Bystanders face up to 20 years in prison if they fail to protect children or other vulnerable people from death under a new offence proposed by Hong Kong’s Law Reform Commission to close a legal loophole when perpetrators of abuse are difficult to identify. Photo: Shutterstock
Clifton R. Emery
Clifton R. Emery

Child abuse: why punishing bystanders severely could backfire

  • A Law Reform Commission report recommends criminalising the failure to protect a child in cases of abuse resulting in death or serious harm. However, seeking to bring more parties to justice when a child dies may not deter abuse, and may even worsen it

She lives in fear for herself and her young charges. The vulnerable children she cares for, in fact the entire household, are under the control of a terrifying man. She uses the threat of reporting to try to deter the father from more serious violence against his children but fears for her own safety. She agonises about whether to leave, but who will protect her charges then? Without a doubt, many domestic helpers in Hong Kong face such a crisis.

The Law Reform Commission has proposed the creation of a new offence under the Offences against the Person Ordinance, criminalising “failure to protect a child where the child’s or vulnerable person’s death or serious harm results from an unlawful act or neglect”. The commission recommends a maximum 20-year sentence in cases of death.

The new offence aims to end a travesty of justice – when all parties walk free after a child is murdered because it is not possible to identify the perpetrator of abuse. So, should we bring more guilty parties to justice when a child dies? Or should we prevent more children from dying?

Popular opinion links preventing deaths with bringing perpetrators to justice. Unfortunately, punitive laws often backfire.

Based on a single study in the 1980s, states across the US implemented laws making it mandatory for police to make arrests for domestic violence calls. It took researchers decades to notice that these efforts didn’t work or even increased domestic violence homicides. My research informs my fear that the proposed offence may lead to increased child injury and child mortality in Hong Kong.

(From left) Adeline Wan, secretary of the Law Reform Commission, Stephen Hung, commission member, Amanda Whitfort, chairperson of the subcommittee on causing or allowing the death of a child or vulnerable adult, Dr Philip Beh, member of the subcommittee, and Louisa Ng, secretary to the subcommittee, at the press conference on the release of the subcommittee’s report on September 10. Photo: K.Y. Cheng

The Law Reform Commission’s report involved thorough legal research on international law. The consultation involved over 100 respondents . However, the report did not cite any of the research on bystander intervention or informal social control of child maltreatment.

After reviewing this research, the commission should have considered the incentives and disincentives created for people affected by the proposed offence.

While I share the government’s concern about child mortality in Hong Kong, and I morally object to letting the perpetrators of heinous acts of abuse and neglect against children walk free, a narrower and less punitive law is likely to be more successful at closing the loophole without adverse consequences for Hong Kong’s children.

With the permission of the Secretary of Justice, the proposed offence allows for the prosecution of children for failing to report abuse of their siblings. Children under the age of 18 should be explicitly excluded from prosecution.

The proposed offence applies to cases in which “serious harm” occurs to the victim. Official reports of maltreatment are hundreds of times below actual prevalence the world over, and emotional abuse is rampant. The authorities would be overwhelmed should they undertake a consistent attempt to prosecute.

The law should encourage reporting rather than punishing non-reporting. It should apply only to fatality cases and to cases in which the perpetrator could not be prosecuted.

Hong Kong child murder case began with romance, ended in nightmare

Finally, the proposed offence imposes costs far too high for not reporting. Abusive people will use that increased threat to keep those under their thumbs silent.

Perpetrators are very experienced at using manipulation to keep their victims and bystanders silent. They will make it seem like the law punishes collusion, and that bystanders are necessarily implicated.

In the case of a fatality, there should be some punishment for bystanders who did nothing. But for domestic helpers and people terrorised by a violent partner, that punishment should be a fine, not jail time, and that provision ought to be in law not left to judicial discretion. The current 10-year maximum jail sentence for ill-treatment or neglect of a child is quite enough. The proposed 20 years is too much.

My research on bystander intervention against child maltreatment and domestic violence does suggest that such intervention may be effective. But what you do matters at least as much as whether you do anything.

While bystander intervention in cases of child abuse can be effective, what action is taken is as important as whether any action is taken at all. Illustration: SCMP

My research in China, South Korea, Vietnam, Nepal and Russia suggests that neighbours and family members intervening to try to protect the victim, getting in between the perpetrator and the victim, trying to calm the perpetrator down by talking to him is associated with less severe family violence. But none of my studies found that trying to punish the perpetrator was associated with less violence.

Do we need legal punishments for child abuse? Of course. But we should not assume that stringent punishment will lead us to a world where children are more protected. We cannot punish our way to utopia.

So, the helper, the domestic violence victim, the elderly parent looking on with dismay, what will they do? My guess is that the perpetrator will distort and threaten them with this law, and that they will keep their silence, and maybe flee.

The result will be that abused children in Hong Kong will have even fewer protections from violence than they do now. But there is someone whose opinion matters much more than mine. Ask the helper, the domestic violence victim, the elderly parent. The fate of our children depends on their answer.

Dr Clifton R. Emery is an associate professor of social work and social administration at the University of Hong Kong