By Carlton Tan
Amos Yee Pang Sang was found guilty on 12 May of two offences: IOne for putting up an obscene image on his blog and another for attempting to wound the religious feelings of Christians.
District Judge Jasvender Kaur explains her decision in a 16-page written judgment. Here’s a simple breakdown of her reasoning on the obscenity conviction.
Obscenity law: Should it be restricted to pornography?
On the first charge of whether Yee had violated section 292 of the penal code by posting an obscene image, the judge rejected the defence’s argument that the obscenity law is “meant to catch purveyors and peddlers of pornography; not political satire”.
First, she reasoned that pornography is merely an “aggravated form of obscenity” which law enforcement agencies typically target. This does not mean other forms of obscenity do not exist.
Second, she reasoned that the use of section 292 has “evolved with changing trends and mediums of publication”, citing the example of one prosecution involving t-shirts. This means it is appropriate expand the law to include non-pornographic, but still obscene, publications.
Third, she reasoned that since the purpose of section 292 is to protect the minds of vulnerable people from corrupting influences, Yee’s intention is irrelevant. Whether or not he intended to encourage open political debate is irrelevant, what matters is the effect of his image.
Obscenity law: The appropriate test
Next, the judge considered what the appropriate test of “obscene” should be. She accepted that for something to be “obscene”, it must fulfil two criteria. First, it must have “the tendency to deprave and corrupt.” Second, it must have this effect on the primary readership, i.e. “those persons who are likely to view the blog post.”
The judge did not clarify whether she accepted or rejected the defence’s definition of the subsidiary terms, “deprave” and “corrupt”. The defence argued that there is a high threshold to be reached. To corrupt is to lead one to moral perversion. It is not sufficient for the image to merely cause shock or revulsion; it is also not sufficient if it merely leads viewers morally astray.
Obscenity law: Persons likely to view the blog post
Judge Kaur reasoned that since Yee is a teenager, it is reasonable to infer that he will attract readership amongst his age group. She rejected the defence’s argument that those who view the image do so willingly and are aware of what they are in for.
“It does not matter whether the young reader clicks on the link unsuspectingly or has permissive values and therefore clicks on the link because of its title,” she said. She then cited a ruling wherein the judge wrote:
it could never have been intended to except from the legislative protection a large body of citizens merely because, in different degrees, they had previously been exposed, or exposed themselves, to the “obscene” material. The Act is not merely concerned with the once for all corruption of the wholly innocent; it equally protects the less innocent from further corruption, the addict from feeding or increasing his addiction.
Obscenity law: Tendency to deprave and corrupt
First, Judge Kaur rejected the defence’s submission that a similar image could be found on Women’s Health Magazine. She held that comparisons with other available material is the wrong approach and pointed out that it was a South African website, reasoning: “What is permitted elsewhere in the world is also irrelevant.” Asserting the sovereignty of the court, she said, “It is for the court to judge if the image is obscene having regard to our current community’s standards or conscience,”
Second, Judge Kaur established a novel test for determining the secondary question of what “deprave and corrupt” mean. She asked the two questions: “Would any right-thinking parent approve of their teenage daughters and sons to view such an image?” “Would any teacher approve of such an image to be viewed by his or her students in the school library?” For her, the answer to these questions “would be an emphatic ‘no’.” “It would meet with their strongest possible disapproval and condemnation,” she added. (To note, these questions are subjective in nature, that is, it is a matter of the preference of the parent or the teacher and not an objective moral standard.)
Third, she considered what Yee’s image depicted. She asserts that the image “portrays two persons having anal sexual intercourse in a sexual position”, an act of “unnatural intercourse” which is “made explicit by the description ‘buttfucking’.” However, the prosecution’s main contention was never about the depiction of anal sex.
Fourth, she considered what effect this might have on viewers. She reasoned that such an image would “not only tend to excite teenagers to try out different sexual positions but also deviant sexual activity, i.e., anal intercourse.” She then concludes that “such sexual desires and lascivious thoughts would have a corrupting effect on young minds.”
Fifth, to establish that our societal norms are against anal sex, she quoted the sex education syllabus on the Ministry of Education’s website which states that one of its aims is teach children to “avoid sexual experimentation”.
Accordingly, Judge Kaur concludes: “I am satisfied that the charge has been proven beyond a reasonable doubt and the accused is found guilty and convicted.”
Yee will be sentenced on 2 June.
This article was first published on Asian Correspondent.
