On September 24 (2018), The Straits Times published an article by Professor Tommy Koh entitled ‘Section 377A: There is a difference between a sin and a crime’. This article was written in the wake of renewed debate in Singapore on Section 377A, sparked by the recent decision by the Indian apex court to repeal Section 377 of the Indian Penal Code.
Both the ‘repeal’ and ‘retain’ parties have organised online petitions to garner support for their positions. Several prominent public figures, including Koh, have jumped into the fray and expressed their support for its repeal. The National Council of Churches, the Archbishop of the Roman Catholic Church and the Islamic Authorities have issued official statements arguing against the repeal.
In his article, Koh discusses a wide range of issues. They include the concepts of sin and crime in relation to homosexual sex, the scientific evidence for sexual orientation, the role of the courts and the place of religion in debates on the law.
However, Koh’s article, in my view, is riddled with a number of distorting generalisations and sweeping statements that have the potential to mislead. I hope to address some of them in this brief article.
LAW AND MORALITY
Koh argues that with respect to homosexual acts a distinction must be made between a sin and a crime. Sodomy, he asserts – in agreement with former attorney-general Walter Woon – may be seen as a sin by some religions, but it should not be regarded as a crime by the state.
On the surface, this argument may seem quite compelling. But upon closer scrutiny, this way of framing the issue can be misleading because it fails to capture the profound relationship between morality and the law. Although there are distinctions between morality and the law, there is also an intricate relationship between them that should never be trivialised or ignored.
It must be said at the outset that the entire legal system is in some profound sense based on the moral vision of a particular society. Thus we can say that there can be no law without morality.
This moral vision, expressed in part in the laws of the land, is absolutely vital for the well-being of any society. As Lord Patrick Devlin has famously put it in his essay entitled ‘Morals and Criminal Law’: ‘Society means a community of ideas; without shared ideas of politics, morality and ethics, no society can exist’.
Laws are made because they bring to concrete expression the moral sensibilities of a society, that is, its understanding of right and wrong. This proposition is so self-evident that it requires very little elaboration or defence.
A few examples would be sufficient to illustrate this.
Homicide is a crime because it is wrong to intentionally take the life of another human being. Rape is a crime because society deems sexual violence on a woman or a man as a morally reprehensible offence that should never be countenanced.
The recent review of the Penal Code also brings this out very clearly. New laws pertaining to marital rape, the protection of minors from sexual predators and crimes against the vulnerable are made because they uphold the moral vision of our society.
In other words, they are put in place to reflect the shared moral convictions and commitments on the basis of which we want to order our society. Lord Devlin would say that these laws are there to give voice to ‘society’s constitutive morality’.
Incidentally, in all of the examples cited above, what religion (in this case, Christianity) calls sins, the state also regards as crimes punishable under the law.
In relation to section 377A, we must therefore ask what is the moral stance of the Singapore public on the issue of homosexual intercourse and lifestyle.
In a survey conducted by IPS in 2014, 78.2 per cent of the respondents said that they were against the homosexual lifestyle, and 72.9 per cent were against same-sex marriage. In the recent IPSOS survey (2018) on section 377A, 55 per cent of the respondents were not in favour of the repeal of the law, while only 12 per cent wanted it removed.
PM Lee is surely right when he said in a 2014 BBC interview that the status of section 377A is a ‘matter of society’s values’. To use Lord Devlin’s expression, its presence in the Penal Code is an articulation of ‘society’s constitutive morality’.
However, it must be stressed that the relationship between the law and morality is a reciprocal one. This means that while societal values can shape the legal system, the lawmaker can also exert influence on the social habits of society.
This applies to section 377A. As Christopher de Souza has succinctly put it in the 2007 debate in Parliament:
A repeal of section 377A will not merely remove the offence. It is much more significant than that. Because of the concept of negative liberty, the removal of section 377A puts homosexual lifestyle on par with heterosexual lifestyle. It is to accord both lifestyles a sense of parity.
In other words, the repeal of this piece of legislation can gradually result in significant changes in the ‘constitutive morality’ of our society (Devlin).
The National Council of Churches of Singapore (NCCS) understands this very well. Its recent statement expresses its concern that the repeal of section 377A ‘would result in the normalisation and promotion of this [i.e., homosexual] lifestyle, which in turn would lead to undesirable moral and social consequences’.
