Critique on a Gendered Definition of Rape in Hong Kong

Eugenia Kwok

Eugenia Kwok is a HKU law student enrolled in the BA&LLB programme. 

Introduction

Anyone can be a victim of sexual abuse, regardless of sex, genders, sexual orientations and sexual identities. Anyone can be a perpetrator of sexual violence likewise. Lesbian, gay, bisexual, and transgender (LGBT) people may too encounter intimate partner violence and sexual abuse just like the cis-straight majority. In Hong Kong, due to society taboo and unwillingness of victims to come forward with their experiences or file a lawsuit against the perpetrators, societal awareness about sexual violence remains lukewarm. There is an urgent need to expand legal protection and remedies to victims, especially members of sexual minorities. This article illustrates some outdated views pervasive in current legislations on the offence of rape, and suggests possible ways to reform the law

Current Local Legislation 

Section 118(3) of the Crimes Ordinance (Cap. 200) of Hong Kong [1] provides that a man commits rape if:

(a)    he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and

(b)    at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.

Under this definition, rape can only be committed by a male against a female. The act of rape only refers to non-consensual sexual intercourse in form of penetration of a male penis into a female vagina. This definition is too narrow and it ought to be amended to more gender neutral wording, so as to give equal protection to different groups of people. 

Firstly, males can be victims of rape, either by females or other males, such conduct is currently covered by the offence of non-consensual buggery under section 118A of the Crimes Ordinance. The latest report by the Social Welfare Department [2] showed that there were 417 “newly reported sexual violence cases” from January to June 2021, 30 of the victims were males. The Anti480 Anti Sexual Violence Resource Centre set up by the Association Concerning Sexual Violence Against Women also reported cases in which men requested for mental and legal assistance after experiencing sexual violence [3]. 

A victim whose vagina is non-consensually penetrated with a thing other than a male’s sexual organ is not encompassed under the current wording of the rape provision. For example, common objects that people may use when conducting female-on-female sexual activities such as dildos may not be covered. Under Hong Kong law, there is no precedent whether a woman who forcefully penetrates a dildo into another woman’s vagina would be guilty of rape, although this scenario may be analogous to a relatively recent case of male-on-female rape: Secretary for Justice v Leung Yuet Hung [4], in which the male convict did not successfully penetrate his penis into the victim’s vagina but his conduct was very close. The infringement of bodily and sexual autonomy is no less severe even if the penetration does not involve a male’s sexual organ, so the lack of statutory offences that cover these situations cannot be justified. Again, this presents a legal loophole failing to protect victims as members of sexual minorities, especially of intimate partner violence within the LGBT+ community.

Overseas Legislation

In the UK, section 1(1) of the Sexual Offences Act 2003 [5] defines rape as follows: 

“A person (A) commits an offence if--

(a)    he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b)    B does not consent to the penetration, and

(c)    A does not reasonably believe that B consents.”

This provision basically means that to commit an offence of rape in the UK, a male deliberately puts his penis into the vagina, anus or mouth of “another person” without the consent of that person, whereas the perpetuator has no acceptable reasons to believe that consent is given. As part of this gender-neutral reform, the UK also abolished non-consensual buggery.

As the phrase “another person” is used, a victim of rape can be a non-female. It also includes the penetration into body parts other than the vagina, which make the scope of rape wider to encompass different scenarios. 

As to the penetration of objects other than the penis, section 2(1) of the UK Sexual Offences Act 2003 [5] provides for “assault by penetration”:

“A person (A) commits an offence if--

(a)    he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,

(b)    the penetration is sexual,

(c)    B does not consent to the penetration, and

(d)    A does not reasonably believe that B consents."

This provision basically means that to commit an offence of rape in the UK, a male deliberately puts his penis into the vagina, anus or mouth of “another person” without the consent of that person, whereas the perpetuator has no acceptable reasons to believe that consent is given. As part of this gender-neutral reform, the UK also abolished non-consensual buggery.

