Decriminalising homosexual acts would be an error
By Yvonne C. L. Lee, For The Straits Times
May 04, 2007
The Straits Times
READERS of The Straits Times have written in to question the rationale for the criminalisation of homosexual acts. It is imperative that we understand the legal and broader social implications, and that Parliament, in the forthcoming debate on the Penal Code reform, carefully considers these implications.
The Home Affairs Ministry has indicated that Section 377A of the Penal Code (S377A) will be retained. S377A prohibits the commission of gross indecency by one male person with another male person. Opinions have been expressed that S377A may be unconstitutional because it discriminates against homosexuals by criminalising homosexual sex and not oral and anal sex committed by heterosexuals or lesbians.
This is an over-simplistic reading of the equality clause.
Context
FIRSTLY, the legal meaning of equality must be understood within its social context. Equality is not an absolute value. Extreme applications of equality impair community interests and violate the rights of others. Furthermore, the Constitution does not prohibit all forms of discrimination.
Like cases must be treated alike, but Parliament may enact measures which differentiate between different groups. The courts hold that such measures must satisfy two tests to be constitutionally valid: Firstly, the classification must have a rational basis. Secondly, the law must serve a legitimate purpose which is reasonably related to the basis for the classification.
Each differentiating legal measure serves a social objective. For example, a married individual with four children enjoys higher tax relief than one without children. The public good is to encourage married couples to have more babies.
To view the issue of S377A exclusively as a matter of equality omits the broader context - that rights can clash with other rights and community values.
When they do, Parliament may pass laws which reflect the public good in preference over the rights of the individual or groups.
Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health.
Moreover, any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion.
Broader agenda
RECENT developments in foreign jurisdictions like Canada, Sweden, the United Kingdom and the United States indicate that the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality:
If S377A is repealed, homosexual sex is legitimised, transformed from a crime into an 'alternative lifestyle'. The minimum age for sodomy must then be specified. This opens the door for homosexual lobbyists to pursue the next step of equalising the age of consent for homosexuals and heterosexuals. The current age of consent for homosexual sex in countries which have decriminalised sodomy ranges from 13 to 18, covering Singapore males from Secondary 1 to junior college.
The third step is re-conceptualising homosexuality as a civil right in the name of equality. As an 'alternative lifestyle', homosexual lobbyists will seek for this to be endorsed and 'mainstreamed' into society (for example, arts, education, entertainment and media), beyond the privacy of the bedroom. The current view that 'sexual orientation' should not be a basis for discrimination is problematic. 'Sexual orientation' is a vague term covering a range of sexual expressions, including paedophilia and bestiality. Also, the assertion that one is 'born gay' is scientifically unproven.
An active homosexual agenda has engendered clashes with fundamental liberties such as free speech and religious liberty. Christian pastors have been criminally prosecuted for sermons declaring that homosexuality is a sin, a view also held by Muslims and many non-religious people who consider homosexuality unnatural and morally repugnant. Attempts have been made to extend 'hate speech' laws to the Bible and Quran.
People who oppose the homosexual agenda are branded as intolerant, bigoted, homophobes, or hateful towards homosexuals who are merely 'different'. This does not promote free speech but seeks to censor it. If this intolerance against religion is imported into multiracial and multireligious Singapore, this will breed social divisiveness.
The final step involves attempts to redefine 'marriage', the fundamental institution and bedrock of many civilisations. The redefinition is a radical reconstruction of 'marriage' - no longer a union between man and woman but includes 'same-sex marriage'. Homosexuals must then be allowed to marry someone of the same sex and be given the benefits of marriage such as tax benefits, adoption of children and/or state-funded access to alternative 'reproduction' methods.
The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes.
While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle.
The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public.
S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context.
Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore's multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance.
The writer is an assistant professor who teaches company law and constitutional law at the Faculty of Law, National University of Singapore. The opinions expressed are the author's own.
By Yvonne C. L. Lee, For The Straits Times
May 04, 2007
The Straits Times
READERS of The Straits Times have written in to question the rationale for the criminalisation of homosexual acts. It is imperative that we understand the legal and broader social implications, and that Parliament, in the forthcoming debate on the Penal Code reform, carefully considers these implications.
The Home Affairs Ministry has indicated that Section 377A of the Penal Code (S377A) will be retained. S377A prohibits the commission of gross indecency by one male person with another male person. Opinions have been expressed that S377A may be unconstitutional because it discriminates against homosexuals by criminalising homosexual sex and not oral and anal sex committed by heterosexuals or lesbians.
This is an over-simplistic reading of the equality clause.
