Speech on the Penal Code (Amendment) Bill - Siew Kum Hong (Oct 22)

Speech on the Penal Code (Amendment) Bill:

22 October 2007

By now, my views on this issue have been widely-reported. In
particular, a New Paper report last week had carried an interview with
extensive quotes from me (it felt really weird buying a newspaper with
my face on the cover -- so much so I gave it to the cashier with the
back cover facing up!).

So I'm not going to write much commentary around this speech, other
than to highlight that apart from Section 377A, I very strongly
disagreed with other parts of the bill. The speech below is based on
the prepared text and has been (mostly) checked against delivery. I
ran out of time, but the part that I skipped basically contained some
of the more offensive quotes from http://www.keep377a.com/, which I
will not post here.

I will (hopefully later this week) write another post to respond to
all the comments posted on this blog, which I have refrained from
replying to earlier.

Oh, and the video of my speech will be available on the CNA website
for a week.

Speech on the Penal Code (Amendment) Bill

1. Mr Speaker Sir, I rise to speak on the Penal Code (Amendment) Bill,
and on the petition I had presented to Parliament earlier. I will
first speak on two aspects of the amendment bill not related to
Section 377A, and then on Section 377A and the petition.

2. The Penal Code is one of the most important statutes that we have,
because the criminal law touches so many people so intimately. This
bill represents the first review of the Penal Code in 22 years. It
seeks to do a lot, and yet it leaves so much undone.

3. The bill introduces some positive changes. For instance, there is a
new offence of sexual grooming. Going by the experience in the UK,
this could well become an important weapon in the arsenal against
sexual predators, especially those on the Internet.

4. Another important change is the criminalization of child sex
tourism, extending to acts performed overseas. Notwithstanding
potential issues of enforcement, this will help greatly in closing the
door on Singaporeans engaging in such despicable practices.

5. But Sir, some aspects of the amendment bill are not so positive. I
will focus on three in my speech.

General increase in maximum imprisonment sentences

6. Firstly, clause 105 of the amendment bill increases the maximum
sentences for a number of offences. I echo Ms Sylvia Lim's comments on
this increase, and would add to them.

7. Sir, depriving a person of his or her liberty is a very serious
matter. We should not be so hasty in increasing the maximum sentences
for so many offences. The general increase in maximum fines is clearly
justifiable, even necessary, given that they were last reviewed in 1952.

8. But while money loses its value due to inflation, there is no
equivalent concept when it comes to imprisonment. The intrinsic value
of a person's liberty does not diminish over time. If anything, with a
higher standard of living and greater economic opportunities today,
the opportunity cost of a day in jail is arguably a lot higher now
than in the past.

9. In addition, an excessive maximum sentence could well be oppressive
towards accused persons in the manner described by Ms Sylvia Lim. This
insidious effect is undesirable, unfair and detrimental to the balance
of the criminal justice system.

10. MHA should therefore provide adequate justification for each
increase in maximum sentence. In its public consultation paper last
year, MHA stated that it has "avoided increasing imprisonment terms
unnecessarily". It should disclose the different factors considered
for each maximum sentence increased, and why it had concluded that the
existing maximum sentence was inadequate. It has not done so.

11. To my mind, it is dangerous to increase the maximum sentences of
so many offences, without proper justification. It seems to pay
insufficient respect to the fundamental importance of a person's
liberty. In the absence of such justifications, I have no choice but
to disagree with this aspect of the amendment bill.

Marital immunity

12. I now turn to the issue of marital rape.

13. The Penal Code has historically provided an absolute defence of
marital immunity. A husband is legally incapable of raping his wife.
In other words, regardless of whether or not she consents to sex,
regardless of whether or not he forces himself upon her, it is simply
impossible in law for a husband to rape his wife.

14. The amendment bill proposes to take a "calibrated approach" in
limiting this defence. Marital immunity will now not apply where
divorce or separation proceedings have been commenced or completed, or
where the wife has applied for or obtained an injunction or protection
order against the husband.

