Fight Back #72
Feature
The Paradox of Persistent Abuse: The Prosecution Dilemma in Cases of Persistent Child Sexual Abuse
Persistent child sexual abuse remains a grave and often overlooked social problem in Hong Kong. Between 2019 and 2023, RainLily received close to 500 requests for assistance related to childhood sexual abuse, with 55.9% involving repetitive sexual violence. While society naturally looks to the judicial system for justice, our experience reveals a reality that runs contrary to public expectation: under the current legal framework and evidentiary requirements, the more persistent and repetitive the long-term abuse a survivor faces, the lower the likelihood that distinct details for each incident can be identified to meet prosecution standards, making it harder to convict the perpetrator.
The Current Legal Gap
Under the existing legal framework, there is no specific offence for "Persistent Child Sexual Abuse". These cases must, therefore, be prosecuted by charging each individual sexual offence separately.
Consider this illustrative example discussed in previous Legislative Council documents:
As a hypothetical example, a victim may be able to say, and does say, her father had sexual intercourse with her every Saturday night. She knows this because she was forbidden to leave the home for that very reason. There was not one occasion when this did not happen and she can state with precision that this commenced on her 13th birthday and that, after she complained to the police, he was arrested, and it ceased on her 18th birthday. Under the present regime, she could not give evidence of the true nature of the conduct towards her unless there were 260 counts on the indictment. With the proposed legislation, there would be but one count.
In the example above, where the survivor was abused 260 times between the ages of 13 and 18, 260 charges would theoretically be required. In practice, however, it is currently impossible for a Bill of Indictment to list every single incident of sexual assault; to do so risks the court criticising the indictment as "long and complicated."
Consequently, the common practice for the prosecution is to select only a few incidents from the countless repetitive events (e.g., the first, the most memorable one in the middle, and the last). To satisfy the prosecution's requirements, the victim-survivor must accurately describe the details of each incident charged and distinguish them from the other incidents also being prosecuted.
The Memory Barrier and Unreasonable Legal Demands
However, cases of persistent childhood sexual abuse are often reported years after they occurred. When sexual assault is repetitive and long-term, and the circumstances of each incident are extremely similar, combined with the limited cognitive and developmental capacity of a child at the time of the abuse, it is virtually impossible for the survivor to clearly perceive and differentiate the specific details of every violation.
This poses a significant barrier: many cases become difficult to prosecute under the current framework, or are only charged as less serious offences. Some survivors are even deterred from reporting the crime in the first place due to these demanding evidentiary requirements. Of the 1,100 childhood sexual assault cases (involving survivors under 18) followed up by RainLily between 2000 and 2018, only 436 were reported to the police, and a mere 89 ultimately resulted in prosecution.
Even when a conviction is secured, the court can only sentence based on the small number of charges filed. This falls drastically short of reflecting the reality of a survivor who endured hundreds of violations, meaning the sentence fails to properly address the criminal culpability and severity of the persistent abuse.
Trauma, Memory, and the Law
In 2017, the Australian Royal Commission into Institutional Response to Child Sexual Abuse published research, Empirical guidance on the effects of child sexual abuse on memory and complainants’ evidence (see 'Further Information' below), which analysed how the traumatic memory patterns of abused children affect evidence.
The study points out that when abusive events are continuous and repetitive, the brain builds a schema focusing on the general pattern and invariant features of these experiences. However, the schema does not encode the specific details of each individual event, making them difficult to recall. A survivor of persistent childhood abuse described the inability to recall details this way: "I didn't specially log it in my brain, just as you wouldn't remember what you ate ten years ago." (See 'Voicing Voices' below).
Imagine eating lunch at the same cafe every Monday. Your brain creates a schema: you generally remember the menu, but ten years from now, you won't remember exactly what you ate on one specific day or where you sat, as this is how the brain processes repetitive events. This aligns with the experience of most persistent childhood sexual abuse survivors whom we support. Most can recall what the abuser generally did and the typical context, but it is challenging to say precisely how this Saturday differed from last Saturday, or why they remember the difference. Therefore, the current legal requirement for survivors to recall specific details of isolated incidents is contrary to the reality of how persistent trauma memory works, …，making it both impractical and unreasonable.
Another study cited in the Australian research, simulating courtroom trials, found that survivors of single-incident sexual assault were better at describing event details and were therefore perceived as more credible and consistent in their testimony, making their evidence more likely to be accepted.
By prosecuting persistent childhood sexual abuse as a series of separate incidents, the current framework applies the evidentiary standards of a single-incident assault to survivors of persistent abuse. It is inherently unfair to require persistent abuse survivors to have a sharp recollection of every incident and to accurately differentiate details, essentially demanding their testimony be as specific and tangible as that of a single-incident survivor.
