Thursday, August 07, 2008

Of Section 377A & 377B of the Penal Code

The section deals with two specific forms of sexual act, namely sodomy & oral sex. According to Mallal's Penal Law (at page 643) penetration alone will suffice for an offence under section 377A of the Penal Code.

There's no mention of consent in the section. According to the "explanation" in that section, it is made clear that penetration alone is sufficient and the act need not be a fully completed act. Mallal's Penal Law went on further to state that consent is not accepted as a defence for the offence as the law treats the offence seriously.

Only male is liable under this section despite the phrase "any person" since the section is clearly dependable on the introduction of the penis into the anus or mouth of the other person.

It is also stated that the male or female partner whose anus or mouth is penetrated by the offender, will not be liable under this section, even though they consented to the act [see Mallal's Penal Law at page 643].

Therefore the ingredients for the above offence shall only be:
  1. The accused introduced his penis into the anus or mouth of another person
  2. There was penetration
Section 377B of the Penal Code deals with punishment for offences under Section 377A.

There are no pari materia provisions with regard to 377A of Malaysian Penal Code in the Indian Codes or Singapore Penal Code.

Reproduced herewith the above sections of the Penal Code:

377A. Carnal intercourse against the order of nature.
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.

Explanation-Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section

377B. Committing carnal intercourse against the order of nature

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.

7 comments:

Anonymous said...

It make sense now. Why susah-susah when you can go down the easier route. Thanks LaywerKampong for the Section 377A & B 101!

D S N said...

Lawyer,

Just wondering whether Consent is a complete defence?

Lawyer Kampung said...

dsn, obviously consent is not a complete defense unlike self defense, truth (for libel), double jeopardy or sovereign immunity.

In fact consent is not relevant at all if one is charged under 377B as the prosecution is only to satisfy the ingredients stated in 377A. There are only 2 limbs under 377A i.e. (1) introduction of the penis to the anus or mouth & (2) there was penetration. My humble opinion is that in order for prosecution to secure a prima facie case for a conviction under 377B, they need only to satisfy the 2 limbs of 377A.

Although there is a precedent in Singapore where consensual oral sex has been ruled as not an offence under their version of s. 377, the case can be considered as of no relevant & not binding in Malaysian context as there is no pari materia provision there in Singapore Penal Code with regard to our 377A.

Thanks for visiting the blog, super senior! Are you practicing in Kuantan? Anyway, keep it up with that blog "Small Talk"!

Anonymous said...

can you explain about alleged alibi by sankaran nair. is it an alibi indeed?

Peaceman said...

Sec377A,B & C are very precise and clear.Any layman with a bit of interest in law will be able to comprehand it.But our Home Affair Minister has failed to give a sensible answer when asked by the press.A lawyer by profession but perhaps too long in foreign affairs.Public are asking why Sec377B not 377C.If there is consent why charge one party only.Cant' blame them for being ignorant of the law.Even professional lawyers are also questioning the justification of Sec.377B,coining words such as 'consensual' 'suka sama suka'etc.knowingly these words do not exist in the section.Before public are further confused damage control has got to be done by the relevent authorities.

Lawyer Kampung said...

Thank you for the comment peaceman.

Anonymous said...

...please where can I buy a unicorn?