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HOMOSEXUALITY OR HOMOPHOBIA1

The issue of homosexuality has been an ongoing debate in the world, and Singapores experience in 2007 is part of a larger global phenomena. Part of the issue centres on whether homosexuality is a problem, and in that context, whether the state is justified in criminalising homosexual sexual activities. The paper suggests that homosexuality acceptance has shown historical variability, and hostility to homosexuality was originally intended for the clergy, and because of circumstances, applied to the masses. Such laws were inherited in Singapore through colonial dominance of the British. The scientific communitys attempt to answer the homosexual issue is inconclusive, and this paper shows that the common justifications for criminalising homosexuality are unsubstantiated. This suggests that the continuance of antihomosexual laws shows a prejudicial attitude of a section of society towards homosexuality, and this paper believes that allowing this is unhealthy for the functioning of a secular government.

Origins of Homosexuality & Homophobia

Historical and anthropological research has shown a wide variability of acceptance of homosexuality by society, ranging from institutionalisation for purposes of religion and education to imprison and execution2. The ancient Greeks practice of a temporary homosexual relation between an older and younger man as a form of
Homophobia is treated as the antipathy towards and discrimination against homosexuals and homosexuality. See Rayside, D. M. (1992) Homophobia, Class & Party in England, Canadian Journal of Political Science, Vol. 25, No. 1, at pp. 121.
1

Greenberg, D. F. & Bystryn, M. H. (1982), Christian Intolerance of Homosexuality, The American Journal of Sociology, Vol. 88, No. 3, at pp. 515.
2

education, part of a primitive religious initiation of young men, to strengthen military zeal of soldiers or an expression of comradeship-in-arms3. In fact, as long as the role differentiation of the superior (older, more powerful men) in the active role and subordinate (slaves, young men, beggars) in the passive role is adhered to, homosexuality was seen as part of a normal superior-subordinate relationship. Such role differentiation themes can be found across culture in the Germanic tribes, feudal Japan, Muslim Middle East and tribal communities in Melanesia and Africa4. Early Christian theology was heavily influenced by ascetic ideas in the 1 to 4 AD which was hostile to all forms of sexuality5. After the centralization of the Christian doctrine and the Council of Elvira at the turn of the 3rd Century, the hostile reaction to sexuality was relaxed to permit those in marriage. It is important to note at this point that the attitude towards homosexuality by the Church is identical to other sexual relationships that do not lead to procreation, as seen in their even handed treatment6. The hostility towards homosexuality started in 11th century, mainly aimed at the clergy. As the church was fighting with the Holy Roman Emperor for political control, a celibate clergy would gain more legitimacy from the populace as it was seen as closer to the ideal of Jesus, and the Gregorian Reform started. Deprived of a heterosexual outlet for their biological urges, the clergy turned to homosexuality7. As the church could not tolerate any sexual expression of its priests, the scripts were read to condemn all forms of homosexuality.

3 4 5 6 7

Ibid, at pp. 517. Ibid, at pp. 519. Ibid, at pp. 519-521. Ibid, at pp. 525. Ibid.

It was gradually included in secular law for the masses during the 13th century8. This was parallel to the economic growth in the cities of`Europe. The rising bourgeoisie viewed the aristocracy as lazy and parasitical, and ranted against its wanton excess. It was here that the term sodomy, which includes all sexual activity not linked to procreation, was widely used and targeted at the aristocracys unproductive selfindulgence that expressed lust and not love or the desire of children9. They also ranted against the clergy, whose sexual attitudes were inconsistent with the claims of the church, and who lived on the donations of the pious bourgeoisie. Thus, the church-state conflict became intermeshed with urban politics, and the homophobic attitudes of Christianity wa3 set and incorporated in secular law10.

Singapores Laws Towards Homosexuality

The Penal Code is the primary statute used in criminalising homosexual activity. Section 377 was inherited from the Penal Code of the Straits Settlement of Singapore, 1871, which was modelled from the Indian Penal Code, 186011. Lord Macaulay, in his drafting of the offence, stated that [It relates] to an odious class of offences respecting which is desirable that as little as possible should be said. We are unwilling to insert, either in the text or in the notes, any thing which could give rise to public discussion on this revolting subject{ as we are decidedly of opinion that the injury which would be

8 9

Ibid, at pp. 533-535. Ibid, at pp. 539-541. Ibid, at pp. 541.

10

K. S., Lynette J. (2003), Saying No: Sections 377 and 377A of the Penal Code, Singapore Journal of Legal Studies, at pp. 215. See also Koh, K. L. Et al (1989) Criminal Law in Singapore and Malaysia: Text and Materials, Singapore: Malayan Law Journal Pte. Ltd., pp 4-7.