15. MHA's stand is that total abolition of marital immunity would be
"too radical" and would change "the whole complexion of marriage in
our society", citing "a need to strike a balance between the needs of
women who require protection and the general concerns about conjugal
rights and the expression of intimacy in a marriage."

16. Sir, I was flabbergasted when I read that. Perhaps it is because I
am young and unmarried, and hold a romantic view of marriage,
untarnished by its reality. But surely that is the conception that we
should still uphold. The proposed change still sends the message that
in most circumstances, a husband cannot be considered to have raped
his wife even if he knew that she did not consent. Under this change,
the critical issue for rape in a marriage is not consent, but whether
the wife has taken certain legal steps.

17. MHA talks about "conjugal rights", suggesting that a husband has
some sort of right to sex from his wife. This seems to be derived from
the archaic view that a wife, by marrying the husband, has irrevocably
consented to sex with her husband. It is linked to the view that a
wife is some sort of property of the husband.

18. Sir, such a view has no place in a modern society, not even in a
limited form. A man does not have the right to demand sex from his
wife at any time. Sex without consent is rape, whether it takes place
within or outside a marriage.

19. To me, it is simple: no means no, and rape is rape. Rape within a
marriage is the same as rape outside marriage. In a modern society,
marriage is a partnership of equals. We are a modern society. So why
are we still retaining this defence, even in a limited form? I cannot
fathom that.

20. MHA also cites "the expression of intimacy in a marriage". Sir, if
sex without consent is seen as being a permissible expression of
intimacy in a marriage, then I fear for marriages and married people
in Singapore. What sort of conception of marriage do we have, if the
law recognizes sex without consent as being legitimate? That cannot be
right.

21. I can do no better than to quote the response of the Association
of Wwomen for Action and Research to last year's public consultation
paper:

"Rape is not sex, it is violence. No wife who has been raped
considers the act to be merely sex. It is a form of violence, aimed at
violating the victim in one of the most humiliating manners. … To
equate sex with rape is to equate a caress with a beating.

[…]

Throughout the eighties and beyond, girls were continually warned
in schools to be alert for sexual predators, and given the message
that rape was the worst possible violation against a woman. It is
truly ironic that these same girls, now adult women, are told that
they have to subject themselves to this most humiliating of assaults
by none other than their husbands."

22. The amendment bill effectively penalizes the most vulnerable of
wives: those who have no choice but to continue in a marriage, for
whatever reason. It says that if a woman has the wherewithal to leave,
then we will protect her from rape, but not if she is completely
dependent on her husband. That again cannot be right.

23. For all of these reasons, I disagree with the proposed change to
Section 375 of the Penal Code. Instead, I urge the Government to
repeal marital immunity in its entirety. That is what a modern society
needs, that is what fairness requires, and that is what justice demands.

Petition presented on 22 October 2007

24. Sir, I now turn to the petition I presented to this House earlier,
which argues that Section 377A would be unconstitutional upon the
repeal of Section 377. For ease of convenience, I will refer to
Section 377A as "377A", and Section 377 as "377".

25. The amendment bill amends 377 to legalise private, consensual anal
and oral sex between heterosexual adults. But 377A, which criminalizes
the same acts between men, is retained. This discriminates against
homosexual and bisexual men. The amendment of 377 without also
repealing 377A is therefore unconstitutional under Article 12(1) of
the Constitution, which provides that "All persons are equal before
the law and entitled to the equal protection of the law." That is
because it does not satisfy the legal requirements for derogating from
Article 12(1).

26. A valid derogation from Article 12(1) must satisfy the "rational
nexus" test, that is, it must be rationally connected to a legitimate
purpose of the statute in question. So we must first consider the
purposes of the Penal Code.

27. The preambles of both the Penal Code and the amendment bill are
silent on this. So let's turn to what MHA has said. Its public
consultation paper on the draft amendment bill dated 8 November 2006
stated that the review is intended to make the Penal Code "more
effective in maintaining a safe and secure society in today's
context". So, according to the Government, the objective of the Penal
Code is to maintain a safe and secure society.

