Fight Back #71
Feature
The Bias and Injustice of "Honest but Mistaken Belief"
Chelsea Ma, Chairperson of the Board of the Association Concerning Sexual Violence Against Women and former practicing barrister, and Cheryl Ip, Advocacy Officer, discussed the loopholes in current sexual offenses and the inadequacies of the law in presenting sexual consent through examples of cases. Here are excerpts from their conversation:
Cheryl: A few years ago, there was a case where a male defendant, posing online as a TB (Tomboy, a woman who dresses in a more masculine style), used a lesbian dating app to meet and rape a woman. Throughout the trial, he repeatedly claimed, "I didn't know she didn't realize I wasn't a woman," and "She saw my leg hair; I thought she knew I was a man." He also argued, "I believed she consented," "I misunderstood her consent," and "She never refused." Ultimately, the jury overwhelmingly acquitted him of rape. How do you view the "honest but mistaken belief" defense in light of this case?
Chelsea: The "honest but mistaken belief" defense was the crux of the issue. In many rape or sexual assault cases, the core dispute revolves around whether there was consent or a genuine misunderstanding.
To put it simply, this defense essentially argues "it was a misunderstanding." The prosecution must prove the victim didn't consent, while the defense can claim the defendant genuinely believed there was consent, based on their subjective interpretation. Under current law, this subjective belief can override whether the misunderstanding was objectively reasonable.
Cheryl: The Law Reform Commission (HKLRC) stated in its 2019 report that relying solely on a subjective defense can lead to unfair outcomes. How can this be addressed?
Chelsea: HKLRC proposed a mixed test, combining subjective and objective criteria to assess the reasonableness of the misunderstanding. Subjectively, the jury must believe the defendant genuinely thought there was a misunderstanding. Objectively, the misunderstanding must be one that a reasonable person would also consider plausible.
However, the effectiveness of this objective standard depends heavily on how the jury interprets "reasonable" acknowledgment and expression of consent. The jury system aims to introduce common moral standards into the courtroom. But defining these general moral standards is challenging, and they can be influenced by myths and misconceptions about sexual violence.
Cheryl: So, relying solely on the jury's common sense, or general understanding of consent, ignores the diverse ways consent is understood in society. That's why we advocate for a clear legal definition of "consent," specifying what situations constitute consent and what don't. Currently, the Criminal Procedure Ordinance lacks this definition, allowing the defense to use myths about sexual violence to justify the defendant's misinterpretation of consent.
Chelsea: Are there common myths about "consent" in sexual violence cases that you encounter?
Cheryl: Often, victims experience a "freeze" response during sexual violence, becoming unable to react due to the suddenness of the assault.
In a recent trial, the lawyer repeatedly asked the victim, "Why didn't you push him away? Why didn't you shout "no"? Why didn't you call for help? The lawyer even asked, when the defendant put something in your mouth, why didn't you keep resisting? You relaxed; weren't you giving the other person a wrong message?
Chelsea: In sexual assault trials, it often feels like the victim is on trial, not the defendant. Lawyers frequently interrogate victims about their lack of resistance, verbal refusal, or expressions of dislike. But what about the defendant's responsibility? In Hong Kong, there seem to be no standards for them. However, in other regions, the understanding of consent has shifted. The focus is now on whether the defendant took steps to confirm and communicate consent, not just on whether the victim said "no."
Cheryl: Exactly. The concept of consent used to be like a door that was always open. The door was open by default, and if I didn't want you to come in, I had to actively "say no." This is "no means no." But bodily autonomy should be like the door to our house, closed by default. If you want to come in, you have to knock and communicate with me. I can "say yes," I can "say no," or I can remain silent, but you cannot break in without my consent.
The person initiating sexual contact has the responsibility to obtain consent, not to question why the victim didn't express dissent when the consent was taken away. If there’s no "yes," it means "no." The responsibility should be placed back on the defendant. Legal reform on consent isn't just about changing laws; it's about changing societal views on sexual autonomy.
