or otherwise of fellatio is based on whether or not the sexual activity ended with natural sex.48 It is submitted that whether a sexual act is in the order of nature should be judged by the act itself and not with reference to the way it ends. Such arbitrariness would also mean that sodomy could be used as a prelude, and not punishable under s 377, if it is ended off with natural sex.
Thirdly, the judicial approach taken in Tan Kwan Meng and Kwan Kwong Weng draws an arbitrary line at homosexual fellatio. Homosexual fellatio is not unnatural by itself, but is only unnatural because homosexuals can never finish off the act with natural sexual intercourse. With respect, homosexual fellatio should be natural or unnatural in itself without reference to how the sexual activity could end.
In contrast, the Malaysian s 377A has defined and criminalised consenting oral sex even where it is done by couples of opposite sex.49 This approach overcomes all the problems created by Singaporean law of defining natural sexual intercourse, whether the act should be a prelude to natural intercourse or an end in itself, and consequently avoids drawing an arbitrary line between heterosexual couples and homosexual couples. These problems are resolved by the Malaysian s 377A stipulating that fellatio is wrong in itself, whether consensual or between opposite sex couples.
Based on the Singapore Court of Appeal’s definition of natural sexual intercourse as the ‘coitus of male and female sexual organs’, heterosexual fellatio not followed by natural sex, homosexual fellatio, sodomy and bestiality would all fall under the category of ‘unnatural’. Therefore, any reform to s 377 pertaining to heterosexual fellatio must equally apply to the other permutations of sexual activity. Otherwise, maintaining the ban on homosexual fellatio and sodomy, as well as on bestiality, would be discriminatory.
Some might retort that this is a floodgates argument and that the Singapore legislature would be able to maintain that dividing line, even in the face of challenges by lobby groups. But the fact remains that, even if the legislature was able to stand firm on the line drawn, the basis for the continued ban on other forms of sexual activities would be removed, along with the decriminalisation of heterosexual fellatio.
The point of all the above is this: notwithstanding that this article is primarily concerned with whether oral sex should be decriminalised, this issue is inextricably linked with that of whether other permutations of sexual activities should be allowed. Hence, if any of the permutations are still considered abhorrent by Singapore standards, the ban must remain on all unnatural sexual acts, including fellatio.
The question then becomes, should Singapore continue to criminalise what it perceives are right sexual morals? Malaysia has taken an uncompromising ‘yes’ to that question. I shall now examine other jurisdictions to help answer this question for Singapore.
Hong Kong has social and cultural demographics which closely resemble Singapore. The crime of buggery/sodomy as it was known then in Hong Kong, was inherited from English common law while Hong Kong was still a colony of England.
The Hong Kong Law Reform Commission’s guiding principles in the 1983 law reform expressed the role of the law as protector50 and did not extend to the enforcement of moral values.51 Based on these principles, the Commission recommended the decriminalisation of consensual private homosexual acts,52 despite implicitly expressing moral disapproval of such conduct.53 The Legislature subsequently adopted the recommendation and enacted the Crimes Ordinance (HK).54
The jurisdiction that we inherited our criminal law from has done likewise. It is no longer criminal under English law to have consensual oral/anal intercourse of either gender combination, or to engage in private homosexual conduct not amounting to intercourse. Since the 1957 Wolfenden Report,55 the ensuing Sexual Offences Act 196756 and further amendments,57 England itself has gradually decriminalised consensual private sexual conduct. These changes are based on the view that the function of criminal law is to protect and not to impose morality.58
The US seems an unlikely candidate for a comparative study because recent decriminalising of consensual homosexual sex has been procured by the judiciary as opposed to the legislature. However, much can be learnt from the guiding ideology of the judges on the matter. Also, even though the repealed statutes are not similar in wording to s 377, they involve the same issue: that of whether the State should apply criminal sanction to maintain standards of sexual morality.
The US Supreme Court in Lawrence v Texas59 recently repealed a Texan statute60 which banned homosexual sex. While the opinion of the majority rested on notions of individual liberty which the State should not interfere, the dissent of Justice Scalia is noteworthy as it offers the view that State laws based on moral choices should stand despite its intrusion on some individual’s liberty and privacy. He said that ‘the promotion of majoritarian sexual morality is a legitimate state interest’61 and that the Texan law in question ‘seeks to further the belief of its citizens that certain forms of sexual behaviour are immoral and unacceptable, the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.’62
It seems, at first glance, that we should follow the Hong Kong and English approaches of affording the criminal law a protective function and refrain from imposing standards of sexual morality. However, the dissenting judgment of Justice Scalia in the US example explains why some jurisdictions, such as Malaysia, continue to persuade its citizens by criminal sanctions that certain forms of behaviour are immoral and unacceptable.
