Thursday, May 10, 2007

Post No. 107: “Decriminalising homosexual acts would be an error” – A Critical Response

Note: The process of writing this essay began on 8/5/2007 and thus all information below would and can only be correct & accurate as of 8/5/2007

In recent days, following MM Lee’s comments, at a recent dialogue session he had with the YPAP, that Singapore may perhaps eventually decriminalise homosexual acts, a discussion was sparked off in the local press with regards to whether Singapore should decriminalise homosexual acts. Different people wrote to the Straits Times with their opinions on the issue, some were in support of decriminalising homosexual acts while some were against it.

[Note: for those unaware, under the current Penal Code, homosexual sexual intercourse is considered a punishable criminal act under Section 377A which prohibits the commission of gross indecency by one male person with another male person.]

However, of those who have wrote to the Straits Times expressing their disapproval of decriminalising homosexual acts in Singapore, I was perhaps most disturbed by the article, written by Assistant Professor (AP) Yvonne Lee C.L. in her personal capacity and who teaches at the NUS Law Faculty, entitled: “Decriminalising homosexual acts would be an error” (ST, 4/5/2007). Before this, the letter which disturbed me the most was perhaps the one written by Mr. Jonathan Cheng who labeled all homosexuals as a “hedonistic and promiscuous" lot (fortunately, I was not eating and/or drinking anything when reading Mr. Cheng’s letter; if not, I would most likely have choked).

The reason why AP Lee’s article perturbed me so much was that it, from my perspective, seemed to be full of logical fallacies which a law professor should not have committed. And the fact she has committed them seems to suggest to me that either AP Lee is somehow ignorant of the logical fallacies she has committed or that she is aware of them but is hoping that her position as a law professor would perhaps blind people to them and perhaps even induce people to be convinced by her arguments in the article. Hence, being so disturbed by her fallacious arguments, I feel compelled (and perhaps even duty-bound) that I should write this essay as a critical response to counter AP Lee’s arguments and to highlight the logical fallacies in her article.

In fact, even as I am writing this, there have already been several critical responses to AP Lee’s article which can be found online. Examples of this would include the series of five articles published by Mr. Alex Au of Yawningbread fame and the critical response by Mollymeek. Also, people have been writing in to the Straits Times their critical responses to AP Lee’s article. However, strangely enough, the Straits Times decided to not publish these letters in the print edition of the Straits Times Forum page but “relegated” them to the less prominent Straits Times Online Forum, though they have given such prominent coverage to AP Lee’s article.

Okay, before I move on to actually counter the arguments and logical fallacies in AP Lee’s article, I suppose that it would perhaps be in order for me to first provide you all (especially those who have not read the article) with a brief summary of what was written by AP Lee in the article under discussion. So just bear with me for a little while longer.

Basically, AP Lee took what seems to me to be a utilitarian approach in her arguments. That is, according to her, people should recognise that the State and its laws may sometimes have to accord preferential treatment to a certain segment of the population and/or to discriminate against a particular population subgroup as a means to achieving and ensuring the greater public good. AP Lee then moves on to argue that decriminalising homosexual sex acts would go against the public good in Singapore because, according to her, “it is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections” and thus, Singapore’s laws “should not facilitate acts which threaten public health”. It is also argued by AP Lee that “fundamental values which serve the public good” should take precedence over “abstract notions of equality or fashion” when any reform to the local Penal Code is considered.

AP Lee next moves on to cite supposed recent developments in countries such as Sweden, Canada, the United Kingdom (U.K.) and the United States (U.S.) as examples indicating how “decriminalising homosexual sex is the first step in a broader homosexual rights agenda to transform social morality” (and though she may not have explicitly stated it, looking at the context and content of her article, it is quite evident that AP Lee is of the opinion that this transformation in social morality would be a transformation for the worse).

She then, hypothetical step by hypothetical step, claims how this transformation in social morality would occur. According to her, this transformation would not only lead to the acceptance of homosexuality as an “alternative lifestyle choice” but also to the acceptance of sexually perverse acts such as paedophilia and bestiality. Also, it would lead to the curbing of freedom of expression and religious liberty of those Christian and Muslim clergy who preach that homosexuality is a sin and also of those non-religious people who find homosexuality “morally repugnant”. Furthermore, as argued by AP Lee, acceptance of homosexuality as something “normal” would breed social divisiveness as people become intolerant of those who cannot accept that homosexuality is something “normal”. In addition, AP Lee further claims that the decriminalisation of homosexual acts would lead to the radical re-defining of marriage (again, though she did not explicitly state it, it is quite evident that AP Lee views this radical re-defining of marriage as something bad).

