Proposed changes based on principle of individual sexual autonomy and consent

Sweeping changes are proposed, bringing a greater number of offenses under the broad heading of sex crimes, regardless of gender, and the guiding principle of the proposed reforms is "sexual autonomy." "Consent" is another principle that weighs on the new reforms, which seek to clarify the definition of peeping tom behaviors, such as "up skirt photographs". The reforms would bring under the heading of sex crimes, offenses which currently are chargeable only with non-sexual offenses under existing laws.

The consultation paper, released by the Review of Sexual Offenses Subcommittee under the Law Reform Commission on Monday, made a potentially influential suggestion to replace the current offense of "indecent assault" under the heading of "sexual assault", defining three separate categories of the offense.

Peeping toms in public areas, such as those standing under escalators, taking photographs under women's skirts often are charged with "disorderly conduct in a public place". Those caught secreting cameras in shower stalls, however, often are charged with using a computer for illegal purposes.

Just two weeks ago, a 46-year-old tutor was sentenced to four months imprisonment on a charge of "access to computers with criminal or dishonest intent". The prosecution filed an appeal with the Court of First Appeal because a lower court fined the tutor HK$20,000 after he was discovered to have an archive of "under-skirt" photographs.

The panel recommends that in future such offenses be charged as "sexual assault", which was defined as "any act of a sexual nature" that might cause another person "fear, degradation or harm" had it been known to the other person.

Eric Cheung Tat-ming, a member of the subcommittee, said it was more appropriate to use the right tool so that the offenders name may be filed in the registry of sexual offenders. Paparazzi photographs are sometimes racy, but Cheung said the purpose of that is not of a sexual nature.

The three-month consultation, which focuses on non-consensual sexual offenses, marked the beginning of a full review of all of the city's sexual offenses. Many of the offenses, set out in Part XII of the Crimes Ordinance, are based on similar provisions in English legislation dating back to 1956.

The UK, however, overhauled its provisions in 2003. The Hong Kong subcommittee was formed in 2006 to undertake a similar review, upon the request of the Secretary for Justice and the Chief Justice of the Court of Final Appeal.

Before getting any work done, the subcommittee first invited public views on principles to guide the forthcoming reform.

While the committee avoided any exploration of community moral standards, it placed heavy emphasis on the concept of "sexual autonomy" and proposed a statutory definition of consent, which would imply that both persons consent to the sexual activity "freely and voluntarily".

Consent could also be narrowed to specific questions, such as agreeing to intercourse only with a condom. Prosecutors still will be required to prove an accused did not reasonably believe that the complainant consented.

All circumstances would also be considered, to determine as to what constitutes reasonable belief, including "any steps the accused took to ascertain the consent" and the relationship between the complainant and the accused.

Eric Cheung recalled at the press briefing that under the "objective test" approach, a suspect of rape outside Hong Kong was ruled innocent, since a jury was satisfied that the suspect genuinely believed the resistance of the complainant was an expression of consent.

But if the same defense were raised under the proposed provision in Hong Kong, Cheung said the jury would have inevitably questioned whether the accused had clarified his "belief" with the victim, giving the suspect less hope of a favorable ruling. Cheung stressed the accused will still be adequately protected under the principle of "beyond reasonable doubt."

Other noteworthy principles laid out by the subcommittee were the elimination of any distinctions based upon sexual orientation. Seven buggery offenses, including homosexual buggery with or by a man under 21, were cited targets for overhaul.

But since the subcommittee decided to breakdown the overhaul into four stages, the first paper only proposed to replace the offense of non-consensual buggery by the offense of "sexual assault by penetration". All objects could constitute the "penetration", including body parts.

The public is invited to express views on the proposed reform on rape and other sexual offenses before end of December. The rest of the review, including offenses against children, homosexual sexual offenses and sentencing, will be discussed in later consultations.

kahon@chinadailyhk.com

(HK Edition 09/18/2012 page1)