Isn’t it time we abolished our archaic sex laws?
By GEOFFREY PEREIRA
WHAT do artificial insemination, contraception, genetic engineering as well as anal and oral sex have in common?
They are all “acts against the order of nature” because they cause events that nature would not, or they stop events which nature would otherwise cause, if allowed to run its course.
In the case of “unnatural” sex, they deviate from normal behaviour as specified by biological function. Laws here, as in many other places, single out “unnatural” sex for harsh punishment.
Chapter 224, Section 377 of the Penal Code states that anyone who has “carnal intercourse against the order of nature” can be punished with up to life imprisonment, and a fine.
And a strict reading of this is that any form of sex that is not procreative is illegal.
I do not know the genesis of the law and suspect Singapore inherited it from its colonial days.
However, looking at it against the backdrop of recent advances in medical technology, it is clearly inconsistent to prosecute people for “unnatural” sex purely on the basis of its being “against the order of nature”.
For, by going “against the order of nature”, doctors now help otherwise childless couples to produce babies without the couples having to even engage in sex.
Meanwhile, researchers clone sheep, and governments keep population sizes in check and venereal-disease epidemics at bay by promoting contraception.
The inconsistency, I believe, is grounds for Section 377 and similar laws against voluntary “unnatural” sex to be reviewed.
If society has something against such forms of sex, this should be debated afresh, the reasons for the offence taken identified and the laws framed suitably. But I believe there are several grounds to consider going a step further and abolishing such laws against voluntary “unnatural” sex between consenting adults.
If a society’s laws reflect accepted practices and norms, such sex laws appear to be archaic.
I know of no local survey on the topic, but there is enough serious and popular literature to suggest that a significant number of adults here do engage in sexual behaviour that would constitute offences under the law.
Magazines and newspaper reports available here, for instance, occasionally contain material that suggests that “unnatural” sex is not terribly uncommon.
My search on the Internet led me to a website which noted that one major study had found that, in the United States, 60 per cent of college-educated couples engaged in oral sex.
And 20 per cent of high school and 11 per cent of grade-school educated couples engaged in it too — all this in 1948!
With the world becoming freer sexually, it is not unreasonable to extrapolate and expect that in present-day Singapore, the number of people who accept and engage in such voluntary “unnatural” sex is not small.
So, what is the purpose of having laws against it? Also, how offensive or harmful to society is “unnatural” sex?
As far as I know, the police here do not go out of their way to enforce laws against it and act only if they chance upon an offence or if someone complains.
But why have laws which are not enforced with diligence, especially if many people are likely to be offenders?
To enforce diligently would mean that the police will have to go on frequent and regular operations against offenders.
But this has not been the police way as far as “unnatural” sex offences are concerned.
Take the recent case of project manager Lim Chee Yong, 34, who was prosecuted, convicted and sentenced to three months’ jail for having anal sex with a woman.
He and the woman had been having sex regularly, but then the woman complained to the police that he had twice engaged in anal sex with her, without her consent.
If consent was her concern, it was certainly not that of the prosecutors, who charged him under Section 377, in which consent is irrelevant.
The reason for police passiveness I suspect is an underlying view, which I believe is shared by many, that “unnatural sex” between consenting adults in private is not harmful or a threat to society.
So why have laws against behaviour that is not considered harmful to society?
To me, the state does have some interest in what goes on behind closed doors, and drug consumption is a clear case.
But should it have an interest — expressed in law — on issues such as the sexual preferences of consenting adults? I think not, especially if society at large is not concerned.
Should we leave the laws alone just because they do not come into play very often, because the police do not go out of their way to enforce them?
No, and the reason for this was, to me, illustrated quite clearly in project manager Lim’s case: When they do come into play, they waste public resources.
Singapore had a Judicial Commissioner, Mr Amarjeet Singh — certainly not a low-paid civil servant — spend 10 days hearing arguments. And there was Deputy Public Prosecutor Mathavan Devadas putting across the prosecution’s case.
Consider also the police work put into the case before it went to court.
