[Trauma warning: The following contains sexual assault/sexual violence, which may cause anxiety, please read with caution.] 】
Hong Kong's current sexual offences legislation basically follows the UK's Sexual Offences Act 1956, which has been poorly reformed in the past 67 years, and the definition and treatment of child-related sexual offences are quite simple, even lagging behind the Procedural Guidelines for Handling Child Abuse Cases formulated by the Social Welfare Department in the 80s of the last century. Why is the reform of Hong Kong's sexual offences law so slow? As a member of the Law Reform Committee responsible for studying the issues referred to the government for reform, Cheung Tat-ming, chief lecturer at the Faculty of Law of the University of Hong Kong, also complained that the sexual offences review team was too slow; However, another member, Xiong Yunxin, former president of the Law Society of Hong Kong, believes that Hong Kong law has improved a lot, for example, in the past, women could not testify, even if they were sexually assaulted, they had nowhere to speak, but now they can testify in court, and women's rights are much more secure than in the Middle East.
"Child Sexual Abuse" in-depth reporting series 5-3
In April 2006, the then Secretary for Justice, Mr Wong Yan-lung, and the Chief Justice of the Court of Final Appeal, Mr John Lee Kwok-neng, requested the Law Reform Commission to review Hong Kong's laws relating to sexual offences and related offences. (Photo by Wong Wai Lun)
The LRC took 16 years
and made few substantive changes
Hong Kong has been at the forefront of Asia in focusing on child sexual abuse. As early as 1981, the Social Welfare Department formulated the Guidelines for Handling Child Abuse Cases, which regarded "sexual assault" as a type of injury/abuse. Since then, however, the reform of Hong Kong's sexual offences ordinance has stagnated and has been gradually overtaken by other Asian countries. In April 2006, the then Secretary for Justice, Mr Wong Yan-lung, and the Chief Justice of the Court of Final Appeal, Mr John Lee Kwok-neng, requested the Law Reform Commission to review Hong Kong's laws relating to sexual offences and related offences. On 4 May 16, 2022 years later, the LRC finally published its report on Sentencing and Related Matters in the Review of Sexual Offences, making final recommendations on the three major aspects of the "Review of Substantive Sexual Offences" report, including the punishment of various offences, reforming and strengthening the treatment and rehabilitation services for sex offenders, and optimizing the mechanism for checking conviction records for sexual offences.
However, the report, which took 16 years to complete, brought little substantive change.
The first change is the establishment of a mechanism for checking convictions for sexual offences. The LRC's Sexual Offences Review Sub-Committee published a consultation paper on the Sex Offender Register in July 2008 and a report on Sexual Offences Record Check for Children in Relation to Children: Temporary Recommendations in February 7, proposing the establishment of an administrative mechanism for employers who employ others in child-related work and mentally incapacitated persons to check whether existing and prospective employees have criminal conviction records for sexual offences. Since 2010 December 2, the Police Force has officially implemented the Sexual Conviction Record Check mechanism. However, it is not a compulsory mechanism, but it is left to the employer to apply to the police for verification.
The second change is that in December 2010, the LRC published its Common Law Presumption of Incapacity for Sexual Incapacity for Boys Under 12 to abolish the outdated common law presumption that boys under 14 are incapable of sexual intercourse. The Statute Law (Miscellaneous Provisions) Ordinance 14, which came into operation on 2012 July 7, formally abolished the presumption.
The LRC was established as early as January 1980 to study Hong Kong legal issues referred by the Secretary for Justice or the Chief Justice of the Court of Final Appeal for government reform. Apart from the two major changes, the Commission has always been a non-binding advisory body, and in response to the series of initiatives put forward by the LRC, the Security Bureau stated that "the Government will conduct public consultation on the proposed legislative amendments in due course and will refer the amendments to the Legislative Council for consideration." But what is "just in time"? The outside world has no way of knowing.