Finally, as argued by AP Lee, homosexuality is offensive to the majority of Singaporean citizens and thus, Section 377A of the local Penal Code should be retained to reflect the moral sentiments and values of a majority of Singaporeans.

Okay, now that I have briefly summarised AP Lee’s arguments (for those who think that my summary is still quite long, note that I have summarised 4 newspaper columns worth of content into just 4 paragraphs), allow me to move on to counter her fallacious arguments.

Firstly, it seems to me that AP Lee’s argument that the State and its laws should be able to accord preferential treatment to and/or discriminate against a particular population subgroup is a dangerous one. Dangerous in that it would perhaps justify any unjust laws and/or behaviour by the State on the grounds of serving a greater public good. It, in my opinion, also contravenes the principle that all should be equal before the law, considering that if we accept that the State and its laws can accord different treatment to different population subgroups, it may lead to a case of “one law for me, another law for you”. Here, the famous dictum from George Orwell’s (a.k.a. Eric Arthur Blair) “Animal Farm” comes to mind: “All animals are equal but some are more equal”.

Also, even if accept the idea that the State & its laws may sometimes have to be non-egalitarian in its treatment towards different population subgroups so as to achieve a greater public good, it should be clearly recognised that “public good” is, to borrow the words of AP Lee (though she applied these words to the idea of equality), an “abstract notion” in itself. What is “public good”? (note: here, I am not referring to what “public good” means in Economics) How do we define it? Who defines it? Just think about it: what I perceive as being the “public good” can differ greatly from what you all understand to be the “public good”. In other words, the issue of what the “public good” is and how to achieve it would differ from person to person, relative to their own perspective (and I suppose this is why Rousseau’s idea of a “General Will” will always remain as a utopian idea). Thus, it strikes me as rather ironic that AP Lee should argue that the “public good” should take precedence over “abstract notions of equality” when determining a country’s laws, considering that “public good” is in itself also an abstract notion.

In addition, I found AP Lee’s argument that the decriminalisation of homosexual sex is a threat to the “public good” of Singapore because it is “a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections” to be fallacious on three grounds. One, perhaps I am indeed ignorant of developments in the realm of medical knowledge but I have yet to read and/or hear anything about it being “a known medical fact” that homosexual intercourse carrying an inherent higher risk of transmitting sexually transmitted diseases (STDs). Thus, if AP Lee is privy to some recognised medical report which states that homosexual intercourse carries a higher risk of transmitting STDs, perhaps she should share this information with us whom are not privy to this “known medical fact” by citing her source of this “known medical fact” and not just simply that it is a “known medical fact” and expect us to take her word for it.

Also, even if it is indeed true that homosexual intercourse (which would include oral sex and sodomy) carries a higher risk of transmitting STDs, why then is it that such sexual acts are not deemed as criminal acts when they are committed by heterosexuals? I mean, even AP Lee acknowledges this fact at the beginning of her article. If I’m not wrong, according to the proposed reforms (note: refer to Point No. 10 of the linked document) to the local Penal Code, such acts would be legal for couples of different sexes while remaining illegal for same sex couples. Hence, if it is indeed true that supposed homosexual acts such as oral sex and sodomy are a risk to public health and thus should be prohibited under law, why then should it be legal for different sex couples and illegal for same sex couples? I don’t know about you all but this differentiation does not seem to make much sense unless, somehow, oral sex & sodomy performed by heterosexuals pose no risk while they pose a risk when performed by homosexuals.

Furthermore, if we accept AP Lee’s logic that homosexual intercourse should be criminalised as it poses a threat to public health, then, extending this logic, activities such as smoking, drinking and consumption of unhealthy food should also be criminalised, shouldn’t they? I mean, these activities also pose serious threats to public health, don’t they? And perhaps while we are at it, we should maybe criminalise the driving of cars since this cause a serious threat to public safety through road accidents and to public health through the exhaust fumes they produce. Yet, strangely, contrary to AP Lee’s logic, we still observe that smoking remains legal (albeit being banned in certain venues and illegal for those under 18 years of age) and the same goes for the drinking of alcohol (albeit, similar to smoking, it remains illegal for those below 18 years of age) and consumption of unhealthy food. And we still see cars being driven around. Hence, if AP Lee truly believes in the logic that activities threatening public health and safety should be criminalised, perhaps, instead of arguing for the continued criminalisation of homosexual acts, she should attempt to argue for the criminalisation of smoking in Singapore (I suppose she would most likely find more support for this).

