A Legal Perspective of 377A, and Why it Fails
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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 Provisions criminalizing oral and anal sex are repealed, so is the provision criminalizing adultery.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. :)
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I'm gald that Section 377A is here to stay......
Not happy....
Aust is a plane ticket away..... Happy Pride Parade
