Newsletter #63
Feature
Why a recent sexual assault case with the assailant impersonated as a lesbian shows the significance of the 'affirmative consent model'
The defendant Tsang Tsz-ho was charged with one count of rape and one count of indecent assault in February 2020. The charges alleged that the defendant intentionally hid his gender and conducted penetrative sex with X using his penis without her consent. The defendant disguised himself as a tomboy and met the female victim X on a lesbian social-networking app, later had an appointment in the hotel room for sadomasochism. The jury at the end ruled that the defendant was not guilty of indecent assault and rape (Case No: HCCC34/2021).
Different sex/gender-concern groups and people expressed their disappointment with the judicial system in the ruling, including the court downplaying the defendant's deceptive behavior and accepting the defendant's judgment that the victim did not disagree with the subjective view of sexual intercourse. For example, the defendant said, 'She said it's comfortable, I think that is the agreement.', 'I think her eyes hinted me she wanted to go further, so I had this thought (have sex with X)', 'Because she didn't respond much when I rubbed her with a penis at the time, so I thought even if I didn't use [a condom], she would not be particularly opposed to it.'
This case once again highlighted the fact that the understanding towards 'consent' in the 'violation of will model' (Only NO means NO) of the relevant laws was overly inclined to the defendant and disregarded the will of the victim. Although the 'Review of Substantive Sexual Offences' Hong Kong Law Reform Commission's (LRC) report issued in 2020 proposed amendments to the provisions of 'consent', its content still follows the 'violation of will model' instead of the 'affirmative consent model' as the reform framework. The latter needs to prove whether the defendant has actively obtained the consent of the victim. We recommend that the LRC uses the 'affirmative consent model' (Only YES means YES) as the reform framework. This will then change the focus of the legal proceedings on how the defendant obtains the consent of the other party instead of reviewing the victim as the subject.
Violation of will model: Did the victim express disagreement?”
The crime of rape in Hong Kong adopts the 'Violation of will model', and the prosecution needs to prove: (1) the victim has expressed disagreement, and (2) the defendant believes that the victim disagrees, or whether he disregards whether the victim agrees.¹ In other words, the current legal system requires the victim to provide evidence of active expression of disagreement at the time of sexual assault to prove that the sexual intercourse was carried out against the victim's consent.
This is based on the logic of 'Sexual violence only occurs when the victims say NO'. Therefore, the judicial proceedings often focus on 'whether the victim has rejected the other party' and 'how the victim expresses disagreement', and the victim is often questioned, 'If you don't want to do this, why didn't you resist at that time?' or 'How do you let the other party know that you did not want to do this?'. Even if the victim expressly disagreements clearly, under the 'violation of will model', the defendant can still put forward the argument that 'he believes the victim does not disagree'. These cognitions are mixed with different myths of sexual violence, especially 'when the other party did not say NO, it mean YES.' In the case of Tsang pretending to be a lesbian and sexually assaulting X, X did not express disagreement with him for a sexual act when the defendant concealed his gender. For X, the prerequisite for her to have sex with the defendant is that the defendant is a female. Therefore, X's consent was not a decision made with her known facts and voluntary will as she was deceived.² The defendant repeatedly argued that X had not rejected him, and that X had never mentioned she did not like men, so he thought, 'Since X did not reject directly, she could have sex with men', he also thought that X gave him sexual hints, for example, he said, 'I think her eyes hinted me she wanted to go further, so I had this thought (have sex with X).'³
The 'violation of will model' reinforces the false idea that the victim is responsible for the occurrence of sexual violence: she must clearly let the other party know that she does not agree to engage in sexual acts. With the release of this news, some netizens questioned that it is impossible that X could not tell the gender of the defendant, they thought that she should 'verify the gender' before going to the hotel, they also mocked her and said she should have expected dangers when she dated a stranger in a hotel room, etc. These were the same as the defendant's defence in court, they pushed all the responsibility for prior communication⁴, gender verification, and prevention of sexual violence to X.
Different from the 'violation of will model', the 'affirmative consent model' shifts the responsibility to the defendant, from asking the victim whether she has expressed disagreement at the time, to asking the defendant to prove that he has taken steps to ask for the consent of the other party.