This means persistent abuse survivors must expend far greater effort to prove they are telling the truth on a detail-by-detail basis, and they face increased opportunities for their account to be doubted. One survivor shared the deep distress of having to repeatedly convince new agencies—doctors, social workers, and the police—of their experience: "The feeling was very intense that you had to constantly prove this happened. The pressure of the whole process was immense." She eventually chose to withdraw the case, stating: "Constantly having to prove myself was already exhausting. If, after going through so many hurdles, I went to court and they said my experience was false, that it didn't happen, I felt I couldn't accept that outcome."
This is the reality we frequently encounter when accompanying survivors through the judicial process. Defence counsel often cross-examine witnesses by criticising a failure to recall details, questioning: "If the event had such a profound impact on you, you wouldn't forget these details." Judges' decisions have previously cited a witness's inability to recall "many key questions," or described their testimony as "evasive," "contradictory, inconsistent, and implausible," leading to an acquittal.
This is precisely the paradox facing persistent childhood sexual abuse survivors in Hong Kong: the more sustained and repetitive the long-term abuse, the harder it is to obtain justice through the criminal justice system.
The Need for Law Reform
Since the 2000s, several common law jurisdictions outside Hong Kong have implemented various legal reforms to address the prosecution of persistent child sexual abuse cases. For example, some Australian and US jurisdictions have established a discrete offence for "Persistent Child Sexual Abuse," while the UK and Canada have amended indictment rules to allow such cases to be charged differently.
The Hong Kong government itself proposed discussing the issue in the Legislative Council between 2001 and 2002, intending to establish a "Persistent Child Sexual Abuse" offence, modelled on the law in New South Wales, Australia, to close this legal loophole. The consultation generally received public support, but was unfortunately shelved due to complexities over legal details and has been neglected ever since. Over twenty years later, multiple Australian states and territories have not only enacted similar legislation but are continually reforming them based on academic research into the survivor experience and the practicalities of implementation, providing a more robust judicial response to persistent abuse.
The Association submits that the authorities should refer to the Australian Royal Commission’s 2017 draft provision for "Persistent Child Sexual Abuse." This model focuses on proving the existence of an exploitative sexual relationship between the adult perpetrator and the child—that multiple sexual acts occurred over a period of time—rather than emphasising the details of each individual incident. The provision explicitly removes the requirement for the victim-survivor to differentiate the specific circumstances of every act of abuse, providing a much-needed remedy for those who have endured long-term childhood sexual assault.
Legislating a specific offence for "Persistent Child Sexual Abuse" would uphold the principle of protecting a child's welfare, ensure the criminal justice system can justly and effectively reflect the culpability and severity of persistent sexual abuse, and eliminate the paradox currently plaguing childhood sexual abuse survivors, offering them comprehensive protection.
The Security Bureau recently announced that a public consultation on Hong Kong's sexual offence law reform will be conducted in 2025, including a review of the efficacy of current sexual offences involving children. We urge the authorities to use this substantive and comprehensive review to implement a specific offence for "Persistent Child Sexual Abuse."
The Conflict Between Memory and Justice
The Association and RainLily continue to undertake extensive research and advocacy regarding the plight faced by survivors of childhood sexual abuse (CSA). A retrospective study of RainLily cases revealed that between 2019 and 2023, survivors of childhood sexual abuse delayed seeking help by an average of 12.8 years (4,689.1 days). Regardless of how much time has passed since the abuse occurred, when survivors navigate the criminal justice system with their lived experiences, they invariably seem to confront a conflict between "memory" and "justice".
Research commissioned by the Australian Royal Commission into Institutional Responses to Child Sexual Abuse on the impact of CSA on memory indicates that the general public, law enforcement officers, and legal professionals alike harbour misconceptions about memory. These misconceptions often lead to negative interpretations of a victim-survivor’s testimony, adversely affecting their experience within the criminal justice process.
For instance, memory is frequently assumed to function like a video camera, capable of capturing every detail of an event with complete precision. This notion of "video-like memory" is particularly entrenched in the courtroom. Consequently, judges, prosecutors, and even jurors often question the reliability of a survivor’s testimony simply because they cannot recount the incident in exhaustive detail. However, research highlights that human memory is dynamic and reconstructive in nature. Memory is not a static archive; rather, it evolves over time, influenced by various internal and external factors.
Memory is susceptible to external influences, a fact that is particularly evident in cases of sexual violence—traumatic experiences exert complex effects on the encoding, consolidation, and retrieval of memories. As a result of trauma responses, a survivor's memory may appear fragmented, non-linear, or difficult to articulate coherently. This stands in stark contrast to the public expectation of a linear, well-organised account.
