Skip to main content

Advertisement

Advertisement

Tracing the 'obscure' origins of Section 377A, which dates back to law hastily passed in Britain at 2.30am 137 years ago

SINGAPORE — The origins of Section 377A of the Penal Code can be traced back to the British parliament more than 137 years ago, when a handful of lawmakers passed a "last-minute amendment to an entirely unrelated bill".

Singapore's Parliament debated the repeal of Section 377A of the Penal Code on Nov 28, 2022.
Singapore's Parliament debated the repeal of Section 377A of the Penal Code on Nov 28, 2022.
Follow us on Instagram and Tiktok, and join our Telegram channel for the latest updates.
  • Section 377A in Singapore, a law that criminalises sex between consenting males, has its origins going back to 137 years ago
  • Section 11 of the Criminal Law Amendment Act was passed in the United Kingdom in 1885
  • Home Affairs and Law Minister K Shanmugam said the law mirrored Singapore's Section 377A
  • It was introduced as a last-minute amendment to an unrelated bill and was passed after less than four minutes of discussions in Parliament

SINGAPORE — The origins of Section 377A of the Penal Code can be traced back to the British parliament more than 137 years ago, when a handful of lawmakers passed a "last-minute amendment to an entirely unrelated bill".

The passage of such a law ultimately led to the existence of the law penalising consensual gay sex in many countries, Home Affairs and Law Minister K Shanmugam said in Parliament on Monday (Nov 28).

Delivering his opening remarks on the parliamentary debate over two Bills to repeal Singapore's Section 377A, Mr Shanmugam charted out the details of how the law in the UK came to be introduced in Singapore in the 1930s, when it was still a British colony. 

He added that the laws in the UK used to prosecute homosexual conduct were not explicitly motivated by the need to criminalise homosexual behaviour.

This is the origin of the law first passed in 1885, which has "gone on to impact the lives of tens and thousands of people and has caused much controversy and intense debate in many countries", Mr Shanmugam said. 

THE ORIGINS OF SECTION 377A

Mr Shanmugam noted that Singapore's Section 377A first came about in 1938.

This was when then-Attorney General of Singapore CG Howell moved a Bill here stating that Section 377A was being introduced to bring Singapore's laws in line with the UK's criminal law.

However, to understand the genesis of Section 377A here, Mr Shanmugam said that there is a need to look further back to Section 11 of the UK Criminal Law Amendment Act, which was passed by the British parliament in 1885 and which was "an almost word-for-word copy" of Section 377A.

Its origins are "quite obscure", he added. "We have not been able to find any background, which explains why Section 11 was introduced."

What is known, however, is that it was introduced in the UK House of Commons in August 1885, at 2.30am when few members of parliament were present.

Section 11 was also a "last-minute amendment to an entirely unrelated bill".

The bill was meant to protect women and girls, as well as for the suppression of brothels, Mr Shanmugam said.

The unrelated amendment on male homosexuality was introduced by a member of parliament Henry Labouchere.

His motives for introducing the amendment is unclear. Mr Shanmugam said that one possible reason was that Mr Labouchere was "fiercely homophobic", which could explain why he introduced the amendment.

Another school of thought was that he had intended for it to be a "wrecking amendment" to derail and discredit the entire bill on the protection of women and girls, as he had the reputation of doing so. 

Mr Labouchere had explained that the amendment was to protect any person from an assault of "the kind dealt with" under Section 11.

"After that short explanation, he then simply said he did not think it was necessary to discuss the proposal at any length, because the government was willing to accept it," Mr Shanmugam said, adding that this explanation raised more questions than it answers. 

"If we take at face value what Mr Labouchere said in parliament in 1885, then the purpose of Section 11 was to prevent an indecent assault by one male against another male," Mr Shanmugam continued.

"The provision he introduced, which was passed into law, was however much wider than that. It covered all male-male sex acts, including those where the sex acts were done between consenting male adults," he added. 

"Thus, the amendment that was introduced was quite different from the explanation that was given. Indeed, the explanation he gave was somewhat contrary." 

The amendment was also dealt with in the British parliament in less than four minutes, where there was no discussion on its substance before it was passed.

For instance, there was no discussion on the fact that the provision criminalises male homosexual behaviour even though the stated purpose of the UK bill was to criminalise sexual assaults. 

"People have spent time trying to work out the motives, the reasons," Mr Shanmugam said.

"Some have suggested that the members of parliament were fatigued by the late hour — it was 2.30am — and that they had been worn out by the long debate on the bill to protect women and girls, which had taken four years, and they just wanted to get on with it, let the amendment through," he added. 

NOT MOTIVATED IN CRIMINALISING HOMOSEXUAL BEHAVIOUR

In addition to Section 11, Britain also had three other offences that were used sometimes to prosecute homosexual conduct at the time, Mr Shanmugam said.

However, none of these laws were introduced with an explicit need to criminalise homosexual behaviour, he added.

The first offence was sodomy, which was first criminalised under the Buggery Act of 1533, during the reign of King Henry VIII. 

"The reason this law was passed was linked to a specific important historical event in British history and not because there was any specific intention to make sodomy a crime," Mr Shanmugam said. 

This was because before 1533, sodomy was considered an offence punished by the church, and not a crime as defined by the state.

When King Henry VIII was in power, he wanted to reduce the power of the church, and one of the ways in which he did that was to convert many of the church's canon laws into secular laws, Mr Shanmugam said. 

The Buggery Act was one such law that was brought over from the canon laws and made into secular law. That meant that the king's court would deal with the matter while the church's jurisdiction was removed. 

"When you go through this history, into the origins of the offence of sodomy, we see that it was introduced as part of a power struggle between (King) Henry and the Catholic Church, and not because of any view that sodomy per se ought to be criminalised," Mr Shanmugam said. 

He then emphasised that he was setting out the historical context factually, and not suggesting that sodomy ought or ought not to have been criminalised. 

Another British law was the Vagrancy Act of 1898, which was initially intended to target men who lived off the earnings of female prostitutes. However, in practice, it was used almost exclusively to prosecute men who engaged in homosexual conduct in public. 

This was even though male homosexuality was not discussed in parliament when the bill was introduced, Mr Shanmugam said. 

The third related law he mentioned was the offence of indecent assault against males, which was first introduced in the Offences Against the Person Act in 1861.

The offence criminalised homosexual acts committed against males without consent and was introduced as part of a wider law consolidating all offences against the person. It was also included in the same provision as an offence of attempting to commit sodomy.

However, the provision and its overlap with homosexual offences and even male homosexuality were not discussed at all during the parliamentary debates back then, Mr Shanmugam said. 

"So what we see... these provisions, when they were first introduced, there was no deliberation on whether there was indeed a need to criminalise homosexual behaviour," he added.

The criminal provisions were retained as part of the UK’s criminal law until 1967, when the British parliament voted to decriminalise private, consensual homosexual sex between two adults.

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

Related topics

Section 377A K Shanmugam Parliament

Read more of the latest in

Advertisement

Popular

Advertisement

Stay in the know. Anytime. Anywhere.

Subscribe to get daily news updates, insights and must reads delivered straight to your inbox.

By clicking subscribe, I agree for my personal data to be used to send me TODAY newsletters, promotional offers and for research and analysis.