28. But 377A criminalizes consensual sexual acts between men, even if
it takes place in the privacy of their own homes. How does the private
sexual conduct of consenting adults make Singapore unsafe or less secure?

29. Furthermore, criminal lawyers generally accept that the criminal
law should be concerned with two elements, and two elements only: harm
and culpability, of which only harm is relevant here.

30. Professor Michael Hor teaches criminal law at the NUS Law Faculty.
In a recent article, he explained that criminal activity must entail
harm to others that is recognizable and tangible. In other words, if
an act does not harm others, then it should not be a crime. This is
taught to first-year law students in their first few weeks, and indeed
I recall being taught this over ten years ago.

31. Professor Hor went on, and I quote:

"The government has been strangely silent about the harm that 377A
is intended to prevent. Indeed consistent statements over a number of
years from the highest officials of the land lead any reasonable
observer to think that the government no longer believes, if indeed it
did before, that the sort of activity contemplated by 377A is harmful
at all. If corroboration were required, it lies in the repeated
assurances of the government that 377A will not be enforced –
apparently because there is no harm to be prevented, no offender to be
rehabilitated, no potential offender to be deterred, and no victim to
be satisfied.

One might, of course, disagree with the government's position on
the harmfulness of 377A activity, but once that position is taken, how
can it be right for 377A activity to remain a crime?"

32. The Law Society, in its submission to MHA on the draft amendment
bill, similarly noted:

"… 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."

33. Private, consensual sexual acts between adult males does not
impact on the safety and security of society. Furthermore, it is
accepted that the criminal law addresses activities that harm others,
but the Government seems to accept that 377A does not cause harm. So
how can 377A possibly be linked to a legitimate purpose of the Penal
Code? The answer is that it does not, and it cannot.

34. And the Government has effectively admitted this. It does not seek
to justify the retention of 377A on grounds of societal safety and
security, or of harm to others from the conduct contemplated by 377A.
Instead, its reasons for retaining 377A are that the majority of
Singaporeans disapprove of homosexuality, and so 377A should be
retained to reflect, or "sign-post", this majority view of
Singaporeans. But reflecting the morality of the majority is not a
stated aim of the Penal Code, nor is it an accepted objective of the
criminal law.

35. Clearly then, 377A has no rational connection with any legitimate
aim of the Penal Code. Its retention, which leads to different
treatments of men engaging in oral and anal sex, and of heterosexual
adults doing the same, without any legally acceptable justification,
must therefore be unconstitutional.

36. I would even argue that there can be no legitimate aim of the
Penal Code with which 377A can be rationally connected, so as to
justify its retention. The amendment of 377 permits heterosexual
adults to engage in private, consensual oral and anal sex. By
definition then, we are saying that there is no harm arising from such
private and consensual acts between heterosexual adults.

37. Why should it be any different when those acts are performed
between adult men? What is the differentiating factor that leads to
harm? There is none. There is no harm that would be recognised by the
criminal law.

38. It is not harm that results from such acts being performed between
adult men, but the moral disgust that the majority says it feels. But
there is a very good reason why the criminal law should not reflect
public morality. And that is because doing so can lead to the
discriminatory oppression of minorities.

39. In times past and in other countries, public morality and disgust
have been used to justify slavery; discrimination against racial and
religious minorities; and discrimination against women, including not
permitting them to work or to vote. All of these are now universally
recognised as being wrong and immoral. Let us not perpetuate or repeat
the mistakes of others in the past.

40. Sir, the "sign-posting" argument is fundamentally flawed. It is
couched in the language of "the majority". But let us not forget
another phrase involving the majority: the tyranny of the majority.
That is precisely why the constitutional guarantees of equality and
equal protection are entrenched as a fundamental liberty in Article 12(1).

41. Even if we accept the "sign-posting" argument, the amendment bill
seems to reflect public morality in a selective and discriminatory
manner. It is surely undisputed that society views extra-marital sex
as immoral. And surely, most Singaporeans disapprove of prostitution,
and all types of discrimination, such as age, racial and gender
discrimination. But we have not criminalized any of these.