For more information
Jury instructions in a rape trial
Where honest but mistaken belief is a live issue
If it is or may be the case that the defendant genuinely believed that she was consenting, then he cannot be guilty of rape. It is not for the defendant to prove that he genuinely believed that she was consenting; rather, it is for the prosecution to prove, so that you are sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? Well, if it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he held or may have held that belief, you should have regard to the existence or absence of reasonable grounds for such belief and to all the surrounding circumstances but, that said, the key question is whether you are sure that he himself did not hold that belief. In other words, if you conclude that, objectively viewed, there were no reasonable grounds for such a belief, you may take that into account in deciding whether the defendant himself held or may have held that belief. But the ultimate question remains whether, reasonably or not, he himself genuinely held or may have held that belief.
"All Just 'Misunderstandings?" – Questions Victims Face in Court
Implying the victim's clothing led to the defendant's misunderstanding:
"In your statement, you said you were wearing short shorts that day."
Directly presenting the victim's clothing from that day to the jury.
Implying the victim's behavior led to the defendant's misunderstanding:
"Wouldn't you agree that your actions each time you met him could have been misinterpreted? You sent him signals, leading him to believe you were interested in him."
"Given that the photos you sent him were of pairs, like two cups or two boats, you indicated romantic interest."
"Common sense suggests that taking a selfie together implies a close relationship."
"Why did you go to his house and sit on his bed?"
Claiming the lack of screams, resistance, or leaving led to the defendant's misunderstanding:
"You didn't say no, didn't resist, didn't push him away, didn't kick him, didn't swat him away."
"Why didn't you call for help? Not even trying is completely unreasonable."
"If someone is being assaulted, it's impossible for them not to try to call for help."
"Why didn't you clench your teeth to stop his penis from entering your mouth? Why didn't you bite? That's a natural reaction."
"Reacting against your will doesn't require thinking; resisting should be a natural response."
"(If it was sexual assault) not even crying? Not even instinctive tears?"
"The assault went on for so long, with so many opportunities, why didn't you leave?"
Implying physical responses led to the defendant's misunderstanding:
"Did you become physically aroused?"
"You showed signs of arousal, you moaned, and yet you didn't try to stop him."
"(The sounds you made, and the fact you didn't close your legs, were interpreted as) you complying with the defendant's actions."
Claiming the victim's refusal wasn't serious enough, leading to the defendant's misunderstanding:
"You just said (you didn't want to) in a playful, casual tone, not the serious conversation you're describing."
"Your tone wasn't serious or a warning; it didn't sound like a firm refusal."
Asking the victim to imitate the sound she made when refusing, then suggesting the defendant couldn't tell if it was refusal or a moan of pleasure.
The Progress of Sexual Offences Reform
1971: Enactment of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong)
Hong Kong's sexual offences legislation mainly adopted the UK's Sexual Offences Act 1956. However, in 2003, the UK undertook significant reforms to its sexual offences laws, with most of the original offences being replaced by new ones (Sexual Offences Act 2003).
July 2006: The Hong Kong Law Reform Commission (HKLRC) establishes the Subcommittee on Review of Sexual Offences.
September 2012: The Subcommittee conducts a consultation on "Rape and Other Non-consensual Sexual Offences".
November 2016: The Subcommittee conducts a consultation on "Sexual Offences Involving Children and Persons with Mental Impairment".
May 2018: The Subcommittee conducts a consultation on "Miscellaneous Sexual Offences", covering proposals for offences such as "Voyeurism", "Sexual exposure", and "Incest".
April 2019: The Court of Final Appeal's ruling renders the offence of "Access to computer with criminal or dishonest intent" inapplicable to prosecuting upskirt photography.
April 2019: The HKLRC publishes the report "Voyeurism and Non-consensual Upskirt-photography", recommending the enactment of offences of voyeurism and non-consensual upskirt-photography.
