Jessie Ho recalls facing traumatic questions in court that focused on tiny details of her sexual assault case four years earlier, from whether the accused had used his left or right hand to why she had not kicked or bitten him to protect herself.
As the grilling went on, Ho realised the defence lawyer was trying to portray her as having agreed to the actions of the accused and only later changing her mind.
“I felt confused at first as I didn’t know what had happened to me. But I have never been confused about the fact that I did not agree to it, and that he definitely knew,” Ho said.
Ho was left reeling when the defendant was acquitted after a trial last year, with the court finding that he had honestly mistaken her will.
The issue of consent is a key area the government will look at when it starts the process of overhauling sexual offence laws this year, including launching a public consultation in the first quarter. The aim is to update major sexual offences with reference to suggestions from Law Reform Commission (LRC) reports, with new legislation to be introduced before the end of 2027.
The reforms will come two decades after the LRC set up a subcommittee to review sexual offences in 2006. The broad scope of the LRC’s review led to multiple reports being released over the years, with some suggestions, such as a new voyeurism offence, implemented.
Sexual assault survivors, rights advocates and lawyers have told the Post that while they welcome the LRC’s suggestions, it will take more than black letter law – legal rules that are clear and well established – to help victims seek justice.
One of the major changes the LRC suggested was to introduce a statutory definition of consent, rather than having judges rely on past cases to determine what constitutes agreeing to sexual activity.
It suggested that the law should state that a person was only giving consent if they “freely and voluntarily” agreed to the sexual activity and had the “capacity to consent” to the acts.
Its report also recommended that the law include a provision stating that a person would not have the capacity to offer consent if they were unable to understand the conduct, form a decision about it or communicate the decision.
It said the law should also define that there could be no consent if a person was deceived into making their decision.
The scope of consent would also not imply consent to any other sexual conduct. Consent could also be withdrawn at any time, with any sexual activity taking place after the withdrawal considered non-consensual, according to the suggestions.
‘Outdated concepts’
Cheryl Yip Cheuk-yi, advocacy officer of the Association Concerning Sexual Violence Against Women, said the current treatment of consent varied between court cases as different judges directed the jury to understand the idea within society’s consensus.
“This causes divergent interpretations, which results in victims being grilled with questions like whether they had resisted and whether they had any chance of causing a genuine but mistaken belief in the defendant that they had agreed to the sexual activity,” Yip said.
“This is a very outdated understanding of consent.”
Yip argued that the law should be equipped with a more up-to-date understanding of consent, including situations that would not constitute consent, to help victims understand whether their circumstances were covered.
Subcommittee member Eric Cheung Tat-ming, a former University of Hong Kong law professor, said the LRC’s suggestions aimed to clarify the law with the statutory definition rather than change how it viewed consent.
“It would make the judge’s task of giving directions to the jury easier and make it easier for the jury to grasp the meaning of consent,” Cheung said.
Barrister Michelle Wong Lap-yan, who has represented sexual assault victims, said existing legal precedents had already established that courts would invalidate consent given under threat and considered intoxicated victims unable to give consent.
Wong added that having a definition of consent in place would not change the way lawyers cross-examined victims in court.
“The circumstances of the incident will still be relevant when the defence counsel seeks to show that the victim gave her consent or that her consent was not vitiated,” Wong said.
Beyond the LRC’s recommendations, the association has advocated for a non-exhaustive list of scenarios that would not constitute consent to be included in the law to inform the public and law enforcement officials of subtler contextual factors that affect whether the victim had actually agreed.
This list would include scenarios such as a victim being coerced into saying yes due to the perpetrator abusing positions of trust or authority, a perpetrator using long-term coercive control in a relationship, as well as “stealthing”, where a man removes his condom during a sex act agreed upon under the condition of safe sex – all of which were not covered by the commission’s suggestions.
Wong said while such a list could provide clarity to the court and easier proof for prosecution, it could also potentially harm the defendant’s rights.
“Negative impacts include possible violation of the defendant’s fundamental rights when the burden of proof is reversed and he is asked to prove his innocence by proving that even under those circumstances there was valid consent from the victim,” Wong said.
Cheung said such a list was not necessary, adding that judges would still have to give additional direction to juries even when consent became defined in the law.
“We believe there are advantages in keeping the definition of consent broad and simple as it is difficult to list all possible scenarios or circumstances which constitute consent or lack of same and may unnecessarily complicate the legislation,” Cheung said.
Ho, who had waited two years before reporting her case to police in 2022, said a clearer definition of consent would have helped her gauge how severe her experience was.
She said the main reasons for delaying her pursuit of justice arose from not feeling confident about taking on a lengthy legal process and her inability to comprehend the nonconsensual sexual penetration she had experienced until she came across the concept of “affirmative consent”.