Furthermore, in cases of persistent and repetitive sexual abuse, survivors often recall only the "core content" (or gist) and habitual patterns of the abuse, finding it difficult to accurately recollect specific details of individual incidents, such as exact dates, locations, or frequency. Within a police station or courtroom, such forgetfulness or uncertainty is frequently interpreted—or attacked—as a sign of fabrication, thereby undermining the survivor’s credibility as a witness.
The research outlines common misconceptions versus the reality regarding memory held by police officers, judicial personnel, jurors, and the general public:
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Memory is less like a digital recording that sounds the same at each playback, and more like an improvisational performance based on a common theme. It can differ each time it's played back.
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Memory Includes Gaps and Errors.
Minor inconsistencies and contradictions are normal and do not indicate dishonesty.
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Reminiscence is Common and Reliable:
People often recall new information after an initial report, and these reminiscences are usually accurate.
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Emotional Displays Are Not Predictive: Visible distress does not necessarily correlate with memory accuracy.
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Memory for Recurring Events is Script-Based.
Victims of recurring abuse often recall the gist of events rather than specific details of each occurrence.
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Repeated sexual abuse that occur inside the family home are often particularly difficult to 'timestamp' as they take place frequently and are of a highly similar nature. It is common for contextual information about the timing of an event (for example, 'I was in Grade 3') to be better remembered than purely temporal information
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Cross-Examination Can Impair Memory, and aggressive questioning can overwhelm witnesses and lead to inaccuracies or retractions.
Support Enhances Memory Retrieval: Supportive environments and appropriate questioning improve memory accuracy and completeness.
Voicing Voices
Q&A with Survivor of Persistent Child Sexual Abuse
A: RainLily Service User, "Little Toilet Sister" (Pseudonym)*
"Little Toilet Sister" (pseudonym) was subjected to persistent sexual assault by her father throughout her childhood, spanning from the age of 9 to 18. She attempted to report the abuse to the police before reaching adulthood. However, due to emotional instability and an inability to articulate her experiences clearly at the time, she was not trusted by law enforcement officers and failed to successfully open a case. It was not until recently, feeling physically and mentally prepared, that she filed a report once again.
* Because as a child, she loved sitting on the toilet seat to space out, cry, sing, do homework, eat snacks... everything happened inside the toilet. It was the only space where she felt safe at the time.
Q: When did the incident first happen?
A: My most vivid memory is from when I was nine years old. I treat that most distinct experience as the "first time", but there is a chance it started even earlier and I simply forgot because I was too young.
Q: When you went to the police, were you worried that the vague memories from your childhood would affect your statement?
A: I typed up a note first. I wrote down everything I could remember—the years, dates, and what happened—before I went to the police. I wrote and revised it, edited and wrote again, updating it to version 8.0, 9.0... in the end, I filled ten A4 pages.
When writing the notes, I had to scour through all the photos in my mobile phone to trigger my memory. Honestly, after so many years, I had to rely on the surrounding environment in the photos to deduce how old I was—for instance, checking which school uniform I was wearing, or what grade level my homework was from. regarding the "first time", I roughly remember wearing short sleeves and that it was during the summer holidays. But if you ask me for the specific year, month, day, or day of the week, unless I have a photo from that exact period where the phone or computer displays the timestamp, I wouldn't dare answer with certainty.
Q: How did the police question you about the details of the incident? What kind of questions did they ask?
A: They asked questions like exactly where we were positioned on the sofa—the specific location of every person. What were my father and mother doing? What was my older sister doing? The matters they asked about were so granular that perhaps even I hadn’t noticed them at the time. For example, what were my mum and sister actually doing, and why was their reaction to ignore it?
It felt like I had to walk back into that scenario again to describe every single detail. At the same time, it allowed me to think about the entire event from another angle and gain a different understanding. For instance, I tried to put myself in the shoes of my mother and sister to consider their feelings, which redefined my impression and perception of them.
Another example is an incident in a restaurant. The police would ask, "Do you remember where the restaurant was located? What was the address? Were there any people you knew around? Could any passers-by have seen it? Do you remember what clothes your father was wearing that day? What colour? What was the pattern? Do you remember the products sold on the menu that day? What did you eat?"
I suspect they wanted to use these collateral details to gather evidence, such as CCTV footage, or to check if the time the restaurant served those dishes matched the period I provided. But to be honest, I really couldn't remember that much.
Q: What is the reason for not remembering?
