The Malaysian criminal justice system has acquitted Anwar Ibrahim of the latest sodomy charge against him (a conviction on an earlier charge was quashed some years ago).
This is a good outcome, but it would be a lot better if Malaysia - which is attempting to be a modern country - did not have a law against homosexual conduct in the first place. The acquittal seems to be based on a very high level of judicial scepticism about DNA evidence (and about evidence in sex crime cases more generally). It's easy to imagine cases where that sort of judicial attitude could lead to perpretators of truly harmful sexual crimes getting off unscathed. That, in turn, raises doubts about the ability of the Malaysian criminal justice system to protect victims of sex crimes.
In this case, even if Anwar did what was alleged against him ... there was simply no victim. What he allegedly did should not have been criminalised. As so often, the most important thing is to reform the substantive law to remove victimless crimes from the statute books and the common law. There is also - I freely acknowledge - some point to ensuring that accused persons are not confronted with unfair tactics by police and prosecutors, but not to an extent that can leave genuine victims unprotected. Notoriously, rape victims can find themselves treated badly in criminal courts.
Getting the balance right in giving an accused person some reasonable procedural protections, without leaving victims unprotected, is ... well, a difficult balancing act. But above all we need to think hard about what should be illegal in the first place. Having consensual sex with a 23-y.o. person of the same sex as yourself is pretty much a paradigm example of something that should not be illegal.
About Me
- Russell Blackford
- Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).
2 comments:
I couldn't agree more. It has been quite shocking watching this story unfold over more than 10 years and hence realize that we still live in a world in which self-regarding actions that cause no harm to others can be demonized, outlawed and used to effect political advantage. Just one example of this are same-sex practices, labelled 'sodomy' by the moral absolutists who regard homosexuality as a great evil. Such practices should not be illegal, that much is clear from a liberal standpoint but religious statutes of course struggle to adapt their views to accommodate this modern perspective.
Thought-provoking points you raised there, Russell. I didn't consider the negative aspects of Anwar's acquittal with respect to sex crimes and justice for their victims. Thanks for raising those issues.
As for decriminalising 'unorthodox' sexuality and sex acts, so long as Islam remains the state religion of Malaysia in everything but name, liberals will wait in vain for such legal reforms.
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