26 May 2007

Why Section 377A is redundant

Looking at the cases unearthed by Mohan Gopalan showing how Section 377A has been used in the past, two things stand out: some should not have been prosecuted, while others could have been prosecuted under other laws. We never needed 377A. Full essay.


Teck Soon said...

From the box, I noticed that Section 376A would criminalize anyone having sex with someone under 16, but seems to make no exceptions for the case of both partners being under 16, or of cases where one partner is 17 and the other is 16. So if two 16-year-olds have sex, then regardless of either gender it would seem they would both be liable to prosecution. This would seem to create terrible scenarios of upset teenage girlfriends sending their slightly-older ex-boyfriends to prison for years. What could be done about this potential problem with the law?

Anonymous said...

As a socio-political as well as legal issue, abolishing 377a has additional complications. The first counter argument is probably "it was not being used to prosecute homosexuality per se; why are you guys making a fuss?"; second would be "but decriminalization might be taken as endorsement"; third "it provides additional means of prosecuting offenders - charging them under another law might make proof harder and they might get off through a loophole" - in other words, sometimes a deliberate "misuse" can be convenient

in my view, the last actually provides the most effective argument for abolishing it: a legal "convenience" can become a source of corruption


Yawning Bread Sampler said...

Teck Soon -

I think in the UK they faced this problem when they had to settle on an age of consent. I vaguely recall that the solution was to put in an exemption clause that said if the couple is within 5 years of age of each other, then it's OK.

That's to say, if one party is 15 and the other is 28, then law applies. If one party is 15 and the other 17, the law does not. At least that was one of the solutions proposed - don't know whether it was passed.

If someone has a more certain answer, do correct me if I am wrong.

Anonymous said...

-in my view, the last actually provides the most effective argument for abolishing it: a legal "convenience" can become a source of corruption-

Actually that has got to be one of the worst arguments I can think of. You are advocating retaining an unfair law simply for convenience's sake?

Wouldn't the more logical solution be to study all the loopholes that might exist, and then rewrite the law so that it is fair and yet plugs all these loopholes. "Convenience" is just the easy, lazy way out.

Isn't that what we, you know, *pay* ministers for?

Anonymous said...

12.34: please read what I said again

in any case, the "establishment" is more likely to be swayed by the need to remove scope for corruption than by your argument


Anonymous said...

Oops, I read wrongly. My apologies.

JohnM said...

I think the "closeness in age" is an argument for the defence but not an exemption per se. Even so, you are only placed in the Sexual Offenders Register if you are over 20 and had sex with someone under 16. Also, when someone is in a "position of trust" (eg teacher), then they are not allowed to have sexual relations with the younger party (if between 16-18).