Larger issues at stake inunnatural sex debate

By TAN SEOW HON FOR THE STRAITS TIMES (26 NOV 2003)

THE recent debate about the criminal prohibition of oral sexprovides an occasion for considering larger, related issues. However prevalent thepractice of oral sex and however archaic Section 377 of the Penal Code seems tothose pushing for its repeal, the arguments offered have tended to take apiecemeal approach and display an ignorance of or disregard for the largerinterests at stake.

First, the debate over such a law, whether in itsapplicability to oral sex, sodomy or bestiality, is hardly novel. The abolitionof sodomy laws was famously debated by legal philosophers Lord Devlin andH.L.A. Hart in the 1960s, and the issue of legislating morals by, among others,John Stuart Mill more than a century ago.

Mill articulated what has become the liberal's mantra: 'Theonly purpose for which power can be rightfully exercised over any member of a civilizedcommunity, against his will, is to prevent harm to others.'

One argument offered for the repeal of Section 377 is thatmorals are relative or not discoverable by humans. Hence, legislating morals is'wrong' as it imposes mere personal preferences of one group on all of society.But the premise on which this is based is highly controversial. The argumentalso contradicts itself: an assertion that something is 'wrong' invokesmorality, the very objectivity, discoverability and knowability of which arebeing denied.

The Nov 10 commentary in The Straits Times, 'Oral sex lawdemeans the individual', cites the United States Supreme Court's view that'liberty presumes an autonomy of self that includes certain intimate conduct'.The writer, Mr Paul Tan, asserts that to 'say that an individual may not choosehow to express himself sexually within a relationship is to demean the inherentvalue of the individual.' This argument invokes objective principles ofmorality (that human beings are equal, have value, and are free to choose) evenwhile such objectivity is denied.

Mr Tan offeredno substantive vision of humanity to justify his views, but if he did, he wouldhave ended up doing what he wished to avoid, namely resort to arguments basedon the nature of Man. He claims to be 'especially suspicious of arguments thatresort to 'nature' ', but there is thus no escaping arguments that resort to'nature'. His view is but one such contending argument.

As for the idea that such arguments have a bad history ofjustifying xenophobia and Nazism, German law professor Gustav Radbruch pointedout that it was legal positivism's refusal to acknowledge law's necessaryconnection with morality that allowed someone like Hitler to prevail.Natural-law arguments seem to offer the best justification for post-Holocaustwar crime tribunals.

PRIVATE ACTS

ANOTHER argument for repeal suggests, following Mill'sargument, that private consensual acts between adults, not harming others,should not be the

subject of legislation restricting personal liberty.

This argument assumes a certain definition of harm.

If X has consented to Y killing him, that consent isirrelevant to the prosecution of Y for murder. In murder, a physical harm withirrevocable consequences is committed.

If 'harm'includes every act contrary to nature, and if sexual behaviour such as sodomyis considered such an act, consent becomes irrelevant. Mill's principle, evenif adopted, does not foreclose argument. Elucidation of what amounts to 'harm'is critical.

In any case, Mill's principle is not consistently applied instatutory law. Princeton professor Robert George cites the example oflegislation requiring motorcyclists to wear helmets. Laws like these should berepealed, if acts not harming others should never be the subject oflegislation.

Following the Mill argument, it also could be argued thatsuicide pacts, assisted suicide, bestial sexual behaviour in which the personconsiders sexual intimacy with an animal intrinsic to his dignity, and incestbetween consenting adults, are all private matters which should not be law'sconcern.

This is not to say that these behaviours can be equated toone another, but merely to point out that adopting Mill's principle hasfar-reaching consequences.

Liberalism suggests that in a pluralistic society whereindividuals have different visions of the good life, each should be left topursue his conception of the good. Liberalism claims to be neutral amongconceptions of the good, but fails in two respects.

First, a liberal society is not completely neutral among allconceptions of the good. Individuals are subject to institutional and socialinfluences. Political structures enabling certain views to prevail in civilsociety limit the range of conceptions of the good that the individual mightpursue.

Second, critics of liberalism suggest that it does not havea neutral starting point. That each individual should be allowed to pursue hisown conception of the good is a distinct conceptualisation of the good thatcuts out competing conceptualisations such as the natural-law view that thereexists a good common to all humans.

Mr Tan, for instance, argues that pluralism requires therecognition of the reasonable expectations and rights of all, citing theexample of abortion: 'Whether or not foetal rights exist, or whether they arethe mother's to trump, we leave these decisions to the individual, because noone else can make these decisions for her.'

These statements are assertions. On what basis is a foetusnot a person? He accuses natural-law arguments of leading to atrocities againsthumans, but one worries that his view could pave the way for the negation ofthe rights of newborn babies, handicapped persons, the intellectuallychallenged, and minority groups.

The consequences of any repeal or amendment of Section 377must also be considered. In any society, and all the more in a highlystructured society like Singapore, laws are often an indication of moral norms,or at least of what is acceptable.

When long-existing laws rooted in morality are repealed, theeffect on members of society who are hitherto neutral, and on impressionableyouths, may be disastrous. The withdrawal of a criminal sanction is likely tobe perceived as an endorsement of behaviour once subject to the sanction.

PUBLIC OPINION

THE allusion to the number of people apparently supportingrepeal is naive. Apparent support can be due to the 'cascade effect' whichUniversity of Chicago law professor Cass Sunstein writes extensively about.

A large-scale social movement can result from the behaviourof a few early movers who are followed by many others. In an informationalcascade, people cease to rely on their own information and opinion, and decidebased on the signals conveyed by others. In a reputational cascade, peoplethink they know what is right but silence themselves to maintain the goodopinion of others, even when they privately abhor the views they believe areheld by others.

Some identify the term 'cosmopolitan' with the ways of theWest, 'tolerance' with the acceptance and, indeed, embrace of every lifestyle,and 'democracy' and 'openness' with sexual permissiveness, whether manifestedin a flourishing of the arts in this area, or bringing in magazines of acertain nature.

There seems, unfortunately, to be a peculiarly Singaporeanfear of being seen to be narrow-minded. This has the ironic effect of making usunthinking, ticulation of competing perspectives suppressed for fear of beinglabelled bigoted or unreasonable. Genuine debate is thus foreclosed.

An important aspect of freedom lies in a deliberativedemocracy that engages as many of its citizens as possible in dialogue. Butthis is not necessarily a society that embraces every position just because itis a minority or morally permissive one.

In the end, we do not want to be seen as readily changingour positions on matters such as sexual morality, without proper considerationof the myriad of issues. It would be sad if we became libertine in matters ofsexual morality, but remained indifferent to leading what philosophers call anexamined life. Would we have imbibed only the worst of 'progressive' societies?

The writer, an assistant professor of law at the NationalUniversity of Singapore, is a Byse Fellow at the Harvard Law School.