Digging deeper: the fascinating history behind Section 377A

HenryVIIIChatsworthPortrait.crop_807x605_0,0.preview

Intentionally or not, Law Minister K Shanmugam fired the starting pistol for a new round of petitions both in favour and against the repeal of Section 377A of the Singapore Penal Code which criminalizes consensual sex between men.

But where did 377A come from? Why does it even exist?

Not only was 377A a piece of colonial legislation (not to say that there is anything inherently wrong with colonial legislation), it is a statute with a deep and fascinating history that can be traced back to the late-medieval period. How bizarre that the decisions made by the parliaments of King Henry VIII (pictured above) nearly half a millennium ago continue to impact our society today!

Skimming the Surface of 377A

Section 377A of Singapore’s Penal Code was derived from the Indian Penal Code, which had a similar Section 377 of its own. Singapore’s 377A was an ‘update’ to the original Section 377A in 2007, courtesy of our Parliament, which itself was revamped by the British in 1938. Not only did it effectively decriminalize female homosexuality while retaining the criminality of male homosexuality, it also further divided each individual offence into a separate law.

Section 377 of the Indian Penal Code arrived in the Singapore in 1871, when the entire Indian Penal Code was adopted as the criminal code of Singapore with only a few modifications. The penal code was drafted by the Indian Law Commission under the leadership of Thomas Macaulay in 1833, and was adopted for British India in 1860. The commission attempted to distill and narrow down everything within the British code of law into a series of straight-forward statues. The precision, simplicity, and effectiveness of the Indian Penal Code made it a popular ‘template’ for constructing the criminal law in many other British colonies, leaving the world with a string of ‘377s’.

At the point of drafting, Section 377 was a part of a series of laws that outlined offences against the physical body of a person – these includes murder, battery, assault and of course 377’s ‘unnatural offences’. This itself was taken from the 1826 Offences against the Person Act of Britain, which itself was derived from the 1533 Buggery Act (buggery being a medieval term for sodomy).

Therefore 1533 is a critical point in the history of our own Section 377A. It was the first instance where what was normally an ecclesiastical (meaning religious) offence was brought into criminal law. Up till this point, England had separate courts – the ecclesiastical courts and the secular King’s court. The ecclesiastical court was responsible for the regulation of faith, and sins were punished with penance. It was the King’s courts that had power of imprisonment and execution.

Going Deeper – to 1533

Why did King Henry VIII decide to move one specific act of sin out from the ecclesiastical courts and into his own? If there were genuine religious motivations, it could have happened a thousand years earlier, during the Christianization of England.

The historical consensus at the moment is that the 1533 Buggery Act (the progenitor of 377A) was rooted in late-medieval politics. During this period, church and state were not entirely separate entities. Henry VIII’s reformation of the church finally managed to divorce the Church of England from the Catholic Church’s control in Rome. After decades of political tension, the King of England is now also the head of the Church in England. With this newfound position, Henry VIII moved to criminalise a series of ‘sins’ as a show of his primacy over the church.

On top of buggery in 1533, witchcraft and sorcery were criminalised in 1541, and polygamy in 1603. By taking these affairs out of the hands of the ecclesiastical courts, Henry VIII reinforced his power against his potential enemies in the Church, while shoring up his legitimacy by promising to ‘as well the care of the souls of his subjects as their bodies’. Furthermore, in the aftermath of these laws, commissioners were sent to survey members of the clergy and prepare charges of sodomy and other sins, which was later used to seize church property during the dissolution of the monasteries.

What is clear is that what many may hold today as a ‘natural’ or ‘self-evident’ part of our law was never implemented with the intention that defenders of 377A attribute to it. It was more about the struggles between the church and state during the time of Henry VIII, and less about the salvation of the King’s subjects. It is telling that the law was typically used against members of the Church as a way of seizing their property.

Of course, the original purpose of the law is likely no longer relevant in the current debate. Those in favour of retaining 377A have since attached a new and personal significance to the law that does not take into account the history behind it.

Nonetheless, the fascinating history behind Section 377A is still worth sharing, as it demonstrates how we sometimes take things we take for granted; these things that we might be tempted to view as ‘self-evident’ or ‘natural’ have in fact a historical trajectory that was constructed piece-by-piece by human action, and some might say, human greed.

Notes:

  1. Bailey, Sherwin. Homosexuality and the Western Christian Tradition. 1955.
  2. Lafitte, Francois. Homosexuality and the Law.

————————————————————————

Have something to say? Share your comments on our Facebook page

If you like this article, ‘Like’ Consensus SG’s Facebook Page as well! Or share this article using the Facebook button below.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.