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Oral, anal sex: Controversial acts, but should they be illegal?
Gabrielle Chong | Mar 4, 09 1:27pm

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.

chua soi lek sex tape scandal 020108 dvdUnder 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Writer and activist Tan Beng Hui, feels that section 377 is obsolete and should be repealed.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.

Archaic law?

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.

homosexuality and lesbians symbols 240105"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.

Social taboos

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.