42. Indeed, the amendment bill even repeals Section 498, which makes
it an offence for a man to entice, take away or detain a married woman
with the intent of having "illicit intercourse" with her. The reason
given is that it is an archaic offence which is no longer relevant in
today's context.

43. But public morality in today's society remains firmly opposed to
extra-marital sex. So why do we selectively reflect public morality
with respect to private, consensual acts between adult men, but not
public morality on adultery? Why are we not "sign-posting" society's
disapproval of adultery by retaining Section 498, without pro-actively
enforcing it?

44. The Senior Minister of State has argued that repealing Section 498
is not an endorsement of adultery or extra-marital sex. In the same
way, repealing 377A is also not an endorsement of homosexuality. Such
inconsistency is discriminatory.

45. And taking the "sign-posting" argument to its logical conclusion,
if we repeal Section 498, are we then telling the world that seducing
a married woman, hence leading to adultery, is acceptable? By lifting
the marital rape defence in limited circumstances, are we endorsing
marital rape in the other circumstances?

46. "Sign-posting" is all or nothing. We cannot "sign-post"
selectively, with some provisions reflecting public morality and
others not; it does not work that way. It is a fundamentally flawed
argument that does not stand up to logic or reason or the principles
of a democratic society, and so we should shy away from it.

47. Sir, Mr Cheng, a Singapore graduate student in the US, e-mailed
this to me:

"Retaining 377A on the basis that the 'conservative' majority is
uncomfortable with homosexuality sets a dangerous precedence [sic] for
our society.

It suggests that any majority group can now regulate the private
activities of a minority group because it is uncomfortable with it or
feels threatened by it.

Imagine what this means for the many majority-vs-minority
fault-lines within the Singapore society - Chinese vs others, citizens
vs non-citizens, heartlanders vs cosmopolitans, a majority religious
group vs a minority one.

Breeding the majority group's self-righteousness to demand
deference from the minorities will weaken the social cohesion of our
society based on mutual respect and tolerance.

The repeal of 377A will make a clear statement on how, in
Singapore, we will always have to find ways to live harmoniously with
people who are not like us."

48. Many people have described the repeal of 377A as a "slippery
slope". I think Mr Cheng has identified the true slippery slope that
we face today.

49. For all of these reasons, I believe the continued retention of
377A to be unconstitutional. I think the arguments in the petition are
valid and correct in law, and so I presented it to Parliament. I
humbly ask this House to consider these arguments, and acknowledge
their cogency in this debate.

Universality of non-discrimination argument

50. Sir, that was the petition. I will now speak on why I support the
repeal of 377A, quite apart from its unconstitutionality.

51. Contrary to how many have sought to frame the issue, the repeal of
377A is not a gay issue. It is not about gay rights. It is not just
for gays, or friends or relatives of gays.

52. No. It is about fairness, justice and non-discrimination. It is
about tolerance, understanding and inclusiveness. It is about
upholding the fundamental protections afforded by the Constitution,
the basic pillars underpinning our country. These are issues for all
Singaporeans.

53. The response to the petition bore this out. The signatories were a
broad and diverse group, showing that the issues cut across all lines
and resonate universally with people. Straight and gay, male and
female, young, middle-aged and old, civil servants, professionals and
students, religious and non-religious – they all signed the petition.
They all understood the guiding light of treating others as you want
them to treat you. They were united by the common belief that 377A is
unfair, unjust and wrong, and hence should be repealed.

54. And such lengths they went to, to convey the strength of their
belief. So many, including straight men, went out to collect
signatures on their own accord. They did this voluntarily, without
being asked. An 18-year-old student collected 70 signatures. Two
others collected 150 each.

55. Madam Tan, a 63-year-old mother of two heterosexual sons,
collected signatures from her peers. She took it upon herself to do
this. She believed that she needed to do it, "for a healthy attitude
towards life". She collected five signatures.