Context
FIRSTLY, the legal meaning of equality must be understood within its social context. Equality is not an absolute value. Extreme applications of equality impair community interests and violate the rights of others. Furthermore, the Constitution does not prohibit all forms of discrimination.
Like cases must be treated alike, but Parliament may enact measures which differentiate between different groups. The courts hold that such measures must satisfy two tests to be constitutionally valid: Firstly, the classification must have a rational basis. Secondly, the law must serve a legitimate purpose which is reasonably related to the basis for the classification.
Each differentiating legal measure serves a social objective. For example, a married individual with four children enjoys higher tax relief than one without children. The public good is to encourage married couples to have more babies.
To view the issue of S377A exclusively as a matter of equality omits the broader context - that rights can clash with other rights and community values.
When they do, Parliament may pass laws which reflect the public good in preference over the rights of the individual or groups.
Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health.
Moreover, any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion.
Broader agenda
RECENT developments in foreign jurisdictions like Canada, Sweden, the United Kingdom and the United States indicate that the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality:
If S377A is repealed, homosexual sex is legitimised, transformed from a crime into an 'alternative lifestyle'. The minimum age for sodomy must then be specified. This opens the door for homosexual lobbyists to pursue the next step of equalising the age of consent for homosexuals and heterosexuals. The current age of consent for homosexual sex in countries which have decriminalised sodomy ranges from 13 to 18, covering Singapore males from Secondary 1 to junior college.
The third step is re-conceptualising homosexuality as a civil right in the name of equality. As an 'alternative lifestyle', homosexual lobbyists will seek for this to be endorsed and 'mainstreamed' into society (for example, arts, education, entertainment and media), beyond the privacy of the bedroom. The current view that 'sexual orientation' should not be a basis for discrimination is problematic. 'Sexual orientation' is a vague term covering a range of sexual expressions, including paedophilia and bestiality. Also, the assertion that one is 'born gay' is scientifically unproven.
An active homosexual agenda has engendered clashes with fundamental liberties such as free speech and religious liberty. Christian pastors have been criminally prosecuted for sermons declaring that homosexuality is a sin, a view also held by Muslims and many non-religious people who consider homosexuality unnatural and morally repugnant. Attempts have been made to extend 'hate speech' laws to the Bible and Quran.
People who oppose the homosexual agenda are branded as intolerant, bigoted, homophobes, or hateful towards homosexuals who are merely 'different'. This does not promote free speech but seeks to censor it. If this intolerance against religion is imported into multiracial and multireligious Singapore, this will breed social divisiveness.
The final step involves attempts to redefine 'marriage', the fundamental institution and bedrock of many civilisations. The redefinition is a radical reconstruction of 'marriage' - no longer a union between man and woman but includes 'same-sex marriage'. Homosexuals must then be allowed to marry someone of the same sex and be given the benefits of marriage such as tax benefits, adoption of children and/or state-funded access to alternative 'reproduction' methods.
The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes.
While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle.
The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public.
S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context.
Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore's multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance.
The writer is an assistant professor who teaches company law and constitutional law at the Faculty of Law, National University of Singapore. The opinions expressed are the author's own.
Yet another masterpiece on ST. This is not a letter. It's literally litter. It belongs to a rubbish bin, not the national newspaper.
I don't understand how a Law professor can stoop so low to spout nonsensical and shaky arguments which is neither factual nor professional. Indeed a shame, and I'm shocked at her gumption to even mention that she belongs to NUS Law, as if she was so proud of her homophobic masterpiece. Homosexuality is not a disease; homophobia is.
I'll call her Yvonne. For 2 reasons: I'm from NTU and I will never have to suffer under her to shame myself with a respectful label of "Prof" on her; she hasn't shown enough quality in her intellectual (?) analysis of a social issue to deserve a title before her last name. Like myself, I'm perfectly fine with others calling me KT because I don't need a title. From her piece of trash, I don't think she really deserves to be called a professor.
Yvonne believes that equality is not an absolute value. Hence, it is unwise to legalise homosexuality in the name of equality even though we all spent at least 10 years of our lives reciting "...based on justice, equality and prosperity" every morning. She believes that justifying the legalising of homosexuality for equality is missing on a bigger picture. That's public morality. But then again, if equality is not an absolute value, since when has morality become one? Morality is relative. For me, criminalising my sexual orientation means injustice. And that is the greatest immorality this society has imposed on me. S377A has never been an issue to the heterosexuals because it will never affect them. But think in our shoes. Everytime I slept with my (ex-)boyfriend, I'll think of spending 10 years in jail and suffering a criminal record. What for? For my expression of love. This is insane, and to me, at least, this is also immoral.
