Rape victims' pursuit of justice fraught with fear

Victims reluctant to report offenders because of the traumatic criminal process, and proposed law reforms won't make it much easier for them

PUBLISHED : Sunday, 24 February, 2013, 12:00am
UPDATED : Sunday, 24 February, 2013, 5:02am

Daisy looks and sounds no different to hundreds of thousands of other housewives across Hong Kong.

But buried deep in the soul of this woman in her 60s is the recollection of the dread she spent sleeping next to a husband who frequently raped her.

"He forced me into sex with him, regardless of how I felt," she says, her voice shaking as tears well in her eyes. "Sometimes, he even waved two kitchen knives at me when he wanted it."

Despite describing herself as a "prisoner" for each of the first five years she spent with her husband after coming to Hong Kong from the mainland, Daisy (not her real name) dared not call the police.

"He threatened me," she says. "He said he could simply kill me without anyone knowing."

While she has been able to escape her personal hell with the help of a women's group, she never reported her husband to police, and has never seen justice done. In that, she's far from alone. The majority of sex-crime victims never tell the police. Only about half of such reports result in a case going to court. And, in all but one of the past 12 years, the majority of rape cases that have been tried by courts resulted in acquittal.

Help was supposed to arrive by way of a long-delayed review of sex offences legislation by the Law Reform Commission, now subject to a public consultation exercise ending on Thursday.

However, groups working with sex-offence victims say the reforms do not go far enough in making the course of reporting a crime and going through a prosecution less daunting.

For those who choose to bring their attacker to justice, the process can be arduous.

Dr Hung Suet-lin, of the Department of Social Work at Baptist University, looked into the cases of 22 rape victims for a study in 2011. Just three of the 22 had their cases heard in court.

The problems start with reporting the assaults, Hung found. Not all police officers are sympathetic to victims, and the fact that forensics doctors examining female victims are predominantly male possibly adds to the shame and embarrassment of the women at a time when they are at their most vulnerable.

Facing their attacker in court could be harder still.

"I cried a lot on the first day [of the trial] ... because the defence counsel kept questioning me, kept picking up discrepancies between my testimonies," said one victim, a 28-year-old working in the financial industry, who was raped by a stranger.

"I started to get afraid two weeks before court proceedings ... when I saw him [the accused] in the court, I felt very scared of him."

But few of these concerns were addressed in the report by the Law Reform Commission, which was completed in September, some six years after it was requested by former secretary for justice Wong Yan-lung and ex-chief justice Andrew Li Kwok-nang. The consultation document prepared by the commission's review of sexual offences covers 21 aspects of the current statutory regime on sex crimes.

Some of the changes proposed have been broadly welcomed. There is general agreement that rape laws should be "gender neutral" - meaning that rape should no longer be an offence that can only be committed by a man on a woman.

Many groups attending a Legislative Council session on the changes last month also welcomed the inclusion of non-consensual oral and anal penetration within a broadened definition of rape. A new category of sexual assault by penetration with an object other than a penis, and a tightening up of the law to make it harder for a defendant to claim that the victim had consented to a sexual act, are also proposed.

But Linda Wong Sau-yung, executive director of the Association Concerning Sexual Violence Against Women, says the proposals would do little to encourage victims to report sex crimes.

While the last official estimate by the Census and Statistics Department in 2005 was that 49.8 per cent of sex crime victims reported the offences, Wong says the actual figure could be as low as 5 per cent, citing social workers' own reports.

Wong says one way to make trials less of an ordeal for victims is to allow them to give evidence from behind a screen, shielding their faces from jurors, the accused and the public gallery.

Research by RainLily, a local centre for sexual abuse victims, found that fewer than 20 per cent of victims successfully applied to give evidence from behind a screen.

Most of those who were given a screen, Wong added, were underage or mentally incapacitated witnesses, not mentally sound adults.

One of the victims interviewed by Hung, a 40-year-old insurance agent, spoke of her fear at attending her rape trial without a screen. "When you had to face so many people, there's a psychological barrier hard to surpass ... had there been a screen it should have been much better."

Arrangements for the use of a screen are set out in great detail in The Statement of Prosecution Policy and Practice of the Department of Justice - a code for the city's prosecutors.

Wong says a screen should be a definite right for victims, but the Law Reform Commission will only deal with this matter "at a much later stage", citing a subcommittee source.

"It is of paramount importance that their protection in court be strengthened," Wong said. "This is not only conducive to successful prosecutions, but also a show of respect for the witnesses' dignity that is a basic value of a respectable criminal justice system."

In fact, Hong Kong's prosecution and conviction rates - like the reporting rate - have been low for rape cases.

In the decade leading up to 2011, an average of 100 women made rape reports to police annually.

In the same period, the prosecutors had pursued 497 cases in courts - or 49.7 cases each year on average - out of which only 37 per cent were consequently convicted, according to Security Bureau figures obtained by the South China Morning Post.

There were more acquittals than convictions for rape cases in all but one of the past 12 years, it was further shown. The only exception was in 2002.

Out of 33 rape prosecutions between January and September last year, 17 defendants were set free and 16 found guilty.

For Wong, there is yet another source of fundamental dissatisfaction: the use of the word "rape" itself, adding a labelling effect to victims in a deeply conservative society.

Some social workers say the term carries a stigma too strong to be washed away for victims - in fact, many of those who work with them no longer address them this way; they now call them "survivors".

But the report upheld that "rape" is, at least for now, irreplaceable. "If the term rape is not used, the seriousness of the offence ... may be downgraded."

Professor Puja Kapai, of the University of Hong Kong's law faculty, agreed: "[The term] is so ingrained in our common understanding as a society that it immediately conveys the gravity of the offence. Any commoner would know, if you say he or she has been raped ... he has suffered a terrible trauma.

"If you say 'sexual offence by penetration', it's less clear."

But Kapai, who also works with the Association for Concern for Legal Rights of Victims of Domestic Violence, says the reforms fail to address the needs of sex workers and ethnic minorities.

The report, citing Scottish experience, states: "It is not entirely clear that offences relating to prostitution should be considered as 'sexual offences'. In most cases, they are not truly sexual offences."

Kapai said: "From a symbolic point of view, if you said at the outset of the report that this paper does not cover sex workers ... the impression you give is that they are different - the crimes against them are different."

She also believes some girls from ethnic minorities are subjected to forced marriage in their families' home countries, a phenomenon the government must understand and address.

But while the process of rape-law reform crawls along slowly, Daisy is, at least, able to move on after her stepson took her to the Social Welfare Department to seek help. She moved out two years ago.

"I can now see a lot more smiles on her face," said Xu Meiqiong, the volunteer at Association for the Survivors of Women Abuse who takes care of her.

As well as initiating a divorce from her attacker, the victim has now turned helper, taking part in volunteer work and giving support to other victims - survivors like her.

"I believe she has found a way out," Xu said. "And she is now brave enough to walk along that way."