As the phrase “another person” is used, a victim of rape can be a non-female. It also includes the penetration into body parts other than the vagina, which make the scope of rape wider to encompass different scenarios. 

As to the penetration of objects other than the penis, section 2(1) of the UK Sexual Offences Act 2003 [5] provides for “assault by penetration”: 

“A person (A) commits an offence if--

(a)    he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,

(b)    the penetration is sexual,

(c)    B does not consent to the penetration, and 

(d)    A does not reasonably believe that B consents.”

This provision allows legal punishment of a person who forcefully penetrates another person with any object and in a sexual manner. It should be noted that under UK law, rape could only be committed by a male, but a perpetrator of assault by penetration could be of any gender. 

On the other hand, in Queensland jurisprudence, section 349(2) of the Criminal Code Act 1899 [6] provides that:

“A person rapes another person if--

(a)      the person has carnal knowledge with or of the other person without the other person’s consent; or

(b)      the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or

(c)     the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.”

It is worth mentioning that any person of any sex can commit rape under this provision. The definition is more gender-neutral. 

Suggestions for local law reform

In its 2012 Consultation Paper, the HKSAR Law Reform Commission made recommendations to rewrite statutory provisions on rape and other non-consensual sexual offences [7]. The committee recommended adopting a more gender-neutral definition of rape in Hong Kong. Unfortunately, concrete steps to implement these recommendations are yet to be taken by the local legislature. The Security Bureau’s response to the Law Reform Commission’s recommendations in 2019 stated that: “The Government will consider LRC recommendations of the related matters in tandem.” [8].

There are various reasons for the sluggish progress, including political instability in the past two years driving down the efficiency of the Legislature. Perhaps a major obstacle is the society taboo leading to the idea that reforming sexual offences is not an urgent matter, given the relatively small number of sexual offences cases every year. However, it should be noted that many victims of sexual abuse are unwilling to present their cases in court due to the foreseeable “embarrassment and humiliation” they have to endure during investigation and legal proceedings [9]. The relatively few number of cases does not reflect the true gravity of sexual violence in Hong Kong.

The scope of rape in Hong Kong should be expanded to include not only penetration into the vagina, but also other body parts. Also that the object of penetration shall not be limited to the penis, but shall include any other objects or body parts. 

Such reform is essential to protect the sexual autonomy of all persons in Hong Kong, whether or not they are members of the LGBTQ+ community. Criminal law reform to gender neutrality would enable victims to come forward and lodge lawsuits more easily without as much pressure due to the limited and outdated ethics in the law pertaining to sexual violence, regardless of their sexual orientations and sexual identities.

References

[1] Crimes Ordinance (Cap. 200) Section 118. https://www.hklii.hk/eng/hk/legis/ord/200/s118.html

[2] Social Welfare Department. (2021). Statistics on Newly Registered Child Protection, Newly Reported Spouse/Cohabitant Battering and Sexual Violence Cases (Period: January to June 2021). https://www.swd.gov.hk/vs/stat/stat_en/2021/AccumulatedStatisticsOnCPRCISSCBSV_Jan-Jun%202021_TC_EN.pdf Accessed 26.10.21

[3] Jade Li, Yi Yeung, Minnie Wong. (2017). When no one Calls it rape. Hong Kong Free Press. https://hongkongfp.com/2017/11/26/no-one-calls-rape/ Accessed 26.10.21

[4] Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304, [2014] HKEC 831. 

[5] UK Sexual Offences Act.https://www.legislation.gov.uk/ukpga/2003/42/section/1/2009-11-12

[6] Queensland Criminal Code Act 1899. https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-1899-009

[7] The Law Reform Commission of Hong Kong, Review of Sexual Offences Committee. (2012). 

[8] The Law Reform Commission of Hong Kong - Implementation.  Recommendations under consideration. https://www.hkreform.gov.hk/en/implementation/index.htm

[9] Press Release. LCQ5: Protection for victims of sexual offence cases. https://www.info.gov.hk/gia/general/201512/02/P201512020514.htm

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