The Archbishop of the Roman Catholic Church, William Goh, also understands the importance of maintaining the status quo. In his pastoral letter, he writes:
I am of the view that S377A should not be repealed under the present circumstances. This is because, by accepting homosexual acts as a social norm, the dreadful consequences for the stability of our families, the well-being of our children, and the risks to the common good will be long-term and irreversible.
The relationship between morality and the law is complex. It defies the simplistic dichotomies suggested by Koh in his article.
PUBLIC LAW, PRIVATE MORALITY?
In his article, Koh briefly alluded to the landmark ruling by the United States Supreme Court in Lawrence v. Texas that the criminalisation of sodomy was unconstitutional. He cited Justice Anthony Kennedy, who said that: ‘The petitioners are entitled to respect for their private lives. The state cannot demean or control their destiny by making their private sexual conduct a crime’.
The debate concerning the role of the law in the spheres of public and private morality in modern jurisprudence need not detain us. However, Koh seems to suggest, in concert with Justice Kennedy, that private sexual conduct of consenting adults should be off limits to the law.
While this may generally be the case, there are notable exceptions, adult incest being a compelling example. As section 376G of Singapore’s Penal Code makes clear, an incestuous sexual relationship between adults, even if it is consensual and conducted in private, is an offence punishable by imprisonment.
In 2012, The Straits Times reported that a 24-year-old woman was sentenced to 12 months’ probation for having consensual sex with her father and ordered to see a psychiatrist. Her father was sentenced to three years imprisonment for incest.
This means that not every private sexual activity between consenting adults is beyond the reach of the law. The onus is therefore on Koh to show why the argument that the law should not intrude on private sexual relations applies to section 377A and not to section 376G of the Penal Code.
In the famous Hart-Devlin debate, Lord Devlin argued persuasively that private acts should not be free from public sanction if they pose a threat to society’s morality. The sodomy laws of England and America were originally made in part on the basis of this reasoning.
In his article, Koh asserts that while scientists do not know what determines sexual orientation, they ‘favour biologically based theories, which point to genetic factors’. He maintains that scientists do not view sexual orientation as a choice, giving the impression that the scientific community has achieved consensus on the matter.
This, however, is not the case at all, and to make such sweeping and unqualified statements is surely to mislead.
From the 1990s onwards, a slew of scientific studies have been conducted to find a biological basis for homosexuality. These studies have failed to show conclusively that homosexual orientation is determined by genetic factors.
In fact, these studies suggest the contrary. For example, the twin studies, originally conducted in 1991 by John Michael Bailey and Richard Pillard and subsequently replicated by many other scientists, show quite conclusively that biology does not determine homosexuality.
In an article in Scientific America, William Byrne concludes that the Bailey and Pillard study ‘clearly challenges a simple genetic hypothesis and strongly suggests that environment contributes significantly to sexual orientation’.
This conclusion is supported by the extensive studies on twins conducted by Peter S. Bearman and Hannah Brückner in 2002 and Niklas Långström in 2010.
In their wide-ranging report on sexuality published in 2016 by The New Atlantis entitled Sexuality and Gender: Findings from the Biological, Psychological, and Social Sciences, Lawrence S. Mayer and Paul R. McHugh conclude:
Some of the most widely held views about sexual orientation, such as the “born that way” hypothesis, simply are not supported by science. The literature in this area does describe a small ensemble of biological differences between non-heterosexuals and heterosexuals, but those biological differences are not sufficient to predict sexual orientation.
‘[H]ard science’ writes Jeffrey Satinover in his book Homosexuality and the Politics of Truth, ‘is far from providing an explanation of homosexuality, let alone one that reduces it to genetic determinism’.
Although science has hitherto failed to demonstrate that there is a biological determinant for homosexuality, gay lobbyists have repeatedly used ‘science’ to advance their claim that homosexual orientation is innate and immutable. Koh appears to be uncritically parroting that narrative.
In his article, Koh also mentioned the removal of homosexuality from the Diagnostic and Statistical Manual of Mental Disorders.
In 1974, the American Psychiatric Association (APA) removed homosexuality from the list of pathological psychiatric conditions published in DSM (II). The revised verdict states that ‘… homosexuality per se is one form of sexual behaviour and, like other forms of sexual behaviour which are not themselves psychiatric disorders, is not listed in the nomenclature of disorders’.
