TL;DR: The 377A High Court Ruling (Part Two)


Source: TIDinternational

In our previous post, we outlined the High Court’s judgment on the three constitutional challenges against s 377A.

In Part 2 of this post, we go deeper into some parts of the judgment for a more complete understanding. This portion looks at why the High Court disagreed with the arguments that s 377A doesn’t cover sodomy, and why it wasn’t only against male prostitution.

One of the Plaintiffs had raised additional documents to support these arguments. We list these documents and look at what the High Court had to say about them.

The meaning of s 377A and its objectives

To understand why the High Court rejected the Plaintiff’s arguments on the meaning and purpose of s 377A, we have to look at the how the courts generally interpret statutes, which are formal, written laws.

Put simply, its a legal exercise where the courts go through the following steps:

  1. A possible interpretation of the law, based on the text and the context within the written laws
  2. The Legislative purpose or object of the statute i.e. what the law seeks to achieve
  3. Compare the possible interpretations of the text to the purpose/object

For the first step on the possible interpretation of s 377A, the High Court said the text of “gross indecency with another male person” is wide enough to cover both penetrative and non-penetrative sexual activity. Moreover, the words do not show any limits to activities involving male prostitution or non-penetrative sexual activity only. The context of the law also showed that it was intended to be generally applied, to enforce a stricter standard of societal morality in 1938.

Now onto the second and third steps, the High Court noted that male prostitution was not mentioned in any relevant legislative material. The High Court also found that s 377A was intended to cover penetrative sexual activity, in line with the Court of Appeal’s conclusions in Lim Meng Suang. The original English Law, which s 377A was based on, was used to prosecute both penetrative and non-penetrative sexual activity. It was also not confined to cases involving male prostitutes.

It’s in this context that the court considered materials on whether they showed that s 377A was specifically targetted at prostitution, or excluded penetrative acts. It said the legislative material was relevant, but the additional material was not.

The legislative material

The High Court only considered two sources as relevant legislative material. These were documents relating to the introduction of s 377A in 1938.

In AG Howell’s speech when s 377A was introduced (equivalent to Second Reading in Parliament today), he said the objective was to “strengthen the law and bring it into line with English criminal Law, from which this clause is taken.” 

The “Objects and Reasons” in the 1938 Bill which introduced s 377A also explained that s 377A was a new section based on Section 11 of the Criminal Law Amendment Act 1885. 

Both indicate that the legislative intent was to import existing English criminal law. The interpretation must thus consider how the original English law was used in the UK, where it was generally applied to all types of sexual activity.

The additional material 

Mr Choong argued that this “full body of evidence” demonstrates “beyond peradventure” that the legislative purpose of s 377A was to address the problem of “rampant male prostitution.” A good summary of the materials may be found in paragraphs 102 to 118 of the Judgment.

We list down the different documents, and how the High Court responded to them below.

  1. Annual Report on the Organisation and Administration of the Straits Settlements Police and on the state of Crime (“Crime Reports”) for 1934 to 1935

Plaintiffs: Contrasted these Crime Reports with those from 1936-1938, to show that serious concerns about male prostitution only emerged after 1936.

High Court: The word beastliness could refer to (male) masturbation and/or homosexual activity. It is reasonable to read the Crime Report to mean that “other forms of beastliness” included an extensive range of other “beastly” male homosexual activities, over and above male prostitution, otherwise these additional words are unnecessary. Crime Reports do not point conclusively to male prostitution being the sole mischief which s 377A was meant to address.

  1. Crime Reports for 1936-1938 (considered by Court of Appeal)

Plaintiffs: It was reported that “widespread existence of male prostitution was discovered and reported to the Government whose orders have been carried out.” It was also recorded that “male prostitution and other forms of beastliness were stamped out as and when opportunity occurred”

High Court: See reasoning for Crime Reports for 1934-1935

  1. An account of the “Malayan Male Prostitute Sex Scandal” that “rocked colonial Malaya” in “Empire and Sexuality: The British Experience” by Ronald Hyam

Plaintiffs: This was relied on as part of “historical sources.”