Cheung Tat-ming, a member of the Law Reform Commission's Sexual Offences Review Committee and chief lecturer at the Faculty of Law of the University of Hong Kong, said helplessly that as a member of the panel, he also felt that the work of the group was too slow and hoped that the legal reform process would be accelerated. (Photo by Lu Yiming)
We look forward to discussing
a comprehensive review of the reform on multiple topics
Cheung Tat-ming, a member of the Law Reform Commission's Sexual Offences Review Committee and chief lecturer at the Faculty of Law of the University of Hong Kong, said helplessly that as a member of the panel, he also felt that the work of the group was too slow and hoped that the legal reform process would be accelerated. However, he also mentioned that using the LRC to carry out legal reform is not an efficient approach in itself. He further explained that the 10 members of the Committee were basically volunteering, but there were many complex issues in the work that needed to be discussed in meetings and that if someone could commit it full-time, the pace would increase. He added that the task given to the LRC by the government was only to consult and issue reports, and it was unclear to what extent the government would implement the reports.
Mr Hung Yun-hsin, a member of the Law Reform Commission and former president of the Law Society of Hong Kong, believes that the Government has not failed to adopt the LRC's recommendations, but because the sexual offences review is gradual and needs to be completed gradually. One of the biggest changes, namely the revision of male access to female vaginas to any form of sexual penetration, he believes could be introduced within this year.
Xiong stressed that Hong Kong law, while not perfect, has made many improvements. He gave an example of this move: "Women's testimony is not credible in the first place. In the past, women were sexually assaulted and had no say, but today's courts have allowed women to testify. You look at those Arab countries, Middle Eastern countries, where are there any feminist rights? But in Hong Kong, that's a lot of protection." He added, "If you have any ideas for improvement, we will definitely consider them."
Cheung hopes that Hong Kong can overhaul the Sexual Offences Ordinance because, as noted in the Sexual Offences Review Panel's consultation paper, Hong Kong's sexual offences legislation is still largely the same as the British Act 1958, and the definition of sexual offences is very simple, either rape or indecency. But in reality, there are many other sexual offences that harm children and there are simply no targeted laws to deal with. In its report, the LRC has recommended adding offences such as "soliciting a child for sexual purposes", "engaging in sexual conduct in the presence of a child under 16/13", and "causing a child under 16/13 to view sexual images (including text messages and sound messages)" to strengthen the protection of children.
In addition, there are many practical experiences in foreign countries in dealing with sexual crimes. For example, Zhang Daming said that at present, there are only arguments between the prosecution and defense in Hong Kong courts, but foreign courts will call experts to explain some controversial acts. For example, in Australia, the court allows the prosecution to seek an expert to explain the party's behavior within a certain scope and further determine whether some of the party's behavior is consistent with the confession. The court will also set up rules to determine which issues can be asked in court to avoid defence lawyers asking questions that would cause "secondary harm" to the client.
Zhang Daming said: "We all hope that the law can be done more perfectly, and there must be some appropriate reforms to respond to changes in society, which will also make people have a little more confidence in the law." （Getty Images）
Whether past successes
can be replicated
So, should Hong Kong learn from those foreign experiences? Mr Cheung believes that this is an issue worth discussing in Hong Kong and why he expects comprehensive reform of sexual crimes in Hong Kong, and he believes that the SAR government must take the lead. "You don't underestimate the importance of legal reform, just like we always talk about the question of 'chicken or egg first', some things need to be discussed through legal reform to bring about cultural change." He added that while some felt that the law was unfair, it was an inevitable situation in a pluralistic society. We all hope that the law can be done perfectly, and there must be some appropriate reforms to respond to the changes in society, which will also give people a little more confidence in the law."
A few years ago, Zhang Daming was actively involved in promoting the use of screens and television for testimony by victims of sexual crimes. "Giving evidence on a screen" is the setting up of a screen in the courtroom to block the view of the defendant and the public, so that the parties can give evidence behind the screen; "Televised evidence" is a CCTV system that connects the court to another room in the same court building, and the court and the people in the room can broadcast live to see and hear each other. Children under the age of 14 may give evidence via live closed-circuit television, while in cases involving sexual assault offences the age limit extends to under 17.
