Initial Response by the Association Concerning Sexual Violence Against Women on the Security Bureau's Consultation Paper on Reforming Sexual Offences in Hong Kong
'Mistaken Belief in Consent' Remains a Loophole
Sexual Offence Reform Must Further Prevent Defendants from Exploiting 'Mistaken Belief' as a Defence
The Association Concerning Sexual Violence Against Women notes the consultation paper on Improving the Laws on Sexual Offences in Hong Kong submitted by the Security Bureau to the Legislative Council. The Association welcomes the government's explicit statutory definition of consent, the expansion of the offence of rape to cover other forms of penetrative sexual assault, and the progressive step beyond the Law Reform Commission's (HKLRC) original recommendations to include a non-exhaustive list of circumstances where a victim is deemed not to have consented, including forms of sexual assault such as 'stealthing' (the non-consensual removal of a condom). Furthermore, the proposed offence of sexual assault involving touching effectively covers splashing unknown liquids onto one's buttocks or intimate parts, an issue that has sparked significant public concern recently.
Failure to Limit 'Mistaken Belief' Risks Leaving an Exploitable Loophole
However, The Association is concerned that the consultation paper fails to propose a comprehensive reform regarding how the law handles a defendant's genuine (but mistaken) belief in consent. Under the currently proposed framework, when a jury assesses whether a defendant's belief in the victim's consent was reasonable, they must make a determination after having regard to all the circumstances.
Law reform commissions and legal researches across various jurisdictions have heavily criticised such clauses for being overly vague. Allowing the evaluation of all circumstances means subjective assumptions may still be accommodated, such as a defendant's failure to understand that a lack of resistance does not mean consent, or a defendant has never taken any step to ascertain the victim's consent. Consequently, a jury might still conclude that the defendant's mistake was reasonable. This fails to change the current reality where courts routinely misinterpret trauma responses, such as freezing, submission, or a lack of physical resistance, as signals that justify a defendant's mistaken belief. This falls short of the true legislative intent of the reform.
Doris Tsz-wai CHONG, Executive Director of the Association Concerning Sexual Violence Against Women, stated:
"For instance, if a victim-survivor is too intoxicated to resist, the proposed list of circumstances where a victim does not consent does state that consent is absent in such a state. However, a defendant could still use excuses to escape liability, claiming, 'There was no physical resistance, so I mistakenly believed there was consent,' or 'We were laughing and talking while drinking, so I misunderstood the situation as a willingness to have sex.'
While the first part of the proposed consent clause is well-drafted, leaving such a massive backdoor that allows mistaken belief to override the new statutory definitions would be a disappointment. We do not want these well-intentioned protections to fall short. We recommend that Hong Kong look to Canada's approach by introducing statutory restrictions on the defence of mistaken belief. For example, a defendant should be barred from raising this defence if they did not take active verbal or behavioural steps to ascertain consent. This ensures that perpetrators can no longer exploit a victim-survivor's trauma response to secure an acquittal."
Retention of the Term 'Rape' (強姦) May Perpetuate Bias and Deter Victims from Seeking Help
The consultation paper also proposes retaining the term rape (強姦) while expanding its legal scope to encompass penetrative sexual assault as recommended by the HKLRC. While the Association agrees with a gender-neutral framework that holistically covers all forms of non-consensual sexual penetration, the Association believes that adopting terminology closer to penetrative sexual assault (插入式性侵) would better mitigate the inherent limitations and misconceptions tied to the word rape, especially in Chinese '強姦'.
The implication of force: The Chinese character for rape (強姦) contains the character force (強), which misleads the public into thinking the act must involve physical violence or physical resistance. Defendants have argued in court that an intoxicated victim did not resist, meaning it could not be rape. Similarly, victim-survivors of penetrative sexual assault who succumbed under coercion often state when seeking help that they did not initially realise their experience constituted rape because no physical violence was involved.
Gender and anatomical biases: The character '姦' traditionally carries strong connotations of male-on-female penetration using a penis. Victims of newly covered forms of penetrative sexual assault may struggle to relate their experience to this term immediately.
The missed opportunity for public education: Introducing precise, updated legal terminology is a vital catalyst for public education. Retaining a term used for decades locks public perception within a dated framework. If a victim-survivor's experience does not fit the stereotype of violent coercion or a female victim, they may mistakenly assume their ordeal is not protected by the law, thereby deterring them from reporting or seeking support.
The title of the offence should clearly communicate the legislative intent: prioritising consent and emphasising that all forms of non-consensual sexual penetration are strictly regulated. Updating the legal name will not hinder everyday vernacular (just as 'indecent assault' is colloquially referred to as '非禮') but it will deliver an immediate, transformative message.
Prosecution Barrier for 'Persistent Child Sexual Abuse' Needs to be Urgently Addressed
The Association also notes that the consultation paper fails to address the current prosecution loopholes surrounding persistent child sexual abuse.
Hong Kong currently lacks a discrete, independent offence for persistent child sexual abuse. When a survivor of prolonged childhood abuse steps forward, the justice system is forced to select only a few isolated incidents out of dozens or hundreds of occurrences to prosecute. This completely fails to reflect the gravity of long-term sexual exploitation.
Expecting childhood sexual abuse survivors to recall exact dates, times, and details of repetitive trauma ignores the realities of a child's cognitive development. It overlooks how the human brain processes persistent abuse, where repetition breeds memory blurring, emotional numbness, and a state of helplessness within a severe power imbalance. Under the current system, the more frequently the abuse occurred, the harder it is for the victim to differentiate between each specific instance, making prosecution paradoxically more difficult. The reality of these survivors remains entirely misunderstood by the existing framework.
The Association Concerning Sexual Violence Against Women will thoroughly review the consultation paper and make submission in due course.
Doris Tsz-wai CHONG － Executive Director, Association Concerning Sexual Violence Against Women