Together with some others interested in the same issue, I have been trying to keep a record of press reports of prosecutions related to gay sex. One thing I have noticed is that police entrapment of gay cruising has not been reported for at least 12 years, probably 16.
Until now. A recent report in the New Paper thus comes as a serious break in the pattern. A Malaysian was entrapped by a constable at a well-frequented cruising ground off busy Victoria Street.
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11 June 2010
The New PaperMan gropes cop in cemetery
By Elysa Chen
On May 4, the police conducted an anti-vice operation at the old cemetery along Jalan Kubor, an area known for vice.
The police declined to to give details of the vice activities.
A plainclothes policeman was standing alone in a poorly lit spot when he was approached by Jagadiswaran Krisnan, 32, a coffee house supervisor, at about 10.40pm.
Jagadiswaran struck up a conversation with the undercover cop.
Two other police officers were stationed a short distance away, ready to provide help.
While talking to the officer, Jagadiswaran, a Malaysian, moved closer to him. He told the officer that he was there “to have fun”.
Then, he suddenly raised his hand and stroked the officer’s chest and private parts.
That was when the undercover cop identified himself and, with the help of his colleagues, arrested the man.
Jagadiswaran was charged with behaving in an indecent manner in a public place. He was fined $1,000 on Tuesday.
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Entrapment is a very problematic tactic in law enforcement; this is true whether we’re referring to drugs, espionage or sex. It always begs the question of whether the crime would have been committed if the undercover officer was not there in the first place. Entrapment generally starts from potentiality and converts it to reality, triggering an actus reus (action) when only the mens reus (intention) might have existed.
For example, we advise people to be careful and not flash jewelry when walking around areas with poverty, high unemployment or crime. Why do we feel such advice is pertinent? Because we can see the role that temptation plays in precipitating crime. When someone is foolish enough to walk about, dazzling others with bling-bling and then get robbed, many of us would ascribe partial responsibility to the person advertising the potential loot.
How different is this from an entrapment operation? What is the police’s responsibility in creating the crime?
More troubling is the possibility, mentioned in Alan Shadrake’s book, Once a Jolly Hangman, that undercover officers posing as narcotics buyers are known to prompt their sellers to supply larger and larger amounts of heroin till it gets above 15 grams, triggering the mandatory death penalty when caught. The book cites an unnamed insider source for this disclosure.
. . . that so angered the former CNB officer who assisted in some of my enquiries. ‘Encouraging the less fortunate to commit more serious crimes that result in them being hanged or jailed for impossibly long terms really appalled me’, he said . . .
— Once a Jolly Hangman, page 132
What this means is that even if we argue in certain cases that actus reus would have occurred without entrapment, it still begs the question of degree.
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In the next post, I will take the question further. I will critique the notion that sexual propriety should be enforced everywhere, even to the point of justifying entrapment. Should there not be spaces for sexual impropriety?
Yawning Bread 
I am making an assumption that the description given in the news article is accurate (it is slowly starting to become harder and harder to judge these things in the Singapore media).
Under this assumption, I would like to be fair to the police and say that this cannot be categorized as entrapment. The said individual had not even sought permission from the police officer before proceeding with those acts of sexual intimacy.
However, if my assumptions were false and that officer had indeed agreed to “have fun” with the individual, then undoubtedly it is entrapment, a police tactic I disagree with.
PS: The word “Suddenly” used in the article does make me somewhat suspicious. It is very, well … un-journalistic.
I agree.
Although, I would add:
(1) This is not strictly a case pertaining to gay sex. That the incident just happened to be a gay sex incident is no indication that the police were there to entrap gays. It just so happened that this Malaysian man was a gay cruiser. No doubt the police would have responded the same way if it was a hetero-cruiser. So, this is far from a “homophobic” crackdown.
(2) It is only entrapment if the police have a specific target beforehand. “anti-vice operation” is very vague. It could very well mean that the police received a tip beforehand, and hence staged a secret inspection of the area, not knowing exactly who to go after.
(3) In this case, the question of sexual propriety is moot, since as Chee Wai pointed out previously, there is no evidence that the police officer was consensual to the act of being touched. Additionally, even if the police officer was consensual, he might have been playing the part of a vulnerable individual, whose consent would not be regarded as sufficient in a court of law.
(4) A cemetery is a public place; it is not somewhere designated as a “Red-light Zone” by the government. Sex in a cemetery is not only public; but also an affronting disrespect for the dead to many people. (Yes, I know what you think about such “superstitions”, but you are not everyone else in Singapore.) On the larger scale of things, regulation on sexual impropriety is required in order to protect youth and vulnerable adults. Surely even you would not want prostitutes soliciting at a school?
