Lest I begin sounding like a broken record, this will be my last commentary on s. 377A for some time. It’s not what I envision to be my cause célèbre, unlike a contemporary of mine =)

Section 377A: The Final Bastion?

From the viewpoint of many conservatives, s. 377A is their Alamo — the final bastion for the forces of goodness, decency and propriety, the place where they must valiantly make their last stand. Lose s. 377A, and (if the conservatives are to be believed) the gates of hell will be irreversibly opened, unleashing wickedness and depravity upon our society: sexual licentiousness, bestiality, incest, pedophilia, necrophilia, and other unspeakable abominations.

Very gutsy, very sanctimonious… the only problem is that they have chosen the wrong place to make their stand.

If it is sexual licentiousness they wish to keep out, then that battle has long ago been lost, the respective strongholds surrendered. Extra-marital sex, adultery, adolescent and teenage sex, sex that is unrelated to procreation, sex other than vaginal sex — these are inescapable facts of our modern society. It is irrational that you have ceded on all these issues, and yet intransigently cling to s. 377A, if it is sexual licentiousness you intend to avert.

If it is other unacceptable forms of sex you wish to prevent, then s. 377A conversely represents a mere border town, an outpost which conservatives can easily cede without jeopardizing their core principles (principles that I’m sure most liberals share as well). Our objections to these forms of sex are founded on different, more compelling reasons than our objections to homosexual sex.

Bestiality, we oppose because animals, being capable of suffering and limited consciousness, have some form of interests and/or rights which must be protected (as argued by Peter Singer in Animal Liberation). Hygiene is also an issue.

Incest, has its own distinct problem of the increased chances of homozygosity and recessive alleles.

Necrophilia is unacceptable because many societies view a dead person as retaining an interest in his or her corpse (characterized as a ‘property right’). A person should be accorded respect even after death, and respect for his or her corpse is the clearest symbolic extension of such respect. Again, hygiene is also an issue with necrophiliac sex.

Pedophilia is unacceptable because children lack the maturity to cope with the delicate consequences of sex, and because children are physically vulnerable to abuse. There are exceptions (some adolescents and teenagers may be sexually mature), but as a form of rule utilitarianism, the law sensibly prefers to impose a uniform age of ‘deemed consent’, rather than explore the physiological and psychological details of each case.

All these other forms of sex can be objected to on various grounds other than innate disgust (which is the sole objection against homosexual sex, as far as I’m concerned). There is hence no substance in believing that, if you give up s. 377A, that all these other moral strongholds will fall like dominoes.

To make a stand on s. 377A is thus irrational… to do so is either too late (where sexual licentiousness is concerned) or too early (where other forms of unacceptable sex are concerned). In either case, ceding s. 377A would be an inconsequential ‘loss’ within the grand war which conservatives believe themselves to be engaged in.

The Harm Principle

Let me wrap up with some passing reflections on the harm principle.

First, Prof Thio’s speech criticized the liberal camp as relying on “an idiosyncratic notion of harm”. She fails to see that the harm principle is not just a touchstone arbitrarily chosen. Neither does it simply mirror a utilitarian ‘cost-benefit analysis’ (i.e. “harm” is where the social costs outweigh social benefits).

J.S. Mill said it best:

“That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

This passage situates the harm principle within its proper context: All human beings are free and equal, and the freedom and equality of each individual is to be respected and safeguarded, as far as possible. Where lie the limits? A human being’s freedom of action ends where the freedom of action of another human being begins. “Harm”, then, merely refers to the situation when the act of one human being has the effect of trampling on the freedom and equality of another human being. Harm is not some a priori, scientific concept; it is only the antithesis of freedom and equality.

Seen thus, the harm principle is not a card which we liberals have randomly plucked out of the air. Neither is it a ‘neutral’ concept. On the contrary, it is firmly grounded in a moral world-view which is centred on the freedom and equality of all human beings. The liberal does not quite say that the good of the individual is unimportant (I differ slightly from Mill here); the liberal says that the good of the individual entails that, in most cases, she ought to be left to decide how best to live her life.

How “harm” is defined will focus on allowing every human being the maximum liberty and equality which he or she needs to live a meaningful life. Thus, while most physical injury qualifies as “harm”, physical injury that is accidentally caused may not so qualify. The freedom to act entails certain risks; the real question is, what level of risks is society prepared to accept? (Risk-adjustment is a major concern of the law of negligence.) Similarly, negligible mental distress will not be regarded as “harm”; otherwise, we would spend most of our time worrying whether we have caused insult or distress to someone else, an unimaginable fetter on our autonomy.

In fact, a society built upon the ideals of freedom and equality necessarily supposes that each of us should be able to tolerate most forms of uncivility, insults, and other behaviour we may inwardly disapprove of (although whether we should engage in uncivility is a different matter). It is therefore curious that we should ever regard any innate disgust we may feel towards homosexual sex as a sufficient reason to outlaw it.