Although Hong Kong has a long policy of screen and closed-circuit television (CCTV), according to the Judiciary Administration, between June 2013 and May 6, victims of 2016 sexual offences applied for the use of screens in 5 cases, of which 967 were approved, and the screen usage rate was only 48.44%. In order to popularize the use, Zhang Daming, along with other legal workers and related civil society groups, spent several years waiting for formal legislation in 4. Previously, in 55, Zhang Daming wrote a draft amendment to the Criminal Procedure Ordinance to include parties to sexual offenders as the fourth category of witnesses who can be used as television testimony; Subsequently, the Judiciary proposed to the Legislative Council amendments to the Practice Directions to introduce measures to improve the use of screens for evidence.
Mr Cheung shared his success in adopting a "easy before difficult" approach – choosing a measure that is more acceptable and already exists, while screens and television feed-in policies have long been in place for children and frightened witnesses who want to extend to victims of sexual crimes. He explained that if you want to fight for a policy that Hong Kong has never done, there will probably be a lot more discussion. Another key is that the measures have the support of cross-party MPs in the Legislative Council. Zhang Daming said that the ideal reform is led by the government, but if the government does not do it and only relies on the private sector, it will be much more difficult; But if private reform can gain the support of legislators, the outcome will be different.
The government attention is low, and statistical research is
As Cheung said, whether or not foreign experience should be learned is a topic worth discussing in Hong Kong. But Hong Kong is not ready for discussion. The most basic thing is that to understand what kind of policy is suitable for the current situation of sexual crimes in Hong Kong, we must first understand the overall picture of the child sexual abuse problem, analyze and summarize its characteristics. However, it is difficult to find a comprehensive report on child sexual abuse crimes on a Hong Kong-wide basis, largely because data from various government departments are not shared.
Talk Hong Kong, a voluntary organization that provides support services to survivors of childhood sexual abuse in Hong Kong, released a study that pointed out the huge shortcomings in the disclosure and integration of child sexual abuse information in Hong Kong. For child sexual abuse cases, the data held by various departments of the government authorities are not only statistically variable, but also lack refinement and disaggregation.
For example, police data only record the type of crime, the age of the victim and its relationship with the perpetrator, and there is no more specific demographic information; The Department of Justice only records the charges, verdicts and types of sentences in all sexual offences cases, but does not record the age of the victims. Because departments categorize data differently and do not share and integrate them, researchers cannot perform correlation analyses of different variables, but these analyses are very meaningful for child sexual abuse prevention. If it is found that children of a particular age and sex are statistically more likely to be sexually assaulted by their families, targeted protective measures can be taken. The data are also useful for assessing legal reform and analysing the handling of cases, including what percentage of a crime has been charged, what percentage has resulted in conviction and what the severity of sentences has been imposed.
A 2013 study on the epidemiology and geographical distribution of child abuse in Hong Kong by a research team from the University of Hong Kong used data from the HA's Clinical Data Analysis and Reporting System (CDARS) and Incident and Emergency Information System (AEIS) between 2001 and 2010. However, since then, HA has no longer disclosed the relevant data, and Talk has received a reply after inquiring with the HA that the authorities have not carried out the compilation of relevant data, and there is no manual processing at present; For academic research needs, the required data can be customized for a fee, and the cost starts from HKD 60,000. In response, the person in charge of Talk replied: "Unfortunately, the data you hold is not regularly disclosed, and stakeholders such as parents, educational institutions, NGOs and government agencies should use this data to plan and prevent child sexual abuse." In the US and UK (and possibly in Hong Kong), one in ten children will be sexually assaulted, which is an important public health issue."
Without comprehensive and detailed data analysis, it is impossible to grasp the specific picture of the problem of sexual abuse of children, and it is difficult to propose corresponding measures for different problems, and even reform sexual crimes regulations. In the end, it is the child victims who suffer.
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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