Hong Kong authorities’ proposed overhaul of the city’s sexual offence laws has gone further than suggestions made by a law reform body, but some advocates remain concerned over a legal defence loophole.
Advocacy groups have welcomed authorities’ proposals to include a list of circumstances that define situations of no consent to a sexual act, as well as adopting gender-neutral wording to cover victims of all genders.
But lingering vagueness over a defence claiming an “honest but mistaken” belief in a victim’s consent, and whether law enforcement and the criminal justice process will reflect the law’s gender-neutral stance, remain concerns for some groups.
“While the first part of the proposed consent clause is well-drafted, leaving such a massive back door that allows ‘mistaken belief’ to override the new statutory definitions would be a disappointment,” Doris Chong Tsz-wai, executive director of the Association Concerning Sexual Violence Against Women, said.
The Security Bureau submitted a 59-page consultation paper to the Legislative Council on Monday. It outlined the administration’s proposed amendments to existing sexual crimes and laid out dozens of new offences in a major overhaul that came two decades after the Law Reform Commission (LRC) set up a subcommittee in 2006 to examine the issue.
A South China Morning Post check found that some of the administration’s proposals exceeded the scope of the commission’s suggestions.
Besides laying out a statutory definition for consent, delineating its scope and stating that consent can be withdrawn at any time during any sexual activity, the bureau also suggested including a list of circumstances in which a victim could not be deemed to have given consent.
The list spelled out 11 scenarios, with the bureau saying the list would be “non-exhaustive”. The court would be able to determine whether a victim had consented to the sexual act in each individual case.
The scenarios ranged from the victim not communicating consent “either verbally or through actions” to submitting to a sexual act due to an “abuse of a position of trust or authority, or a relationship of dependency”.
A newer form of sexual abuse called “stealthing”, where a person does not use a condom or removes the protection during intercourse despite safe sex being a prerequisite to consent, was also included in the list.
A spokesman for the association called the proposed list “progressive” and welcomed the inclusion of stealthing among the scenarios.
Lawyer Michelle Wong Lap-yan, who has handled sexual assault cases, said prosecutors could argue with more leeway that a victim’s lack of response fell into the circumstances of “not communicating consent either verbally or through actions”.
“[Such] evidence of a victim’s lack of response may actually be in favour of the prosecution’s case,” Wong said.
Another point where authorities have gone further than the commission was in specifying an additional condition for a new offence, sexual assault with touching.
The bureau added “spilling liquid onto the victim” in the description of this offence, which was not among the two conditions proposed by the commission: touching and emitting bodily fluids onto the victim.
The new condition reflected the circumstances of a local court case from two years ago, in which a PhD student was fined HK$5,000 (US$637) for splashing a liquid containing his own semen onto a woman’s buttocks at City University.
But the association raised concerns that the overhaul still contained a loophole in how the law would handle the defence of an “honest but mistaken” belief in a victim’s consent.
According to the consultation paper, authorities would refer to English law, with the prosecution needing to assess “all the circumstances” to determine whether a defendant’s mistaken belief in a victim’s consent was reasonable, including whether the accused had done anything to ascertain consent.
But the association said this proposed framework was too vague and would still allow juries to interpret trauma responses such as freezing and a lack of physical resistance as signs that justified a defendant’s mistaken belief.
“Allowing the evaluation of ‘all circumstances’ means subjective assumptions may still be accommodated, such as a defendant’s failure to understand that ‘a lack of resistance does not mean consent’, or when a defendant does not take any steps to ascertain the victim’s consent,” its spokesman said.
The organisation’s executive director, Chong, suggested authorities introduce statutory restrictions on this defence, with the accused having to prove they had taken steps to ascertain consent before being able to invoke this defence.
Wong, the lawyer, said the proposal applied an objective test to the defendant’s mistaken belief of consent, with the jury needing to assess if the defendant’s belief was reasonable and whether the defendant had done anything to ascertain consent.
“The proposed change also hints that some of the burden is on the defendant to show the jury that he has taken steps to ascertain consent. It can be said that the victims will be better protected under the new law,” she said.
Another major change proposed was to make sexual offences gender-neutral. This meant removing distinctions between men and women under the law and also avoiding distinctions based on sexual orientation.
Christine Chu, a spokeswoman for transgender rights group Quarks, said making sexual offences gender-neutral, such as redefining rape beyond “penis-in-vagina” penetration, ensured that transgender people were clearly protected under the law.
“The explicit inclusion of surgically constructed body parts within legal definitions reduces ambiguity for those who have undergone gender-affirming procedures,” she added.
However, the activist warned that changing how the law was written may not immediately affect how it would be enforced.
“In practice, things like how victims are identified, how statements are taken and how credibility is assessed can still reflect ingrained ideas about gender,” Chu said.
She urged authorities to introduce clear guidelines and proper training to remove underlying biases in law enforcement and the trial process. -- SOUTH CHINA MORNING POST
