Newsletter #61
Feature
ACSVAW calls to cover threats to share in Security Bureau's proposed introduction of offences on voyeurism and non-consensual photography of intimate parts, and related offences
HKSAR Security Bureau (the Bureau) published a consultation paper on the “Proposed Introduction of Offences of Voyeurism, Intimate Prying, Non-consensual Photography of Intimate Parts, and Related Offences” on 8 July 2020, followed by a three-month public consultation, during which public’s views towards the legislative proposals therein were invited. The consultation report was released and the final recommendations were proposed to the Legislative Council. However, despite citizens and concern groups’ advocacy, the government did not made any proposal for a new offence regarding acts of 'threatening to distribute intimate images'. ACSVAW suggests an expansion of coverage of the two offences on distribution of intimate photos to include acts of threatening to distribute. Reasons as below:
Prosecuting by different offences will lead to inconsistent legal consequences. The Bureau claimed the current offences of Criminal Intimidation or Blackmail have already covered acts of threatening to distribute intimate images. Depending on the facts and circumstances of the case, acts of threatening to share intimate images may result in 3 different kinds of charges. Threats that are made for sex may be charged with ‘procurement of unlawful sexual act by threats’; while threats that are made for money may be charged with ‘blackmail’; for threats of other intents, such as ruining one’s reputation, may be charged with ‘criminal intimidation’. It is possible that one threats would be charged with more than one offences. The varying sentencing and criteria for prosecution carried by different offences result in inconsistent legal responses to cases where the offending conduct is similar.
Criminalising threatening of distribution in a clear way in accordance to the guiding principle of ‘clarity of the law’. It is essential to acknowledge victims of image-based sexual violence (IBSV) that they can seek legal solutions, and perpetrators can be charged with a specific offence, instead of struggling among ambiguous offences. Law enforcement officers then can also inform victims of IBSV on specific offences they can seek justice from. Some victims of IBSV told that some police officers persuaded them to make peace and settle the case with the person who threatened to distribute their intimate photos. A clear, well-defined offence would hopefully bring a more consistent understanding to the members of law enforcement.
Establishing “threatening to distribute intimate photos” to be sexual offence in accordance to the guiding principle of ‘respect for sexual autonomy’. The Bureau mentioned in the consultation paper that loitering or disorder in public places are not proportional to the severity of intimate prying, since intimate prying intrudes one’s privacy and sexual autonomy. The Bureau had therefore proposed two offences of voyeurism and intimate prying. Criminalizing non-consensual taking and sharing of intimate images is to ascertain, the above acts intrude a person’s sexual autonomy. However, the Bureau did not tackle the problem of threatening to distribute intimate images - while the same logic should also apply to this case as sexual autonomy is violated as well. Thus criminal law should cover acts of “threatening to distribute intimate photos”.
ACSVAW suggests encompassing “threatening of distribution of intimate images” into the scope of the two proposed offences by the Bureau. Candid photo-taking, distributing and making threats are the continuum of image-based sexual violence, which intrude one’s sexual autonomy. Continuous and long-term control and harassment often bring traumatic experiences to victims of IBSV. Scottish and Singaporean government proposed that the harm brought by threatening of distribution of intimate images is not less than those actually distributed, and therefore, both governments included and merged “distribute” and “threat to distribute” into the same offences. ACSVAW suggests the Bureau to take these two examples as reference.
The world has taken steps to setting laws against “threat to distribute”, and Hong Kong should step up its game. Most states in Australia have implemented specific offences against the threatening of distribution of intimate images from 2014 to 2019. Scotland set the offence of “distribute and threaten to distribute intimate images'' before 2017. Singapore followed the same model and set up the law last year. England and Wales, where Hong Kong’s law often gets references from, also established standalone offences against distribution of intimate images already. However, they decided to expand the coverage to include threatening act and the law-making is currently in progress. They also started a public consultation on Intimate Image Abuse since February 2021, while one of the proposals is to establish a new offence on threatening to distribute intimate images. ACSVAW, again, suggests the Bureau to include acts of threatening to distribution of intimate images into legislation, before it gets out of hand.