Add the time and costs for Dr Benedict Peng from the Tan Tock Seng Hospital and gynaecologist Motoko Yeo, who appeared as witnesses, to help the court in the matter.
Although I cannot put a cash value to all this, it is clear that a tidy amount of public money was spent on the case.
To me, the judge, the prosecutor, the police and the doctors could all have been doing more important and worthwhile work than establishing whether someone had had “unnatural” sex.
Letters to The Straits Times in reaction to the article:
ST, 22 April 2000:
Header: ‘Boos’ or ‘hoorays’ do not decide what is right in sex
IN his My View column (The Sunday Times, April 16), Geoffrey Pereira suggests that certain “archaic sex laws” should be abolished.
He refers to a case where a man was tried and convicted for having unnatural sex with a woman. Going through some Internet statistics, the writer discovers that unnatural sexual practices are a common feature in society.
From there, he goes on to suggest that the judge, the prosecutor, the police and the doctors involved with the case could all have been doing “more important and worthwhile work” and concludes that it is better to do away with such laws.
Firstly, one wonders if there might not be a logical gap in arguing from a fact to a norm, that is, in saying that just because many do something, it could be right or permissible.
Secondly, just because the case took civil servants away from other “more important” work does not quite warrant the dismissal of these laws — one might just as well say that it rather warrants the doing away of these acts.
Laws are set in place, if not for deterrent purposes, then, surely, for retribution. These laws are not the cause of the waste of resources.
Such acts are.
If doing away with these acts entails the spending of resources, the dismissal of justice is not an option. In a better age, where justice is valued over utilitarian expediency, use of the relevant resources would not be construed as a waste.
It is not my intention to quibble over such things, but to oppose the perhaps popular belief that the notion of nature or order is something which should have no place in the law.
To revert to a divorce between law and nature seems to me a regression into the primitive. The way to progress is to persist in the opposite direction.
While I agree that times have changed, it must be admitted that some things have not quite changed. Even in genetic manipulations, scientists rejoice not over the fact that they have created a rat with a human ear, but over the possibility that this successful manipulation may have future uses.
Behind the possible permutations of future applications lurk the aim to bring about perfection in the world and to its inhabitants — not according to the arbitrary fancy of an absolute democratic vote but through some norm which directs our existence according to a carefully examined criteria of happiness and improvement.
What is in accord or against the order of nature is not something that is determined by a majority of “boos” or “hoorays”.
In humans, matters of emotion and sexuality are so complex that it would be foolish to submit oneself to the ruling of “what is common”.
What is in accord or against nature require careful study because the happiness and well-being of individuals is at stake.
Now, the law has as its intrinsic goal the protection of individuals from any violation of their dignity. I take this to be accepted without much stirring.
When considering the abolishment or promulgation of laws, the legal institutions must work closely with parties which have an educated interest in the areas of true human good and happiness.
I admit that this is not an easy issue that may be settled within a letter.
But if I have brought up the serious and perhaps worrying implications of the premises at work in the writer’s conclusions, so as to stir up some critical reflection, that would be enough.
JUDE CHUA SOO MENG
——————————————————————————– — ST, 25 April 2000:
Header: Why stick to an archaic law of our ex-masters?
I REFER to Mr Jude Chua Soo Meng’s letter, ” ‘Boos’ or ‘hoorays’ do not decide what is right in sex” (ST, April 22).
He argues that whether a particular sexual act is “against the course of nature” or unlawful cannot be decided merely by checking whether it has become accepted as a fact of life. Also, that it is logically unsound to say that just because many people do something, it could be right or permissible.
I do not think he was asserting that anal or oral sex should be either illegal or labelled “against the order of nature”.
The mere fact that people accept a practice does not quite determine whether it is lawful or natural. However, it is certainly one of the factors to be taken into account when determining whether the practice should be considered lawful.
Legal norms are nothing more than assertions of right, coupled with the power to enforce them. The general criminal law of Singapore is provided for in the Penal Code, imposed by the British in 1871.
The “unnatural sex” provision states: “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.”
The Penal Code was a codification of British criminal law as it existed in the 19th century, reflecting the British society’s reaction to what it deemed, at that time, to be “against the course of nature”, as coloured by the religious beliefs of the then ruling class.
