The first part of this article was published on July 2.

Any ban of over the counter sale of condoms does not mean that there is no sex in the city. It just makes consensual safe sex less probable.

There was some media coverage several years ago to some research findings of sexual activity among youths in our higher institutions of learning. Surprise, surprise, youths were found to be sexually active. A media black-out followed that expose.

I understand that there was in the mists of our recent past a study of sexual behaviour among young adults conducted by Dr Raj Karim (now a Suhakam commissioner). The results of that research are also under wraps.

Somehow there is no access to information of research results which must have been funded, even in part by tax-payers. To suggest that the results are official secrets is stranger than fiction.

That young unmarried adults actually have sex is considered a catastrophe. We should be more concerned if safe sex is not the norm. We should be worried for the safety of young women having to abort their babies clandestinely thereby putting the mother at risk.

We should be concerned when young mothers are dropping out of school because they have to carry babies to term or if they abandon their babies after birth.

Pregnancy of unwed Muslim mothers is a crime under some state Muslim laws.

We should be concerned that sexually active young adults should be free of life-threatening viruses that are transmitted by sexual activity like HIV. Young people are sexually active and thus considered "high risk" in HIV/Aids jargon.

There is no cure for Aids, only death.

We go into denial. Unmarried couples (the assumption of 'normal sex' being male-female) should not have sex. That they should not, even if they are having sex, becomes the basis of policy decisions on sex and sexuality, like no condoms on open shelves as opposed to for example, an effective sex education policy in schools.

The pandemic of HIV/Aids had to a point raised the taboo on sex and sexuality issues. Sex has come of age in the time of Aids.

Condom condemned

Both the Muslim and Christian lobby advocate abstinence and chastity as prevention of infection (1). This is regardless of the fact that condom use has been shown by WHO data as an effective preventive measure. To condom is condemned as a license to fornication.

Malaysian Muslims decry that WHO statistics are not representative of Muslims or Muslim countries. Even statistical data is perceived as "the other" when data collection may not be consistent or is unavailable in Muslim countries because of sex taboos and denial.

Statistics on condom use show that where people are sexually active, condom use prevents transmission of sexually transmitted diseases including HIV. Do we assume that sex education

and condom use would lead to promiscuity?

We have not conducted any such studies here. We make assumptions on false premises and these uninformed assumptions form the basis of our health education and policies.

Some Muslim detractors in agitating against any discussion and promotion of condom use and safe sex assert that in Malaysia, the higher incidence of HIV infection comes from injecting drug-use and not sex. We forget that sexual activity results are not made public for reasons unknown. We forget the fact that we have drug rehabilitation centres that continuously run testing and therefor injecting drug use data is readily available.

While drug use and sex outside marriage (pre-marital and extra marital sex) are seen to be equally reprehensible in Islam, there is no mad rush to confess or report to sexual activity.

Muslims face criminal sanctions for 'illegal' sex under state Islamic criminal laws.

In the words of Dr Nafis Sadik, the special envoy of the secretary-general for HIV/Aids in Asia and the Pacific, "Faith by itself confers no special immunity. Muslims contract the infection in exactly the same ways as other people." (2)

The Health Ministry statistics 1986-2002 (3) shows that out of every 10 reported cases of HIV infection, seven are Malays. The majority of Malaysians are ethnic Malays (the Federal Constitution assumes that all Malays are Muslims).

Every four out of 10 cases are young people (between the ages of 13-29). From 1986 to 2002 there are 823 reported cases between ages 13-29 and 19,103 reported cases between ages 20-29. In 2002 alone, there are 2,440 reported cases between ages 20-29.

Injecting drug users (IDU) form 39,092 cases and 60 percent of IDUs are sexually active and 90 percent of IDUs do not practise safe sex.

Statistics depends upon reporting and may not necessary be reflective of the real situation. Taboo, stigma and discrimination affects reporting.

What is worrying is that the numbers of infected persons are rising especially among young people and among women. Of 3,108 cases of infected women between 1988 to 2002, 63.6 percent were infected through sex of which 54.8 percent are Malays. During the same period only 305 infected women were sex workers.

There has been no local study that I know of to show that early marriages, or allowing Muslim men polyandry (marrying up to four wives at a time) prevents infection.