11Chua,

done to the morals of the community by such discussion would far more compensate for any benefits which might be derived from legislative measures framed with the greatest precision. 12 The homophobic attitudes that can be inferred from his speech are similar to what Sir Edward Coke defined sodomy as ...committed by carnal knowledge against the ordinance of the Creator, and other of nature, by mankind with mankind13 The language used in both quotes reflects the moral attitude of the Church, which was highly influential in the drafting of laws in Europe during Medieval times. The wording of the section itself, carnal intercourse against the order of nature, is derived from Christian views about the nature of sex14. The Church now still condemns oral or anal sex, whether from heterosexual or homosexual couples. Section 377 criminalises unnatural sexual offences against the order of nat5re with any man, woman or animals15. The Court of Appeal of Singapore has held that all sexual activities are unnatural, or against the order of nature, if they do not result in vaginal penetration. However, foreplay, which may involve oral or anal sex between heterosexual couples, does not contravene the above section if it leads to vaginal penetration16. The bias here is towards male homosexuals as their sexual acts will never lead up to vaginal penetration.

12 13 14

Ibid, at pp. 215. Ibid.

Ibid, at pp. 216. See also Brundage, J. A. (1987) Law, Sex, and Christian Society in Medieval Europe, Chicago: The University of Chicago Press, at pp. 610.
15 16

Section 377, The Penal Code, Rev. Ed 1985 PP v Kwan Kwong Weng [1997] 1 SLR 697.

Section 377A criminalizes any male who commits any act of gross indecency with another male person. The High Court has ruled that gross indecency stated in this section applies to what a Singapore citizen in the right frame of mind considers grossly indecent. The Court has also iterated that it applies community morality, and this affects how the Court shall rule in future cases17. The terminology is extremely problematic. It assumes a heterogeneous society, and in the knowledge of legal practices here and worldwide, the judiciary does not ask a layman what he considers grossly indecent; it arbitrarily decides for the common man what it thinks gross indecency is.

Theories of Homosexuality

There are many theories which address the issue of homosexuality. These theories come from a wide range of disciplines, from biology to sociology to law. This section aims to look at the more dominant theories in the literature. There have been suggestions that there might be a genetic link for homosexuality, as it was found that homosexuals have more homosexual siblings than heterosexuals18, and a gene, the xq28, was isolated to affect homosexuality; a relationship was found between the hypothalamus, the gene, and the homosexuality19. Homosexual activities have also been found in other mammals and primates20, lending support to the claim that there could be a biological basis to homosexual behaviour.
17 18

Ng Huat v PP [1995] 2 SLR 783.

Rahman, Q, & Wilson, G. D. (2003) Born Gay? The physiobiology of human sexual orientation, Personality and Individual Differences, Vol. 34, No.8, at pp. 1341. Hamer, D. & Copeland, P. (1994) The Science of Desire, New York: Simon and Schuster, at pp. 160-161.
19

Denniston, R.H. (1980) Homosexual Behaviour: A Modern Reappraisal, Chapter 1, New York: Basic Books, Inc. See also Beach, F. A. (ed.), (1977) Human Sexuality in Four Perspectives, Baltimore: Johns Hopkins University Press.
20

Other theories include the fraternal birth order theory, which suggests that later birth order among siblings of the same sex has a higher probability of producing homosexuals21. However, these relationships are one of correlations rather than causality, and it remains to be seen whether homosexual behaviour precedes or succeeds such links. Further research is attempted to explain this relationships. The social sciences attempt to explain homosexuality has not met much success. These include Freuds assertion that if the child were unable to resolve his or her Oedipus and Electra complex respectively during the critical years, he or she would be very likely to be a homosexual, and even suffer from neurosis22. Kinsey has found that instead of classifying people based on heterosexuality or homosexuality, sexuality should be seen as a continuum in both the cognitive and behavioural dimensions23. Culture is understood to create understandings about sexuality and determines whether someone is capable of only one sexual focus. When it was found that most people accept a biological disposition towards homosexuality, hence they are capable of only one sexual focus, in line with I. W. Thomas theorem that when someone believes something to be true, it is true in its consequences24. There are some who have expressed concern that the continual search for a causal explanation reflects the bias in science and scientists that homosexuality is caused by some fundamental defect25. Studies that indicate a genetic or sociopsychological predisposition for homosexuality are bound to be well received in
McConaghy, N. Et al (2006) Fraternal Birth Order and Ratio of Heterosexual/Homosexual Feelings in women and men, Journal of Homosexuality, Vol. 51, No.4, at pp. 162.
21

Freud, S. (1909) Analysis http://www.holah.karoo.net/freudstudy.htm


22 23

of

phobia

in

five-year-old

boy,

Risman, B. & Schwartz, p. (1988), Sociological Research on Male and Female Homosexuality, Annual Review of Sociology, Vol. 14, at pp. 126.
24 25