Then Yvonne braved into the medical field by claiming that homosexual sex is unhealthy and more risky of STDs. I guess this is one of her greatest flaws in this entire piece of trash. One thing we all should keep in mind when writing is that we should never try to venture into a field which we are unfamiliar with if we don't want to end up sounding silly and embarrassing ourselves. Perhaps it would do me much good if Yvonne had quoted reputable peer-review scientific journals that actually conclude in the way she claimed. For one, I believe she can never produce any of such papers simply because this is not true. Any form of unprotected sex is risky. Why is oral sex between men more risky of STD transmission than heterosexual oral sex? The same question can be asked of anal sex. Furthermore, gay people don't just engage in sex like that. What about mutual masturbation? That carries much lower risks of STD transmission than even vaginal sex. Then, what scientific basis has Yvonne to claim that the vagina is inherently less infectious than the mouth? Physiologically, the human mouth is part of the alimentary tract which is enriched with digestive enzymes which are effective in killing a large range of microbes. So if there is one form of gay sex (I mean mutual masturbation) that is relatively much less risky than "natural sex", isn't "natural sex" placed on a platform of higher risk relative to mutual masturbation then? So if I declare a relative value as an absolute one just like how Yvonne did with morality, shall I suggest to criminalise heterosexual sex because it is risky?
As I said, all forms of unprotected sex is risky. If gay people have protected sex all the time, I see very low chance of STDs being transmitted. But on the other hand, prostitution is amok and protection is not always ensured in paid sex. When I isolate such individual cases and generalise the entire population of heterosexuals, labelling them all as sex workers (just because some women are prostitutes) and sex maniacs (just because some men visit prostitutes), similar to how the homophobes declare that gay people are promiscuous and hedonistic (just because some of us are serial monogamists), shouldn't heterosexual sex be banned in the name for public health as well? Clearly, my argument is not for the banning of heterosexual sex. I'm just pointing out how unjustified it is to say that gay sex is detrimental to public health. And Yvonne's tactic to bring science into the picture is a straight blow in her own face.
She then went on to rant about how gay activists would ask for more, such as equalising the age of consent for homosexuals, if the gay issue is legalised. Seriously, what's the problem with that? As a Law professional, I believe she has a better idea of the relevance of an age of consent. What I understand is that the age of consent exists to protect young impressionable minds from making mistakes which they think might be what they wanted on impulse. But what makes her think that at 16 years old, a teenage boy would have enough confidence to be sure that he wants to have sex with a member of the opposite sex but, for some reasons, highly confused of whether he really wants to have sex with another man? The entire confusion and taboo over homsexual sex is socially constructed. It is because the society makes a big deal out of it that confuses people who are already convinced. It is no matter. What gives the public the rights to step into the bedroom and play referee in one's decision on who to have sex with? It's almost like the entire society asking "are you sure? ARE YOU SURE????" whenever one wants to have sex with a member of the same sex. This is where the confusion is. Lift the taboo, and it's just a decision. So I don't see the concrete issue with the age of consent? If we allow teenagers to decide to have consensual sex with members of the opposite sex, why should we deprive them of that freedom when it comes to homosexual sex? Does it require a higher level of maturity to decide one's sexuality?
Yvonne committed a major mistake at the end of her second paragraph in the "Broader Agenda" section. I quote, "... covering Singaporean males from Secondary 1 to junior college." This is sensationalism. So what if they are Secondary 1 or JC students? She is trying to win the favour of the "conservative majority" and induce them to think "Oh no! Poor little boys may turn gay under the influence of the gay agenda! We must stop that! We must save the world!" Yeah, self-righteousness works, sometimes. But most of the time, it's only in your dreams. Be real. We're gay because we are gay. It's not because anyone telling us it's good to be gay. Honestly, it sucks big time to be gay. But there's no other way we can be. So take this: we're in this plight which we never wanted to be in. And society, holding firm onto a vague and abstract idea of morality is prosecuting us and driving us to the fringe of society. I don't see acceptance. I don't see a place for myself in this society. That is exactly why I pledged to do well in my own endeavours and leave this place for good. I want Singapore to suffer a loss of me, when I am significant to this nation. It's only because this society does not deserve me. Somewhere else with more enlightened and friendly people deserves me better. Continue with your belligerent homophobic arguments and see the end of the creative industry in Singapore.