Behaviour change

Behaviour change does not come with marriage or the criminalisation of sex. It comes with education, respect for values of fidelity and sexual integrity of sexual partners. We often make the false assumption that marriage would imbue these values. Marriage (monogamy or polyandry) like one's faith confers no special immunity.

Educating young adults on sex, respect for bodily and sexual integrity and fidelity in sexual relationships are important in promoting healthy lifestyles. Young people are quite capable of being sexually responsible in their sexual choices.

Criminalisation of sex merely deters discussion, pushes the issue out-of-sight, brings on stigma and discrimination and would probably not prevent the spread of life-threatening diseases associated with unsafe sexual practices.

I was recently informed by health-care activists that our Muslim religious authorities have raised objections to sex education materials that show anatomically correct drawings. These educational materials are embargoed.

Christians are a little ahead. I have read documents on the Internet of ecumenical settings where Christian groups have emphasised that people need factual knowledge on sexual anatomy, physiology and psychology in order to be able to live safely in abstinence or fidelity.

Christians in support of condom-use as an effective preventive method against infection have also insisted that church leaders should not oppose or block efforts to promote condom-use.

In Uganda, condom use remains controversial among Muslims, but is nevertheless available among young Muslims. There is community acceptance of the fact that young unmarried adults are sexually active regardless of religious injunctions on fornication. In this situation the protection of life principle in Islamic law (maqasid Syariah) is surely extended to protected or safe sex.

Gay support

Homosexual sex continues to be demonised in our culture and laws. Imran Rashid writes in 'Longing for daylight' in Malaysia that men having sex with men are caught under section 377A of the Penal Code. According to Imran, the section demonises gay men although straight couples may engage in fellatio and anal intercourse as well.

Imran alleges that gay men would nevertheless throw their support behind Dr Mahathir Mohamad rather than Anwar Ibrahim. Gay men, it seemed are more afraid of the latter's brand of Islam.

The prime minister in the last Umno general assembly, had criticised the West for deviant (homosexual) sexual behaviour. The bashing came days before the US Supreme Court handed the landmark decision of Lawrence v Texas on June 26. In one stroke it outlawed sodomy laws in 13 states in the United States.

The majority 6-3 judgement struck down a Texas state law in question which banned private consensual sex between adults of the same sex.. Observers note that the opinion of Justice O'Connor in the majority judgement would mean that the decision also bans laws outlawing "sodomy acts" between heterosexual couples based on an equal protection principle.

Justice Anthony Kennedy in the majority opinion said that the state cannot demean the existence of men having sex with men or control their destiny by making their private sexual conduct a crime. The petitioners Lawrence and Garner are entitled to respect for their private lives.

There has been no challenge similar to the Lawrence v Texas case locally by virtue of our own Article 8 of the Federal Constitution which supports the notion of equality and non-discrimination.

We are not really clear of Anwar's brand of Islam or his views on sodomy under the Penal Code (applicable to Muslims and non-Muslims) and under state Muslim jinayah (criminal) laws made by the BN majority state legislatures. In addition there is the PAS state government, Kelantan and Terengganu have hudud laws. Anwar has been dodgy with hudud laws.

Sodomy laws

Anwar's supporters in the reformasi movement and Keadilan other than alleging that Anwar's sodomy charges are unfounded, did agitate at some point that he be tried under Islamic laws for sodomy.

According to them, sodomy (liwat) is proven by four male eye-witnesses to the sexual act if the accused does not confess to the charge. His supporters remain confident that the charge cannot be proven under Islamic evidential standards (assuming that police or investigators do not "turn-over" witnesses).

In theory, Islamic criminal laws are of two broad categories. The first category comes under the realm of hudud, qisas (retribution) and diyat (compensation for death or injuries). The other broad category is ta'azir. With the exception of the Kelantan and Terengganu hudud laws, all state Muslim criminal laws fall under the category of ta'azir.

The state Muslim authority in the administration of justice is enabled in theory to make "lesser" criminal offences (to hudud) as ta'azir. Close proximity (khalwat) laws for example are ta'azir laws.

Fornication and adultery may fall under the category of hudud (maximum punishment of lashes or stoning) or ta'azir (where a fine and imprisonment are meted out). Stoning as the penalty for adultery is a contentious point among legal scholars but PAS has adopted stoning as part of the state hudud law for Kelantan and Terengganu.

