With this piece, I’d like to attempt to approach the 377A issue
from a purely legal perspective, following the requirements of
formal justice, substantive justice, harm, internal coherence,
Devlin’s idea of the dominant morality, the pedigree test of Legal
Positivism, and perhaps an attempt to discern the common natural
morality of Natural Law Theory.
To approach a statute based law, we would first have to approach it
from its interpretation. The normal language of 377A offers no
controversy, and its purpose, clear. It is a provision in the Penal
Code of Singapore, to criminalize acts of a sexual nature between
men, whether in public or in private. However, no such provision
exists between that of women engaging in sexual acts with other
women. It is argued that two women cannot engage in any penetrative
sexual activity. However, it is a fact that two men can engage in
non-penetrative sexual activity, likewise, women can engage in
penetrative sexual activity, the specifics of which I would leave
to the wonders of the internet and imagination.
377A does not exist by itself in a vacuum. It exists within the
Penal Code, and should be taken within the context of the other
provisions. The rationale behind keeping 377A is non-existent,
murky at best. We do not know whether or not it is a matter of
public policy, a matter of harm, a matter of dominant public
morality, or all of the above. The parliamentary debates are less
than helpful, with the Nominated Members of Parliament on both
sides digressing into highly normative, persuasive, populist
rhetoric, where mistakes of fact and logically inconsistent
principles abound.
What is of note would be that the Penal Code reform is not solely
based on 377A alone. Provisions criminalizing oral and anal sex are
repealed, so is the provision criminalizing adultery. The logical
question one would ask is therefore, why do we insist on keeping
377A? Anal and oral sex are the primary sexual activities possible
between homosexual males (in addition to others), and likewise, if
male homosexuality is morally repugnant, is it really more so than
adultery? Is there a common means of qualifying and quantifying
what is more moral than the other? If we cannot answer these
questions, how can, then we selectively choose which provision to
repeal over the other?
Furthermore, our Penal Code is derived from its English ancestor.
Now that the English have abandoned 377A’s equivalent, what
administrative reason do we have to retain it? Furthermore, many
Asian non-colonial societies have no such provision. Are they
really worse off?
With these in mind, I would propose that the penal code, with the
provision of 377A is no longer internally coherent, nor reasonable.
And thus, formal justice is compromised with the retaining of such
a provision.
Now, we will then approach 377A by examining the possible
substantial justice it is trying to achieve, whether or not there
are any extra-legal factors behind its retaining.
One of the main reasons argued for the retaining of 377A is that of
public policy, more specifically, public health. It is an
undisputed fact that anal penetration is more likely to result in
skin and muscle wounds, leading to an exchange of bodily fluids,
and consequently, sexually transmitted diseases. However, this is a
non-issue, as the risk is uniform regardless of sexuality; a
heterosexual couple engaging in anal sex (legal) is under the same
amount of risk as a male homosexual couple engaging in anal sex.
Furthermore, anal sex, as mentioned above, is not the only sexual
activity carried out between male homosexual couples, and thus,
this point fails.
Secondly, it is argued that homosexuals are hedonistic and
promiscuous, unable to commit to stable monogamous relationships.
Therefore, retaining 377A would protect these very homosexuals from
their own acts. To answer this, statistical data would be of great
help. On an international scale, the most comprehensive study to
date on the effect of same-sex marriage / partnership on
heterosexual marriage and divorce rates was conducted looking at
over 15 years of data from the Scandinavian countries. The study
(later part of a book), by researcher Darren Spedale, found that,
15 years after Denmark had granted same-sex couples the rights of
marriage, rates of heterosexual marriage in those countries had
gone up, and rates of heterosexual divorce had gone down -
contradicting the concept that same-sex marriage would have a
negative effect on traditional marriage. (Darren Spedale, William
Eskridge and Hans Ytterberg “Nordic Bliss? Scandinavian Registered
Partnerships and the Same-Sex Marriage Debate”, Journals of Legal
Scholarship: Issues in Legal Scholarship i.5, The Berkeley
Electronic Press, January 2004)
Such a study, however, only concerns the effects of same-sex
marriage on heterosexual marriage. A study directly showing the
statistics of same-sex marriages themselves can be easily accessed
from American reports. All U.S. states submit monthly summaries of
vital statistics on births, deaths, marriages, and divorces to the
U.S. Centre for Disease Control's National Centre for Health
Statistics (NCHS) who then prepares monthly and yearly reports. The
following statistics are based on that NCHS material. Over three
years have passed now since same-sex marriage was legalized in
Massachusetts and data from all of 2004 and 2005 are now available.
