Advancing a More Meaningful Sexual Offences Reform in Hong Kong
ACSVAW's New Position Paper Advocates for Affirmative Consent
and Address the Plight of Persistent Child Sexual Abuse Victim-Survivors
In light of the Security Bureau's announced public consultation on sexual offence law reform, the Association Concerning Sexual Violence Against Women (the Association, or ACSVAW) is awaiting further details from the upcoming Policy Address. To advance public discussion, the Association has released a position paper, Toward a More Comprehensive and Timely Direction for Sexual Offence Law Reform in Hong Kong, advocating for two key changes: the legal embodiment of affirmative consent principles and the creation of a new offence for persistent sexual abuse of children. This paper not only builds upon the 2019 recommendations from the Law Reform Commission (HKLRC) but also draws insights from overseas jurisdictions.
"Victim-survivors of sexual violence often face significant difficulties within the criminal justice system," said Doris CHONG Tsz-wai, Executive Director of the Association. "While we agree with the HKLRC's reform recommendations, our reflection on overseas practices shows that there is still room for improvement to effectively and meaningfully enhance the situation for victim-survivors. Sexual offences reform must embody the principle of affirmative consent. This would fundamentally dismantle the notion that a victim must 'strenuously resist' to be considered as 'not consenting,' and it would prevent perpetrators from evading responsibility and acquittal with absurd excuses of a 'mistaken belief in consent.'"
To implement the principle of affirmative consent, the paper puts forward proposals that go beyond the HKLRC's recommendations. These include: clearly stating in the statutory definition of consent that a lack of resistance does not constitute consent; more explicitly listing circumstances where consent is vitiated, such as the victim has never personally expressed consent, obtaining or facilitating sexual acts by abusing position of trust and authority, or through non-forceful threats, and deliberately violating the consensus on safe sexual practices; and introducing limitation that restricts the accused from calming the "Genuine but Mistaken Belief Defence" if they did not take any steps to ascertain consent.
"The Association also recommends establishing a 'persistent sexual abuse of children' offence," said Cheryl YIP Cheuk-yi, Advocacy Officer of the Association. "This would address the current legal framework and evidentiary requirements, which often limit prosecutions to each individual incident of sexual abuse. The current situation creates a difficult dilemma for victim-survivors of persistent sexual abuse: the more protracted and repeated the abuse, the harder it becomes to identify the unique details of each incident to meet the threshold for prosecution. This makes it more difficult to convict the perpetrator. This is far from ideal, as frontline judicial personnel often abandon prosecutions or charge a lesser offence due to the difficulties in providing evidence. It also contradicts the public's expectations for the protection of children's welfare."
In the early 2000s, discussions were held in the Legislative Council on introducing a "persistent sexual abuse of children" offence, referencing overseas legislation to close this loophole. Unfortunately, this work was not pursued and has been shelved for over two decades. The Association believes that the government should seize the opportunity presented by this sexual offences reform to draw on recent overseas experiences to legislate a "persistent sexual abuse of children" offence.