Ibid, at pp. 129. Ibid, at pp. 130.

homophobic societies26, as this will allow them to predict homosexuality in certain persons. They can thus eliminate homosexuals to a certain extent, assuming the theories are proven true, through prenatal screening techniques. Homosexuals have been forced to undergo treatments to change their sexual orientations, or have resorted to doing so to escape criticism in predominantly homophobic societies. Some conversion therapies that homosexuals have subjected themselves to, whether voluntarily or involuntarily, include electroshock treatment, hormonal therapy, genital mutilation and brain surgery27. The above shows that current theories aimed at finding the cause of homosexuality is inconclusive, and may reflect the homophobic attitudes dominant in society. It also shows that in the absence of conclusive evidence, many homosexuals have been forced, either voluntarily or by compulsion, to undergo treatment that has no scientific basis of effectiveness and may be damaging to patients physiology or psychology. In the absence of conclusive evidence, let us know look at the common arguments for continuing the criminalisation of homosexuality.

The Debate

Anti-homosexuality laws are a reflection of the public opinions against homosexuals. The section on history shows that homosexuality acceptance is not etched in stone, and has rather evolved out of theology and politics. Some of this homophobia has lead to acts of hostility, physical or emotional. However, such homophobia is

Schklenk, U. Et Al (1997), The Ethics of Genetic Research on Sexual Orientation, The Hastings Center Report, Vol. 27, No. 4, at pp. 8.
26 27

Ibid.

inadequate arguments to exercise political power28. Essentially in any form of government who proclaims itself secular should base its rationale for legislating on reasons, not on emotions, prejudices, and biases29. The following shows the common arguments used for justifying anti-homosexuality laws, and their merits. It Promotes Promiscuous Behaviour One of the common arguments for discrimination against homosexuals is that it promotes promiscuous behaviour30. Granted, some homosexuals may behave promiscuously, but many heterosexuals do so too. The link of this argument between promiscuous behaviour and homosexual is not substantiated, and it gives us the feeling that homosexuals have been made the scapegoat of the decadence of society, if one is of the opinion that promiscuous behaviour is immoral. This is akin to blaming all Muslims because some of them are terrorists. Although hasty generalizations are common in everyday peoples cognition, it can be potentially dangerous if such cognition is manifested in policy makers during policy conception and formulation. Homosexuality is Unnatural Another common argument is that homosexuality is unnatural, that it violates the order of nature to use men as women and women as man. Such attitudes are reflected in the language used in section 377. The role of sex in nature is procreation, and therefore, homosexuals, without the possibility of procreation, are unnatural31.

Macedo, S. (1995), Homosexuality and the Conservative Mind, 84 Georgetown Law Journal, at pp. 262.
28 29 30 31

Ibid. Ibid, at pp. 264. Ibid, at pp. 265.

Allowing such unnatural acts becomes precedence for other unnatural ones, including incest and sexual gratification only possible through rape or murder32. There seems to be a Christian judgement here. If the origins come from the Christian values that we have identified previously, is it appropriate to carve it in law? Different religions have different values. If a government professes to be secular, it should either incorporate all values or none at all. As it is in practice almost impossible, or extremely difficult, as different values sometimes runs contrary to each other, the government should not implement any religious values into the law unless it is commonly shared by all. Christians see homosexuality as unnatural, but history has shown that when Christianity first started it was antagonistic to all forms of sexuality and not specifically to homosexuality, which was a later development. However, to implement it into law is unfair to the other religions and against secular ideals. Even if they do not discriminate against homosexuality, this could be arguable for other religions to incorporate their beliefs into law. Should we then not allow people to eat pork because Islam prohibits it, likewise for beef because Hinduism frowns upon it? The medieval roots to laws discriminating against homosexuality also reflect the attitudes during the formation of such laws. As medieval Europe is predominantly Christian, inevitably some parts of Christian values will be incorporated into law. However, the societal context today, in Singapore at least, is one of religious tolerance which also even allows atheism. Therefore, such laws are imposing the value of certain parts of the population on others who does not necessarily subscribe to them. Even if

32

Ibid.