Most state laws have ta'azir penalties for fornication and adultery. Thus Muslim criminal laws under Umno and PAS support the criminalisation of consensual sex between unmarried partners and same sex partners.

State Muslim ta'azir under Umno has criminal laws penalising "sodomy acts" between same sex partners and heterosexuals punishable by fines and imprisonment.

PAS has also adopted sodomy as a ta'azir crime but instead of fines and imprisonment, it has imposed the hudud penalty applicable to fornication and adultery by analogy. (Sections 16, 17 and 18 of the Kelantan hudud law and sections 14,15 and 16 of the Terengganu hudud law).

Sodomy is not a hudud crime. It lies in the realm of discretionary offences that a state authority may be authorised to do as ta'azir. The creation of the offence of sodomy arises by analogy to sex between a woman and a man (zina). The use of analogy in creation of a crime which imposes hudud penalties is a jurisprudential curiosity and is debatable.

About a year ago, a spokesperson for a local women's NGO working on Muslim women's rights spoke on PAS' hudud laws as discriminating women. I asked her on the position of BN Muslim "morality" (criminal) laws which she apparently did not touch upon in the workshop in Terengganu. She defended her position as saying that PAS hudud laws carried heavier penalties.

It may be that it is the position of this group that the BN government is the government to deliver a "more liberal" Islam. Except for the "suspension" of the Federal Territory Muslim law on rehabilitation in recent years, nothing much has changed in the BN's thrust of morality criminal laws in the country.

It may be a strategic position that the NGO has decided to adopt, although in my opinion it is regrettably flawed and even smacks of intellectual dishonesty.

Sexual diversity

The challenge to mainstream Muslim understandings of sodomy and sexual diversity is well articulated in Scott Siraj al-Haqq Kugle's 44-paged article, Sexuality, diversity and ethics in the agenda of progressive Muslims.(4)

Al-Haqq Kugle states that the historical and literary records of Islamic civilisation store a rich archive of same-sex sexual desires and expressions "written by or reported about respected members of society: literati, educated elites and religious scholars." He provides footnotes of these accounts.

Muslims often fail to appreciate the fact that the Quran (30:21) mentions sex with slave women with no mention of marriage in the text. Sex with women "whom your right hand possess" is not zina. The point to be made is, it is not textually correct to say that Islam forbids sex outside marriage.

Muslim men perhaps cannot avail of this situation as Muslims through time and practice outlawed slavery.

Al-Hadd Kugle states that the closest the Quran comes to directly addressing gay men is the phrase "men who are not in need of women". The Quran (24:30) presents this phrase "descriptively in neutral tone, not linked to denunciation or legal proscription".

Al-Haqq Kugle makes the argument that the Quranic story in relation to the Prophet Lut and his tribe is not a case of banning sex between men or acts of sodomy, but rather the admonishment of rape or non-consensual sex (therefore violence) of men and male guests among Lut's people (Quran 7:80-81).

He makes references among others, to the commentaries of the historian al-Tabari for this argument.

Sex is recreational and not necessarily limited for procreation. The references in the Quran of same sex sexual relationships discounts the assumption of male to female sex as the norm.

Al-Haqq Kugle's article is certainly very thought-provoking. He does not make a claim that these views are "modern" or new. The detailed references to scholarly works of the past and juristic debates on the issue may well tell us of the suppression of particular opinions over time.

It would appear that the Lawrence v Texas decision is not necessarily abhorrent to Muslim traditions and principles.

The next logical line of enquiry is whether it is proper for the state to be enforcing public morality.

FOOTNOTES:

1) AFP report quoted in The Sun July 6: that Italian Catholic priest, Antonio Rungia has published a pamphlet, 'A User's Guide to Chastity' to avoid "a summer of steamy temptation". The pamphlet was inspired by a weekend call by the pope for greater chastity among the young.

2) Dr Nafis Sadik, HIV/AIDS in the Muslim World Second Int'l Muslim Leaders' Consultation on HIV/AIDS. Kuala Lumpur. May 2003.

3) Datuk Dr Faisal Hj, Ibrahim, HIV/AIDS Di Malaysia. Second Int'l Muslim Leaders' Consultation on HIV/AIDS. Kuala Lumpur. May 2003.

4) In Omid Safi, ed. 'Progressive Muslims: on justice, gender and pluralism'. Oxford. One World Publication Ltd. (March) 2003.