ST: The Penal Code (Dec 5)

Dec 5, 2007
THE PENAL CODE
Balancing evidence and rhetoric in law reform
By Kumaralingam Amirthalingam

ONE of the controversial issues arising from the recent Penal Code
reform exercise was the decision not to repeal Section 377A, which
criminalises acts of gross indecency between males.

The controversy was heightened by the fact that 377, which
criminalised unnatural offences, including anal and oral sex as well
as bestiality, was repealed.

The debate was emotional and occasionally went beyond the bounds of
propriety. As the dust settles, we have to deal with the post-reform
framework and see what lessons the experience offers for criminal law
reform.

Two points deserve attention: First, the need to focus on criminal law
principles and the law itself; and next, the need to rely on empirical
evidence and not be blindsided by rhetoric.

The background to the reform shows that Parliament was motivated by
public outrage that consensual oral sex between heterosexual couples
could be a crime. But by repealing 377, Parliament also decriminalised
consensual anal sex regardless of whether the partner is male or female.

Without specifically re-enacting an offence to deal with anal sex
between males, a lacuna in the law may have been created where
private, consensual anal sex between males is unregulated.

Previously, one of the arguments for 377 was that it was necessary to
protect males from non-consensual sodomy or male rape, as there was no
specific law governing such acts. But that argument is no longer
relevant, given the new Section 376(1), which specifically
criminalises non-consensual oral and anal sex.

There is an assumption that 377A includes anal sex as part of the
definition of gross indecency. However, the legislative history of the
two provisions, as well as the existing jurisprudence and
prosecutorial policy, suggests that 377A does not include anal sex.

Section 377A was not in the original Penal Code of the Straits
Settlements (the precursor to the Singapore Penal Code), but was
introduced in 1938 following reforms in England. During the
introduction of the Bill, it was explained that 377A 'makes punishable
acts of gross indecency between male persons which do not amount to an
unnatural offence within the meaning of 377 of the Code' (italics
added). Clearly, 377 and 377A were intended to be complementary but
mutually exclusive provisions.

The fact that the two provisions are aimed at different acts was
highlighted in a Singapore High Court decision, PP v Kwan Kwong Weng,
where the judge held that 377 was limited to anal sex and bestiality,
excluding oral sex, which properly belonged to 377A.

The decision was overturned on appeal, where it was held that 377
could include oral sex in certain serious cases where a higher
punishment was warranted. It should be noted that 377 carried a
maximum life sentence while 377A has a maximum sentence of two years.
While the prosecution had the discretion to prosecute oral sex cases
under either 377 or 377A, there is no local authority where anal sex
has been prosecuted under 377A.

The crucial question then is whether gross indecency in 377A can be
interpreted to include anal sex in the light of the repeal of 377.
Arguably, courts should not interpret 377A in this way, as one of the
principles of statutory interpretation, particularly in criminal law,
is that where there is ambiguity, the penal provision should be
interpreted in favour of the accused.

Had Parliament intended to retain the crime of anal sex between males,
it should have done so explicitly. Indeed, it did just that with the
offence of bestiality, which having existed in the repealed 377 was
re-enacted in a new 377B.

There was much rhetoric during the 377A debate about homosexuality
contributing to the spread of HIV/Aids and gay men being predisposed
to paedophilia. But the available evidence does not support the rhetoric.

It must be emphasised that HIV/Aids is not exclusively a gay disease.
According to official UN figures, globally, women account for half of
HIV infections and in sub-Saharan Africa, young women account for 75
per cent of such infections. In India, as in Singapore, the main means
of transmission is heterosexual intercourse.

While men who have sex with men are among the high-risk categories in
some countries, studies show that criminalisation of sex between men
increases the risk of HIV infection as it, among other things, drives
such activity underground and impedes access to health care, HIV
screening and safe sex campaigns.

That 377 and 377A impede the fight against the spread of HIV/Aids has
been affirmed locally in a recent paper by Dr Roy Chan, the director
of the National Skin Centre and an expert on sexually transmitted
diseases.

In terms of the alleged link between homosexuality and paedophilia,
the American Psychological Association points to a study of child sex
abuse cases which shows that under 1 per cent of the molesters
identify themselves as gay, and that almost 90 per cent of the
molesters have had documented heterosexual relationships.

A court in Texas, in rejecting the testimony of an expert who argued
that homosexuals were more likely to be paedophiles, found that the
data had been distorted, and described the testimony as fraudulent and
misleading.

Following a review of available empirical evidence, a research fellow
at the Australian Institute of Family Studies has concluded that the
link between paedophilia and homosexuality is 'more a societal myth
than a reality'.

Criminal law reform on the basis of ideology and rhetoric, rather than
evidence and reality, is fraught with danger. In the case of 377A,
there is now an ambiguity that is unlikely to be resolved. Parliament
will have no desire to clarify the law by enacting specific laws and,
given that 377A will not be proactively enforced, courts may not have
the opportunity to interpret 377A in the post-reform era.