56. Apart from the petition, there was also an online open letter to
the Prime Minister calling for a repeal of 377A. This open letter,
which collected 8120 signatures, was handed to the Prime Minister's
Office earlier today. A Mr Goh signed it, and he articulated the
universality of the issue:

"I must admit that I am somewhat "homophopic", [sic] but I believe
that nobody should be discriminated against [for] his belief, or in
this case sexual inclination. If they make me uncomfortable, I just
don't mix in their social circle."

57. I do not know anything about Mr Goh, but I am humbled by his
principled stand against discrimination. It is the right and noble
path, standing fast to our principles even in the face of personal
dislikes. Surely we can all learn from him?

No pro-active enforcement of 377A

58. Sir, the Government has stated that it will not pro-actively
enforce 377A. This may be meant as a compromise, but it is
unsatisfactory and problematic. The Law Society pointed out that this
position was an admission that 377A is "out-of-step with the modern
world", adding that it risked "bringing the law into disrepute".

59. I also quote Professor Michael Hor:

"The moral force of the criminal law is blunted if there are
crimes which are, the government assures the public, never to be
enforced, and its "perpetrators" never brought to court and punished.

The criminal laws are the ground rules of our society and if it is
to be accorded the respect it deserves, it must be reserved for
conduct which the government considers to be clearly harmful to society."

60. The Senior Minister of State has noted that there have been
convictions under 377A, for cases involving abuse of young persons and
acts performed in public. And I absolutely agree that such instances
should remain cirminalised. But 377A as it is currently worded is not
limited to those situations, and covers private, consensual acts
between adults as well. If the Government intends to criminalise only
the abuse of young persons and public acts, then 377A should be
amended to do this. But it has not been amended.

61. Furthermore, not pro-actively enforcing 377A does not mean that
its retention is without cost. The Government says that it seeks to
reflect the moral values of the majority, but what about the human
cost to gay persons and their families? What about the cost to
Singapore from those who leave Singapore because of this law? What
price, this reflection and endorsement of public morality?

62. The majority of Singaporeans seems to speak as if the
non-enforcement of 377A means that everything is fine – but the
majority would say that. Because they are not the subjects of
discrimination, because they are not the minority who has to live
under the threat of 377A, a Sword of Damocles that could fall with a
change of policy by the government of the day.

63. Sir, let me share with this House, the pain voiced by some
signatories of the online open letter.

64. Madam Mak is a 69-year-old mother of a gay 40-something son. He
and his partner have lived with her for over 13 years. She called them
"the best things" that had happened to her, in her 69 years in
Singapore. She wrote:

"Please tell me, Mr. PM, why are you teaching me to be ashamed of
them? If this country doesn't want them, where can they go? Please
tell me."

65. Madam K, a civil servant, wrote:

"my son is gay. He came out to me when he was 22. And I was upset
and i blamed myself why is my son gay… i blamed myself all the time.
But he is my son. He has not changed since the first day i gave birth
to him or the person he is today. I love him for who he is, for what
he is. It sickens me that people think suggests that just because he
is gay, our family isnt what it is. We are a family. what people do in
their private lives shouldnt be an issue to anyone as long as it
doesnt harm anyone else. He doesnt know i am doing this but I support
this repeal. he is my son and he is not a criminal. if i can accept
him, his mother who gave birth to him, who these people who so quickly
judge him and condemn him?"

66. A doctor, who signed off only as "criminal doctor", wrote:

"I'm a doctor. People tell me that's a noble profession. My
parents are proud of me. My teachers are proud of me. … But I'm
ashamed of myself. Why so? Because I'm gay. … It doesn't matter how
many lives I save, it doesn't matter how much suffering I relieve, it
doesn't matter how much good I do, it doesn't change one shameful
fact. I'm a criminal doctor."

67. Sir, please bear with me as I quote one last person. Mr Choo
questioned the consequences of repealing 377A. He questioned whether,
if 377A was abolished, those who supported its retention would suffer.
He asked if they would be, and I quote:

"… "living in constant hardship, hysteria, agony and pain,
distress and shame, fear of marriage breakdown, upset with public
safety and order", simply due to the knowledge that someone else is
legally behaving in what they regard as "gross indecency" in some
other bedroom?"