A: I didn't commit it to memory—just as you wouldn't remember exactly what you ate ten years ago. Also, my situation was quite strange; I never knew these behaviours were wrong. I thought this was normal family interaction; this was the "education" my family gave me. It wasn't until I was about to leave home and move out, and inadvertently shared this with others who felt the situation was serious and that I should report it, that I first realised this was a bad thing.
If it were someone else—if someone had educated them early on about what sexual violence is, and they knew from the start that these acts were wrong—they might have remembered it vividly. But I didn't have that awakening until much later, so many important memories had already been forgotten.
Q: That first report to the police wasn't voluntary, and ultimately, a case wasn't successfully opened. What made you decide to report it again now?
A: Because the previous time, there was absolutely no warning or preparation. As soon as I entered that room, my emotional state was already very poor. The police kept asking me the same question, rephrasing it several times... I was terrified and wanted to burst into tears; I simply couldn't answer them properly.
At that moment, my biggest fear was: "Oh no, if I say it, what will happen to my mum, dad, and sister?" My dad might be arrested—he has heart problems and can't take too much shock. I would have to continue living with my mum and sister afterwards, and because the two of them weren't on my side—they would think I was making trouble out of nothing—I had so many worries.
For so many years, my condition was terrible. A mix of emotions was tangled together; I couldn't tell anyone what actually happened. I couldn't organise my thoughts, and every time I brought it up, I would break down crying. It wasn't until many years later, now that I’m much older, my emotions are more stable, and my ability to organise my thoughts is much better.
Actually, before I reported it this time, I was already mentally prepared that we might not secure a conviction. But I made this decision purely because I wanted to do something for myself. I wanted to let my family know that it is time to stop, and I need them to know that just because I don't speak up, it doesn't mean the events didn't happen.
Furthermore, in the past, I didn't have many friends because my family was very strict—they didn't let me use a phone, so I had no contact with the outside world and no support network. But now, I have a trusted counsellor, and I feel that the friends and teachers around me support me. When I have a sufficient support network, I feel that I am not facing this alone, and I can feel safe taking this step.
Knowing that if I fall, there is at least someone there to catch me—that is very important. I feel that having spoken out once, knowing everyone has tried their best, I can now go back to living my own life and continue doing what I want to do. That is much better.
Q: Growing up unaware that what you were experiencing was sexual violence is a situation faced by many survivors of childhood sexual abuse. Does this mean a long time passed between the events occurring and you realising there was a problem?
A: Looking back now, it feels quite absurd; I didn’t know until I was 18. As a child, my circle revolved entirely around my family and school, which directly shaped my understanding of the world.
Because schools don't specifically teach the topic of "sexual violence," and my family pretended nothing was happening—never once confronting or reprimanding my father for his behaviour—I was led to believe that this was something socially acceptable, a completely normal occurrence.
I once told my mother about what my father was doing. She immediately took me to a public hospital to see a doctor. She told the psychiatrist that I was suffering from auditory and visual hallucinations. She attributed the incident entirely to my mental instability, claiming it caused these hallucinations. This resulted in me having a psychiatric record from a very young age; my medical history was completely marred by this label.
Near the age of 18, during a visit to a psychiatrist who I felt truly cared about me, I told him I didn't want to stay at home anymore because facing my father gave me immense pressure. I lightly touched upon the things my father had done to me. My intention was simply to vent and share the grievances of my daily life, but the doctor reacted strongly and said we had to report it to the police.
When the police arrived, I couldn't bring myself to speak, so they called my mother in. They didn't really understand my mother's role in the matter. She is incredibly skilled at putting on an act; she pretended none of this had happened, described my relationship with my father as close, and acted shocked that I would make such accusations against him. She managed to convince everyone that these were just my hallucinations. Afterward, the doctor tried to arrange a place for me in a shelter, but there was a waiting period, so in the end, I had to return home.
Q: In the end, the police stated there was insufficient evidence to prosecute. Did that upset you?
A: Actually, before I reported it, I was already psychologically prepared that we might not secure a conviction. But I made this decision purely because I wanted to do something for myself. I wanted to let my family know that it is time to stop, and I need them to know that just because I don't speak up, it doesn't mean the events didn't happen.
Frankly, whether he is convicted or not isn't important to me; it wouldn't make up for anything, as the events have already happened. Furthermore, going to court would likely be very troublesome. Aside from the pressure of standing trial, once judicial proceedings begin, I wouldn't be allowed to speak about the case to anyone, leaving me with no one to confide in.
On top of that, their whole family is very united, and their financial resources and influence are far greater than mine alone. I also found myself wondering: would going to court really be good for me, or would it just be another challenge? That thought crossed my mind.
I feel that having spoken out once, knowing everyone has tried their best, I can now go back to living my own life and continue doing what I want to do. That is much better.