Even if there are spaces for “sexual impropriety”, they would have to be policed to make sure such groups are protected from exploitation, not to mention your favourite feminists’ paronia about rape occurring in those areas. As it is, it is already hard to police the (non-sexual) IRs, what more for “sexual spaces”?
if “entrapment” means “setting a trap”, having a number of police officers in the location waiting to catch offenders is “setting a trap”; but if it means ‘enticing people to commit crime”, then the event description does not amount to that
as for “suddenly”, it could have happened that way, if the guy’s urge was strong enough
You wrote: “However, if my assumptions were false and that officer had indeed agreed to “have fun” with the individual, then undoubtedly it is entrapment, a police tactic I disagree with.”
The individual was quite right to assume that the officer had given consent, at least to the initial approach. This consent is based on the “language” of cruising grounds, as I will explain below.
I assume you have never been to a cruising ground, so I’ll elaborate:
The cruising ground in question is a thickly foliaged, secluded area with nobody else passing through. It is populated at night by men who cruise for sex. If someone enters by accident (which almost never happens), it would be quite clear that cruising is taking place by simple observation; it’s not as if he will be pounced upon within seconds. One has plenty of minutes to take stock of the situation and choose whether to stay or leave.
The principle here is that entrance + choosing to stay indicates consent. It’s like the way we sometimes land up on a porn website. When we see initial indications that it’s a porn website, we cannot deny we consciously make a choice whether to proceed deeper into the site or leave. That decision is ours to make, if we stay and navigate further in, it’s a decision that indicates consent.
The constable stayed. Others in the area would quite fairly read that act as indication of consent. There are two levels of consent in gay sex: (a) consent to be approached and (b) consent to have sex. By staying, the first level is considered by other gay men to have been given. It’s like saying “I am open to receiving offers” without guaranteeing that any offer will be accepted in full.
And that’s what the Malaysian guy did on seeing the officer. He proposed. Let’s not think of proposals as solely verbal negotiations (some heterosexuals might because rape precedents tend to treat consent as a verbal matter?), but in gay sex, consent negotiations are usually physical. It’s based on touch, then waiting for a reciprocal touch, and another touch and so on. If in the process neither side refuses an escalation of touch, then consent (b) to have sex is considered as given.
The Malaysian observed the standard protocol. He started verbally. The officer did not break off the conversation. Then he touched the chest. Again the officer did not say no; did not move away. Then the Malaysian touched his crotch.
At each stage of the proposal, the officer indicated he was willing to let it go to the next stage. By any reasonable measure, consent was given to let his crotch be touched.
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The other issue is that of applying public lewdness law to quasi-private spaces that this cruising ground is. I will deal with this in the next article.
Thanks for that clarification about what cruising grounds are like in Singapore, Alex. The protocol you described does make some logical sense. My only exposure (from second-hand observations) to the gay scene here in the US is restricted to gay bars where people are apparently approached politely and where you are apparently allowed to smile and say you are not interested while continuing to enjoy the facilities. So, the two scenarios do seem worlds apart from my perspective.
On further thought and a re-read of the article, it is also now clear to me that those police officers are not there merely to keep the peace.
Actually it is more than just a problem with law enforcement. It has to do with how we as a society wish to govern ourselves. We exist in an environment of half known social boundaries, unofficial government guidelines, lots of archaic laws left over in the books and over dependence on police discretion.
I suppose this would have been an opportunity for the courts to re-define the vagueness of the law. If the accused had proper counsel (and I assume he did not, or he chose not to fight the charges), I do believe that the verdict would have been different — Just like the CJ Yong Pung How effectively did all those years back.
Perhaps too many in the gay community do not put up a fight because they cannot afford dedicated legal counsel or are not aware of their rights. Are there advocacy groups / lawyers out there who will volunteer their time to help such victims?
Kevin
To be honest, I think cruising in a cemetry is a problem! It probably offended some people, prompting them to make complains against gays loitering there. I can understand (not necessarily agree), in this instance, why the police did what they did. It is, after all, considered holy ground.
An arrest is one thing; it’s even more deplorable if it was made with the help of police entrapment methods – deception by another name.
However, prosecution is still another matter. And conviction, yet another.
Last year, in response to the Delhi High Court ruling, K Shanmugam – undoubtedly in a self-aggrandizing mood on behalf of himself as well as the PAP government – declared that “we will not prosecute”!
And he even had the gall to add a rejoinder to the pesky journalist who questioned hom: “Do you understand?”
I actually think of this as a good thing. During the last round of petitions for 377A to be repealed, I heard a number of gay men take the view that because the Government had already agreed not to enforce this law except in the case of rape we should not risk what little space the gay community had by sticking our necks out. There seem to be a sense that if gay people agreed to invisibility, we would be left alone.
This false hope has never borne fruit. Gay history in other countries like the US (Stonewall Riots), Canada (Little Sisters) and so on have shown us that compliant lives on the periphery means we are put ourselves at the mercy of the ruling ideology. I hope those watching will now understand that while the law exists there is no safe space. The police could very well walk into our clubs and bars, our social groups and our homes, and invoke this law.
Perhaps the next time there is maturity towards repealing the law there will be more momentum in the community and less hiding our heads in the sand.