It is an insult to label as criminals many of our compatriots because they do not subscribe to some archaic view on certain sexual preferences that their colonial masters used to subscribe to.
How can the views of some believers of one particular Western religion be imposed on all members of an Eastern society who might not necessarily subscribe to that religion?
It might be said that the “unnatural sex” law can be justified on the grounds that it is looked upon with disgust by a substantial section of the public.
However, feelings of disgust are not sufficient justification for criminalising an act.
More people might feel disgusted at having to sit beside an uncouth and shabbily dressed person at dinner than the number of people who now consider it disgusting to engage in, say, oral sex in private. What if the uncouth diner decides to pick his teeth, gargle with tea and pick his nose as well?
I certainly do not think it would be right to send either person to jail.
Can the criminalisation of oral and anal sex be justified merely because it is “against the course of nature”? Surely this cannot be right.
Logically, if nature’s creations desire to and are capable of doing certain physical acts, then those acts must be within their natural capacity.
How can that which is ordained by nature be “against the course of nature”?
Taking the matter further, if human beings find oral or anal sex enjoyable, and the practices have become widespread, it is difficult to see them as any more unnatural than sex with the aid of Viagra, contraceptives or the strawberry-flavoured or luminous condoms now commonly sold in Singapore.
Even assuming that the bedroom habits of many decent Singaporeans are “unnatural” does not justify its criminalisation. It merely begs the question whether all things “unnatural” should be criminalised.
Shall we outlaw the use of the MRT, the aeroplane and computers as well? How much more “unnatural” is oral sex compared to the spectre of wingless humans flying in the bellies of multi-tonned metallic machines?
The involvement of sex in one and not the other is not a sufficient distinction for justifying selective criminalisation.
The only reason oral and anal sex are regarded as “unnatural” is that they were declared as wrongful acts by our colonial masters.
Unless the law is updated, we have to live with the disgrace that this nation is a pitiable colony of criminals.
Just think of the thousands of our nationals and their nocturnal habits.
Think of the fact that they could be jailed for up to 10 years or even for life. Then think of what non-existent harm they have done to anyone else.
What other conclusion can logic compel one to reach?
KELRY LOI CHIT FAI
ST, 25 April 2000:
Header: Leave the nuptial bed alone
ON READING the letter, ” ‘Boos’ or ‘hoorays’ do not decide what is right in sex” (ST, April 22), I was prompted to turn to my calendar to check whether it was truly the year 2000, and not 1900.
It is shocking to me that anyone could support the contention that the courts should have the right to determine what two consenting, legally-married adults do in the privacy of their bedroom.
There is no doubt that most religions and cultures have their own taboos and specific requirements relating to sexual conduct.
However, these apply only to adherents of the particular religion or culture.
Enforcement of such should therefore be left to social pressure, and the moral suasion of the appropriate religious authorities, and not learned judges in courts of law.
The assumption, that any sexual act other than intercourse using the missionary position is deviant and worthy of severe punishment, is nonsense.
The argument that such laws serve to protect women from the perverted lusts of men is not supportable in the light of modern medical and sexual knowledge.
In most cases, it is the woman who benefits from extended and varied foreplay. It is the men who have to be dragged, kicking and screaming, out of the dark ages when it was “common knowledge” that women were incapable of sexual pleasure.
The existing laws against assault, rape and family violence are perfectly adequate to protect either spouse against being forced to perform sexual acts that are abhorrent to him or her.
The very existence of a law entails its enforcement.
Do we truly want our neighbourhood police patrols to be entrusted with the duty of ensuring that only approved sexual practices are employed in every bedroom?
Perhaps as an addendum to the marriage certificate, there should be attached a chart — showing which portions of the human anatomy may be kissed, or touched, and the exact positioning of the couple performing the sexual act.
Many laws are retained in the books because there is little urgency to reform them. Most of these fade into obscurity. Their mere existence does not indicate that they are relevant.
There are many areas of life in Singapore where the Government and the courts may participate. The nuptial bed is not one of them.