Appeal to modify Sec 377A

There is a new offer by a gay couple challenging Section 377A of the Penal Code, asking for it to be modified such that it does not apply to private acts between consenting adults.

Senior Counsel Deborah Barker, who represents Gary Lim, 46, and Kenneth Chee, 39, said her clients are not asking for "social change or the affirmation that male homosexual conduct is acceptable in Singapore".

Instead, they are calling for the court to find that "the majority cannot through the guise of public morality target an unpopular minority group by restricting their intimate conduct in private", said Ms Barker.

Section 377A criminalises sex between men, without distinctions on whether it is in a public or private space, and imposes a maximum jail term of two years.

Ms Barker said that Mr Lim and Mr Chee, who have been in a romantic and sexual relationship for the past 16 years, are like any couple in Singapore - attending each other's family functions and travelling together.

But yet their private expression of physical affection for each other is labelled as "criminal".

"(Section 377A) denies the appellants that which many of us take for granted: human intimacy," she said.

The three-judge Court of Appeal heard joint appeals of two separate challenges against Section 377A yesterday, on the basis that it is unconstitutional.

Mr Lim and Mr Chee had filed their challenge after Tan Eng Hong, 51, first contested the law in 2010 after he was charged with having oral sex with another man in a public toilet.

Their cases were heard separately by the same High Court judge and dismissed last year.

Both appealed and were scheduled for a two-day hearing, which will end today. They have asked for Section 377A to be modified, if not repealed.

Yesterday, Ms Barker argued that the law is "inherently discriminatory", as it does not cover acts of gross indecency committed by heterosexual or female couples.

She said the appeal is not about the "legislation of same-sex marriage or sex education, or adoption of what books about penguins children should read", but about the infringement of the human rights provided under the Constitution.

M. Ravi, who represents Mr Tan, said the law presents "prejudice within prejudice", where there appears to be more disgust with male homosexuals than female homosexuals.

He argued that the phrase "act of gross indecency" as stated in Section 377A is also vague, raising the question of whether kissing or holding hands would fall under the provision.

Mr Ravi noted that the vagueness would give rise to difficulties for the homosexual community to regulate their conduct.

Senior Counsel Aedit Abdullah, from the the Attorney-General's Chambers, argued that Section 377A is not unconstitutionally vague and has a clear core meaning that covers consensual sexual acts between males.

He said it was immaterial that the law did not cover female homosexual acts, as the legislative purpose was to signal disapproval of only male homosexual acts.

The appellants were seen to be trying to persuade the Court of Appeal to rewrite the Constitution to suit their claims.

Mr Abdullah also argued that the dispute is "not (one) that can be solved by the court" but "should be left to the legislature".

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