On legalising homosexuality

© Siew Kum Hong

Reflections from a lawyer

Siew Kum Hong is a corporate counsel, and currently also the pro tem vice president of MARUAH (Working Group for an ASEAN Human Rights Mechanism, Singapore). He was a Nominated Member of Parliament in Singapore from January 2007 to July 2009, during which he spoke and fought in favour of repealing Section 377A of the Penal Code, which criminalises consensual sex between adult men.

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Criminal Law is a first-year subject at the National University of Singapore Law School. I can still remember my first few Criminal Law lectures, almost 15 years ago – one of the first topics, if not the very first, was the famous Hart-Devlin debate on the legalization of homosexuality.

The debate took place in the wake of the Wolfenden Report, published in Britain in 1957, which recommended the legalization of homosexuality and prostitution on the ground that the law “should not intervene in the private lives of citizens or seek to enforce any particular pattern of behaviour further than necessary” to protect others. Following the report’s publication, its recommendations were publicly debated by both the eminent legal philosopher H.L.A. Hart, Professor of Jurisprudence at Oxford University, and the respected British lawyer and judge Lord Devlin.

Professor Hart supported the recommendation, on the basis of John Stuart Mill’s “harm principle”, viz. “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”. In other words, since private consensual sex between adult men does not harm anyone else, therefore the law has no business criminalizing it, however much other people may be offended by the thought of such conduct.

Lord Devlin took the opposite position, arguing that society had a legitimate interest in using criminal law to enforce the moral beliefs and values held by the majority, for the sake of preserving society’s cohesion and protect those moral values. He said:

There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government… the suppression of vice is as much the law’s business as the suppression of subversive activities.

The debate itself was not conclusive. But private consensual sex between adult men was eventually decriminalized in England and Wales in 1967, 10 years after the publication of the Wolfenden Report.

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The above is an excerpt from the essay contributed by Siew Kum Hong. You can read the full essay, and others, in the book.

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