THE OFFENCE OF UNNATURAL SEX IN SINGAPORE

• Citation: (2001) 13 SAcLJ 406
• Date: 01 December 2001
• Published date: 01 December 2001

A. INTRODUCTION

(a) Sexual Offences in Singapore

In Singapore, the criminal law is codified principally in the Penal Code.1 The Penal Code is exhaustive in respect of the offences contained in it and repeals all former laws for the punishment of offences made punishable under it.2

In particular, the criminal law against sexual offences is found mainly in Chapter XVI of the Penal Code.3 Rape is defined in Section 375 and its punishment prescribed for in Section 376. Incest is covered by Sections 376A through 376D. The offence of outrage of modesty, commonly known as sexual molestation, is found in Sections 354 and 354A. Section 377A specifically prohibits acts of gross indecency between males. Section 377 covers the majority of the residue of sexual offences commonly perpetrated under the general prohibition against ‘carnal intercourse against the order of nature’.4

(b) Objective of this Article

It appears at first blush that the criminal law in Singapore adequately covers and prescribes punishments for all types of sexual offences

commonly perpetrated. Whilst this article does not purport to review the law on sexual offences in Singapore,5 it is the last category of sexual offences described in the foregoing paragraph — offences constituting carnal intercourse against the order of nature — that forms the substance of this article.

It will be shown that although Section 377 purports or was intended to cover all unnatural offences (being the residue of sexual offences commonly perpetrated, other than rape, incest and sexual molestation),6 an unfortunate lacuna exists in, what appears to be, the common interpretation of this provision. This lacuna has resulted in certain offences, which should fall within the ambit of Section 377, being considered to fall outside of it, a result which, it will be shown, is not only legally suspect but socially undesirable.

This article begins with a discussion on Section 377 and the prohibited sexual offences it covers. It then highlights a significant lacuna in what is believed to be the Prosecution’s interpretation of Section 377 and attempts to explain how this view may have come to be adopted. It concludes that such an interpretation, if one has indeed been adopted, is both legally questionable and socially undesirable, and suggests how Section 377 should be interpreted by the Prosecution and the courts.

B. SECTION 377 OF THE PENAL CODE

(a) Definition

Section 377 provides:

Unnatural offences

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.

It has been stated in the leading commentary on the Indian Penal Code (1860) that:

[t]his offence consists in a carnal intercourse committed against the order of nature by man with man, or in the same unnatural manner with woman, or by man or woman in any manner with beast.7

The term ‘carnal intercourse against the order of nature’ has baffled many a law student and practitioner.8 The deliberate vagueness inherent to this phrase is, however, explicable. The provision was meant to cover the whole range of sexual acts against the order of nature, the variety of which the drafters recognised and did not wish to limit by words of description.9 It is interesting to note that this view finds support in the judgment of Karthigesu JA in Kwan Kwong Weng.10 His Honour held:

[Section] 377 is an all-embracing provision covering all ‘unnatural offences’. Undoubtedly it covers the offences of sodomy and bestiality and not only these as the section uses the general words of ‘carnal intercourse against the order of nature’. Because the section purports to cover more than one offence it must follow that different criteria and different principles must be applicable to each individual instance of carnal intercourse against the order of nature we may encounter. There can be no single or uniform standard for all instances of carnal intercourse against the order of nature under the section …

Obviously, we cannot cater for every kind of carnal intercourse against the order of nature in this judgment. To attempt to do so will only result in expressions of opinion and of little authoritative value.

(b) Elements of an Offence

At the outset, it will be important to consider what elements are necessary to be proved by the Prosecution in order to establish a charge under Section 377.

The Prosecution must prove:11

1. (i) that the accused had carnal intercourse with a man, woman, or animal;

2. (ii) that such intercourse was against the order of nature;

3. (iii) that the accused did the act voluntarily; and

4. (iv) that there was penetration.

It will be seen subsequently that the definitions of ‘carnal intercourse against the order of nature’, as well ‘penetration’, are unclear. It is the view of this writer that these words should be read in the manner intended by the drafters of the Penal Code.12 The correct interpretation is one which allows these words to be read in a manner that would effectively cover the residue of serious sexual offences (other than rape, incest and sexual molestation).13

(c) What Sexual Acts are Covered?

