Abolish section 377A and 377B of the penal code

Ng Shu Tsung

Modified 3 Oct 2011, 10:28 am

Our prime minister has made a timely announcement to repeal and abolish ancient laws which seem to have outlived its useful life, open to much abuse and with much debate over its relevance.

Finally after much pressure and stealing a page out of Pakatan's Buku Jingga, freedom and human rights are upheld with 'bad' laws to be reviewed or repealed. In fact, many have advocated that these major changes should have been made many years ago.

There is another law that needs to be considered in view of a certain minority society comprising a small percentage that will always exist in each and every society.

It relates to Section 377A and 377B of the penal code. The summary of the section is as follows:

“377A. Carnal intercourse against the order of nature - Any person who has a sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.”

“377B. Committing carnal intercourse against the order of nature - Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.”

It is clear under Section 377A that oral sex is a crime, in addition to being a crime for any male to engage in anal sex.

This ancient law is a discrimination against same-sex encounters and must be repealed all together, as it clearly violates sexuality rights where consent and privacy is concerned.

We have always promoted that there are other better ways to deal with the issues relating to lesbians, bisexuals, gays and transsexuals (“LBGT'), thus this kind of law has also outlived its shelf life, and has been past expiry even before the turn of the century and the internet boom.

We must evolve to become a society where people must not discriminate against lesbians, bisexual, gays, transsexuals and/or any minority group whatsoever.

Let’s state the very obvious. LGBT people exist in every society, irrespective of geography, culture or religion. Denial of the existence or laws against LGBT merely serves to sweep the matter under the carpet.

Many reported incidents over the years indicate that LBGT are still targets of prejudice and ridicule. Certain quarters who still promote conservatism will make this minority group remaining fearful, alienated and push many to activities to remain largely underground.

A very good recent example where the needs of a minority was not served, would be the case of transgender Aleesha who felt herself female by nature although born physically a male. She got taunted by certain people for being who she was and even went to the extent of commenting that she was better off dead, thus reinforcing the view that society is less than accepting of the existance of LBGT.

Her recent demise after failing to have her name changed to reflect her post-operation gender only proves that we must have a recognition of a third gender in official documents, similar to what countries like Australia has.

And this is one of the reasons why many countries have repealed or amended outdated laws on same sex behaviour similar to the our penal code section 377.

In Singapore, section 377, which criminalises oral and anal sex, was repealed in October 2007.

Australia has now three separate gender options to its passports aside from the standard female or male. Those neither male nor female have the choice of the gender of indeterminate. This mainly serves those who are transgender.

Thus the most important “gift” that Najib can give the rakyat is the next step to repeal sections 377A and 377B of the penal code.

In further support for the repeal is that the discrimination and stigmatisation of LGBT keeps many away from accessing necessary prevention and healthcare services. This in turn causes increased risky behaviour in the form of unprotected sex and transmission of HIV and other Sexually Transmitted Infections (STIs).

Sections 377A and 377B covers anal and oral sex, irrespective of whether between those of opposing sex or the same sex. However, it is often seen as a threat to persons who practice same sex behaviour and is a violation of rights.

The Malaysian Bar Council has discussed in detail the effects of sections 377A and 377B of the penal code with views that the law is discriminatory.

A new paradigm is urgently needed to create awareness on sexual orientation and gender rights, and the right to one’s orientation, thus the emphasis to abolish Section 377 since non-consensual anal sex and forced oral sex are already adequately dealt with under criminal law provisions for rape.

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