Sunday, May 13, 2007

Can repealing S377/377A cause harm to SG society?

Posted on YoungRepublic yahoogroup mailing list.

The concept of harm has evolved, and is ever evolving.
When slaves had no rights, there was no harm caused in whipping them, or to work them all day in the sun, etc. They were not human, and so certain religions preferred preached to reinforce that societal paradigm t.

When women had no rights, there was no harm keeping them in the kitchen, delivery room, and other areas of confinement. Women were not men, and again, certain religions were happy to go with the current flow and preach against universal suffrage.

So since harm is ever evolving, then there is no real reason to try to determine hypothetical harm in a society. We just have to determine on a case by case (Caselaw style) on what constitutes harm.

Does repealing S377/377A cause more harm or does retaining/modifying it cause more harm? (applied law rather than theoretical law?)

it causes 'mental harm' to those who believe it is abhorrent, immoral and weakens the bond of society (all moralistic judgements).

Does it cause physical harm? Well, if unnatural sex occurred between non-consenting parties, erm, ye. I guess there's harm. Can such criminal acts of harm be prosecuted under other laws? probably yes too. (rape? assault? battery? etc).

Does it cause harm between consenting parties? well, if one lied about HIV status, or other high-risk situations, yes, there is potential for harm. Note, it is still potential, not definite. Is it covered under other laws? hasn't been tried in SG, though i understand that in the US etc, people have been prosecuted under murder charges or something for intentionally trying to pass on HIV on unknowing partners.

Does it cause harm between informed, true-and-fair "contracting" (trusting) adults in a private bedroom? If they slip up and have an accident, sure. But is an accident a crime?
If so, wouldn't an accident in a 'legal heterosexual sex leading to penetration' situation also cause harm and be liable under S377/377A? Why should one then be prosecutable and another not? If there is no accident, and both parties walk away satisfied, what harm has been caused?

If there is no harm beyond mental harm, and for certain religions, the idea that other religions also 'claim' to be the one true path (thus causing mental harm ), then, what actual harm to society has occurred?

The homophobic lobby's primary line of argument is the slippery slope-
that if it is decriminalized, it will lead to higher incidence of non-missionary-position-sexual-activity-not-leading-to-procreation.
Somehow, I think that activity going on somewhere 24/7 in Singapore all the time.

Axotxl tanks to save Singapore from extinction, anyone?
We coul calld it permanent national service for females.

[what's abhorrent in one society is just daily course of activity in another. The only remaining option is to exercise free market will and leave an intolerant society.]

On Sun, 13 May 2007 09:08:54 +0800, koh Jie Kai wrote:

> I'm unsure however, to what extent I'm supposed to defend that. That's
> because ( and I'm just looking at my own juris notes here) even if we say
> that the state should only intervene on the grounds an individual should
> not
> be allowed to harm others, the problem with such an analysis is that what
> constitutes "harm" is in itself a moral judgment.
> So on one level of analysis, when Mills says that the state is justified
> in
> intervening if an individual's activities cause loss, injury and pain to
> others, it's saying that causing these things is morally wrong.
> Or when Mills advocated in "On Liberty" for compulsory education, can
> that
> sort of intervention be said to be a moral judgment which says that "it
> is
> better for people to be able to fully exercise their abilities to make
> choices, which they can only meaningfully do if they are literate"?
> As for privileging any particular conceptions of the good: I'm not sure
> if
> it is entirely desirable that the state can and should refrain from doing
> this in each and every circumstance. Raz would argue that the good of
> autonomy in human lives does not require that citizens have the
> opportunity
> to make immoral choices. While he also argues that most moral
> legislation is
> not justified on the grounds that it would violate autonomy, it opens the
> possibility that there are in fact immoral choices which can justify
> state
> coercion.
> Suppose we are faced with a case of a citizen who enjoys torturing,
> mutilating and killing stray cats. Why might a state be justified in
> imposing laws banning this? In fact, my guess is that liberals would
> intuitively feel more comfortable passing laws criminalising this than
> to do
> anything about the publication of porn magazines.
> Now stray cats are not people, and they aren't owned by anyone, which
> means
> that issues of pain or loss caused to human beings isn't present here. We
> can also disregard the factor of there being a bigger mess to clean up
> after
> these cats get killed. No the real issue here is whether it is desirable
> to
> inflict torture and pain per se. And we might say "the state shouldn't
> condone behaviour which prmotes acts of violence and torture, because
> such
> acts are immoral." Obviously I've not proven that kitty torture should be
> banned, but I'm saying that to state that the state should always be
> morally neutral as between choices of citizens where no harm is involved
> is
> not a foregone conclusion.
> On 5/12/07, Caleb wrote:
>> Yes that is right. Although I believe tolerance alone is not enough:
>> not
>> only should the state tolerate all values that do not cause harm to its
>> citizens, it should also not privilege any particular conceptions of the
>> good.
>> On 5/12/07, koh Jie Kai wrote:
>> >
>> >
>> > On the specific point of tolerance ( since I am in fact on my
>> > jurisprudence topic reading now), any society which accepts that
>> there might
>> > be a diversity of ways of viewing things morally would require
>> tolerance.
>> > "Tolerance" as a value has a very specific meaning according to Raz.
>> It
>> > implies the idea that an individual is withholding doing some form of
>> > coercion or threat to someone whom that individual thinks deserves
>> such
>> > coercion or threat.
>> >
>> > I hope I got that right.
>> >
>> >
>> > > A society comfortable with itself would not need tolerance. It
>> already
>> > > accepts that within itself, there are members that may not subscribe
>> > > to
>> > > the views of the majority. However, the majority also accept the
>> > > existence
>> > > of the minority, and will defend their right to existence as members
>> > > of
>> > > the society (and other loftier ideals).
>> > >
>> > >
>> > >
>> >


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