377A of the Penal Code

In light of the Federal Court decision in the case of Sodomy 2.0, I thought that I should take a closer look at this rarely used piece of statute. Apparently, it has only been used seven times in our history and twice on the same bloke. Lucky bastard!

Unfortunately for him, Anwar was found guilty of committing sodomy. The 54 page press summary of the full judgement has already been released to the public. That was awfully efficient of them.

According to various reports, he was charged under S.377A of the Penal Code, which says that:

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

Carnal intercourse against the order of nature is conveniently defined in S.377 of the Penal Code, which says that:

Any person who has 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.

Now, for my 2 sen on this whole issue, from a purely legal perspective devoid of political bias.

Firstly, is the dearth of Law in the summary. If you search through the PDF, you will find reference to merely five precedents. For such a high-profile case, I would have expected the judges to support their judgements with tons of Law – statutes and precedents. That is the kind of high quality judgement that I expected from our nation’s apex court chaired by the CJ, no less.

Unfortunately, we were treated to lots of trivialities, and evidential and scientific minutae instead. There was certainly a lot of commentary and opinion but not much Law. I certainly hope that the full judgement is a lot more padat than the press summary in terms of Law.

Secondly, it is my inderstanding that the Law mandates whipping for S.377A offences. I’m not sure but reports seem to indicate that Anwar will not be whipped. Judges are often given discretion when meting out pecuniary punishments but I’m not sure if they are allowed to simply ignore the clear letter of the Law in this manner.

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

If they are allowed to do so, then what happens to the rest of the Penal Code where whipping is also mandated? If you search through the Penal Code, you will find that whipping is a pretty standard punishment meted out for all sorts of crimes. Does this mean that a shall means something other than what I learned in Law school?

Thirdly, I am particularly concerned with the principle that corroborative evidence is not necessary for sexual crimes. While this may be settled Law for rape, it is far from settled for sodomy particularly in Malaysia since we’ve only had so few charged in the past.

Proving rape is difficult enough as it is even with physical evidence. It often boils down to a he-said-she-said case as the critical component that separates rape from regular sex is the element of consent, which must be adduced through evidence. Otherwise, any woman can cry rape and not have to prove it in any way, which is a dangerous precedent.

However, the crime of sodomy is a strict-liability crime and is a different creature from rape simply because the act of sodomy itself is a crime, regardless of consent. Therefore, I would say that the need for corroborative evidence is even more crucial for sodomy. We cannot allow someone to simply accuse another of sodomy without any sort of evidence.

According to the summary PDF:

There was therefore no reason for him to level a false accusation against the appellant as the stigma will remain for his lifetime.

Personally, I can think of a million reasons for someone to level a false accusation against Anwar. That man has painted a bright red target on his back. Therefore, it is definitely reasonable to expect Anwar to have a lot of enemies. Hence, I think that it would be necessary to have solid and unimpeachable evidence that he committed the act of sodomy.

But I guess this principle was not considered much since there have only been so few sodomy charges in the past. Maybe, one day in the future, another sodomy case will reverse this precedent by requiring evidence of sodomy.

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Shawn Tan

Chip Doctor, Chartered Engineer, Entrepreneur, Law Graduate.

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