Affirmative consent model: Did the defendant ask for consent beforehand?
Different from the 'violation of will model', the 'affirmative consent model' requires the one who initiates sexual activities to ask for the 'consent' of the other party 'in a sober and stress-free state, encouraging transparent communication and the respect towards the other party's consent. 'Whether the defendant has taken steps to confirm that the other party has engaged in sexual acts voluntarily' will become a key point in the judicial process. Therefore, the defendant can no longer infer agreement from the silence of the other party. There is no so-called conjecture to convey sexual hints with eyes, and there are no such things as grey areas like 'One didn't say no, so it means yes.' or 'half declining and half accepting attitude'. The 'affirmative consent model' is based on the logic of 'Agreement is considered only when the other party's permission is obtained.'
Canada's criminal law regulations on 'consent to sexual acts' adopt the framework of the 'affirmative consent model'. According to the Criminal Code in Canada, the definition towards 'consent' is clearly stated: if the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or there is no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct, It is not a defence to a charge under this section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge. The so-called 'reasonable steps' are steps that a reasonable person would take, for example, honest communication that does not involve deception or concealment.
If we apply the 'affirmative consent model' on the case of Tsang's sexual assault, the focus of the trial at court would be:
What did the defendant do to confirm that X would love to have sexual intercourse with him?
Did the steps defendant took to confirm X's consent belong to 'reasonable steps'?
Was the prior communication between the defendant and X conducted in a transparent and non-deceptive manner?
If the defendant thought X wanted to have sex with himself, why doesn't he reveal his male identity?
Under the 'affirmative consent model', the major focus of the court's arguments will be transferred back to the defendant. First, it is emphasised that the defendant is the party responsible for confirming that 'sexual acts occur with mutual consent.' Second, this can avoid victim-blaming questioning which may lead to secondary victimisation.
Hong Kong should take reference from Canada's “Affirmative consent Model”
Regarding the 'Review of Substantive Sexual Offences' proposal to amend the 'consent' provisions, the Association believes that the Law Reform Commission should consider adopting the 'affirmative consent model' and make relevant amendments with reference to the model in Canada. In other words, with regard to 'sexual penetration without consent', in addition to proving 'whether the complainant agrees or disagrees', a provision should also be added—the prosecution needs to prove: (1) if the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or, or there is no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct, the defendant cannot be regarded as having reasonable grounds to believe that the complainant has given his/her consent.
The reform of the affirmative consent model wants to change not only the legal system, but also overturns society's perception of 'sexual consent', emphasising that all intimate behaviours need to actively obtain the consent of the other party, and that both parties must communicate with respect and equality to negotiate intimate interactions with each other. Social events prompted legal reforms, and the law turned to educate the public. We believe that the reform of the consent model would have great significance on the society.
Review of Substantive Sexual Offences (HKLRC Report): bit.ly/2LDhkcT
Association's submissions towards law reform: rainlily.org.hk/eng/news/tag/Law+Reform
¹ 《Crimes Ordinance》Section 118 'Rape'
(3) A man commits rape if—(a)he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and(b)at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.
(4) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.
² 'Review of Substantive Sexual Offences' by the Law Reform Commission of Hong Kong suggested that there can be no consent by the complainant, and the accused cannot have believed that the complainant consented, where the accused intentionally deceived the complainant as to the nature or purpose of the relevant sexual act.
³ Stand News: https://bit.ly/3eCPrQk
⁴ The defence claimed that the defendant never mentioned he is a woman to X, so if X mistaken the defendant as a woman, it should not be the responsibility of the defendant, there may be a miscommunication.
Hear Me Out
Survivor's voice
The survivor of the aforementioned case voices out about how she feels following the trial through RainLily.