Moving on, again, perhaps it is due to my ignorance from not travelling around the world so much but I am confused over what are the “recent developments” in countries such as Sweden, Canada, the U.K. and the U.S. that AP Lee was referring to which “indicate that the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality”. Perhaps she (or any one of you who know what she was referring to) should be more specific about what are the “recent developments” she was referring to so as to enlighten us all who are not as knowledgeable as her. Anyway, going through the list of hypothetical steps which AP Lee claims would occur if homosexual sex is decriminalised in Singapore, I was just wondering: have these events actually happened in any country? Or is AP Lee looking into her crystal ball to project what the future would be like? (If so, perhaps she could tell us what would be the winning numbers for next week’s 4D draw while she’s at it) And, on that note, it seems to me that, by listing out all the hypothetical events that will happen if homosexual sex is decriminalised in Singapore, AP Lee is making use of a slippery slop argument i.e. “everything will go downhill after this and there’s no way of stopping the process once the first step is taken”. Just think about it: I may take a first step onto a 100m running track but that doesn’t mean I have to go the full distance, does it? Sure, I can and I may go the full distance but that’s not equivalent to “I will go the full distance”, is it? Also, though I hate to do this but to borrow the words of MM Lee from his recent debate in Parliament with Mr. Low Thia Khiang, is AP Lee comparing “apples with apples” when she cited “recent developments” in countries such as Sweden, Canada, the U.K. and the U.S. as indicative of what would happen in Singapore (I mean, their governments are not as competent, extraordinary or forward-looking as ours, are they? B-P).

In addition, I don’t know about you all but when AP Lee talked about “a broader homosexual rights agenda to transform social morality”, it seems to me that she is describing some sinister and insidious conspiracy by some hidden homosexual cabal which is plotting to take over the world. In fact, it reminds me of the “The Protocols of the Elders of Zion” affair during the early 20th century in which minutes from a supposed meeting of influential Jewish people from around the world at which they plotted to take over the world surfaced. This led to mass hysteria and widespread anti-Semitism. In the end, the documents were found to be forgeries. Hence, in my viewpoint, AP Lee, by hinting of “a broader homosexual rights agenda”, seems to be attempting to stir up alarmist fear in people and to use this fear to prevent the decriminalisation of homosexual acts. And, as far as I know, appealing to fear (or any other emotions) does not make one’s arguments any more valid or invalid.

Furthermore, as stated above, though she did not state it explicitly, it is quite evident that AP Lee views the transformation of social morality, which she thinks would occur once homosexual acts are decriminalised in Singapore, as something bad. But is it? Well, I won’t pass judgment on this for the moment. Instead, consider this hypothetical example: a white American law professor writes in a newspaper article, during the early 1950s, entitled: “Decriminalising miscegenation (i.e. marriage between white Americans and African-Americans) would be an error”, that “decriminalising miscegenation is the first step in a broader African-American rights agenda to transform social morality” (note: if I’m not wrong, during the 1950s, marriages between white Americans and African-Americans were deemed illegal in the U.S.). Well, for one thing, the white American law professor in my hypothetical example would be correct, considering that the decriminalisation of mixed race marriages did indeed transform social morality in the U.S. However, contrary to what my hypothetical white American law professor would have viewed it, we today would most likely view this transformation in social morality as something significantly positive. In the end, we need to recognise that social morality is something subjective, fluid, susceptible to change over time and not something set in stone (which, I suppose, AP Lee sees it as). As astutely pointed out by Emile Durkheim: “Today’s deviance can become tomorrow’s morality”.

On top of all this, it seems to me that by bundling homosexual acts together with paedophilia and bestiality, AP Lee is again attempting to stir up negative emotions in people towards the decriminalisation of homosexual acts. This is considering that it is most likely that most people tend to react negatively towards paedophilia and bestiality and I suppose AP Lee is perhaps attempting to exploit these negative reactions to be used against homosexual acts and to further her case. Well, I suppose that we should be relieved that AP Lee did not add necrophilia and incest to the list of sexual deviant acts that she bundled homosexual acts (be thankful for small blessings, we should).