High Court: Hyam drew from Purcell’s book as his primary source, largely paraphrased Purcell’s narrative. Purcell provides no more than an additional anecdotal account which appears to have been based on hearsay. These sources are of limited value as no further details or sources are provided, and can’t provide support for the argument that s 377A was solely to combat rampant male prostitution.

  1. Allusion to the “Malayan Male Prostitute Sex Scandal” in Victor Purcell’s book, “The Memoirs of a Malayan Official”

Plaintiffs: This was relied on as part of “historical sources.”

High Court: See reasoning for Hyam’s account.

  1. “Prosecutions, the Malayan ‘Sexual Perversion cases’” Addendum to a 1940 Report from local authorities to Sir G Gater (Permanent Under-Sec of State for Colonies)

Plaintiffs: This memo is of “critical importance” in demonstrating the conclusion. The Addendum was to set out unsatisfactory state of prosecution and/or dismissal or removal from Service in disciplinary cases involving civil servants. Two specific cases of colonial officials who had “associated” with catamites are mentioned, and one other. The Addendum stated that charges against one official have recently been made an offence under the Penal Code. This observation would make it “crystal clear” that s 377A was introduced in 1938 to “address the “outbreak” of male prostitution and the problem of civil servants patronising catamites.”

High Court: While the new provision would enable easier detection and prosecution of “acts of nature described,” it would suggest that s 377A was intended to help address the outbreak of male homo activity which had come to light at the beginning of 1938. 

This does not mean that male prostitution was the sole mischief that s 377A was intended to address, or that the scope of s 377A was limited to commercial non-penetrative male homosexual activity. The Addendum further refers to certain principles to deal with cases of this nature, and outlines them for “Officials” and “Unofficials.” Colonial government was concerned not just with official but with an alarming revelation of an outbreak in male homosexual activity generally.

There was no reference to the “commercial nature” of associations with “catamites.” The assumption that “catamites” is synonymous with a male prostitute is thus wrong. The word has origins in ancient Greece and was understood to refer to a pubescent or young boy who is kept or groomed for “unnatural (homosexual) purposes.” 

The logical end of the plaintiffs’ argument would mean legislature intended to target male colonial civil servants’ associations with catamites, which could be dealt with a more targeted approach, instead of law with general application.

  1. Report concerning the resignation of Mr H Moses dated 24 March 1938 from Sir Shenton Thomas, the Governor and High Comm of the Straits Settlements, to the Sec of State for the Colonies

Plaintiffs: Moses was arrested before s 377A was enacted. He was found in a hotel bed with two “known catamites,” who were described as boys in an accompanying statement.

High Court: This doesn’t necessarily limit the scope of s 377A. Again, there’s an assumption that catamites are male prostitutes which isn’t true.

  1. “Prostitutes in Local Cafes – A Singapore Problem,” a letter dated 5 June 1938 to the editor of the Singapore Free Press and Mercantile Advertiser from Mr Herbert A McKnight

Plaintiffs: McKnight observed that “recently it has been found necessary to introduce legislation on the subject of male prostitution.” He went on to label this an “absolute disgrace,” noting that “this disgusting crime always follows unrestricted prostitution.” This showed that members of the public understood s 377A to have been enacted for the purpose of dealing with male prostitution

High Court: The writer was lamenting the perceived problem of both male and female prostitution. No weight should be given to the letter to ascertain legislative intent. It reflects a subjective view of on writer of a letter to the local newspaper, does not constitute an accurate and reliable matter of historical record. It would be quite a stretch at any rate that his view alone would reflect public opinion.

  1. Minutes of the Executive Council Meeting of 18 May 1938

Plaintiffs: Mr Choong argued that Minutes fortified his argument that there should be no overlap between s 377A and s 377. He based this on the following, “It is pointed out by the AG that the act of sodomy is already an offence under the Penal Code whereas the practices against which the new law is aimed area not, at present, offences against the law; and therefore that no person can be prosecuted for such practices until the amending Bill is passed…” He further submitted that AG’s speech should be construed to mean that s 377A was not intended to address penetrative sex between men simpliciter.

High Court: The Minutes are of no assistance in determining legislative intent as they add little to what was stated in AG Howell’s Speech and the Objects and Reasons.

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