Notwithstanding the reasons based on respect for individual liberty by not imposing moral standards, there are several reasons why Singapore should follow the Malaysian example. First, moral-based criminal law plays a key role in shaping the national ethos of Singaporeans even where the protective function of criminal law is not evident. For example, the Singapore Penal Code criminalises bigamy and makes it punishable with imprisonment of up to seven years and a fine.63 The Code does not distinguish the situation where all the parties involved consent and that no one is injured by the second invalid marriage during the lifetime of the spouse.64 Similarly, the State’s ban on pornography via the Undesirable Publications Act65 attempts to create the public awareness that it is immoral or undesirable. Section 6(2) of the Act criminalises mere possession of pornographic material even where there is no intention to distribute or circulate,66 or where children are not the subjects of such obscene67 material. The continued existence of s 377 would join these and other criminal provisions in shaping the people’s ideals of morality.68
Secondly, it is arguable that s 377 does69 reflect contemporary Singaporean values concerning sexual morality. Admittedly, s 377 has been largely influenced by Christian notions of sexual morality and many would argue that the legislature should not subscribe, or continue to subscribe, to any one particular religion’s definition of unnatural offences. However, we have, over more than a century, developed our own notion of morality, based on several influences including religious, secular and cultural values and mores.
In particular, Christian values do not dictate the interpretation of s 377. For example, in the judgment of the Singapore Court of Appeal in Kwan Kwong Weng, Karthigesu JA noted that, while the idea that ‘sexual intercourse is meant only for conception is an out-dated theory’, ‘according to nature, the orifice of mouth is not meant for sexual or carnal intercourse’.70 He goes on later to say that ‘it is a biological fact71 that there must be a coitus of the male and female sexual organs for there to be natural sexual intercourse in the order of nature.’72 This decision was by no means dictated by intangible Christian values, but was one influenced by factual biology and, perhaps, other unsaid moral values and sexual mores. The use of the words ‘according to nature’ is merely incidental to the wording of s 377.
Thirdly, as explained previously concerning the indivisibility of unnatural sexual acts,73 the decriminalisation of private consensual sexual acts would remove the basis for the continued criminalisation of homosexual fellatio, sodomy, consensual incest,74 bestiality and other previously unimaginable forms of consensual sexual activities. Furthermore, over time, should the age of consent be lowered due to pressure from lobby groups, even the protective function of the law could be undermined in the name of liberty. For example, Lithuania has lowered the age of consent for homosexual sex to 14.75 While such a law may currently be thought to be far removed from the Singaporean context, it is one which may become part of our law if our Penal Code’s criminalisation of certain sexual activities is dismantled altogether or too quickly. In particular, there is a deep concern that the protective function of s 377 in relation to certain vulnerable groups of people in our community will be lost.
Lastly, the ambiguity and wide scope of s 377 is also its strength as it allows the criminal law to carry out its protective function in deserving cases. An example of a deserving case would be Kwan Kwong Weng where, though the prosecution conceded that there was consent between the 19-year-old girl and the accused for the act of fellatio, the accused was rightly convicted under s 377 as that consent had been vitiated by fraud.76 Although s 377 covers the realm of consensual private sexual activities, and objectionable as such coverage may be, it is better to retain s 377 as it is rather than to allow absolute impunity to cases worthy of prosecution.77 In oral sex cases, the good sense of the public prosecutors will prevail in deciding whether or not to press charges.
That leads us back to the case of Annis Abdullah which this article began with. On the surface, it seems as if the prosecution had prosecuted the accused for consensual private oral sex between two mature adults. However, the Court of Appeal hearing78 reveals that the prosecution had made an error when preparing the charge and the statement of facts, and that the girl had been 15 rather than 16 at the time of the offence.79 The trial judge, due to the mistake in information wrongly thought that she was 16, which was what led to the public uproar.80 If the public had been aware of the girl’s true age and the need to protect ‘young victims’, it is doubtful that anyone would have complained about Annis’ conviction under s 377.