Also, approaching the end of the paragraph in which she argued that the decriminalisation of homosexual acts would lead to the acceptance of paedophilia and bestiality, AP Lee added in this line: “Also, the assertion that one is ‘born gay’ is scientifically unproven”. I was shaking my head and smiling slightly as I read this line, realising that AP Lee, whether she is aware of it or not, has committed the logical fallacy of “argument from ignorance”. In other words, AP Lee, it seems to me, is using our current lack of scientific proof about whether people are naturally born homosexual to suggest that the opposite is true. Leaving aside the contention about whether people are born naturally homosexual for the moment, just think about it: does the lack of scientific proof that homosexuality is something inborn in people means that it is not the case? If it is, then I suppose that the Loch Ness Monster, Bigfoot, the Abominable Snowman and extraterrestrial life do exist, since their non-existence is, as of now, scientifically unproven. Hopefully, you all see that this is ludicrous and that though whether homosexuality is inborn in people may perhaps remain scientifically unproven, this does not, in any way, indicate the invalidity or validity of this thesis. Really, I am quite amazed that AP Lee, being a law professor, would commit such a logical fallacy and perhaps hope that people would not notice it by putting it at the end of a paragraph.

In addition, I don’t know about you all but AP Lee’s argument that the social “normalisation” of homosexual acts would lead to social divisiveness and curb the freedom of expression & liberty of religious clergy who perceive homosexuality as a sin as people become more intolerant of those whom are intolerant of homosexuality strikes me as a case of “贼喊捉贼” (translation: the burglar shouting “catch the burglar!”; the most similar English idiom to this I can think of would be “the pot calling the kettle black”). I mean, just think about it: would not the intolerance and criminalisation of homosexual acts also breed social divisiveness and curb the freedom of expression & liberty of homosexuals and those whom support the decriminalisation of homosexual acts? Perhaps in AP Lee’s perspective, the liberty to be anti-homosexuality takes precedence over the liberty to be non-discriminatory against homosexuals.

On that note, AP Lee also mentioned that “Christian pastors have been criminally prosecuted for sermons declaring that homosexuality is a sin” (personally, I have not heard anything about this happening). However, she strangely failed to specify where & when this happened and under what circumstances. I mean, it makes a lot of difference what sort of language and tone these Christian pastors, who AP Lee claimed were prosecuted, used in their sermons. And, thus, without more specific details, it would be quite difficult for any of us to give fair judgment to this claim of AP Lee.

Moving on, as stated above, AP Lee argued that the decriminalisation of homosexual acts would lead to the radical re-defining of the idea of “marriage” (in a bad way, she seems to implicitly argue). Well, it should be noted that, if one takes a look at history and around the world, the current idea of “marriage” being a monogamous partnership between one man and one woman has not been a universal and eternal standard and perhaps will not be. Different definitions of “marriage” have and still exist all around the world. For example, in ancient China, “marriage” was not monogamous but could also be polygamous. And one should also remember that “marriage”, unlike in the past when the husband was the dominant one in the partnership, can now be an equal partnership and/or even be one in which the wife is the dominant one. Hence, it escapes me how AP Lee can argue as though the current definition of “marriage” is something universal, set in stone since the beginning of time and should not be changed.

And, AP Lee also stated that “homosexuality is offensive to the majority of citizens” and thus, Section 377A of the Penal Code should be retained to reflect the moral sentiments and values of the majority of people. Hmm… For one thing, I wonder: from where did AP Lee get the idea that “homosexuality is offensive to the majority of citizens” from? Is she privy to some report surveying the attitudes of people towards homosexuality in Singapore? If so, perhaps she can be kind enough to share the details of the report with us. Also, while I do partially agree that “majority wins”, I also believe that this should come at the price of the minority losing their rights and/or be discriminated against. If this happens, it would be no better than, to borrow the words of Tocqueville, a “tyranny of the majority”.

Okay, that’s all I have to write for now. And I will leave you all to ponder about what have been written above and also these choice quotes from the Singapore Law Society’s (which I assume AP Lee is a member of) recommendation report to the Ministry of Home Affairs earlier this year on the proposed amendments to the Penal Code.

“The majority of the Council considered that the retention of S377A in its original form cannot be justified. This does not entail any view that homosexuality is morally acceptable but follows instead from the separation of law and morals and the philosophy that the criminal law’s proper function is to protect others from harm by punishing harmful conduct. Private consensual homosexual conduct between adults does not cause harm recognisable by criminal law. Thus, regardless of one’s personal view of the morality or otherwise of such conduct, it should not be made a criminal offence”

“Differing views were expressed on the constitutionality of S377A. In other jurisdictions, legal discrimination based on sexual orientation has been considered against constitutional guarantees of equal protection. Council did not come to a concluded view on the constitutionality of S377”


Update: Interestingly enough, 2 lawyers (one was a former Deputy Public Prosecutor and the other is an Associate Professor at the NUS Law Faculty) have written in to the local press (“Why close one eye?”, Today, 8/5/2007 and “The freedom to disagree, respectfully”, ST, 9/5/2007) implicitly criticising AP Lee’s views on how decriminalisation of homosexual acts would be an error. Do go read these letters/articles.

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