Anni's case: Oral sex law demeans the individual

Paul Tan Beng Hwee, The Straits Times, Asia News Network, Singapore

The successful prosecution of Annis Abdullah on Nov. 6 should give us pause for worry as an indictment of what our criminal justice system is, and what our society has become.

If the girl in question was older, or was in fact Annis' wife, this case of oral sex would almost certainly not have seen the light of day.

What happened was a totally consensual act. The girl in question was clearly capable of saying no. The fact that the prosecution did not charge Annis with rape or molest is proof that there was no element of foul play.

One might also ask why the girl herself was not prosecuted, since she committed the act voluntarily.

By all accounts, Section 377 seems to have been invoked entirely because it was felt that a 27 year-old policeman "should know better".

No doubt the prosecution was within the technical bounds of the law.

What is questionable is whether this law should remain on our statute books.

This law has its roots in medieval conceptions of morality, which hold that unnatural acts are non-procreational, and therefore immoral.

But this is a rationale that has been explicitly repudiated by our courts: The legalization of both contraception and abortion is a clear sign that procreational sex is not a legitimate state interest - at least not to the extent of prohibiting non- procreational sex.

One might argue that Section 377 covers more than just fellatio; that it is necessary to protect against bestiality and anal intercourse. Assuming (but not conceding) that these are legitimate state interests, the law could be redrafted to specify what acts are "against the order of nature".

The best argument, though, for why the state should not interfere rests on a proper understanding of what liberty entails in a democratic and pluralistic society.

In the United States, the Supreme Court recently held that "liberty presumes an autonomy of self that includes certain intimate conduct".

The question here is not whether fellatio is a right, as much as whether the privacy of intimate relationships should be subject to third-party interference as long as the relationship remains consensual.

To say that an individual may not choose how to express himself sexually within a relationship is to demean the inherent value of the individual.

As long as the state can regulate how individuals may go about their intimate lives in relation to one another, it remains paternalistic and censorial, and does not properly give credit to the individual to know what is best for himself.

Walk into any bookstore today and you will find shelves of self-help books on improving one's sexual performance. Many will deal with sexual positions and activities that may surprise even the most liberal and well-read.

Sex is expressive conduct. If one chooses to express affection for someone else in a particular way, away from the public eye, and in a relationship that harms no one, then that ought to be a fundamental and absolute right.

Yes, there may be sections of society that believe that non- procreational sex is offensive.

The question is, should criminal law be the right place for the state to impose one particular conception of morality?

A society that claims to be pluralistic has to recognize the reasonable expectations and rights of all.

Take abortion, for example. Whether or not foetal rights exist, or whether they are the mother's to trump, we leave these decisions to the individual, because no one else can make these decisions for her. It's not even a question of "should".

I am especially suspicious of arguments that resort to "nature"; these have had an appalling history in justifying racism, sexism, xenophobia and homophobia, leading to the murder and torture of millions of people.

What is natural?

You might say that transplanting A's kidneys into B's body is unnatural. The fact that an act is or isn't natural is not a good reason to make it a criminal offense.

If this comment sounds vehement, it is meant to be.

It should outrage us, as Singaporeans, that something like this could happen in a self-proclaimed open, welcoming, cosmopolitan society that is on the path towards greater liberalization.

The writer is at the New York University School of Law on an exchange program.