The current divorce trends in Massachusetts counter claims of
same-sex couples being infidel, hedonistic and promiscuous. In
fact, for several years now the Commonwealth has had the lowest
divorce rate of any state in the union. In 2004 the Massachusetts
divorce rate, at 2.2 per 1,000 residents per year, was considerably
lower than the U.S. national average rate for that year, 3.8 per
1,000 and close to the national average of 2.0 back in 1940. In the
first two years of same-sex marriage in the Bay State, the rate of
divorce showed a steady decline making it likely that Massachusetts
will continue to have the lowest divorce rate in the nation.
The conservative "red states" that have taken aggressive action
against same-sex marriage, have not done nearly as well during the
two year period of legal same-sex marriage in Massachusetts. The
preliminary data from 2004 and 2005—from the 17 U.S. states which
have provided data on divorce for 2004 and 2005 and whose voters
also passed state constitutional amendments prohibiting same-sex
marriage—presents a striking picture: the group of U.S. states
arguably most hostile to divorce, those which have passed both
state laws and also state constitutional amendments prohibiting
same-sex marriage, lag dramatically in terms of divorce rate
improvement when compared to same-sex marriage-friendly
states.
The implications of such data are obvious. Homosexual couples are
in no way necessarily any more promiscuous or hedonistic than
heterosexual couples. Many homosexuals, I believe are also keen to
commit to a relationship legally recognised. The reason why we have
not observed homosexuals committing to such as yet is simply
because they are not able to. The engage in extramarital sex simply
because they cannot get married. Is one promiscuous and hedonistic
if one engages in sexual activity with a significant other without
getting married? Therefore, such a policy argument cannot
stand.
The one final policy argument for the retaining of 377A would be
the preservation of the traditional family unit, that such family
unit is one of reproduction, and of course, the textbook slippery
slope argument that if we allow homosexuality, we will then have to
allow incest (sex with direct family members), paedophilia (sex
with minors), necrophilia (sex with corpses), and zoophilia (sex
with animals). Although such arguments are linked to each other, I
will attempt to address these in order.
From the statistical data presented above, we can see that
heterosexual marriage is in no way harmed by the legalising of
homosexual marriage. (See Darren Spedale, William Eskridge and Hans
Ytterberg “Nordic Bliss? Scandinavian Registered Partnerships and
the Same-Sex Marriage Debate”, Journals of Legal Scholarship:
Issues in Legal Scholarship i.5, The Berkeley Electronic Press,
January 2004) Such an argument is therefore only based upon
normative opinions and subjective predictions, ignoring objective
statistical data, and therefore, cannot stand. We do have studies
confirming the contrary, so why do we keep to our subjective, erred
notions?
Furthermore, is homosexuality really undesirable? There are no
facts to show how homosexuality is any more harmful than
heterosexuality to the body, compared to cigarettes, alcohol,
drugs, etc. There is no objective reason to why we must not expose
out children to anything more than heterosexuality. Perhaps we may
want to preserve the traditional notions of sex, should this mean
that therefore we must criminalize the usage of contraceptives
(condoms, etc), or sexual aids (like dildos, butt plugs,
etc)?
In our Legal Theory class on Tuesday, 4th March 2008, we have
actually come up with a working model for marriage to allow for
homosexual couples; which is a consensual relationship of
permanence and devotion, between two adult persons. As the law
stands now, there is no requirement for married heterosexual to
have sex and reproduce. To encourage population growth, baby
bonuses and other benefits are added as an extra, in addition to
the basic benefits of a marriage. Can it not be said then, that
marriage by itself does not require reproduction? The requirement
of consent, between 2 adult persons would also prevent the opening
of floodgates. Children, animals and corpses cannot give legally
recognised consent to sexual matters, and this is due to policy
matters independent of sexuality. We do disallow and criminalise
heterosexual incest, paedophilia, zoophilia, and necrophilia.
Therefore, why cannot we do the same for homosexual incest,
paedophilia, zoophilia, and necrophilia? We do limit heterosexual
marriage to two persons, we can very well extend the policy reasons
behind it to homosexual marriage as well. Thus, there is no
substantive public policy reason with retaining 377A.
Next, we shall examine the idea of the dominant social morality,
which Devlin espouses that the law should maintain. However, we
need not even consider the flaws in Devlin’s attempt to qualify
such a morality, as it is not the dominant morality of Singapore
which demands that 377A be kept in place. The decision to retain
377A has led to a heated discussion across the nation. The
emergence of two extreme camps, with the rest of the population
along the spectrum would demonstrate that there is no clear
consensus on such an issue. While the petition to keep 377A
solicited more signatures than the petition to repeal it, can we
therefore ignore the morality of a nonetheless significant portion
of the population? I would note now that the most vocal and
foreward group of people for the repealing of 377A are the
Christians and the Muslims. However, we are a secular democracy,
and we do allow and respect the views of other religions. If one
were to ask a Buddhist or a Hindu of his views on the issue, it
would most likely be that of “live and let live”, in support of
377A’s repeal. I am of course aware that there are many more
religions, and that some Christians profess a support for 377A’s
repealing, and some Buddhists supporting its retaining. What I am
illustrating are general trends, observed by experience and
statistical data available from the internet, largely from both
petitions. Thus, in no way does the retaining of 377A reflect the
dominant Singapore morality, unless we are willing to only look at
the majority Singapore morality, and such a thin majority it
is.