What acts fall within the definition in Section 377 of ‘carnal intercourse against the order of nature’?

Anal Intercourse/Sodomy

Anal intercourse, frequently loosely called sodomy,14 means sexual intercourse per anum by a man with a man or woman. At common law, anal intercourse falls within the class of offences known as buggery.15

There is little doubt that anal intercourse is an act of ‘carnal intercourse against the order of nature’ and that the commission of such an act constitutes an offence under Section 377.16 Singapore courts have held that anal intercourse is an act prohibited by Section 377.17

‘False’ Intercourse

An act of ‘false’ intercourse amounts to an offence under Section 377. ‘False’ intercourse — the act of inserting the male penis between the thighs of another person18— has been held to be carnal intercourse against the order of nature.19 This is because the “manipulation and movement of [the] penis of [the perpetrator] whilst [the organ] is being held by [the] victims in such a way as to create [an] orifice like thing for making manipulated movement of insertion and withdrawal till ejaculation of semen will fall within the sweep of unnatural carnal offence”.20

Bestiality 21

Bestiality is a species of buggery, and it is committed when a human being, male or female, has sex with an animal per anum or per vaginam.22“It usually takes place through the vagina but it may also take place through the vagina, anus, or any other part of the body fit to receive the male organ.”23

In Public Prosecutor v Ong Li Xia & Anor,24 2 of the accused persons pleaded guilty to, inter alia, a joint charge under Section 377 of abetting by instigating the victim with threats to commit an unnatural offence with a dog by sucking the penis of the said dog. Amarjeet Singh JC held that this offence was “in effect an act of bestiality … which demeaned

her sexually”.25 These accused persons were sentenced to imprisonment for periods of 2 and 4 years respectively for this offence.

Tribadism/Lesbianism

The Indian commentator H D Trivedi writes that tribadism — the mutual friction of the external genital organs of two females for gratification of sexual urge — is an offence punishable under Section 377.26 B M Gandhi takes a similar view that acts of lesbianism27 are punishable under Section 377.28

Fellatio 29

Fellatio is the act of inserting the male penis into the mouth of a male or female.30 It is now clear law in Singapore that fellatio constitutes an offence under Section 377 of the Penal Code, unless it is a prelude to or used as a stimulant for normal consensual sexual intercourse between a male and a female.

The state of the law was clarified in two cases. In Public Prosecutor v Tan Kuan Meng,31 the accused was charged with, inter alia, 5 charges under Section 377 for forcing the complainant to perform fellatio on him. He was convicted and sentenced to imprisonment for an aggregate term of 13 years and 10 strokes of the cane.

One of the issues that arose in this case was whether the voluntary insertion of the male penis into the mouth of a female with her consent falls within the term ‘carnal intercourse against the order of nature’ in Section 377.

Lai Kew Chai J held:

In my view an act of fellatio which is performed between a man and a woman as a lustful substitute for and not a prelude to and enhancement for natural sex between them is carnal intercourse against the order of nature and punishable under Section 377 of the Penal Code. It seemed to

me that this rule of criminal law is to be extracted from an analysis of the Indian cases of Khanu and Lohana and in particular from the very helpful judgment of Sheth J in Lohana. The decision and reasoning in Bapoji Bhatt runs counter to this rule which I have enunciated.

Khanu v Emperor 32 was a case in which it was held that intercourse by penetration of the male penis into the mouth of a child was an unnatural act of carnal intercourse as it was an act which did not involve conception. In Lohana Vasanthal Deuchand & Ors v The State,33 Sheth J held that fellatio was here performed for the purposes of satisfying the accused’s sexual appetite and was therefore carnal intercourse against the order of nature as there was clearly the “enveloping of a visiting member by the visited organism”.

The law in Singapore was revisited and conclusively stated by the Court of Appeal in Kwan Kwong Weng. This was a case in which the accused had misled the victim into believing that the fact that the victim’s...