Just in:
The Security Bureau introduced a proposal to the LegCo Panel on Security in January 2021, without mentioning threatening of distribution of intimate images. ACSVAW then responded upon this absence to the Bureau. The Bureau gazette 'Proposed Introduction of Offences of Voyeurism, Intimate Prying, Non-consensual Photography of Intimate Parts, and Related Offences' on March 19, 2021. Apart from the proposed offences, the threatening of distribution of intimate images is also included in the Bill. The government will introduce the Bill to the LegCo on March 24 for the first and second reading. The Bill in full: http://bit.ly/ibsvbill2021_en
Hear Me Out
Research on Problems and Remedies of Clandestine Photographing in Yau Tsim Mong District
Sponsored by Yau Tsim Mong District Council, ACSVAW and the District Council’s Working Group on Women's Affairs co-organised a research on Problems and Remedies of Clandestine Photographing in Yau Tsim Mong District from November 2020 to February 2021. The study aims at understanding of the problems in the District and devising appropriate measures accordingly. With reference from the Women’s Safety Audit by UN Women, the research team listed an audit checklist for candid photo-taking in the public places and community facilities. 9 female investigators, who work or live in Yau Tsim Mong District, were recruited to help review the risks of being taken candid photos in 30 selected hot spots. Facilities under investigation include shopping malls, railway stations, footbridges, and recreational facilities.
14 out of 30 spots are found to be at high risk. In terms of location, 6 spots are in Prince Edward and Mong Kok, 4 in Tsim Sha Tsui, 3 in Yau Ma Tei and Jordan, and 1 in Tai Kok Tsui. In terms of types of facility, 6 shopping malls, 5 railway stations, 2 recreational facilities and 1 footbridge are found to be at high risk. Thus these high-risk spots are found in different districts and different community facilities, imposing threats to women from all walks of life. The study has found that the design of buildings, pedestrian flow and building materials are the main determinants. Among 30 spots, some shopping malls largely adopted glass balustrades which ensure maximum light transmission and optimal transparency, whereas such design has increased the risk of exposing one’s underwear when wearing a skirt and hence the risk of upskirt photo-taking.
It is acknowledged that some measures were made to alleviate the situation in the 14 spots, like putting up frosted glass stickers on sides of elevators. However, most of these remedies are to tackle the problem of upskirting only, while measures to other types of candid photography, especially downblousing, are largely absent. This shows the very limited understanding to clandestine photography as well as the insensitivity to women’s lived experiences of those facility designers and management personnel. It is emphasised that all kind of non-consensual and sex related candid photo-taking, regardless of the angles, can impose threats and harms to women. These acts should therefore be treated as sexual violence and deserve public attention.
Investigators have also indicated the loopholes in social policy and legal system have directly or indirectly facilitated the act of candid photo-taking. First, the absence of a clear, substantial design and management guideline or protocol (like building materials and setting) has indirectly led to a lack of protective measures in facilities management. Also there is no working group or government body taking up the responsibility to regularly check and evaluate the risk of candid photo-taking inherent in those community facilities. Also, there is no specific law against clandestine photography. Despite perpetrators are still able to be charged on other offences (like loitering and disorder in public places), it hardly deters and raises awareness of the severity of the issue.
The research team suggests the government to take a leading role in addressing the legal gap and setting up relevant ordinances. In short run, the research team suggests the Yau Tsim Mong District Council and Home Affairs Department and other government bodies to follow up and bring remedial measures to the problems raised. In the long run, the government should implement policies on protecting women from candid photos-taking, like appointing specific government bodies for regular check, establishing building protocols and pushing forward women safety audit. District Council should stay as the watchdog of the government, by pushing the government to implement related policies and supporting the cause against imaged-based sexual violence (IBSV), investing in public education via the civil society. Members of the public should join the force in pushing forward a more gender-friendly and equal environment.