68. Mr Choo went on:

"Let us be honest and look where the tears and the wounds really are.

Talk is cheap, anger is free, but pain is costly. And often such
truly divisive laws as s377A cost lives."

69. And then there are those who leave. If we truly believe that every
Singaporean counts, and surely we must when people are our only
natural resource, then have we counted the cost of all those who have
lost? I will cite only one example, to show how heavy the cost to
Singapore can be.

70. Mr Alex Liang e-mailed me a few months back. He is a former
Singaporean who renounced his citizenship and is now a UK citizen. By
all objective measures, Mr Liang is someone who would have served the
country very well.

71. We had invested heavily in him. He received a sports award for 3
years running, and was also a humanities scholar. He represented the
nation in gymnastics, receiving generous training allowances. He
speaks 8 languages, and had excellent academic results.

72. But the moment he completed National Service, he left for Europe
and he stayed there. He had long decided to leave Singapore, as he did
not see a viable future for himself in Singapore as a gay man.

73. Sir, I ask again: what price, this effort to "sign-post" the views
of the majority?

The majority view

74. Even if we want to signal the majority's disapproval of
homosexuality, we do not need to retain 377A. It can be done through
other means. Repealing 377A does not mean that society endorses or
approves of homosexuality.

75. Let us learn from the example of the Censorship Review Committee.
Its 2003 report noted the distinction between "allowing" and
"endorsing", stating that allowing certain content is quite different
from, and should not be misinterpreted as, an endorsement. The same
reasoning applies here.

76. In any event, this House should be leading and not following. We
should lead by example. We should be doing what is right, fair and
just, what is constitutional and keeping in spirit with Singapore's
cherished principles of equality and non-discrimination. We pride
ourselves on doing the unpopular but right thing, so why are we
abdicating our responsibilities now?

77. Sir, I get a little emotional when I hear the "sign-posting"
argument. That is because it claims to sign-post values held by this
House and by Singaporeans. It purports to proclaim the values that I,
as a Member of this House and as a Singaporean, believe in and want to
proclaim.

78. But what are these values? What is this majority view, what does
the majority whose values we want to "sign-post" think and say?

79. For that, I turned to the keep377a.com website. It was set up to
solicit signatures for an online open letter in support of 377A. Let
me just read some of the messages that have been posted on this website...

[Deputy Speaker interrupted to inform me that I had 3 minutes left]

Do the right thing

80. Yes, Sir. Instead of reading the comments, I will just talk about
what I feel this House should do.

81. I ask this House to "sign-post" the values of fairness, justice,
non-discrimination, openness and inclusiveness, which are values
fundamental to a secular democracy. I ask this House to endorse the
view that our people should feel free to express diverse views, pursue
unconventional ideas, or simply be different, that ours must be an
open and inclusive Singapore, and that we should build a nation where
every citizen has a place, where all can live in dignity and harmony.
And if those words sound familiar, that is because those were the very
words of the Prime Minister in his swearing-in speech in August 2004.

82. These are the right things to do. Some have said that Singapore is
not ready, that this is not the right time to repeal 377A.

83. I disagree. I say that there is no wrong time to do the right
thing. Now is the time, not to do the pragmatic or practical thing,
but to do the right thing.

84. Now is the time, to turn our backs on prejudice, discrimination,
intolerance and hatred.

85. Now is the time, for this House, which represents all
Singaporeans, to lead by example.

86. Now is the time, to uphold the noble ideals of our founding
fathers, ideals upon which our country was founded and which hold our
society together. The ideals of a democratic society, based on justice
and equality. The ideal of all persons being equal before the law, and
all persons having the equal protection of the law.

87. Now is the time, to do the right thing and repeal 377A.

88. Sir, with that, and for all the reasons I have stated in my
speech, namely the increase of so many maximum sentences without
justification, the retention of the marital rape defence albeit in a
limited form, and the failure to repeal 377A, I oppose the Penal Code
(Amendment) Bill.