This change of status, however, was not the result of new scientific evidence for the genetic or neurological basis for homosexual orientation. As Ronald Bayer has clearly shown in his book entitled Homosexuality and American Psychiatry: The Politics of Diagnosis (1987), this revision was made due to political pressure by the gay lobbyists within APA.
‘The result’, writes Bayer, ‘was not a conclusion based upon an approximation of the scientific truth as dictated by reason, but was instead an action demanded by the ideological temper of the times’. Albert Dean Byrd and Stony Olsen could therefore declare that ‘The stigma of a disease was gone due to politics’.
In his 1992 article entitled ‘Sexual Politics and Scientific Knowledge’, Charles W. Socarides warns that the APA decision
… remains a chilling reminder that if scientific principles are not fought for, they can be lost – a disillusioning warning that unless we make no exceptions to science, we are subject to the snares of political factionalism and the propagation of untruths to an unsuspecting and uninformed public, to the rest of the medical profession and to the behavioural science.
This is a story that is not widely known and needs to be told.
THE ROLE OF RELIGION
We turn finally to Koh’s remarks on the role of religious communities in the debate on section 377A.
‘I would respectfully remind them [Christian and Islamic authorities]’, Koh writes, ‘that Singapore is a secular state. It is not a Christian country or a Muslim country. It is not the business of the state to enforce the dogmas of those religions’. He goes on to stress that in Singapore, there is a separation between religion and the state and that ‘Church leaders and Islamic leaders should respect that separation’.
Koh’s tone is condescending and paternalistic. He assumes that the religious leaders in Singapore need to be tutored by him on the proper relationship between religion and the state.
To suggest that religious bodies like NCCS issue statements because they want the state to enforce their dogmas is ludicrous. When NCCS makes a statement on an issue, it is not trying to impose its worldview on society or to transform Singapore into a Christian theocratic state. Its purpose is merely to help its member churches to understand its position on that particular issue.
It is therefore extremely unhelpful for a public figure like Koh to politicise the statements that the Council issues for the purpose of guiding Christians on social and moral issues in this melodramatic fashion. In fact, such a suggestion coming from him may sow the seeds of suspicion and distrust that can compromise the fragile social harmony and cohesion that we have worked so hard to achieve.
In reminding the religious authorities that in Singapore there is a separation between religion and politics, Koh is implying that they have no right to comment on section 377A.
But the institutional separation between religion and the state, enshrined in the Maintenance of Religious Harmony Act of 1990, does not banish religion altogether from the public square. Neither does it prohibit faith communities from commenting on moral and social issues that affect their members.
In the past few decades, NCCS has issued a number of statements on a variety of issues including euthanasia, organ trading and homosexuality. The Council made these statements to educate and guide Christians, and for the sake of the common good – not to impose its views on others.
The Council understands that Singapore is a multi-religious society and no single religion can pontificate on social and moral issues. But in similar vein, no individual or minority group can impose their views on sexuality on the majority.
Religion’s input is especially important in debates on issues pertaining to public morality, like section 377A, which as PM Lee has so clearly said, has to do with ‘society’s values’. Insofar as religious people and their communities are part of our society and are committed to the latter’s flourishing, their views have a right to be heard on this issue.
To exclude faith communities in such conversations is to deny them of their rightful place in our multi-religious society. In fact, we can go so far as to say that censoring religious voices from such debates is an affront to the spirit of deliberative democracy. It flies in the face of the inclusive society that we have been trying so hard to build.
To steer public discourse by silencing religious voices instead of encouraging an ever-greater inclusivity is to fuel a new and insidious form of intolerance.
Thankfully, the Singapore government does not share Koh’s perspective. Instead of excluding religious communities, it has made every effort to seek their views and feedbacks on important issues.
For example, in the recent Penal Code review, the Ministries of Home Affairs and Law organised special meetings with religious leaders to obtain their comments. In fact, Home Affairs and Law Minister K. Shanmugam even took the trouble to meet up with the different religious communities separately to explain the reviews and solicit their views.
Unlike Koh, the Singapore government recognises the secular state should not exercise hegemony on matters of public morality. It recognises that in such matters, the view of religious communities must be sought and taken seriously. This is especially pertinent to multi-religious Singapore, where more than 80 per cent of the population professes religious affiliation.