 Ashley Kong & Elsa Du
Authors Ashley Kong and Elsa Du are law students at HKU enrolled in the JD and LLB programmes respectively. It is common perception that Hong Kong, while not completely embracing equal rights for LGBTQ+ people as with cis-straight people, is a relatively safe place for lesbians and gays to live in, as the city is not known for extreme sexual or physical violence against queer individuals. While it might be true that numerically, homophobic, transphobic and misogynic crimes can be said of as uncommon, this does not reflect the whole of the truth. In Hong Kong, there are certainly instances of crimes and sexual violence against women, including cis-straight women, lesbians and trans women, but very often they are portrayed as isolated incidents and are not examined in light of the not-so-subtly homophobic, transphobic and misogynic culture pervasive among the Hong Kong public. Sexual violence– too little is done It does not help that Hong Kong’s current laws relating to sexual violence tend to be limited in scope, sometimes crippled with outdated ethics. Social stigma attached to victimhood of sexual violence and psychological stress resulting from the traumatic events also pose immense difficulty for victims to seek justice. Many victims recall tremendous hardship in the judicial process, in fact a lot of them chose to drop their cases altogether. As a result, cases of sexual violence remain vastly underreported in Hong Kong. Recent statistics show that more than half of the sexual assault cases reported to the local police in 2000-2018 were dropped, either due to insufficient evidence upon delayed reporting, or case withdrawal by victims.[1] To cite a most salient example of local laws impeded by heteronormative and backward sexual ethics, rape in Hong Kong as explained in section 118 of the Crimes Ordinance (Cap. 200)is “an unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it” committed by a man. Essentially, such definition confines rape into non-consensual sexual intercourse committed by a man against a woman by penetrating his penis into her vagina. Once the defendant is found guilty of rape, he might face the maximum penalty of a life jail sentence. In some circumstances, such a limited and strictly heteronormative definition falls insufficient to curb other forms of sexual violence involving penetration.More precisely, it does not cover non-consensual oral sex or penetration by fingers or other object into other parts of the victim’s body (anal sex involving a penis is covered by the offence of non-consensual buggery, but it rarely extends to penetration by anything other than a penis.) There is a small number of local case law where the defendant was convicted on rape without the act of penetration, on the basis that his act had been very close to rape as defined in the statute (Secretary for Justice v Leung Yuet Hung).[2] Non-consensual oral sex is normally dealt with as indecent assault under section 122 of the Crimes Ordinance,[3] which carries a lesser maximum penalty which is 10 years in prison. Generally, ruling on marginal rapist behaviour is very much discretionary, which casts substantial uncertainty and unpredictability to justice related to such forms of sexual violence. Likewise, other acts of sexual violence typically are lumped into the category of indecent assault under section 122 of the Crimes Ordinance. However, as to what constitutes indecency, that is a big question mark. In each case there might be a different definition, which some can be said of as quite questionable. In R v Lam Chi Chee,[4] the defendant grabbed and constrained a stranger woman against her wishes, he then tried to kiss her on the face. It was decided that no indecent assault existed, as the court believed that a kiss by itself is not an indecent act in the eyes of right-minded person. The element of consent (rather, the lack thereof) left unaddressed in this case. This ruling unfortunately remains the standard in Hong Kong ever since, a stranger man stealing a kiss from a woman without her consent is not indecent assault. A more difficult question to ask in situations like this, perhaps, is why minor sexual misconduct like this committed out of a selfish motive to obtain sexual gratification, or to demean the victim, especially just for the victim’s membership of a certain group (in which case it would be a hate crime), should be allowed in our laws? Generally speaking, current local legislations and policies are not very interested in the motive of sexual violence against women. Sexual violence targeted at cis-straight women as well as lesbians and trans women out with grossly deplorable aims such as to humiliate, intimidate and suppress their sexual orientation or gender identity are rarely discussed, with no issue of enhanced criminality or classification of extreme discriminatory treatment whatsoever. In the United Kingdom, it is written into section 146 of the Criminal Justice Act 2003 that sentences for convicts could be aggravated if the crime was motivated by hostility towards persons of particular sexual orientation or of transgender identity. Such provision does not exist in Hong Kong laws. Indeed, not even the misogynic beliefs (ie. hatred and discrimination against women in general) that motivated some local cases of sexual violence against cis-women are duly addressed, as seen in the lack of appropriate regard for the subjective intention of the woman, nor there is a clear definition for consent. Hate crimes against women Hate crime, in a nutshell, are crimes motivated by hostility, discrimination and prejudice against people for their membership to a specific social group based on sex, ethnicity, disability, gender identity, sexual orientation, etc. If someone is to invite random locals passing by a busy street in Hong Kong to name a local case of hate crime against cis-straight women, lesbians or trans women, most probably they cannot recall any. However, it is certainly a false statement that there are no such hate crimes in Hong Kong. It is undeniable that there is a category of criminal behaviour in Hong Kong that the victims are often gender-specific. In fact, throwing corrosive fluid with an intent to cause grievous bodily harm is not an uncommon revenge method employed by multiple men against wives and girlfriends they had fallen out with. Just to name a few: HKSAR v Lau Hing Kau,[5] HKSAR v He Zhaotun,[6] HKSAR v Wong Sum,[7] etc. In HKSAR v Lau Ching Him,[8] a male perpetrator threw corrosive fluid at his ex-girlfriend and her new girlfriend. While it might be true that most of these cases arose from personal relationships and were somewhat specific to the individuals involved, these elements do not always overshadow the misogynic nature of such crimes. A relatively high-profile case is Navarro Luigi Recasa v Commissioner of Correctional Services,[9] in which the claimant, a pre-operative trans woman, complained against unnecessary strip searches, intrusive procedures and other extreme discriminatory treatment in custody mostly conducted by male law enforcement officials without adequate regard to her gender identity. She illustrated instances where correctional officers had performed strip search on her citing they needed to check if she possessed any contrabands, while she had been kept singly and never had the chance to mingle with other persons or do anything that substantiate such suspicions. She further suggested that she was touched inappropriately during such strip searches, while the officers mocked her. Her claim was partially granted. It would be erroneous to separate the prevalent transphobic culture in Hong Kong from the ordeal she has endured. Even if she was a convict and she had not completed the full operative procedure to perfectly fit into the legal definition of the woman in Hong Kong, the abuse and humiliation she suffered could not be justified. Conclusion Sexual violence and hate crimes against women – cis-straight women, lesbians, trans women – too often are portrayed as isolated incidents strongly specific and personal to the individuals involved. The limited scope of existing legislations about sexual violence only exacerbated the regrettable situation.Both local laws and policies have missed the elephant in the room which is a culture that often condones such sexual violence against women. This culture permeates even the law enforcement authorities and perhaps also the court. For this reason, there is an urgent need for law reform. The Hong Kong Law Reform Commission has given some very valuable and feasible recommendations regarding substantive sexual crimes.[10] Some notable recommendations include: to abolish offences of rape and non-consensual buggery and replace them with “sexual penetration without consent” in order to cover more forms of sexual violence involving penetration, to replace indecent assault with “sexual assault” placing the focus on the sexual nature of the act rather than indecency, and to create a statutory definition of consent. But beyond law reform, there is also a need for policy reform, such as to change government practices, issue more up-to-date anti-discrimination guidelines to employers and schools, and enhance public education on consent. At the end of the day, we cannot rely on the law as the sole means to justice. Actually, it probably makes sense to argue that prevention, deterrence and ultimately constructing a safer and friendlier environment to all members of our community are much more important. In such respect, a lot needs to be done.
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