Why are Hong Kong’s rape laws still rooted in the past, given all the progress elsewhere?
- Last changed in 1978, Hong Kong’s rape laws still place undue emphasis on the male accused’s belief that the woman had given consent. It’s past time for reform, including on the definitions of consent and rape
The recent acquittal of a Hong Kong man accused of concealing his sex to rape a woman he met on a lesbian forum caused uproar among women rights activists and LGBT communities who saw the case as typical of the forms of sexual violence condoned by society.
While other jurisdictions may have made positive changes along the way, Hong Kong’s laws on rape remain unchanged since 1978. No wonder then that, in this city, the past 40-plus years of progress in sexual and gender politics have fallen into oblivion.
Under the laws, a man commits rape if (a) the woman did not consent and (b) at the time, he either knew she did not consent or “was reckless as to whether she consents”.
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Even as a legal practitioner, I find it difficult to explain the test of recklessness to a layman. A real question, therefore, is whether members of the jury could fully grasp the nuances and technicalities necessary to bring justice to the case in point (in fact, one of the few clarifications sought by the jury in the case above was to ask what “recklessness” meant in the context).
The bigger question for me is whether (b) is an unfair and outmoded way of addressing the iniquity of rape and crimes involving sexual violence. The effect of (b) is that if the accused genuinely believed the victim gave consent, even if it was a mistaken belief, the accused can be acquitted.
Rarely do we see the law being so exceptionally lenient towards the accused by giving so much credence to his mental state. The patriarchal hold over the law is strong in this respect – when it is a crime perpetrated by men against women, it is safer to adopt the male point of view and make no accommodation for the female view – or objectivity, for that matter.
Why are we looking at everything through the male defendant’s perspective and according so much to what he genuinely believes to be the case? Where is a man’s duty to make sure the woman gives proper consent, instead of behaving as if this was his entitlement? Other than the most blatantly and grotesquely obvious cases of non-consent, when can a woman’s version of events ever be accepted?
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It was also suggested that “rape” as currently defined to cover only penile-vaginal penetration by a man to a woman should be replaced by sexual penetration of one person against another, being non-sex specific.
For unclear reasons, such calls for reform fell on deaf ears.
As long as the law continues to operate within an archaic framework, it will subject countless victims of sexual assault to indignities and render law enforcement an empty hull.
The law should protect the vulnerable, not exacerbate the violence committed against them every day (reported incidents of sexual assault are only the tip of the iceberg).
As feminist scholar Catharine MacKinnon puts it, “Power is being able to say complete and utter nonsense and have it to be believed, powerlessness is where no matter how much cogent evidence and proof one has, to not be believed.” It’s time for the law to empower.
Evelyn Tsao is a practising solicitor and partner at Patricia Ho & Associates
