Section 377 already clear, no loopholes in law, says lawyer

SHAH ALAM – Claims that Section 377 of the Penal Code contains legal loopholes are unfounded, as the law on unnatural sexual offences is already clear and comprehensive, says lawyer Mohamed Haniff Khatri Abdulla

He said the confusion surrounding the provision does not arise from shortcomings in the legislation but from enforcement weaknesses, particularly the failure of some authorities, including the police, to understand the elements of offences outlined in detail under Sections 377A to 377D.

“Section 377A covers unnatural sexual intercourse through the insertion of a male sexual organ into the mouth or anus of a man or woman and it does not require any element of coercion.

“If coercion is involved, the case falls under Section 377C, which carries a far heavier punishment, a minimum of five years’ imprisonment and up to 20 years,” he told Sinar Harian.

Haniff was responding to calls for the inclusion of explicit ‘intent’ within the provision.

Recently, Kuala Lumpur police chief Datuk Fadil Marsus said it was difficult to prosecute 171 local men arrested during a raid at a spa in Chow Kit due to alleged limitations in existing laws.

He was reported saying that although the detainees were being investigated under Sections 377 and 372, there was no evidence indicating the presence of a victim as no one admitted to being coerced.

Haniff, however, clarified that even without penetration, lewd acts such as groping, fondling or other indecent behaviour still fall under Section 377D, which carries a maximum penalty of two years’ imprisonment.

“The law is already very clear. The notion of legal gaps simply does not arise,” he added.

He pointed out that Section 377A does not require the presence of a victim because it applies to consensual acts, whereas Section 377C only becomes relevant when coercion is established.

“Forensic evidence, such as DNA found on condoms at the scene is more than sufficient as circumstantial proof that intercourse occurred,” he said.

Haniff argued that amendments to the law are unnecessary, as the root problem lies in understanding and enforcement, not the legislation itself.

Meanwhile, the Public Service Department (JPA) reminded that Integrity Units across ministries and government agencies are empowered to proceed with internal investigations into civil servants suspected of immoral misconduct, provided there is adequate evidence.

In a statement on Wednesday, Public Service director-general Tan Sri Wan Ahmad Dahlan Abdul Aziz said stern action, including dismissal or demotion may be taken if an officer is found guilty under the Public Officers (Conduct and Discipline) Regulations 1993 [P.U.(A) 395/1993].