Hong Kong sets 25 November date for bill on persistent child sexual abuse and cyberflashing
HONG KONG, 11 November — Hong Kong will gazette a bill on 13 November that would create an offence covering the prolonged and repeated sexual abuse of children and criminalise cyberflashing, the Security Bureau said on Wednesday. The government plans to introduce the bill in the Legislative Council for its first and second readings on 25 November. Neither measure had been enacted at the time of the announcement. Hong Kong government announcement, 11 November South China Morning Post, 17 September
The two measures have been under discussion for several months. On 17 September, the South China Morning Post reported that the bureau had accepted the case for a persistent abuse offence and intended to address cyberflashing. Wednesday’s announcement puts both measures in the same bill and sets dates for the public to see the legislative text and for members of the Council to begin considering it. Hong Kong government announcement, 11 November South China Morning Post, 17 September
When a child remembers a pattern of abuse
In an August submission, the Association Concerning Sexual Violence Against Women described a difficulty in bringing a case when someone was young at the time of the abuse and disclosed it much later. A child may clearly remember what one person repeatedly did but struggle to distinguish a particular incident from the one before it. If a prosecution depends on identifying an episode that stands apart, the part of the experience the child remembers best may never be fully heard in court, the association argued. Association Concerning Sexual Violence Against Women submission Teen’s Key Hong Kong submission, 5 August
The association wants prosecutors to be able to frame a charge around a course of abuse. Its concern extends beyond whether a charge can be brought to whether the conduct for which someone is convicted reflects the duration of the harm. In September the bureau also stressed the presumption of innocence and the right to a fair trial as it examined legislation elsewhere, the Post reported. How a charge describes conduct over a period, and how precisely it tells a defendant what they must answer, matters to both objectives. Association Concerning Sexual Violence Against Women submission South China Morning Post, 17 September
Teen’s Key Hong Kong, which works with young women, separately called for a specific offence during the consultation. The two submissions help explain how the proposal reached the legislative agenda. Wednesday’s announcement did not specify how many incidents a charge would have to encompass, how far apart they would have to be or which facts a jury would have to agree upon. It is therefore too early to say how a case previously difficult to prosecute because individual episodes could not be distinguished would fare under the proposed law. Hong Kong government announcement, 11 November Association Concerning Sexual Violence Against Women submission Teen’s Key Hong Kong submission, 5 August
The two groups take different approaches to another issue affecting young people. In the debate over a uniform age of consent of 16, the association favours a statutory defence for consensual relationships between people close in age, partly out of concern that fear of prosecution could deter a young person from seeking help over exploitation or violence. Teen’s Key calls for prosecutorial discretion in consensual peer relationships. One approach sets conditions in law, the other addresses the decision to prosecute. They offer a young person certainty at different stages. Association Concerning Sexual Violence Against Women submission Teen’s Key Hong Kong submission, 5 August Security Bureau consultation paper
How a court would assess consent
The review also concerns a question central to cases of non-consensual sexual conduct: how a court establishes what the person concerned agreed to. The Law Reform Commission published its report on substantive sexual offences in 2019. The bureau’s July consultation paper traced a number of provisions in the Crimes Ordinance to English legislation dating from 1956. The present rape offence specifies the sex of the principal offender and the victim, while the ordinance lacks a clear statutory definition of consent. Security Bureau consultation paper Law Reform Commission report, 2019 Association and survivor group statement, July
Under the July proposals, a court would consider whether a person had the capacity and freedom to choose and made that choice voluntarily. The paper listed 11 circumstances in which consent would be absent, leaving room for others. Examples included coercion, abuse of authority and removing a condom without agreement where its use was a condition of consent. The examples require attention to the particular conduct and conditions a person agreed to. Evidence that the two people agreed to some form of intimacy would leave that question open. Security Bureau consultation paper Association and survivor group statement, July
We Are X, a group formed by survivors of sexual violence, spoke alongside the association in July. Its members described how a person might freeze, be unable to speak or face danger if they resisted. They welcomed a clearer definition but feared that silence or the absence of resistance could still be used to support a claim that a defendant reasonably believed there was agreement. Their concern was about how the proposed rule might operate at trial. No particular complainant’s feelings or wishes can be inferred from those accounts. Association and survivor group statement, July Association Concerning Sexual Violence Against Women submission Amnesty International Hong Kong Overseas submission
