[Trauma warning: The following contains sexual assault/sexual violence, which may cause anxiety, please read with caution.] 】
In the 2000 years from 2021 to 12, among the sexual violence cases that sought help from "Feng Yulan", victims under the age of 16 delayed reporting to the outside world for an average of 13.1 years. Every party who chooses to sue faces a difficult road: walking into unfamiliar police stations and courtrooms, repeatedly recalling and telling painful details. The reason why they stand up and persevere is that they hope that the law will make the perpetrator pay. However, the law may not always give a satisfactory answer: defendants are usually sentenced to only a few years; If there is no insertion of the sexual organ into the vagina, most of them are not older than five years, and some are even found not guilty. A closer study of the Hong Kong Sexual Offences Ordinance reveals at least three major problems caused by backward ideas; They are mainly derived from the UK's Sexual Offences Act 1956, but the HKSAR Government has not reviewed the reform on its own and still clings to the legal framework of more than half a century ago.
"Child Sexual Abuse" in-depth reporting series 5 of 2
A closer study of the Hong Kong Sexual Offences Ordinance reveals at least three major problems caused by backward ideas; They are mainly derived from the UK's Sexual Offences Act 1956, but the HKSAR Government has not reviewed the reform on its own and still clings to the legal framework of more than half a century ago. (Profile photo/Photo by Huang Baoying)
Problem 1: "Gender neutrality" and imprisonment does not meet social expectations
The trauma caused by "sexual assault" to children can affect their lives, but under the legal loophole of "gender neutrality", the criminal responsibility that defendants generally need to bear is a certain gap between society and expectations.
For example, although the maximum penalties for both crimes of "rape" or "sexual intercourse with a girl under the age of 13" can be life imprisonment, since "rape" is only limited to "unlawful sexual intercourse between a man and a woman", and "sexual intercourse" is narrowly defined as "male sexual organs inserted into a woman's vagina", even if the defendant repeatedly commits sexual assault such as finger insertion into the vagina and forced oral sex on the child, the prosecution can only prosecute for the crime of "indecent acts to a child under the age of 16" with a maximum sentence of ten years. If the defendant pleads guilty, his sentence will be reduced by one-third, and the maximum sentence is actually only seven years.
For example, if the case involves "illegal anal sex", the protection for women and men is not the same - legally, the legal age for anal sex with women is 21 years old, and the maximum penalty for violators is life imprisonment; However, if the aggressor is charged with "same-sex anal intercourse by or with a man under the age of 16", he is punishable by life imprisonment. At the same time, however, if the aggressor is charged with "unlawful sexual intercourse with a girl under the age of 16", the maximum sentence is only five years in prison.
The same is harming children under 16 years of age, why is the crime of "illegal anal sex" much more serious than "illegal sexual intercourse"? In fact, in the early years, the law set the age limit for same-sex and opposite-sex anal sex at 21 years old, until 2006, when Leung TC William Roy filed a judicial review questioning that the legal age of "same-sex anal sex" (21 years old) is higher than that of "heterosexual intercourse" (16 years old), which is a form of sexual orientation discrimination and violates the Basic Law and the Hong Kong Bill of Rights. In the end, the court ruled in favor of William and lowered the legal age for "same-sex anal sex" to 16, but the 21-year limit for "heterosexual anal sex" has been retained to this day. It can be said that the crime of "unlawful anal sex" is more serious than that of "unlawful sexual intercourse" because the law still recognizes that "anal sex" is not "sexual intercourse", so it is treated differently. William's victory has promoted the protection of the rights and interests of sexual minorities, but it has failed to update the law's backward concept of what constitutes "sexual intercourse" and even what constitutes "sexual assault".
The failure of ideas to keep pace with the times undoubtedly leads to legal injustice. Based on her mentoring experience, the crisis centre that provides assistance to survivors of sexual violence and their families, the aggressor's use of other tools, such as fingers, tongues, and hard objects into the victim's vagina or anus, is essentially used by the strong to demonstrate domination and subduing the weak – just as sexual violence with penetration can cause severe psychological and physical trauma to the victim. When the law distinguishes between sexual assault with or without penetration, the burden of proof falls on the victim, who must prove beyond reasonable doubt whether the vagina or anus was inserted or something else – which inevitably puts great pressure on the victim.
In an interview with Hong Kong 01, Xiong Yunxin, former president of the Law Society of Hong Kong, member of the Law Reform Committee and criminal lawyer, reminded that the child's "consent" can only be used as a "reason for intercession" after conviction, not as a "defense". (Photo by Huang Baoying)
Problem 2: Age of sexual consent, delineation out of local people's feelings
"Consent" is an important concept in sexual offences: sexual intercourse is not guilty, but rape is committed if the other person knowingly does not consent or has sexual intercourse against the other person's will. The law also uses "age" as the basis for determining whether "consent" is valid, and sets the age of "age of consent" at 16 years, stipulating that "a person under the age of 16 cannot legally give consent so that an act does not constitute an infringement within the meaning of this article"; In other words, even if a child under the age of 16 consents to sexual intercourse, it is not legally considered "legal". However, criminal lawyer Xiong Yunxin, former president of the Law Society of Hong Kong, member of the Law Reform Committee, and a criminal lawyer, reminded Hong Kong 01 that the child's "consent" can only be used as a "reason for intercession" after conviction, not as a "defense".
