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.
The New Paper (Singapore) reported on 11 June 2010:
Man 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.
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.
Giving non-verbal consent: The “language” of cruising grounds
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.
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.
Read Part 2: Policing propriety as an abuse of human rights (linked below).
Alex Au has been a gay activist and social commentator for 14 years and is the co-founder of People Like Us, Singapore. Alex is the author of the well-known Yawning Bread website.