We are left with a criminal law that makes no sense and which may in
fact be harmful to our efforts to contain the spread of Aids as well
as to combat child sex abuse.

This predicament is largely due to the fact that we took our eyes off
the ball during the debate: Instead of focusing on the proper function
and ambit of criminal law, we focused on homosexuality. In sports
parlance, we played the man rather than the ball.

The writer teaches criminal law and torts at the Faculty of Law,
National University of Singapore. The views here are his own.

Fridae.com: Malaysia-born lesbian lawyer becomes Australia's first openly gay cabinet minister (Dec 5)

malaysia-born lesbian lawyer becomes australia’s first openly gay cabinet minister
News Editor

Senator Penny Wong has been appointed Australia's first climate change and water minister - making her both the country’s first openly gay and Asian-born cabinet minister.

South Australia Senator Penny Wong Ying Yen, a 39-year-old lawyer who was born in the East Malaysian state of Sabah, was named Australia’s first climate change and water minister by newly-installed Prime Minister Kevin Rudd who was sworn in on Monday.

The Labor Party leader and former diplomat officially ended John Howard's reign as Australia's second-longest serving Prime Minister after winning a landslide election victory over Howard's 11-year-old coalition last week.

Wong, who was born in Sabah's capital of Kota Kinabalu to a Malaysian Chinese Hakka father and an Australian mother, emigrated to Australia as an eight-year-old in 1977. She worked as a lawyer before being elected as a Labor Senator for South Australia in November 2001.

Wong was appointed Shadow Minister for Employment and Workforce Participation, and Shadow Minister for Corporate Governance and Responsibility in October 2004.

Described by newspaper commentators as “the smart rising star of Australian politics” and “a template of Australia's multicultural future,” Wong spoke of her family history and race issues during her first parliamentary speech in August 2002. She spoke critically of former PM Howard's tolerance of Pauline Hanson’s views and called for the reclamation of the phrase `one nation' referencing Hanson’s One Nation Party which promoted racist and anti-immigration views and policies.

“Then there was Pauline Hanson, who said we were in danger of being overrun by Asians. And what did the Prime Minister do? Did he as the Prime Minister show that moral leadership which was called for?”

“Leadership was called for, not to deny freedom of speech but to assert the harm in what she said. Leadership was called for, but it was not provided.”

Last year, the outspoken senator again criticised the Howard Government for overturning the Australian Capital Territory Civil Unions Act.

“The ACT government has chosen to do this [legislate for the recognition of and therefore consequent rights for same-sex relationships]. It is a proposition even President Bush is on the record as countenancing, and the logic really is difficult to fault. If you deny access to one institution – that is, marriage – is it appropriate that you also deny any alternative form of recognition to such relationships via state and territory laws? The only reason you would deny alternative recognition is because your position is in fact that you do not want any recognition for those relationships and therefore no consequent rights. Yet this is precisely what the Howard government seeks to do in relation to the ACT.”

Wong, the Prime Minister and Environment Minister Peter Garrett who might be better known as the former frontman of Australian rock band Midnight Oil, are expected to attend the United Nations Climate Change (UNCC) conference in Bali next week.

Next page: Extracts of her maiden speech - Reclaiming One Nation and speech on the ACT Civil Unions Act in parliament
Extracts of parliamentary speeches by Penny Wong

Maiden Speech - Reclaiming One Nation: 21 Aug 2002

Then there was Pauline Hanson, who said we were in danger of being overrun by Asians. And what did the Prime Minister do? Did he as the Prime Minister show that moral leadership which was called for? When asked to comment on whether Aboriginal and Asian Australians should be protected from people like Pauline Hanson, the Prime Minister said:

Well, are you saying that somebody shouldn't be allowed to say what she said? I would say in a country such as Australia people should be allowed to say that.

What sort of message does this send to our community? That it is acceptable to rail against people who look different? That these sorts of comments are no different from any other sort of political commentary? Leadership was called for, not to deny freedom of speech but to assert the harm in what she said. Leadership was called for, but it was not provided.
ACT Civil Unions Act: 15 Jun 2006

The ACT government has chosen to do this [legislate for the recognition of and therefore consequent rights for same-sex relationships]. It is a proposition even President Bush is on the record as countenancing, and the logic really is difficult to fault. If you deny access to one institution – that is, marriage – is it appropriate that you also deny any alternative form of recognition to such relationships via state and territory laws? The only reason you would deny alternative recognition is because your position is in fact that you do not want any recognition for those relationships and therefore no consequent rights. Yet this is precisely what the Howard government seeks to do in relation to the ACT.

