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Incest, necrophilia and other sexual offence laws in Hong Kong need updating to ensure justice is not delayed

Cliff Buddle says now that the Law Reform Commission has made its recommendations on sexual offences, the Legislative Council must not let them gather dust 

PUBLISHED : Sunday, 27 May, 2018, 1:01pm
UPDATED : Sunday, 27 May, 2018, 9:40pm

The rule of law is often described as one of Hong Kong’s biggest assets. But if the laws which govern our lives are to remain relevant and continue to have legitimacy, they must move with the times. Laws need to be reviewed and adapted to reflect changes in society and the rapid advance of technology. This is an area in which Hong Kong often lags behind other parts of the world. 

The release of the Law Reform Commission’s latest consultation paper on sex crimes is, therefore, welcome. The report on “miscellaneous sexual offences” deals with sensitive issues which are rarely discussed openly. They include incest, indecent exposure, voyeurism, bestiality and necrophilia. 

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The consultation paper is the latest in a series of recommendations put forward by a subcommittee set up in 2006 with the gargantuan task of reviewing the city’s many different sexual offences. It began by considering establishing a sexual offenders register and then moved on to recommend the abolition of the presumption that a boy under 14 is incapable of sexual intercourse. Its recommendations on these issues were implemented in 2011 and 2012 respectively. 

Far too often, the Law Reform Commission reports are left gathering dust rather than being swiftly acted on

The latest consultation paper is the third and final part of the subcommittee’s examination of sexual offences. The first tackled rape and related offences, the second dealt with crimes involving children and people who are mentally impaired. When the current public consultation on miscellaneous offences is completed, a final report will be prepared. It is to be hoped that the report will be taken seriously by the government and recommendations implemented. Far too often, the Law Reform Commission reports are left gathering dust rather than being swiftly acted on. 

Sex offences can be controversial and require careful consideration, as the subcommittee notes at the outset of the latest paper. It has been driven, in the three consultation papers issued so far, by a determination to better protect victims, to modernise our laws, and to make the crimes gender neutral. These are admirable objectives. Those involved have drawn on the experience of other parts of the common law world including England, Scotland, Canada, Australia, New Zealand and Singapore. 

It is worth noting that the overhaul of England’s sex crime legislation, which forms a key point of reference for the subcommittee, took place 15 years ago. While time is required for careful consideration and public consultation, there is a need to push on with the reform process and bring our laws up to date. 

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The latest proposals include broadening the offence of incest to include not just birth parents, but also aunts and uncles, their nephews and nieces and adoptive parents. The aim is to provide more effective legal tools for tackling sexual exploitation within the family. Indecent exposure is currently treated as a public order offence. The subcommittee sensibly proposes a new crime be created to cover situations in which people expose their genitals to a specific victim without consent, for their own sexual gratification or to cause humiliation or distress. 

Care must be taken to ensure any new offence does not unduly restrict legitimate investigative work by journalists

Another new offence, outlawing voyeurism is also proposed. This is where a person watches or visually records someone who is naked or having sex. This would apply if the voyeurism was for a sexual purpose and without consent. Care must be taken to ensure any new offence does not unduly restrict legitimate investigative work by journalists. But it is unlikely such a concern would arise, given the sexual nature of the crime. Smartphones have made covert recording much easier. This is one area in which the law needs to move with the development of technology. 

New laws on bestiality – to be replaced by an offence of “sexual intercourse with an animal” – and necrophilia, a new crime to be called “sexual activity with a dead person” are also proposed. The report also tackles acts done with the intent to commit a sex offence and wraps up by recommending that certain offences concerning homosexuality be removed to ensure the laws are gender neutral. The review is thorough, but much-needed. The city’s sex crime legislation has become outdated and needs to be changed. 

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Law reform should be made more of a priority. Long delays in implementing the commission’s proposals can lead to injustice. One notable example was the dropping of indecent assault charges against a care home warden in 2016 because the alleged victim was mentally impaired and not considered fit to give evidence. That could have been avoided if the commission’s recommendation on hearsay evidence, made in a report seven years earlier, had been implemented. 

Its proposals are often slated for implementation by the Legislative Council but then delayed for years. Take, for example, its recommendations on amending the criteria for jury service, which were made in June 2010. In 2013, the government said it was intending to introduce proposed changes in Legco the following year. We are still waiting. Now it is promising to implement them this year or next. We shall see. 

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There are other oppressive laws – remnants of Hong Kong’s colonial past – which are ripe for repeal. Criminal libel and blasphemous libel are notable examples. 

Law reform can be controversial. Our fragmented political system, lack of guaranteed support for the government in Legco and political divisions do not always make the process easy. But there must be determination to bring about change, otherwise laws stagnate on the statue books and become outdated and irrelevant.

Cliff Buddle is the Post’s editor of special projects