In a landmark decision, judge Jasvender Kaur handed down a guilty verdict which will have far reaching implications for the interpretation of the obscenity law (section 292) which has traditionally been used against pornographic material.
Amos Yee Pang Sang was convicted on both charges, one for uploading an obscene image (s 292) and one for making remarks with the deliberate intention of hurting religious feelings (s 298).
In explaining her decision, the judge applied a subjective standard, saying that the courts had to decide on the basis of community standards. In particular, the applicable standard was whether parents would approve of their teenage children viewing Yee’s political cartoon, or if teachers would approve of their students viewing it.
Since it would meet the “strongest possible disapproval and condemnation”, the judge reasoned, it would be considered obscene.
Both the prosecution and defence agreed that the test of obscenity is whether there is a tendency to “deprave and corrupt” the likely viewer although they differed in their interpretation of what “deprave and corrupt” means.
The prosecution argued that the image is “plainly ‘obscene’” because:
(a) it gratuitously depicts sexual activity;
(b) it is explicitly described to be an image showing a person “buttfucking” another person;
(c) it uses the well-known (and smiling) visages of two former Prime Ministers to accentuate and amplify the depravity;
(d) it has no redeeming scientific, educational or medical value; and
(e) by any yardstick, the image satisfies the test laid down by Thomson CJ i.e. it was calculated to convey and instil the impression that the use sexual imagery is something of no importance and is nothing more than a joke to “make fun” of other persons. The accused was clearly attempting to plant a “seed” in the audience’s mind, which would grow into depravity and corruption.
I explain the problems with each of these arguments in a legal commentary. Taken alone, none of the conditions from A to E are sufficient to rise to the high threshold of “obscenity”. For something to be obscene, it is not enough for it to offend, shock or cause revulsion; nor is it sufficient for the material to lead someone morally astray. The bar is purposely set high to prevent the state from abusing its power through selective enforcement.
Taken at its strongest, the prosecution is either concerned, singly or jointly, with a) the portrayal of sexual activity, b) the portrayal of anal sex, c) the disrespect towards Lee Kuan Yew, d) the gratuitous nature of its portrayal, e) the flippant attitude towards sexual imagery and other persons’ reputations. (For a rebuttal to these points, see my legal commentary.)
The defence argues that none of this rises to the level of “deprave and corrupt”. Over the course of the trial, Yee’s lawyers raised several arguments. (The judge deals with most of these arguments in her written decision. Read the summary here.)
First, they explained that the image is actually based on a line drawing that can be found on a Women’s Health website. Such images depicting particular sex positions cannot possibly be obscene.
Second, they argued that Yee’s image was really a political cartoon, an attempt at political satire. He wanted to encourage people to “openly criticise and make fun of their political leaders.”
Third, they argued that those who were likely to view the image are people who “must be apprised of the controversy surrounding the image” and have been “tipped off by the title of the post”. They choose to “continue to view it”. Such persons, the defence contends, are unlikely to be aroused by the image or persuaded to try out the sex position depicted in it.
Fourth, the defence argued that the mischief complained of by the prosecution is more appropriately pursued through other means. If it is defamation or harassment, our laws are broad enough to catch any criminal behaviour. But if it is disrespect towards the dead, this is a matter for Parliamentary legislation.
Finally, the defence argued that the law is meant to “catch purveyors and peddlers of pornography; not political satire.” Previous cases have almost always involved pornographic material. The main case which the prosecution cited in support also involved pornographic picture books. And Singapore’s Parliament has explicitly stated that the “main target” of the law is “those who seek profit from distributing obscene publications.”
Implications of the landmark decision
The judge’s decision therefore involves a reinterpretation of the obscenity law to expand it to include material that draws widespread social disapproval. Now, immense moral wickedness is no longer the threshold for determining “obscenity”. It is sufficient for the material to be shocking and revulsive to the community at large.
This decision has far reaching implications on the scope of the obscenity law. The test of whether parents or teachers would approve of young ones viewing an image is a novel one that subjects law enforcement to popular opinion. It has the potential to widen the scope of the law so much so that it could possibly catch any action that may become the subject of public unhappiness based on a whim. It is arguably also a step in the direction of the tyranny of the majority and a step away from reliance on objective standards in law.
The problem with this decision ultimately is that it now grants the Singapore Government immense scope for future prosecution against other individuals who publish material that receives widespread social disapproval. No longer required to prove their case on the basis of an objective standard of social harm or the high standard of immense moral wickedness, the state now has broad discretion to go after unpopular individuals.
Whatever our opinion of Amos Yee, this decision sets a terrifying legal precedent.
Amos Yee will be sentenced on June 2. The prosecution has asked that he be placed on probation rather than imprisoned or fined. Yee’s bail sum has also been reduced to $10,000 with no conditions attached. Previously, Yee could not post anything online. This was an overbroad and unnecessary restriction that failed to presume his innocence.
With his conviction, Yee has agreed to remove the offending blog post and video. Lawyers are still advising Yee on whether to appeal the decision.