December 2019: The HKLRC publishes the report "Review of Substantive Sexual Offences", recommending the enactment of a statutory definition of "Consent" for sexual acts and the replacement of the offence of "Rape" with "Sexual penetration without consent".
July 2020: The Security Bureau launches a public consultation on the "Proposed Introduction of Offences of Voyeurism, Intimate Prying, Non-consensual Photography of Intimate Parts, and Related Offences".
November 2020: The HKLRC conducts a consultation on "Sentencing and Related Matters in the Review of Sexual Offences".
September 2021: The Legislative Council passes the Crimes (Amendment) Ordinance 2021, enacting offences related to image-based sexual violence, including "Voyeurism", "Unlawful recording or observation of intimate parts", and "Publication or threatened publication of intimate images without consent", which came into effect in October of the same year.
May 2022: The HKLRC publishes the report "Sentencing and Related Matters in the Review of Sexual Offences".
December 2024: The government announces that it will conduct a public consultation on proposed amendments to sexual offences within 2025.
Voicing Voices
Interview with Victim in 'Trust Therapy' Sexual Assault Case
J testified in an indecent assault case, alleging her therapist sexually assaulted her under the guise of "trust therapy."
The judge ruled that J didn't push or block the defendant. Her account was also inconsistent, with strange and illogical details. The judge concluded they couldn't rule out that J had consented, or that the defendant genuinely but mistakenly believed she had, and acquitted him.
Q: During cross-examination, the defense spent a lot of time on irrelevant details, suggesting the "paired" photos you sent implied you were interested in the defendant, leading him to "misunderstand" your feelings and "assume" you had a close, consensual relationship. What's your take on that?
J: I am certain the defendant knew I did not consent. A month before the incident, I had a WhatsApp conversation with him where I told him that his frequent physical contact made me uncomfortable and I was afraid he would touch me. He promised me he wouldn't touch me again. So, during the cross-examination, I kept listening and wondering how he could possibly defend himself and what his side of the story was. It was only when the defense mentioned that we met five times in six months, which they considered frequent, and asked, "Do you remember anyone asking if your relationship was more than just friends?"
However, I don't think my answers mattered. He seemed intent on presenting his own narrative. No matter how I responded, he wanted to leave the impression that "we were very close."
But we were absolutely not in a close relationship. Even if, hypothetically, he genuinely mistook our relationship for something romantic, you don't suddenly do that to someone you've never even held hands with in public.
Q: Moreover, the key point is that he did not obtain your consent. You testified that you said "no" but were unable to resist further. How did the defense question you about that?
J: The defense repeatedly asked me, "You froze for that long? Couldn't move at all?" And, "Why didn't you bite him when he put his finger in your mouth? Why didn't you kick him? Why didn't you fight back?" It made me furious, maybe even with myself… I should have left, but I just couldn't.
During the cross-examination, I tried to remain calm and answer truthfully, to be a credible witness. Looking back, he wasn't really asking questions; he was making statements, trying to convey that what I described was impossible. Many experts could answer these questions. The defendant himself is a trauma psychotherapist; he could answer these questions. But he didn't testify,* and neither the defense nor the prosecution called an expert witness. So, the defense acted like an expert, insisting it was impossible for me not to resist, even though that's exactly what happened.
*The defendant has the right to testify or to remain silent. The judge cannot draw adverse inferences from the defendant's choice not to testify.
Q: The judge also said they couldn't understand why you didn't leave or resist, and that they couldn't rule out the possibility that you consented or that the defendant genuinely but mistakenly believed you had. What are your thoughts on this?
J: I thought my role as a witness was to recount the facts. Questioning whether it was possible or reasonable… I don't know. I can only tell you what happened.
If you want me to explain why I didn’t resist or leave… I don't know. I guess, maybe I was too nervous, or cold? I can say, "I guess because I have childhood trauma, so that's why," but I thought the court wanted facts, not my feelings or guesses.