Why 16? If we look at other age requirements of Hong Kong law, we can't help but wonder more about the relevant age criteria, because you can vote and buy alcohol at the age of 18, but you can get married and have sex at the age of 16.
Law, a senior lecturer at the Faculty of Law of the University of Hong Kong, explained to Hong Kong 01 that criminal law has a "protective principal", which is to protect children from sexual abuse and their sexual autonomy, so the legal setting of the age of sexual consent is "to seek balance in contradictions". As for where this line should be drawn? The UK conducted a number of studies when it amended its sexual offences law in 2003 and published a 68-page study listing elements to consider, including society's perception of sexuality, individual perceptions of sexual autonomy, children's physical development, and long-term effects on society (e.g. the burden of teenage pregnancy).
Hong Kong follows British law to set the legal age at 16, but it seems that it has not followed the UK in conducting legislative research in line with local social conditions. In addition, the meaning behind this setting is also ambiguous, we can all understand that we need to obtain "consent" to have sex with each other, but what exactly is "consent"? If the other party does not resist, is it "no consent" or "acquiescence"? What happens if you originally agree to sexual intercourse but raise an objection halfway?
Law, a senior lecturer at the Faculty of Law of the University of Hong Kong, explained to Hong Kong 01 that criminal law has a "protective principal", which is to protect children from sexual abuse and their sexual autonomy, so the legal setting of the age of sexual consent is "to seek balance in contradictions". (Image source: HKU website)
Problem 3: Sexual enticing is the same crime as two small guesses
Another perplexing issue raised by the age of sexual consent is the distinction between "rape" and "unlawful sexual intercourse."
When rape refers to unlawful sexual intercourse between a man and a woman, and the woman does not consent to the sexual intercourse; and he knew at the time that the woman did not consent to sexual intercourse, or whether the woman consented to it"; So, for victims of children under 16 who "cannot give consent", is her "non-consent" of reference value? If so, unlawful sexual intercourse with a child under the age of 16 is no different from rape, but the former has a maximum penalty of only five years, while the latter is punishable by life imprisonment. If not, "inability to give consent" is considered a third state in addition to "consent" and "disagreement", which raises two practical problems:
The first is that the perpetrator can induce a mentally immature child to have sex "voluntarily" through "sexaul grooming", that is, seduction. Hong Kong 01 reporters reviewed public verdicts and media reports involving child sexual abuse in the decade from 2012 to 2022, and only 11 cases were prosecuted for "illegal sexual intercourse". The average age difference between the defendant and the subject was 16.4 years, and two of them approached children as teachers and committed crimes. How to understand the occurrence of "sexual grooming"? First of all, adults are less likely to have sex with each other just because they receive some gifts or hear a few rhetoric, but for children, it may be easier to believe that this is "love" and so they are willing to meet each other's requirements. Second, children and adults do not have equal power, especially when adults have labels such as "teacher" and "elder" and can be criticized or physically punished, and it is easier for children to magnify the little kindness released by adults.
Second, in the face of "two little guesses" and non-"sexually exploitative" sexual acts, such as a 17-year-old boyfriend and a girlfriend under the age of 16 "stealing the forbidden fruit", although the law requires the culpability and punishment of "illegal sexual intercourse with a child under the age of 16", the Department of Justice generally prefers not to prosecute, and the relevant practice is not expressly stipulated. In the United States, Taiwan, Italy and other regions, the "two small guess clauses", also known as Romeo and Juliet's law, are commonly used to reduce or waive the punishment of consensual sexual intercourse between minors, or to replace the "telling is the crime" that can be prosecuted as long as the prosecutor can prosecute. Hong Kong has not discussed formal immunity under law, but Zhang Tat-ming, a member of the Sexual Offences Review Panel of the Law Reform Commission of Hong Kong and chief lecturer at the Faculty of Law of the University of Hong Kong, pointed out that after the panel discussion, it was considered that legal immunity is too difficult, and if it is completely exempted, it will be difficult to intervene to help the parties.
Mr Cheung Tat-ming, a member of the LRC's Sexual Offences Review Panel and principal lecturer at the Faculty of Law of the University of Hong Kong, explained that instead of exempting consensual sexual intercourse between minors by law, the Department of Justice avoids wrongful injury. (Photo by Zhu Dixin)
Sexual offences reform lagged behind the world trend
Hong Kong prides itself on being a pioneer in the rule of law, but the Sexual Offences Ordinance provides limited protections for child victims. In fact, in many countries and regions in Asia, the definition of "rape" has long been expanded from "vaginal penetration" to multiple forms of sexual penetration, which can not only expand the victim from women to all genders, but also punish more types of sexual crimes.
