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Sexual harassment and assault

Incest and necrophilia in the spotlight as law reform commission reviews Hong Kong’s list of sexual crimes 

Consultation paper proposes making sex with a dead person a crime and broadening the definition of incest, as well as making it illegal to record someone else’s sexual activity without their consent

PUBLISHED : Thursday, 17 May, 2018, 7:01am
UPDATED : Thursday, 17 May, 2018, 8:10am

Hong Kong’s Law Reform Commission has proposed new laws to make offences such as sex with a dead person a crime and for existing legislation on sexual offences such as incest, for example, to be broadened. 

Its proposals were published on Wednesday for a three-month-long public consultation until 15 August.

In its 93-page consultation paper, the commission’s Review of Sexual Offences Subcommittee pointed out the city did not have specific laws punishing necrophilia, or harassing or raping a dead body.

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Authorities could only charge perpetrators, if evidence permitted, with unlawful burial of a dead body, which would garner the guilty party a maximum jail term of seven years.

[Necrophilia] is not unheard of in Hong Kong and there should be legislation catering for it.
Law Review Commission subcommittee chairman Peter Duncan

The subcommittee said such acts were “an insult to the deceased … [and]..a specific offence in our statute books may serve as a deterrent to potential offenders.”

Two months ago, Lau Cheung-fai, 37, who admitted to having sex with a 15-year-old he murdered was sentenced to life imprisonment for killing and sexually harassing the victim. But necrophilia was not included in the charges levied against him.

Subcommittee chairman Peter Duncan said: “There have been cases of this nature in Hong Kong before.

“There’s no good reason for the offences not to exist, it exists in many other jurisdictions. [Necrophilia] is not unheard of in Hong Kong and there should be legislation catering for it.” 

He conceded prosecutors would have to rely on circumstantial evidence or witnesses, but they were already relying on the same means to prove that someone was guilty of sexually harassing a living person.

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Duncan said it was too early to discuss the appropriate sentence for the crime in Hong Kong but in England and New Zealand, necrophilia was punishable by a maximum of two years in jail. In Canada, the duration was five years.

The question of whether to extend the offence of incest to include sexual relations between adoptive parents and children was also raised in the paper.

[We do not see] any justification for a distinction to be drawn between adoptive parents and natural parents [in incest laws]
Law Review Commission’s subcommittee 

The subcommittee said it did not see “any justification for a distinction to be drawn between adoptive parents and natural parents, as the law must apply equally to protect all children”.

But it acknowledged that such a law threw up other questions, such as whether it should be a crime if the adoptive parent and child were consenting adults entering into a sexual relationship. And following that, whether there needed to be an age limit “in respect of sexual relations with an adopted child”.

Duncan stressed, however, that current laws already criminalise sex with someone below the age of 16 or who is mentally incapable.  

The paper also suggested mirroring Britain’s criminalisation of voyeurism to ban “observing or recording” others engaging in intimate acts without consent, and also observing or recording such acts from a distance. 

There are currently no specific sexual offences targeting acts such as photographing others in washrooms or recording neighbours’ intimate acts without permission and for the purpose of sexual gratification.

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If these happen in public areas, offenders will only be prosecuted under existing laws for loitering or dishonest usage of a computer if the recording is stored online. 

Subcommittee member Eric Cheung Tat-ming, a legal scholar, said the prosecution would have to prove the offenders committed the acts for sexual fulfilment. 

He said any changes to the law would not affect the media’s ability to conduct investigative reporting. 

The paper is the third issued by the subcommittee as part of its overall review of substantive sexual offences, since it was formed 12 years ago.

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Its two earlier consultation papers were on rape and non-consensual sexual offences, and on sexual offences involving children and persons with mental impairment.

Its next step is to compile a final report with the three papers, and then review sentencing of the offences. It will put forth its formal proposal to the government at a later date.