This is exemplified by the government’s refusal to engage with the ACT to find a constructive solution to this. They have not engaged because they do not want a resolution. They say it is too like a marriage. I will pose some questions to the government, but I doubt I will get an answer. Which rights do you say ought to be removed in order for this bill to become acceptable? Which rights would you delete in order for it to be acceptable for a same-sex relationship to have recognition? Which rights would you remove in order for this to be okay? Would it be medical consent? Would it be the fact that you have to pay stamp duty? Would it be the disposition of property? Would it be the rights if someone dies intestate? Which of these rights, which are conferred through the ACT legislation, so offend this government that they have to strike this law down?

If it is one particular right, such as the stamp duty issue, perhaps you should put it back to the ACT government that you would like that taken out. Which rights do you want removed? The fact is, you will not engage in that discussion because ultimately you do not want recognition of those relationships. I doubt that the government will answer me when I ask them which rights should be removed to make this legislation acceptable.

Videos and podcasts of Senator Penny Wong's speeches are available on www.pennywong.com.au.

Free Community Church: Sermon by Anthony Yeo (Dec 2)

SUNDAY SERVICE (ENGLISH)
2 Dec 2007 (Sun) - 10.30am
All are welcome!

BRAND NEW LOCATION!
FCC Main Hall
56 Geylang Lor 23
Level 3, Century Technology Building


Speaker
ANTHONY YEO
Transformation Series

Worship Leader - WAILING LIONG
Keyboards - GARY CHAN, VICTOR LEE
Vocals - SEAN LEE, VERON TAN, ELSIN SEOW
Guitars - KELVIN NG
Drums - JINYU TANG
Sound - QING LONG LUO
Video - FOO KEONG YAP
Prayer - DAN LOH
Communion - KENG HOCK PWEE
Service Pastor - SUSAN TANG

In commemoration of WORLD AIDS DAY, please do come to church wearing RED this weekend!

World Aids Day at Bianco (Dec 1, 9pm-12midnite)

OC and SOS Present... Better Dead than Queer? (Dec 1)

Better Dead than Queer?

In Singapore, there is at least one suicide a day. At least one teenager dies by suicide every month. For every person who dies by suicide, it is estimated that another 5 to 10 people would have attempted and lived.

How many of them are gay, lesbian, bisexual, transgendered or questioning? We may never know. But there is strong international evidence to show that GLBTQ people are at greater risk than their heterosexual counterparts to attempt or die by suicide.

Come find out more about what you can do to help, whether it is for yourself, for a friend, a loved one or even a family member.

Date: 1 December 2007
Time: 4.30pm to 6.30pm
Venue: Pelangi Pride Centre @ Bianco, above Mox Bar
Speaker: Leow Yong Fatt

Pre-registration at contact@oogachaga.com

About the speaker
Leow Yong Fatt, Yangfa is a trained social worker who has worked in the social services sector since 1999. He is currently a full-time staff with Samaritans of Singapore (SOS), and in addition to recruiting and training volunteers for the 24-hr hotline, he also has experience working with suicidal clients & suicide survivors, as well as conducting talks and workshops on suicide awareness, prevention and intervention for school students & professionals from MOE, SMRT, Singapore Police Force, Civil Defence, Community Development Councils & other statutory & voluntary organisations. He graduated with a Bachelors (Honours) degree in Social Policy, with a graduate diploma in Social Work.

About Samaritans of Singapore (SOS)
SOS was established on 1 December 1969. It is a secular, non-profit organisation which aims to prevent suicide by providing emotional support and befriending to those are in despair, distressed and feeling discouraged. Their main services are:

24 hour Hotline
Face-to-face Counselling Sessions
Emergency Squad
Local Outreach to Suicide Survivors (LOSS)
Healing Bridge - Support Group for Survivors of Suicide
E-mail Befriending
Community Education

For more information, please visit www.samaritans.org.sg

DPA: Record numbers undergoing testing for HIV in Singapore (Dec 1)

Record numbers undergoing testing for HIV in Singapore

Singapore - Nearly 6,000 people were tested for HIV, the virus that causes AIDS, during the first nine months of 2007 in Singapore, a record number for the city-state, news reports said Saturday. The figure reflects the increasing options people have to be tested anonymously and quickly, health officials said.

By the end of October, there were 356 people who tested positive, one person less than the total for all of 2006, according to findings reported in The Straits Times.

More than half of those with HIV were in the late stages of infection, the Health Ministry said.

More than two-thirds of those testing positive in the first half of the year got the virus through heterosexual sex, while less than a quarter were exposed through gay sex, the report said.

Nine in 10 of the HIV cases were people aged 20 to 59.

Early testing enables HIV patients to start on medication that can help them live relatively normal lives much longer.

"Diagnosing for HIV is not difficult," Dr Roy Chan, president of Action for Aids, was quoted as saying. "The more avenues we have, the better."

He attributed delays in getting tested to the stigma still associated with the disease.

Speedy tests have become available at 100 clinics since August. More testing sites are planned.