A Long Journey for Justice
The wheels of justice have turned slowly over the past 20 years. Now is the time to act so that victims of these offences can report them with confidence. Hong Kong's legal system, in which bewigged barristers do battle in court, has many benefits and has served the city well. But it often fails victims of sex crimes.
This has long been recognized. As a court reporter in the 1990s, I witnessed first-hand the trauma they face when reliving their ordeal in the witness box, facing the attacker across a courtroom. Steps to create a less intimidating environment began with child victims. They were first allowed to give their evidence via television link in 1996.
Other measures, such as specially trained police teams, public awareness campaigns, child-friendly interview suites and changes to court procedures were also brought in around that time. Over the years, progress has been made. But there is still much room for improvement. Sex crimes remain seriously under-reported, suggesting victims lack confidence in the system.
One of the biggest problems is that the laws themselves are outdated and no longer fit for purpose. That is why the government asked the Law Reform Commission to set up a subcommittee to review them in 2006. The process has taken 20 years. There were four consultation papers and two reports, in 2019 and 2022. But the proposed changes have still not been made.
Now, at last, they are on the way. A 59-page consultation paper submitted to the Legislative Council last week sets out wide-ranging proposals, broadly in line with the commission's recommendations. There is a need to modernise the law and to ensure justice for victims. There should, following the one-month consultation, be no further delay in implementing the proposals. The city has been waiting too long.
Modernizing the Legal Framework
The legislation is ripe for reform. It is largely based on English laws from 1956, a remnant of Hong Kong's colonial past. But the UK and many other parts of the world have, over the last 70 years, gradually amended and improved their legislation, ensuring it moves with the times. Hong Kong, in contrast, has only made limited, piecemeal amendments usually in response to controversies, such as the introduction of a sex offender register in 2011 and a new crime to tackle the problem of "upskirting" in 2021.
The overhaul is intended to reflect progressive changes in society's perceptions and to better protect victims from the use by sexual predators of advances in technology. It aims to bring greater certainty and clarity to the law, sweeping away distinctions based on gender and sexual orientation and broadening the scope of offences that were so narrow they allowed some perpetrators to escape justice. The reforms will, if enacted, see 23 existing offences axed and 37 new ones created.
Key Reforms and Their Impact
One of the most important changes is the much-needed introduction of a statutory definition of consent. This is a defence often raised by alleged attackers who argue the complainant agreed to the sexual activity. Campaigners for survivors have long highlighted the inadequacies of the existing system where no definition is provided.
The new law will make it clear that consent must be given freely and voluntarily by those who have the capacity to grant it. Consent can be withdrawn at any time. Agreement to one sexual act does not mean consent to others. This is a big step forward. But the proposals go further, commendably including a list of 11 circumstances that will not amount to consent. This deals with situations where a victim freezes when attacked and so cannot express their lack of consent or is unable to give it because they are asleep or drunk. It also covers cases where violence is used or threatened, or where there is blackmail, an abuse of a position of authority or a relationship of dependency. Stealthing, in which a condom is removed without consent, would also become a crime.
The new approach should provide greater consistency and better protect survivors. Many of the proposals tackle offences against children and people with mental impairment. A uniform age of consent is to be set at 16. It is good to see that a new crime of "sexual grooming of a child" is to be introduced. This should have been done long ago. It will help protect children contacted online by paedophiles who arrange to meet them with the intention of subjecting them to sexual abuse. New offences relating to forcing children to watch, witness or send sexual images are also proposed.
Some offences are to be broadened in scope because they are far too narrowly defined. Rape, for example, will apply to men and women perpetrators and culprits and cover a much wider range of sexual acts. Indecent assault is to be replaced by new crimes, including one that involves sexual assault "without touching."
Areas for Further Consideration
The proposals are significant and welcome. But there are still areas that require consideration during the consultation. They do not deal with the generation of deepfake pornography, a pressing issue raised last year after a case involving a student at the University of Hong Kong. Also lacking is an amendment which would create a new offence of persistent sexual abuse, to cover cases where the offences are committed over a long period of time and the victim has difficulty recalling dates and details.
Good use must be made of the consultation to fine-tune and further improve the proposals. As the Law Reform Commission noted in one of its earlier reports, the issues can be controversial and sensitive. There is a delicate balance to be struck between supporting complainants in sex cases and ensuring the defendant receives a fair trial.
Whatever changes are made to the law, more must be done to ensure that police investigations and court hearings in sex cases work in a way which limits, as far as possible, the ordeal of the victim. There is a need for a cultural shift to ensure the environment in which they make complaints, provide statements and give evidence is supportive.
The consultation paper proposes expanding the range of offences where victims receive anonymity, can give evidence by television link and are spared questions from defence lawyers about their past sexual experience. Consideration should be given to making the right to testify by TV-link automatic, rather than requiring an application from the victim.
The wheels of justice have turned slowly and the journey has been a long one. Now that it is reaching its destination, the reforms must ensure victims of sex crimes can report them with confidence.
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