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Chan, who did not have a lawyer, was released on $10,000 bail. He is expected back in court today for his case to be dealt with.

He does not face stiffer penalties that were passed by Parliament last month as they had yet to go into effect.

Under amendments to the Infectious Diseases Act, those found guilty of having unprotected sex even if they do not know but have ‘reason to believe’ that they have or have been exposed to HIV can be jailed for up to 10 years and/or fined up to $50,000.

The Health Ministry has in the past investigated some cases, but no one has been prosecuted until yesterday.

One case was compounded last year. In another case, a foreigner being investigated left the country in 2005 before he could be charged.

‘Tis the season, not for merry and joy, but for news after news of institutionalized homophobia, here in Singapore. Firstly, two media providers were separately fined by the MDA for airing content deemed to be too pro-gay, barely weeks apart. Secondly, a gay sauna was unreasonably and (possibly extra-legally) raided by the police.

At that time, we thought it was already treading the line that the Prime Minister Lee Hsien Loong set down, in the parliamentary debates of 2007:

There are gay bars and clubs. They exist. We know where they are. Everybody knows where they are. They do not have to go underground. We do not harass gays. The Government does not act as moral policemen. And we do not proactively enforce section 377A on them.

(Sing. Parliamentary Debates, vol. 83, col. 2354 (23 October 2007) (Prime Minister Lee Hsien Loong)).

They promised not to harrass us, but what else can one consider the sauna raid as? A friendly visit by the friendly neighbourhood cops?

Note, the key-term in PM Lee’s speech is proactively enforce. They did not promise not to enforce, and with this, a very clever political game has been played. Firstly, as the word “proactively” slips past the consciousness, the gay community is expected to pipe down and not complain about s377A contravening their rights. But it still gives them enough latitude to take it out as and when it is convenient – like in this instance.

Clearly, non-proactive enforcement is not enough for our protection, lest anyone thought we could just sit back and go about our lives in peace. There is no telling when the Damocles sword will drop, or will start swinging back and forth dangerously instead of just hanging there.

Whether or not this man gets ultimately convicted under the Infectious Diseases Act, a matter for the judge to decide, clearly something has gone wrong in the workings of the bureacracy. An enthusiastic public prosecutor has decided it is appropriate to bring double liability for his “crime”. The vindictive crusade to punish him under the s377A as well, brings to mind an earlier case of Tan Boon Hock v Public Prosecutor [1994] 2 SLR 150. In that case, the accused was entrapped (in an anti-gay operation) and charged under s354 – a charge of outrage of modesty against the police officer who entrapped him. Such a charge defies logic, and clearly the learned Chief Justice Yong Pung How thought the same, and acquitted him of the same, opining that the police officer, in choosing to act as bait for entrapment, had consented to whatever contact they had. Perhaps it is time that we collectively come to the realisation that prosecutors should not be persecutors, and secondly, we should be wondering why the legislative stance on the sparing usage of s377A has not trickled down to the prosecution.

Indeed, any public health justification for s377A disappears in the face of the Infectious Diseases Act which explicitly serves to deter risky sexual conduct regardless of sexuality, which further makes the double liability a perplexing matter. Unless of course, the real motivation behind the double liability is to specifically deter gay men from not disclosing their status to their partners, having been classified as a high-risk group by the Ministry of Health. This stand makes for bad criminal law, bad social policy, and bad public health policy. The real way to deal with the HIV situation is education and outreach, and for a change, honest and open outreach, not slap additional fines and prison sentences.

But until our government realises that taking a paternalistic, punitive stand is about as effective as a parent placing increasingly unreasonable and strict restrictions on their children who are growing up and earning their independence, any hope for a shift in the legislative trend is misplaced.

Related Links:

PLU Media Release – Chan Mun Chiong should not have been charged under Section 377A

YawningBread – Here’s Proof: Section 377A being enforced

Broken Promises Part II: HIV positive man prosecuted for s377A (Singapore)

Comments   

# MG 2010-02-02 19:35
#

MG said,

May 10, 2008 at 12:25 pm

I love this post. Very well-written (and researched! and properly cited).

Got to be careful with Tan Boon Hock’s case though. Tan wasn’t acquitted. He merely got his sentence reduced. He also wasn’t charged under 377A; the only charge was outrage of modesty (354). That was why Yong CJ was able to bring up the consent issue: consent is only an issue in outrage of modesty; consent doesn’t matter when it comes to 377A. In fact, after Yong CJ’s statement in Tan’s case, the prosecutors dared not charge for outrage of modesty in entrapment cases, but they started preferring 377A instead. More details here: http://magnezium.blogspot.com/2007/08/detestable-and-abominable-vice.html
Reply
# AnJJ 2010-02-02 19:35
#

AnJ said,

May 10, 2008 at 2:01 pm

I read MG’s link… gosh, a “template” for writing police reports on homosexuals entrapment? How laughable!!! It makes a total mockery of their integrity.
Reply
# Agagooga 2010-02-02 19:35
#

Agagooga said,

May 11, 2008 at 2:55 am

This is bad law, but that’s not uncommon. We have bad law all the time.

The important thing is that there hasn’t been any evidence for years that they have used this law against informed relationships between consenting adults that would not otherwise have broken the law if they had been between heterosexual couples.
Reply
# Daily SG 2010-02-02 19:35
#

Daily SG: 12 May 2008 « The Singapore Daily said,

May 12, 2008 at 11:03 am

[...] under Section 377A – Yawning Bread: Here’s proof: Section 377A being enforced – Sayoni Speak: Broken Promises Part II: HIV positive man prosecuted for s377A (Singapore) – Musings: Broadcasting Gay Content: S’pore vs. HK – Yawning Bread: Hong Kong broadcasting [...]
Reply
# Many Teddies 2010-02-02 19:35
#

Many Teddies said,

May 12, 2008 at 11:18 pm

So strange… You actually believe the government…
Reply
# Many Teddies 2010-02-02 19:36
#

Many Teddies said,

May 12, 2008 at 11:32 pm

Clarification:

We the Teddies United Front, believe only in literature.

Nothing else!

p.s. We’re not of the BH, so please don’t say we loh-so bastards of the night!
Reply
# SGDaily Roundup 2010-02-02 19:36
#

SGDaily Roundup: Week 20 « The Singapore Daily said,

May 17, 2008 at 11:29 am

[...] under Section 377A – Yawning Bread: Here�s proof: Section 377A being enforced – Sayoni Speak: Broken Promises Part II: HIV positive man prosecuted for s377A (Singapore) – Musings: Broadcasting Gay Content: S�pore vs. HK [Recommended] – Yawning Bread: Hong Kong [...]
Reply

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