the majority subscribes to such values, it is arguable that minorities should be protected by law. If 80% of Singaporeans support slavery should it then be legalized? It does not follow logically that by legalizing homosexuality, we would eventually legalize rape. The argument totally discounts the notion of consent. Homosexuality acts are done, with the exception of homosexuality rape or assault, between consenting adults. Rape is NOT, by definition in the penal code. Rape implies non-consent by the aggravated party, or sex with a minor even with consent. To lump the 2 together without further arguments for the causal link is weak to say the least. Furthermore, is all sex that does not lead to procreation wrong? The availability of birth control methods allows sex to be un-procreative. Should they be criminalised too? It is a Product of the Decadent West and not Reflective of Asian Values Others in Singapore argue that homosexuality results from the extreme libertarianism of the West, culminated from the sexual liberation movement of the 1960s. They go on to argue that homosexuality is not inherent in Asian values but a corruption of Asians by the decadent West. Hence, in order to protect our Asian values and to stop further rot of morality in society, we need the laws to discriminate against homosexuality, to protect the Asian way of life. This claim is unsubstantiated. A simple analysis across Asian countries who have been historically occupied by Europeans and those who have not gives a clue to why this is so. Countries like Korea, China, and Thailand, who have never been colonised, do not have anti-homosexual laws. Countries that have been colonised, like Hong Kong, Singapore, and Malaysia, do. This goes to show that discriminatory homosexual laws were inherited from our colonial masters, and reflects the

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homophobic attitudes of the historical West. In fact, it can be argued that the West historically discriminated against homosexuals more than Asians. Therefore to say that Asians way of life do not condone homosexuality is therefore unsubstantiated. Feudal Japan is a clear example of one that accepts homosexuality. The dearth of laws that discriminate against homosexuality from original Asian countries in fact goes to show that Asia did not condemn it, and rather that it was the West that did initially. Even if we were to allow that homosexuality is not an Asian value, and therefore criminalize such behaviour, are we going to criminalize other non-Asian values? Should we next criminalize the act of calling our elders by name? Can we now justify criminalizing all forms of individualism or individualistic behaviour just because Asia has historically been a collectivistic culture? To use the Asian argument is to use it inconsistently and arbitrarily.

Conclusion

This paper has shown that the acceptance of homosexuality is variable through history. The laws in Singapore were inherited from the British and in turn from the change in Christian attitudes in the 13th century, which was originally aimed at the clergy to assert spiritual legitimacy and dominance over the laity, in the context of a power struggle between the state and the church. It was applied to the masses only after the interaction between urban politics and the church-state conflict. Studies in determining the cause of homosexuality is inconclusive, and may reflect an unconscious heterosexual hegemony in the scientific community. This 11

homophobia has caused a number of homosexuals to undergo treatment which has no scientific basis and may have unintended psychological and physiological effects. Common justifications for the preservation of the law are unsubstantiated and require more research, and may suggest prejudicial attitudes of a certain section of society. Yet such prejudicial attitudes are inconsistently applied, and the paper believes that it is unhealthy for a secular government to adopt the values of any one section of society.

BIBLIOGRAPHY

Beach, F. A. (ed.), (1977) Human Sexuality in Four Perspectives, Baltimore: Johns Hopkins University Press. Brundage, J. A. (1987) Law, Sex, and Christian Society in Medieval Europe, Chicago: The University of Chicago Press. Chua, K. S., Lynette J. (2003), Saying No: Sections 377 and 377A of the Penal Code, Singapore Journal of Legal Studies, pp. 209-261. Denniston, R. H. (1980) Homosexual Behavior: A Modern Reappraisal, New York: Basic Books, Inc. Freud, S. (1909) Analysis of a phobia in a five-year-old boy,

http://www.holah.karoo.net/freudstudy.htm Greenberg, D. F. & Bystryn, M. H. (1982), Christian Intolerance of Homosexuality, The American Journal of Sociology, Vol. 88, No. 3, pp. 515-548. Hamer, D. & Copeland, P. (1994) The Science of Desire, New York: Simon and Schuster.

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Koh, K. L. Et Al (1989) Criminal Law in Singapore and Malaysia: Text and Materials, Singapore: Malayan Law Journal Pte. Ltd. Macedo, S. (1995), Homosexuality and the Conservative Mind, 84 Georgetown Law Journal, pp. 261-300 McConaghy, N. Et Al (2006) Fraternal Birth Order and Ratio of

Heterosexual/Homosexual Feelings in women Homosexuality, Vol. 51, No.4, pp. 161-174. Ng Huat v PP [1995] 2 SLR 783. PP v Kwan Kwong Weng [1997] 1 SLR 697.

and men,

Journal of

Rahman, Q. & Wilson, G. D. (2003) Born Gay? The physiobiology of human sexual orientation, Personality and Individual Differences, Vol. 34, No.8., pp. 13311382. Rayside, D. M. (1992) Homophobia, Class & Party in England, Canadian Journal of Political Science, Vol. 25, No. 1, at pp. 121. Risman, B. & Schwartz, p. (1988), Sociological Research on Male and Female Homosexuality, Annual Review of Sociology, Vol. 14, pp. 125-147 Schklenk, U. Et Al (1997), The Ethics of Genetic Research on Sexual Orientation, The Hastings Center Report, Vol. 27, No. 4, pp. 6-13. The Penal Code, Chapter 224, Rev. Ed. 1985

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