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Section 377 of the Singapore Penal Code

Page history last edited by PBworks 14 years, 7 months ago

The Singapore Penal Code, Chapter XVI (Offences Affecting the Human Body), Section 377 (Cap. 224)

states that:

 

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.

 

Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

 

 

Section 377A (Outrages on decency) states that:

 

Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

 


 

Origin

 

The rationale behind this law was originally based on English criminal law which sought to prohibit sodomy. It was incorporated by the British colonial administration in the late 1850s, in particular by Lord Thomas Macaulay who drafted the Indian Penal Code to replace Hindu criminal law which had hiterto held sway in the greater part of India. Under Hindu law, consensual homosexual sex was never an offence. In Macaulay's draft however, section 377 criminalised "carnal intercourse against the order of nature" which became punishable by harsh penalties. It may be of interest to note that Lord Macaulay remained single throughout his life - an unusual situation for a man in his position during the Victorian era.

 

Section 377 became effective as part of the new British-imposed Indian Penal Code from 1 January 1862 and was adopted by the colonial masters, also as section 377 into the Straits Settlements Penal Code in 1871. The cloned and transplanted law came into operation in the Straits Settlements of Singapore, Penang and Malacca on 16 September 1872.

 

Section 377A (Outrages on decency) was added to the sub-title "Unnatural offences" in the Straits Settlements in 1938. Both sections were absorbed unchanged into the Singapore Penal Code when the latter was passed by Singapore's Legislative Council on 28 January 1955.

 

Similarly-worded legislation was also introduced by the British into their other Asian colonies such as Hong Kong, Malaya and Burma in the late 19th century.

 

Scope

 

Section 377

 

Sodomy was not defined in Indian statutory law, so Indian legislators in the 19th and early 20th centuries extended its meaning to cover fellatio, buggery and bestiality as well, although early cases tried in India mainly involved forced fellatio with unwilling male children and one unusual case of sexual intercourse with the nostril of a buffalo.

 

From legal precedent in both India and Singapore, "carnal intercourse against the order of nature" between individuals (of all sexes - the law being non-gender specific with its use of the word "whoever") has been interpreted to include anal sex and, often after much courtroom deliberation, oral sex as well; namely any form of sexual intercourse which does not have the potential for procreation.

 

However, recent Singaporean cases have established that heterosexual fellatio is exempted if indulged in as foreplay which eventually leads to coitus. The Singaporean margin note further explains that mere penetration of the penis into the anus or mouth even without orgasm would constitute the offence. The law applies regardless of the act being consensual between both parties and done in private.

 

Further, by a stretch of the imagination, penetrative lesbian sex via the use of implements like dildoes, fingers, or the tongue could theoretically be criminalised by this law although historically, no act of lesbian sex has ever been charged under section 377.

 

Section 377A

 

Section 377A was introduced to criminalise all other non-penetrative sexual acts between men. 'Gross indecency' is a broad term which, from a review of past cases in Singapore, has been applied to mutual masturbation, genital contact, or even lewd behaviour without direct physical contact. As with section 377, performing such acts in private does not constitute a defence. There is no law in Singapore equally specific to non-penetrative lesbian sex.

 

Case history

 

Repeal

 

See also

 

 

External links and references

 

 

 

 

 

  • Reviews of Singaporean cases by Yawning Bread: 1 and 2

 

  • A review of all Singaporean laws governing homosexual behaviour by Lim Wee Kuan during a groundbreaking lecture on 1 October 2002: 1

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