Furthermore, even if the girl was indeed 16, the trial judge was of the opinion that ‘this is clearly not a case of fellatio performed by two consenting, mature male and female adults in their own privacy’.81 The judge cited several aggravating factors, saying that Annis was twice the teenage girl’s age and that he had sought her out via the internet on the pretext of getting to know her with the view to subsequently satisfying his lustful desires and contributing to her moral corruption. The judge was obviously concerned about the presence of undue influence of a mature man on a much younger girl, and opined that the ‘vulnerable, adolescent girl was not likely to be emotionally mature enough to really appreciate ... the ramifications’ of her act.82 On appeal, the Court of Appeal upheld the relevance of these aggravating factors.83
The fear that the continued existence of s 377 would, notwithstanding the careful and selective exercise of prosecutorial discretion, result in the possibility of the State prosecuting even married couples who engage in oral sex is unfounded as there has hitherto not been a single such prosecution. All told, Annis Abdullah has unreasonably brought attention to a non-issue as it was really a case where prosecution was justified for protective purposes.
Following the Malaysian example, we cannot draw the dividing line at the decriminalisation of consensual heterosexual oral sex. It is all or nothing. In this article, I have argued that it should be nothing and that s 377 should be retained in its entirety. As a rider, however, legislation should be introduced which imposes a much lighter punishment where there is consent between mature adults and the act is done in privacy.84 This stance would mitigate the harshness of the current sentencing regime while at the same time maintaining the moral message that the criminal law should continue to send.
Dominic Chan*
Final Year Law Student, National University of Singapore
E-mail:
law10050@nus.edu.sg
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Endnotes 1 [2003] SGDC 290 Subordinate Courts. 2 This is contrary to s 377 of the Penal Code (Cap 224) which criminalises unnatural offences. This section is reproduced in full in Part II of this article. 3 ‘Singapore Reviews Oral Sex Law’, BBC News, 6 January 2004. 4 S Ramesh, ‘Consensual Oral Sex between Men and Women may be Decriminalised: MHA’, Channelnewsasia, 6 Jan 2004; ‘Law Review to Decriminalise Oral Sex near Completion’, Channelnewsasia, 12 March 2004. 5 ‘Singapore Reviews Oral Sex Law’, BBC News, 6 January 2004. 6 The Penal Code was enacted in 1872 and has been left substantially unaltered since then. 7 Elena Chong, ‘CJ Halves Oral-Sex Sentence’, The Straits Times, 18 February 2004. 8 Lynette Chua, ‘Saying No: Sections 377 and 377A of the Penal Code’ [2003] SJLS 209–261, at 231. 9 Ibid. 10 See eg Adam bin Darsin v PP [2001] 2 SLR 412 (CA). In this case, the accused had performed oral sex on eight boys between the ages of 12 to 14. 11 See eg PP v Kwan Kwong Weng [1997] 1 SLR 697 (CA). Here, even though the prosecution had conceded that there was consent, the court held that the 19-year-old complainant was naïve and gullible and that her consent to perform oral sex on the accused had been vitiated by trickery.
12 It is interesting to note that the
sentence of two years, on appeal, has been reduced by the Chief Justice
to one year. See supra, 13 The actual merits of this case are explored later in Part III. 14 The State, in all previous interventions including Annis, had legitimate interest in doing so; namely, to protect. The real issue then is not the use of s 377 in cases where the vulnerable or the young are involved, but whether the State should interfere where there is consent between two mature adults in private. 15 Lynette Chua argues, supra, note 8, at 212, that s 377, where it criminalises consensual private sexual acts, is imposing a ‘particular set of morals on all individuals without regard for the individual’s autonomy’. 16 The reasons for selecting Malaysia will be given below. 17 Such as Hong Kong, UK and US. Similarly, reasons for selecting them for comparison will be given below.
18 Ratanlal & Dhirajlal, Law of Crimes
Vol II (24th Ed, 1998) at 1824; Nelson, Indian Penal Code Vol 2
(7th Ed, 1983) at 1396; Raghavan, Law of Crimes (1984) at 924;
Ejaz Ahmad, Law of Crimes Vol II (4th Ed, 1996) 19 It is beyond the scope of this essay to explore the aspect of the actus reus as it pertains to what is sufficient to constitute penetration. Daniel Chia, in ‘The Offence of Unnatural Sex in Singapore’ (2001) 13 SacLJ 406–427 at 414, argues that s 377, as it has been defined thus far, has left a lacuna in so far as it does not cover the sexual crimes of cunnilingus and non-penile penetration, since penetration seems to have been interpreted as requiring the penetration of the male human penis. 20 According to s 39 of the Penal Code, a person is said to cause an effect ‘voluntarily’ when he acts with the intention, knowledge or reasonable belief that the act would likely be caused. 21 Supra, note 19, at 408. 22 PP v Kwan Kwong Weng [1997] 1 SLR 697 (CA); see also Ratanlal & Dhirajlal, Law of Crimes Vol II (24th Ed, 1998) at 1822: ‘offence [can be] committed ... by man with man, or in the same unnatural manner with woman, or by man or woman in any manner with beast’. 23 KL Koh, CMV Clarkson and NA Morgan, Criminal Law in Singapore and Malaysia: Text and Materials (Singapore: Malayan Law Journal, 1989) at 4 [Criminal Law]. 24 Ibid, at 7.
