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Section 377A convictions of men who had consensual sex in private could be rendered spent under MHA review

SINGAPORE — Home Affairs Minister K Shanmugam has instructed his ministry to look into "proactively" rendering spent the criminal records of those convicted of consensual sex between men in private before 2007, when the Government decided not to prosecute such cases.

Home Affairs and Law Minister K Shanmugam speaking in Parliament on Nov 29, 2022.

Home Affairs and Law Minister K Shanmugam speaking in Parliament on Nov 29, 2022.

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  • When a person’s criminal record is rendered spent, it means that the person can legally say that he or she does not have a record of that offence
  • Law and Home Affairs Minister K Shanmugam said there are a small number of Section 377A convictions between 1988 and 2007 in that category
  • But most convictions also involved other crimes and where egregious acts are committed, the records are unlikely to be treated as spent

SINGAPORE — Home Affairs Minister K Shanmugam has instructed his ministry to look into "proactively" rendering spent the criminal records of those convicted of consensual sex between men in private before 2007, when the Government decided not to prosecute such cases.

When a person’s criminal record is rendered spent, it essentially means that the person can legally say that he or she does not have a record of that offence.

Mr Shanmugam, who is also Law Minister, said that there is a "small number" of these convictions, which were recorded between 1988 and 2007. In 2007, the Government struck a compromise to retain Section 377A of the Penal Code, which criminalises sex between men, but not enforce it.

However, most of the convictions under Section 377A involved non-consenting victims, acts against minors or sexual acts committed in public, Mr Shanmugam added.

“These acts continue to be an offence even after any repeal of Section 377A.”

Mr Shanmugam was giving a closing speech after a two-day-long debate in Parliament on the repeal of Section 377A that featured speeches from close to 40 Members of Parliament (MPs), including Nominated MPs and Non-Constituency MPs.

His comments on past Section 377A criminal records were in response to his Nee Soon Group Representation Constituency fellow MP Louis Ng, who asked what will happen to individuals with existing records of convictions under Section 377A. 

Mr Ng said: “If the continued stigmatisation of gay Singaporeans is wrong, then the continued stigmatisation of gay Singaporeans because of their record of conviction under Section 377A must also be wrong.”

If the continued stigmatisation of gay Singaporeans is wrong, then the continued stigmatisation of gay Singaporeans because of their record of conviction under Section 377A must also be wrong.
Mr Louis Ng, Member of Parliament for Nee Soon Group Representation Constituency

Under the Registrations of Criminals Act, Section 377A offence is a registrable crime and any criminal record under this section will become spent after a crime-free period of five years, Mr Ng added.

However, he noted that a person can be disqualified from having his record rendered as spent.

This can happen, for example, if:

  • His sentence included jail exceeding three months or a fine of more than S$2,000
  • There is a warrant of arrest against him
  • He has records of more than one conviction
  • He has any previous record of a conviction that became spent

“As such, this may mean there may be individuals with existing records of conviction under Section 377A, because the conviction was within a five-year period or because the individual is disqualified from having their record spent,” Mr Ng said.

Mr Shanmugam replied that people who are disqualified from having their convictions automatically spent can apply to the police. 

“But where egregious acts are committed — like non-consensual acts or sexual acts against minors — the records are unlikely to be treated as spent.”

As for those between consenting men in private, he said: "I have instructed my ministry to consider how the records of these persons can be rendered spent, proactively."

In response to TODAY's queries, the Ministry of Home Affairs said on Wednesday that based on its records, there are 17 persons who were convicted between 1988 and 2007 for consensual, private, homosexual acts between adults who are still alive today.

This is out of 252 persons who had been convicted under Section 377A between 1988 and 2007 who are still alive today.

DISCLOSING A SPENT RECORD

A spent criminal record means that the person is allowed to say he has no criminal record in his job applications, for example, criminal lawyer Cory Wong said. 

But it remains a “grey area” whether he has to declare that he has been convicted before, the lawyer from Invictus Law Corporation added.

“For example, it's not clear whether it’s a complete immunity because the question asked by the prospective employer could very well be whether he had gone to prison before, and not about the record itself.” 

There are also exceptions, such as when a person is applying to be a lawyer, where he has to declare his criminal record even if the record is spent, Mr Wong said.

Having a record treated as spent also does not mean that the record disappears from the official register of criminals. It just means that the register will indicate that the record is spent.

However, the register of criminals is not open to the public, which means prospective employers will not be able to check against the register, Mr Wong said.

Click here for the latest news and reports on Section 377A.

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Section 377A K Shanmugam LGBTQ

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