After the incident, I kept questioning why he would commit such barbaric acts. He continuously and repeatedly appeared on multiple social media platforms targeting lesbians. He disguised himself as a Tomboy, dating lesbians with the intention to have sex with them. He intentionally asked me to book the hotel, kept quiet, and kept his clothes on to cover his true gender. He had a very deliberate and comprehensive plan. I wonder if he did this because he hates lesbians. If he does hate lesbians, he shouldn't have impersonated as a lesbian. Did he do this to emphasise the patriarchy? Pure disgust. I don't even want to know the answer. What's more disgusting is that during the trial, I received a letter from a girl who claimed to have had the same experience as me. There were only 4 months in between these two incidents. This may not be the first time for this person to commit similar kinds of sexual assaults.
One could claim that it was accidental for him to appear on one lesbian social platform. He joined that platform by mistake. But he appeared on not one, not two, but three different lesbian platforms. It is against common sense to describe it as an 'accident'. However, the jury still chose to believe that the defendant 'sincerely thinks' that the lesbian he met on the lesbian platform, the lesbian who called him 'sister', would agree to have sexual relationship with a strange man without ever discussing on his gender identity. Is the concept of 'lesbian' too difficult for the jury to understand? I heard that the majority of the jury was male. I would make a wild guess that they are all heterosexuals. If they had ever tried to think from my perspective, it wouldn't be that difficult to fathom: You have befriended with a woman online, who claimed as a heterosexual woman on multiple social media platforms, turned out to be a man in real life. You would also be shocked, if not scared. Now this man forces himself on you, and only during this process did you know that he is a man. Did you honestly accept him as your sexual partner? Had you ever said 'yes' to having sex with this man who disguised himself as a heterosexual female?
When the verdict is out, I only felt ever so powerless. I understand that the legal system must protect the rights of suspects and would give them the benefit of doubt. However, this legal system only brought about injustice and anger this time. When I was giving my statement, the judge and even barristers did not know much about the terms of many sexual and gender minorities. I had to use my own knowledge to explain every word including L, G, B, T and Q. Although both the judge and the prosecutor were very patient listening to me, if they didn't even understand all these basic concepts about sexual orientations and gender identities, it would be even more difficult for the jury to understand. I suggest that there might be an expert witness for the same type of cases, so as to aid the jury understand the basics of the facts.
Among sexual and gender minorities, the word T stands for transgender people. It is disheartening for me to see that this case is distorted to attack transgender people on the internet. The cisgender male defendant pretended to be a woman to rape other lesbian women. The gist of the problem lies with the sexual assault itself. 'Impersonating' as a woman was his means to achieve this. It has nothing to do with transgender people who lives according to their own true gender identity. Currently, Hong Kong does not allow one to pick their own gender without doctor's diagnosis. To enter the women's toilet, a trans woman is required to hold a doctor's certificate. It is not as simple as dressing up like a woman. Although I am not in a position to express any opinions on behalf of transgender people, I believe that sexual characteristics are an important part of all sexual behaviours. When one gets to know their dates, even if a trans woman has always stated that she is a woman, she will not deliberately conceal her transgender identity when she has sex with her date. One of the reasons why I reported the case was that I wanted to help other sexual and gender minorities who were sexually assaulted. What I wanted the least was to harm transgender people who are also one of the minorities while voicing out for the lesbian community.
Before I met the defendant, we had already discussed in details what could and what could not be done. I have never given consent to sexual activities with the defendant who possesses male sexual characteristics. I fled immediately after the incident and contacted my close friends and the social worker. I also reported to the police on the same day and conducted forensic examination. In most cases of sexual offences, the only witnesses are the victims themselves. I have tried my best to protect myself before and after the incident. Most of the evidence has also been kept. Is it a must to have a CCTV footage, or to have the defendant revealing that he has the intention of rape, for him to be convicted?
I believe that the law is intended to protect everyone's bodily autonomy, so that everyone does not have to worry about being touched unwantedly or even sexually assaulted by people or objects that they have not consented to. The body is one's own, and only oneself can make decisions for it. Lesbians who look for a female sexual partner on a lesbian platform should not have to worry about being sexually assaulted by people of other genders. After the occurrence of a sexual assault, the law should make a fair judgment to punish the perpetrator. Only announcing a guilty verdict with proportionate punishment could the society be warned and to prevent the same type of misfortune from happening again.