Now, we move on to the pedigree test of Legal Positivism. This
would be in the context of modern Singapore, the constitution.
Article 12(1) of our constitution guarantees that the law should
not discriminate against any person. Although race and religion are
mentioned, sexuality is not. However, does this mean that sexuality
is outside of the ambit of the constitution? Taking a purposive
interpretation of said constitution, I would put forth that since
race and religion are guaranteed, so should sexuality be.
Whether we like it or not, our sexuality is a physical, not a
mental thing. As such, I would submit that it is akin to our race,
difficult to alter. In 1993, the micro satellite gene marker xq28
was discovered to be present in the chromosomes of homosexuals.
While its role has been disputed, its existence has not
(http://en.wikipedia.org/wiki/Xq28). Furthermore, studies have
shown that the homosexual brain responds differently to pheromones
compared to a heterosexual brain
(http://www.livescience.com/health/ap_050510_pheremones.html),
(http://www.newscientist.com/channel/being-human/dn7069-gay-men-read-maps-like-women.html).
These are not “poorly politicized pseudo-science” which some of us
are inclined to believe, but peer-reviewed and published results
made with independent experimentation. In fact, the American
Psychological Association (APA) has removed homosexuality from its
list of mental disorders
(http://www.apa.org/topics/orientation.html). Unlikely the poorly
politicized pseudo-science, for example young Earth creation
science, such conclusions are objective results, and do not change
“depending on which scientist you ask”. If our constitution
protects our individual race, why not extend the protection to our
individual sexuality? Is there a reason not to?
Secondly, if sexual orientation is indeed a lifestyle choice, one
would have to imagine the difficulty in getting it changed. I would
draw a parallel then, between sexual orientation and religion.
Singapore’s constitution does allow for religious freedom,
notwithstanding that there may be ex-Christians, ex-Muslims,
ex-Buddhists, ex-Hindus, etc. Religion is a thing which can be
changed, admittedly, but many people cannot cope with the
difficulty in doing so. While we do classify some religions as
cults and criminalize their practice, this is done purely on policy
reasons. For example, the Jehovah’s Witnesses and their
anti-national service ideals. Since there is no sound public policy
reason denouncing homosexuality, why do we hesitate to afford it
the same protection as religion?
There are obvious problems when we put 377A up to the pedigree test
of Legal Positivism, in this case the constitution. Likewise, there
is no sound public policy to support its retaining. Furthermore, it
renders the penal code internally incoherent and unreasonable. And
still further, it does not reflect the dominant moral viewpoints of
our society, only a thin majority. What then, can we salvage to
justify it? Going down the list, what we have left is the divine,
and/or objective morality purported by Natural Law Theorists. The
burden then, is for them to prove that said objective morality
provides for homosexuality, and condemns it.
The most common argument I have come across is the argument from
nature. It goes like this; that homosexuality is not natural and
abhorrent, as it deviates from the natural procreation process
common to all living things. To this, I would point out that humans
are not the only living things which engage in homosexual
behaviour. Bottle-nose dolphins, highly intelligent animals, also
exhibit said tendencies. A natural history museum, Against Nature?,
has been established to showcase the animals which engage in
homosexual behaviour
(http://en.wikipedia.org/wiki/Against_Nature%3F). What then, can we
base this measure of ‘natural-ness’ on if not animals? Of course,
many things humans practice are also against nature, does this mean
we should abhor such practices as well?
Finally, and most tediously, some would argue that said morality
comes from their god(s). While I would like to avoid criticisms of
religion, I will point out that Singapore is a secular country, and
that we allow religious freedom. To allow for such a religious
freedom would also mean that we do not prioritise the claims of one
specific religion over the other, per Devlin. Therefore, the claims
of a few religions within our society should never be codified into
our law.
Thus, in conclusion, we can see absolutely no reason and room for
377A to stay, and on the contrary, much for it to be repealed. I
can only personally hope for such a blatant error to be righted,
leading to a more inherently coherent, logical, reasonable legal
system. While I admit that there are other problematic areas of the
law which should be dealt with, we should take hold of this time of
controversy in order to facilitate this improvement.
-- It would be appreciated if you spread this essay
around. I do hope you enjoy it. :)