When Taiwan's Criminal Law was amended in 1999, sexual crimes were separated from the crime of obstructing decency, and a separate chapter was established for the crime of obstructing sexual autonomy; extending the scope of protection from women to men and women; changing the offence from "adultery" to "sexual intercourse"; Replace the words "irresistible" with "by coercion, intimidation, hypnosis or other methods against his will". India enacted the Protection of Children from Sexual Offences Act in 2012, which recognizes penetration methods other than "vaginal penetration", extends the definition of "sexual assault" to the insertion of any object into a child's vagina/urethra/anus/mouth, and stipulates that penetration sexual assault faces a minimum of ten years in prison; On February 2013, 2, India passed an amendment to its penal code to expand the definition of rape to any form of insertion. In 3, 110 years after the promulgation of the Criminal Law, Japan amended its sexual offence-related regulations for the first time, changing "rape" to "forced intercourse", expanding the punishment from "inserting a female sexual organ" to covering anal sex and oral sex, and classifying it as a "non-telling crime" that does not require the victim to file a complaint.
Another legislative direction is the clarification and discussion of the concept of "consent". The definition of "consent" has gone through three main stages, and the "maximum resistance standard" was adopted at the earliest stage, that is, it was necessary to prove that the parties "did not agree" or had tried their best to resist until they could not resist. For example, Taiwan's old criminal law defines "a woman who rapes, coercion, drugs, hypnosis or other methods so that she cannot resist and rapes", but this definition is obviously unreasonable, if a petite woman is alone at home, and is broken into by a strong man who is one meter eight meters tall but has no way to call for help, out of self-protection and does not resist the strong man's request, this does not mean that she sincerely agrees to sexual intercourse. Therefore, many places have changed to "against the will mode", as long as the expression of reluctance to sexual intercourse means "disagree", that is, "no means no (no is no)". When Taiwan amended its Criminal Law, the requirement of "to the point of being irresistible" was removed and "other methods against its will" were added.
At present, the latest stage of discussion in the legal field is "Only Yes means Yes", also known as the "positive consent model", that is, the sexual active person has the responsibility to obtain the explicit consent of the other party, and if unsure, ask questions to ensure that the consent of the other party is obtained, otherwise it is a crime. Canada had incorporated the positive consent model into its criminal law as early as 1992; As for the United States, many states, although still not legislating, have at least adopted the positive consent model as a criterion for judging sexual abuse in schools, and will popularize the importance of respecting the will of others when sexual contact is in school sex education.
Sticking to the British legal framework 70 years ago
Compared to the rampant reforms on sexual crimes in other regions, Hong Kong has stalled. Hong Kong's sexual offences legislation is largely based on the UK's Sexual Offences Act 1956, but in the UK, most of the provisions of the Act have long since been repealed with the entry into force of the Sexual Offences Act 2003, and the new Act also expands the scope of rape and adds section 67 "Voyeurism", section 2 "Assault by penetration", and section 12 "allowing children to watch sexual acts" (Causing a child to watch a sexual act) and other charges. After Hong Kong's return to the motherland, it did not adjust to the changes in the United Kingdom, nor did it review and reform relevant laws on its own, but today in 2023, it still adheres to the legal framework of more than half a century ago.
In fact, many of the above issues were touched upon when the Social Welfare Department formulated the Guidelines for Handling Child Abuse Cases in the 80s of the last century. For example, according to the definition of the Practice Guidelines, "sexual assault" means coercing or inducing a child to engage in sexual activity for the purpose of sexually exploiting or assaulting a child without the child's consent or mental immaturity to fully understand or understand the sexual activity that occurs to him/her. These sexual activities include acts that have direct physical contact with children or no physical contact (e.g. rape, oral sex, encouraging children to masturbate for others/display their sexual organs or obscene positions/watching other people's sexual activities, producing pornography, forcing children into prostitution, etc.). The Practice Guidelines also emphasize that the reason why a young person voluntarily or consents to sexual activity with another person may also be the result of sexual exploitation of the young person by taking advantage of the special position of the power difference between himself and the young person.
However, the current sexual offences legislation lags even behind the Procedural Guidelines of the last century. Why is the reform of Hong Kong's sexual offences law so slow? What changes has the LRC's Sexual Offences Review Panel, established in 2006, changed today?
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Hong Kong Child Sexual Violence Helpline - Sexual Violence Victims Support Hotline: 23755322
Tung Wah Group of Hospitals - Chi Ruo Yuen Hotline: 18281
Seedling Care Fund: 2889 9933
Harmony Home - 24-hour Women's Helpline: 25220434
Hong Kong Association of Women's Centres - Women's Helpline
Po Leung Kuk - 24-hour Women's Helpline: 81001155
Social Welfare Department Hotline: 23432255
Hong Kong Family Planning Guidance Council: 25722222