25 Daniel Chia, supra, note 19, at
26 Statute 1533 (UK), 25 Hen VIII, 27 That it is natural so far as it is consistent with the way God has made it so, ie in the context of marriage and with the theoretical possibility of procreation. 28 Daniel Chia, supra, note 19, at 408; Lord Macaulay has expressed his intended vagueness of the provision in TBM Macaulay, The Works of Lord Macaulay: Speeches, Poems and Miscellaneous Writings v 1, vol 11 (London: Longmans, Green & Co, 1898) at 144. 29 Macaulay, ibid. 30 It is beyond the scope of this article to discuss the act of ‘false intercourse’, the act of inserting the male penis between the thighs of another person, and tribadism/lesbianism, the mutual friction of the external genital organs of two females for gratification of sexual urge. 31 Cap 22, Malaysian Penal Code. 32 Vide the Penal Code (Amendment) Act 1989 (Act A727). After the amendment, s 377 now deals with ‘buggery with an animal’, whereas unnatural offences are spread over ss 377A, 377B, 377C, 377D and 377E. 33 See eg Kanagasuntharam v PP [1992] 1 SLR 81 (CA). Here, the accused hit a 17-year-old girl continuously, raped and forced anal sex on her. 34 In PP v Ong Li Xia and Yeo Kim Han (24 July 2000), CC No 50 of 2000 (HC), the High Court accepted that sucking of a dog’s penis satisfied the section. 35 [2001] 3 MLJ 193 (HC) Kuala Lumpur. 36 Section 377A — Carnal intercourse against the order of nature: Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.
Explanation — Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.
Section 377B — Punishment for committing carnal intercourse against the order of nature:
Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall be liable to whipping.
37 Section 377 — Buggery with an animal:
Whoever voluntarily has carnal intercourse with an animal shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping.
Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
38 Section 377C — Committing carnal
intercourse against the order of nature without
Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping. 39 As mentioned above, this is the premise on which this article is built; that the law reform of Singapore’s s 377 retains its protective function. 40 The Longman Dictionary of Contemporary English defines fellatio as ‘the sexual practice of sucking the male sex organ’. 41 [1996] SGHC 16. Here, the accused was charged with five charges under s 377 for forcing the complainant to perform fellatio on him. Arguably, the court’s exposition of what consisted unnatural intercourse was in reply to a hypothetical consensual situation of fellatio, and does not truly answer the question of whether the State should interfere where there is true consent. 42 Khanu v Emperor (1925) AIR Sind 268; Lohana Vasanthal Deuchand v The State (1968) Cri LJ 1277. 43 [1997] 1 SLR 697 (CA) at paras 28–31, at 705. 44 The court justified this requirement by stating that ‘it is a fact of life that foreplay occurs before copulation’. 45 Supra, note 22, at para 28, per Karthigesu JA. 46 This is in contrast with the Indian position in Khanu (1925) AIR Sind 268 which held that only normal vaginal sexual intercourse between a male and a female person would be natural since it was an act for the purpose of procreation. 47 The court described all other non-natural sexual intercourse as carnal or ‘lustful’ and, hence, against the order of nature. The equation of lustful sexual activities to being against the order of nature would sometimes include natural sexual intercourse since it is often lustful. It is submitted that without reference to the purpose of natural intercourse, it would often end up being carnal. 48 For example, consenting couples who never intended to end the act of fellatio with natural intercourse, should they be caught halfway, could always argue that they were proceeding to natural sex. 49 ‘Any person who has sexual connection with another person by the introduction of the penis into the ... mouth of the other person is said to commit carnal intercourse against the order of nature.’ [emphasis added] 50 Hong Kong, Report on Laws Governing Homosexual Conduct (Topic 2) (Hong Kong: Law Reform Commission, 1983) at 120 where it was stated that: ‘The role of the law has been central to our consideration. In the sphere of homosexual conduct we see it principally as a means of protecting the vulnerable, including young people and the mentally disabled, from exploitation or sexual corruption; and as a protection to people generally against public behaviour that is indecent or offensive to the majority.’ 51 Ibid, at 113 where it was stated that: ‘[T]he law has no business simply with enforcing spiritual values. Besmirching the collective virtue of a community is not, in our view, an evil consequence the law could or should seek to combat: spiritual transgressions which do not affect the lives of others should, we believe, be dealt with by spiritual, rather than temporal, sanctions.’