And my "why not" has nothing to do with whether he committed a crime. Regardless of why I didn't resist or leave, he still assaulted me; he still committed a crime.
And why I didn’t resist or leave has nothing to do with his wrongdoings. Regardless of why I didn't resist or leave, he still assaulted me; he still committed a crime.
Q: The prosecution should have proven that you did not consent or helped the court understand why your behavior was reasonable. How do you think the prosecution could have done better?
J: I think that if the Department of Justice reviewed the case and deemed it worthy of trial, they should have done their homework and not wasted everyone’s time.
The defense argued that we had a romantic relationship. I could have found many witnesses to testify that we didn't. Or, if they thought my freezing and inability to resist was unreasonable, they could have called an expert witness. I felt like the prosecutor just stood there and did nothing. They asked me to provide evidence but didn't follow up or properly use the evidence to highlight that I had expressed concerns about physical contact beforehand.
Honestly, prosecuting this person isn’t for me; it’s for society, to prevent more victims. I'm here to cooperate. I cooperated. But you weren’t serious. If you don't want to prosecute, then don't, so I don't have to go to court. I have to be available on call, which affects my work and the emotions of myself and my family. The police did a lot of work to get to this point. Since everyone has invested so much time and effort, why not treat it more seriously?
Q: Returning to the point, the defendant never asked if you consented, and since he didn't testify, the court didn't explore how he confirmed your consent. Current law doesn't require either side to do this. What do you think about "consent"?
J: When I look back on this, it seems there are many gray areas, and it seems he could really claim it was a misunderstanding. I didn't see a way to prevent this from happening again. Then I heard about "affirmative consent." I saw on your social media that some Australian states define "consent" in their laws, stating that the initiator should not presume consent and has the responsibility to obtain voluntary consent before engaging in sexual activity. That made me realize that things could be different, that there is a solution.
Even if I put myself in the initiator's shoes, confirming consent beforehand seems like a good way to avoid "misunderstandings" or being "wrongly accused."
Latest
Research on Experiences Involving "Stealthing' and Related Sexual Violence"
To understand public awareness and experiences regarding sexual assault behaviors such as "Non-consensual Condom Removal," the Association Concerning Sexual Violence Against Women launched a study in October 2024 titled "Research on Experiences Involving 'Stealthing' and Related Sexual Violence." As of February 2025, 277 valid responses had been collected through online questionnaires.
The survey is divided into sections on awareness of relevant scenarios and experiences as victims. The awareness section asks respondents about the following four scenarios to understand their awareness of sexual consent and sexual assault:
The survey found that the vast majority of respondents clearly identified the scenarios/behaviors as involving a "violation of informed consent." With the exception of "non-consensual internal ejaculation," over 90% of respondents agreed that the other three behaviors violated the principle of informed consent.
However, when asked whether the four scenarios constituted sexual assault, respondents' answers varied, with a decrease in the number who considered them to be sexual assault. The scenario described as "Ignoring the Agreement on Condom Use" received the highest agreement as sexual assault, with 84.5% of respondents; followed by "Stealthing" and "Damaging the Condom," each with approximately 74% of respondents; while "Non-consensual Internal Ejaculation" was considered sexual assault by the fewest, at about 57%.
According to the general definition of sexual violence, any sexual act that violates consent is considered sexual violence. This survey indicates a degree of ambiguity in public awareness of sexual violence, as many people recognize the scenarios as violating informed consent but are uncertain or deny that they constitute sexual assault.
The survey also asked respondents whether they agreed that legislation should clearly state these behaviors as violations of sexual consent and sexual assault, with nearly 80% agreeing. Given that current legislation does not clearly define "consent" (including informed consent principles) and does not explicitly categorize behaviors such as "damaging or removing a condom without consent during sexual intercourse" as sexual offenses, there is a need for the authorities to implement sexual offense reforms in a more comprehensive and timely manner.