The idea, enshrined in sexual offence laws in jurisdictions such as New South Wales in Australia, holds that the person who initiates sexual activity needs to take active steps to ascertain consent from the other person.
“I could not imagine it before, not about what being questioned in court would be like, but rather what constituted consent in these situations, what a misunderstanding meant and how it could be prevented,” Ho said.
Removing gender limits
Apart from a definition of consent, the scope of the current rape charge is likely to be examined in the coming review.
The offence, which has not been amended significantly since 1978, is defined as a man having non-consensual sexual intercourse with a woman. The maximum penalty for rape is life imprisonment.
For transgender woman Mary Wong*, who has not changed her gender on her identity card yet, gendered definitions of sexual offences in the law have made her feel uncomfortable about reporting a case.
The 26-year-old tutor said she had been surreptitiously photographed by a man on a bus in September, with a fellow passenger alerting her to the act. She tried to confront the man, who denied photographing her, only to see him flee after alighting from the bus.
Wong said that the man claimed he could not turn on his phone to prove he had not taken any photos but she then saw him stop in the street to scroll through it.
“Current laws seem to talk about men [acting on] a woman, but less about a woman [acting on] a man. If I’m legally male, would it be difficult for me to establish my sexual assault case?” Wong said, adding that she was also concerned whether frontline police officers would be able to handle her case sensitively.
In a 2019 report, the LRC suggested expanding the existing rape charge into a new one called “sexual penetration without consent”. The new charge would include different types of penetration and remove gender descriptions.
Christine Chu, spokeswoman for transgender rights advocacy group Quarks, said that transgender people in Hong Kong tended to be reluctant to turn to the law after a sexual assault for fear of their minority gender status being exposed, or that their victimhood could be questioned by law enforcement officials or the court.
Chu said transgender people were concerned about how their identity would be understood in the legal process and whether it would affect how the legal system perceived the sexual assault they had experienced.
She said, for example, if a transwoman who had not undergone surgery had been sexually assaulted it would not fit into the definition of rape in the eyes of the law.
Another factor would be the fear that once their case landed in court, its minority nature would elicit widespread press coverage, and details could reveal the identity of the sexual assault victim to others in the close-knit minority community.
Chu said the current male-to-female definition for rape presented a legal loophole, as nonconsensual penetrative sexual assault for transgender people and same-sex couples could not be covered.
Cheung said the current law had the effect that only a woman could be raped.
Wong, the barrister, said the offence’s expansion would protect men’s sexual rights with the removal of gender indication.
Should the rape offence be broadened to cover other kinds of nonconsensual penetrative sexual acts, Chu said this would provide clearer guidance to frontline law enforcement officials and the judiciary when handling cases concerning sexual minorities.
Mary Wong said a gender neutral law on sexual offences would make her feel more empowered to report sexual assault to police, even if the judicial process could be long and arduous.
“When everything seems stacked against me, I will retreat. However, when the most important area where my case could be prosecuted becomes more viable, I think I can handle any uncomfortable situation that could arise in the reporting process,” Wong said.
Beyond written law
While a court is key to securing justice, the process leading there is also often another trial of victims’ will.
When Ho reported her case in 2022, she remained in the police station for eight hours as she recounted the assault twice in painstaking detail to different officers, including an instance when a policeman stood behind her so she could demonstrate how she was assaulted.
Shortly after Ho arrived home from the police station, she was called after midnight to return to the location where she was assaulted to re-enact the scene with police officers.
“I understand they had no intention to make me suffer, but their actions made [the reporting process] really rough for me,” Ho said.
Then came a two-year wait before she heard back from officers. Next thing she knew, Ho was applying for the use of screens in court, asking if a social worker could accompany her before she went into the witness box and listening to a lawyer remind her of issues that she would be grilled about.
Yip of the Association Concerning Sexual Violence Against Women said other procedures in the legal process would also need to be updated for the legal reforms to be effective.
That would include reassessing current procedures for vulnerable victim protection, where sexual assault victims have to apply to testify behind a screen and for social workers to accompany them before they took the stand, rather than being granted such protections by default.
“Even if the law is fancily written, if procedurally we can’t ensure the witness can achieve the best evidence in court, then [the law] might not be able to maximise its full power,” Yip said.
For Ho, changing the law would be the first step for others to comprehend survivors’ experiences.
“I don’t really care if that person ends up in jail or not, but the [legal] process for people around me and society: what people would comment when the news is out, how people and police will respond when you tell them about it – these are [the things that] affect my feelings,” Ho said.
*Name changed at interviewee’s request. -- SOUTH CHINA MORNING POST