In her next paragraph, she committed yet another mistake by bringing into a wide definition of "sexual orientation". No one is talking about bestiality and paedophilia. Paedophilia is inherently illegal because it violates the age of consent determined by the law. There is no argument on that. And all along we've been debating on the gay issue. Gay. Homosexuality. It's never such a broad idea of sexual orientation. Have we ever encountered people arguing for rights to have sex with their pet cats? Or their newborn daughters? Never. Because these are not the issues we are having. Focus on the topic. The minority group shouting out for the attention and necessary compassion from this apathetic society is the homosexuals. Perhaps she's trying to highlight that the argument of "freedom of choice in sexual orientation" is fallacious. But there is a major difference between homosexuality and both bestiality and paedophilia. Homsexual sex can be consesual but the latter cannot. While we may sometimes argue that a child might really have the wish to have sex with an adult but that violates the age of consent which is supposed to be protecting the ignorance of the child. What issue has there when both parties are adults and grown up? If both consensual adults want to have sex, why should anyone stop them? Now, back to break her argument of the bestiality issue. I think it is totally ridiculous. Bestiality is a separate issue. I'm more concerned about how S377A has violated the freedom in consensual sex than anything else. Sex with animals is not consensual. Until now, animals and humans are unable to fully communicate and ascertain the mood and thoughts of one another. While the offender may argue that his pet dog engaged in sexual activities with him very actively and willingly, how can he prove that? There is no way yet. So we cannot say that that was consensual. The problem with S377A is that it is a violation of human rights. When both humans are conscious and clear of their decisions, and their subsequent actions are not going to cause harms to a third party, there is no logical reason to stop them from making that decision and pursuing that activity.
She then argued that homosexuals are suppressing freedom of speech because pastors who preach that homosexuality is a sin have been prosecuted and put behind bars. I wish that ever happened. I would appreciate if she had quoted a real case study. NCCS (National Council of Churches of Singapore) has released a statement some time back, commending that the government has made the right decision in retaining S377A. They had explicitly pointed out their biblical standpoint that homosexuality is a sin. I haven't seen them in court yet; let alone behind bars. Obviously, just by preaching that homosexuality is a sin is not going to land anyone behind bars. I believe it is not against the law to do so. But perhaps those pastors had resorted to extreme means in their preaches that is justifiable by law (come on, Yvonne, you should trust the spirit of the Law!) to be criminalised. I don't know what exactly they said, but leave that be. Those cases might not even have existed. Sometimes I doubt the quality of letters published on ST. Look at the virtuous missy in my previous post. She quoted a scientific study (S. LeVay, 1991) but misquoted the conclusion. Yet she passed through. I won't be surprised if ST allowed Yvonne's trash to be published even with false claims.
She mentioned the topic of Nature vs. Nurture once again, claiming that a biological basis for homosexuality is not scientifically proven. While it is not certain yet, it is highly possible, based on all the studies ever conducted on this topic (S. Bocklandt, 2001; D. Hamer, 1993; S LeVay, 1991), that homosexuality, at least in men, is biological. Although science cannot prove the nature aspect of homosexuality yet, neither can it, the nature aspect of heterosexual attraction. XY sex determination system determines sex, not sexual behaviour. The Y chromosome is what is behind the testes and penis but it in no means determines how the man has to use the organ. So since there's no concrete scientific basis behind heterosexuality, must it then be deviant and unnatural? And hence illegal? People happen to be heterosexual and I accept this fact. Then people also happen to be homosexual, and why can't the others just give us a break and accept it?
And while she is supporting the lobby which declares homosexuals as deviants and promiscuous people, Yvonne is utterly displeased that we call them homophobes. Why, if they can call us deviants, can't we call them homophobes? That's really what they are! We have never had the say in mainstream media to even talk about our pitiful plight in this inhumane society. When have we had the power to censor homophobia? Homophobia is abound just because it is never censored. The society likes it. Positive depiction of homosexuality is what is being actively censored. The government is taking an active stance in portraying the most negative sides of homosexuality by censoring all that may make the public think that homosexuals can actually be dignified individuals. This is the beginning of a brainwashing revolution. It is the confinement of the freedom of expression and a mainstream censorship that restricts public exposure to the other side of the argument that casted this gloomy shadow over the homosexual community. The misunderstanding is created by the homophobes and they rely on this misunderstanding to perpetuate and justify their discriminations. This is a positive feedback mechanism which must be stopped. Yvonne isn't making much sense in claiming that homosexuals seek to censor homophobic remarks. While I really hate NCCS for what they said, I can't ask for them to retract it. Because I'll be seen as deviant. But they have all the rights to call me a deviant. This is the disparity. This is the censorship, but not the one Yvonne is referring to. Her version of it never existed, no matter how much I wish it had.
I highlighted another 3 points in her trash but it's now 2am and I'm extremely tired. I'll leave it to my intelligent readers to judge for themselves the credibility of Yvonne in her writing. Good night.
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