52 Crimes Ordinance (HK), c 200, 53 Lynette Chua, supra, note 8, at 229. 54 C 200, s 118A–E, 118I–J. 55 England and Wales, Report of the Committee on Homosexual Offences and Prostitution, (London: Home Office and Scottish Home Department, 1957) at para 106 (Chair: J Wolfenden). 56 Sexual Offences Act 1967 (UK), 1967, c 60, s 1. 57 See eg Criminal Justice and Public Order Act 1994 (UK), 1994, c 33, ss 142–143; Sexual Offences (Amendment) Act 2000 (UK), c 44. 58 Supra, note 55, at para 13. As the Wolfenden Committee stated: ‘The function of criminal law in regulating homosexual conduct, according to the Committee, is . . . to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence. It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined. See para 61, which states that ‘there must remain a realm of morality and immorality which is, in brief and crude terms, not the law’s business’. 59 539 US 558 [decided on 26 June 2003]. In this case, the police had entered into a house in response to a reported weapons disturbance. Upon entering the house, they found both the accused, males, engaging in a sexual act. They were arrested and convicted of ‘deviate sexual intercourse’. The decision was appealed and overturned at the US Supreme Court level. 60 Texas Penal Code Ann s 21.06(a) (2003) which states: ‘A person commits an offence if he engages in deviate sexual intercourse with another individual of the same sex’. ‘Deviate sexual intercourse’ is defined as:
(A)
any contact between any part of the genitals of one person and the mouth
or anus of another (B) the penetration of the genitals or the anus of another person with an object.’ 61 Supra, note 59, Part I of Justice Scalia’s dissent. 62 Ibid. 63 Section 494 criminalises ‘marrying again during the lifetime of either spouse’ and states that ‘whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished’. 64 Bigamy is arguably a consensual individual choice between a man and several women in which the law should not interfere. The law’s intervention in what used to be Chinese custom and culture shows one possible area of its continued influence on shaping the people’s perspective on what is right or wrong. 65 Cap 338.
66 See
Nicholas Kenneth v PP [2003] 1 SLR 80 HC, where the appellant was
found guilty of possessing a ‘Playboy’ magazine and a ‘Penthouse’
magazine, contrary to 67 Section 3 of the Undesirable Publications Act defines ‘obscene’ as having the effect as to ‘deprave or corrupt persons’. 68 This assumes that the State’s idea of morality is right, or at least acceptable by the majority. 69 Emphasis added. 70 Supra, note 22, at para 22. 71 Emphasis added. 72 Supra, note 22, at para 25. 73 In Part II. 74 This was suggested by Lynette Chua, supra, note 8, at 253 and was the conclusion of the 1978 Canadian Law Reform Commission report. 75 ‘Lithuania Lowers Age of Consent for Homosexual Sex to 14’, Lifesite Daily News, 1 March 2004. 76 Supra, note 22, at para 34. 77 For a similar argument for the criminalising of bigamy, see Macaulay, supra, note 28, at 174. 78 Annis bin Abdullah v PP [2004] SGHC 52 (CA). 79 Ibid, at para 4. 80 See ‘Singapore Reviewing Oral Sex Law, Defends Act Protecting Children’, Channelnewsasia, 15 November 2003. 81 Supra, note 1, at para 17. 82 Ibid, at para 22.
83 Supra,
note 78, at paras 68, 70 and 73. On appeal, it was held that the mere
fact that the offender had also been a police officer is not to be taken
as an aggravating factor as he had not committed the offence in the
scope of his office nor had he exploited his office to take advantage of
the victim. 84 For example, a fine and not imprisonment. * I am grateful to Professor Stanley Yeo, Professor and Director of Teaching, School of Law and Justice, Southern Cross University, for his invaluable guidance, comments and encouragement towards the writing of this article; all errors remain my own. |