There are countless ironies in life. The fact that our religious institutions are more concerned with persecuting lovers than haters, for example. Or the fact that as a society, we are more comfortable with the idea of men holding guns than holding hands.
To the list, I want to add: the fact that our society’s patriarchal, misogynist notions of female sexuality can be illuminated by, of all things, a piece of legislation that has long been slammed as discriminatory against male homosexuals.
The article on Penal Code 377 reprinted at the bottom was written for Malaysiakini some time back in March against the backdrop of the re-emergence of Chua Soi Lek’s (oral) sex tapes.
For the uninitiated, Penal Code 377, also known as Malaysia’s ‘Unnatural Sex’ Law, contains a total of seven sections (see appendix at the bottom). Of these, four of them – covering bestiality, non-consensual oral and anal sex, non-consensual vaginal sex by foreign object, and inciting a child to gross indecency, I believe, rightly criminalise what are universally agreed to be violent and ethically wrong acts.
The other three, which cover consensual oral and anal sex, as well as ill-defined ‘gross indecency’ are more dubious, The former has been slammed by the international human rights community for violating sexuality rights in the context of consent and privacy, while the latter has been criticized for creating a lacuna for selective persecution of what is deemed as non-heterogeneous behaviour.
While the homophobic nature of the code has been long discussed, I will focus on another curious aspect of the legislation: sections 377A and 377B, which cover consensual oral and anal sex, criminalise only the (obviously male) penetrator but not the penetratee, whether male or female. In other words, the legislation criminalises men and only men.
Thus, there is not a single section in the entire code which criminalises any form of consensual lesbian intercourse: female-to-female oral sex, anilingus, fingering/fisting, tribadism, vaginal and anal penetration by foreign object etc.
At first sight, this may seem to be a cause for celebration for horny lesbians nationwide. Upon closer inspection, this seemingly heaven-bestowed oversight in our legislation sheds light on our patriarchal notions of human sexuality.
Penal Code 377 was drafted by the British colonialists with the aim of cracking down on male-to-male sodomy. The draftsmen, however, never considered including sections prohibiting lesbian sex because lesbian sex, the only form of sex not involving males, was not even considered to be ‘proper intercourse’ then.
One and half century since then, the notion that sex is an inherently penis-driven activity, propagated by a society that is dominated by heterosexual males, continues to permeate our social consciousness. Today, the term ‘oral sex’ is still associated with fellatio (insertion of penis into mouth) by default according to popular belief when by definition, it covers both fellatio and cunnilingus (stimulation of vagina with mouth or tongue). Coitus (penetration of vagina by penis) is still considered to be the ideal form of sexual intercourse over all other forms of sexual intercourse. Orgasm is still defined in the context of the male experience.
I would like to think that it is time to break such long-held notions, for two good reasons. Firstly, so that female sexuality is no longer regarded as inferior or less significant to male sexuality; a prerequisite to gender equality and upholding sexuality rights. It is time to recognise that females too, are equal participants in sexual experience and that yes, penises are not indispensable in the gratifying achievement of female orgasm.
Secondly, when we are finally able to recognise consensual lesbian sex as a legitimate form of intercourse, we shall then also be able to criminalise female-to-female rape and sexual violence, which I believe has been long gravely dismissed as unlikely events in our society.
Oral, anal sex: Controversial acts, but should they be illegal?
News that the police are contemplating charging Chua Soi Lek for oral sex one whole year after the emergence of his sex tape may have surprised many people.
However, the realisation that both consensual oral and anal sex are illegal in Malaysia will surprise even more people, as these acts are not widely assumed to be criminal.
Under sections 377(A) and 377(B) of the Penal Code, anyone who commits “carnal intercourse against the order of nature” by inserting the penis into the mouth or anus of another person is liable to whipping and imprisonment of up to 20 years.
Penetration must also be sufficient to constitute the sexual connection necessary to the offence described in this section.
However, the code only affects the male person who is penetrating another person, while the male or female person whose mouth or anus is penetrated will not be subject to any form of penalty.
Under section 377(C) of the Penal Code, anyone who commits the same act without the consent of the other person is liable to the same penalty, with the exception that he or she will be subjected to a minimum of five years in jail.
Writer and activist Tan Beng Hui, feels that section 377 is obsolete and should be repealed. “The operative word in the code is not consent, but the act of oral and anal sex itself. It is its perceived unnaturalness that is the basis for the harsh maximum sentence regardless of consent.
“Or course, non-consensual anal and oral sex are rightly criminalised, but these provisions should fall under provisions for rape instead.
“How lawmakers deemed it appropriate to include them under an ‘unnatural sex law’ is telling of how the emphasis is on viewing these as acts ‘against the order of nature’ rather than acts that involve violence and coercion,” she said.
The code, drafted by Lord Macaulay in 1860 with the intention of prohibiting sodomy, was later incorporated into the laws of many former British colonies, including Malaysia.
But while the original code was abolished in the UK in the late seventies and later in several other former colonies, the Malaysian version has never been amended.