A point of contention is the assessment of a defendant’s claimed belief in consent. The consultation envisaged considering all the circumstances, including steps taken to ascertain the other person’s wishes. The association and Amnesty International Hong Kong Overseas sought a more explicit threshold. Amnesty proposed that a belief could not count as reasonable if the defendant took no such step. For both prosecution and defence, the distinction affects which facts have to be established and how the judge would explain the rule to a jury. Security Bureau consultation paper Association Concerning Sexual Violence Against Women submission Amnesty International Hong Kong Overseas submission
The scope and names of offences are also at issue. The survivors’ group welcomed July proposals to broaden the definition of rape, make protection gender-neutral and replace indecent assault with two tiers of sexual assault. The group argued that the changes would focus attention on sexual autonomy. The bureau illustrated a related sentencing issue in its consultation paper: existing distinctions between offences can expose conduct causing comparable harm to different maximum penalties. Law Reform Commission report, 2019 Security Bureau consultation paper Association and survivor group statement, July
The recipient and the person in the picture
The bureau said it would amend provisions to criminalise cyberflashing. September’s reporting described the conduct as sending someone images of genitals online without their consent. The person directly affected in that instance is the unwilling recipient. Wednesday’s announcement did not say whether prosecutors would have to prove a particular intention on the part of the sender or which means of electronic transmission would fall within the provision. Those details depend on the legislative text. Hong Kong government announcement, 11 November South China Morning Post, 17 September Amnesty International Hong Kong Overseas submission
A different question turns on the wishes of the person depicted. Both Amnesty’s Hong Kong overseas section and Teen’s Key urged the government to address the creation of intimate images without consent. Amnesty argued that a person loses control over their likeness as soon as a synthetic intimate image is made, even before publication. It also called for disposal orders to cover material produced or obtained without agreement. Criminalising cyberflashing alone would leave open questions about making, possessing and disposing of images. Amnesty International Hong Kong Overseas submission Teen’s Key Hong Kong submission, 5 August
From reporting to giving evidence
For someone called to give evidence, reform also concerns which questions can be asked in court. The association proposed requiring leave even for questions about a complainant’s previous sexual relationship with the defendant. Amnesty called for a court to give reasons for allowing such questioning and to establish that the evidence was relevant to a specific issue at trial and had significant probative value. Both proposals focus on what previous experience can actually establish about the case before the court. Security Bureau consultation paper Association Concerning Sexual Violence Against Women submission Amnesty International Hong Kong Overseas submission
The association also wants screens, live video links and support persons to be available as standard, reducing uncertainty about arrangements shortly before evidence is due. For children and people with a mental impairment it proposed intermediaries and hearings to agree ground rules for questioning. Those measures concern a witness’s ability to understand a question and communicate an answer. Assessing the weight of the resulting evidence would remain a matter for the court. Association Concerning Sexual Violence Against Women submission Security Bureau consultation paper
Amnesty argued that even gender-neutral wording offers limited assurance about how a person will be received when reporting an offence, how they will be questioned or whether support will be accessible. It called for staffing and funding for professional training and equal access for people including LGBT people and sex workers. Drawing on its work with young women, Teen’s Key raised a related question about protection for people with physical impairments when their ability to communicate their wishes is at issue. Amnesty International Hong Kong Overseas submission Teen’s Key Hong Kong submission, 5 August
The bureau said it received 6,228 written submissions between 7 July and 5 August, of which it classified 6,182, or 99.3 per cent, as supportive or positive. The denominator is the number of submissions received. The published submissions illustrate a distinction the figure cannot capture: an organisation can favour reform overall while insisting that a particular defence or safeguard needs to be rewritten. Views filed in the summer also predate the publication of the November bill. Hong Kong government announcement, 11 November Association Concerning Sexual Violence Against Women submission Teen’s Key Hong Kong submission, 5 August Amnesty International Hong Kong Overseas submission
The government aims to complete the legislation within its current term. On its timetable, the Gazette on 13 November will allow the public to examine how the draft defines repeated abuse and cyberflashing, before legislators take up the bill on the 25th. Under the Council’s procedure, introduction for first and second readings is one stage of scrutiny, with further stages required for passage. Wednesday’s announcement gave no commencement date for the proposed offences. Hong Kong government announcement, 11 November Legislative Council guide to bills
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