On this, Tan commented, “It is a legislation that was introduced into the country under British rule, so it is curious that we not only continue to abide by it but defend its provisions as being in line with Asian values.”
Across the Causeway, section 377, which criminalises oral and anal sex, was repealed in October 2007.
However, section 377(A) of the Penal Code, which prohibited acts of gross indecency between men, was retained in the backdrop of public commotion and heated debate between both proponents and opponents of the code.
The retention meant that oral and anal sex was finally legalised for heterosexuals but not homosexuals.
“They (homosexuals) live their lives. That’s their personal space. But the tone of the overall society, I think, remains conventional, it remains straight and we want it to remain so,” Prime Minister Lee Hsien Loong had said during the Parliament debate before a petition to repeal section 377(A) was rejected.
Nevertheless, the Home Affairs Ministry in Singapore has promised not to actively persecute anyone under section 377(A) of the Penal Code and prosecutions under that section have been rare.
However, in Malaysia, there has been little or almost no awareness on, much less opposition to, section 377 despite the fact that most human rights groups and activists strongly believe that the code violates the right of adults to sexual relationships within a private environment and the presence of consent.
Feminist activist and researcher Jac Kee admits, “Section 377 of the Penal Code has rarely been tackled by local human rights organisations.
“Although the Joint Action Group for Gender Equality (JAG) has considered taking steps to push for reform, it has been occupied with other pressing matters, especially laws pertaining to rape, divorce and issues involving women’s rights.
“However, much of the lack of activity on reforming section 377 of the Penal Code is also due to paucity of space and willingness for proper discourse on sexuality rights in Malaysia.”
Agreeing that the taboo around sex was an obstacle to abolishing section 377, Tan added that a culture of fear has also hindered Malaysians from raising difficult questions.
“So long as these two obstacles remain, any effort to repeal the section will be difficult because we cannot speak honestly about our views, and hence cannot consider the full range of implications related to sexual matters.
“A third obstacle is related to our inability to separate matters of personal morality versus public morality. What happens within the confines of private life, so long as no rights are being violated, should not be regulated by the state,” she said.
“We should also ask ourselves what it means when the two times Section 377 has received any publicity has been in relation to politicised cases; the first involving Anwar Ibrahim, and now relating to Chua Soi Lek.
“It is not a coincidence that this law has been used to discredit both these men given how it is premised on the demonisation of sexual practices outside intercourse between a man and a woman within the institution of marriage.”
She also noted that a shift in Malaysian mentality towards respecting the privacy and lifestyle choices of individuals was needed before any substantial reforms in laws pertaining to sexuality rights could be attempted.
In 2007, a parliamentary select committee reviewed Section 377 of the Penal Code and the Criminal Procedure Code. However, no amendments were made to the former.
Respecting the tenets of religion
According to Honey Tan, social activist with Empower, two recommendations to amend Section 377 were also shot down during the United Nations universal periodic review held in Geneva last month.
The review is held every three years to draft recommendations to improve human rights protection in member states.
The Malaysian delegation, led by Secretary-General of the Foreign Ministry, Rastam Mohd Isa, noted that it was right to say that the Malaysian Penal Code criminalised oral and anal sex, adding that such sexual conduct was against the tenets of not only Islam, but other major religions in Malaysia.
Chile recommended that Malaysia eliminate standards in the penal code which allow for discrimination against persons on grounds of sexual orientation, while France recommended that Malaysia respect the rights of all individuals, including homosexuals, by de-penalising homosexuality.
However, the Malaysian delegation reported that both suggestions did not enjoy the support of all Malaysians. Hence, it is safe to say that the ban on oral sex and anal sex will probably stay for a long time yet.
Penal Code 377
s(1) 377 – Bestiality
Voluntary carnal intercourse with an animal. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. (Maximum penalty: 20 years imprisonment, liable to fine and whipping)
s(2) 377A – Carnal intercourse against the order of nature
Sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature. Penetration is to be sufficient to constitute the sexual connection necessary to the offence described in this section.
s(3) 377B – Committing carnal intercourse against the order of nature
Whoever voluntarily commits carnal intercourse against the order of nature shall be subjected to punishment. (Maximum penalty: 20 years imprisonment, liable to fine and whipping)
s(4) 377C – Committing carnal intercourse against the order of nature without consentCarnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person. (Maximum penalty: 20 years imprisonment, liable to whipping, minimum sentence of 5 years imprisonment)
s(5) 377CA – Sexual connection by object
Sexual connection with another person by the introduction of any object into the vagina or anus of the other person without the other person’s consent. However, this section does not extend to where the introduction of any object into the vagina or anus of any person if carried out for medical or law enforcement purposes. (Maximum penalty: 20 years imprisonment, liable to whipping and fine)
s(6) 377D – Gross indecency
Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years. (Maximum penalty: 2 years imprisonment)
s(7) 377E – Inciting a child to an act of gross indecencyAny person who incites a child under the age of 14 years to any act of gross indecency with him or another person. (Maximum penalty: 5 years imprisonment, liable to whipping)