Law Reform Commission Report on Sexual Offences Involving Children and Persons with Mental Impairment

The Law Reform Commission (“LRC”) in April 2006 was asked to review the existing sexual offences under the criminal law. A sub-committee, chaired by Mr. Peter Duncan SC, was formed in June 2006. The Sub-committee published consultation papers in July 2008 (on establishment of a sex offenders register), December 2010 (on abolition of the common law presumption that a boy under 14 is incapable of sexual intercourse) and September 2012 (on rape and other non-consensual sexual offences).

In November 2016, the Sub-committee published another consultation paper. This latest paper is on sexual offences involving children and persons with mental impairment (the “Consultation Paper”), and is the fourth consultation paper issued under the terms of reference of the Sub-committee.

In the Consultation Paper, the LRC made a total of 41 recommendations. The sexual offences covered therein are largely concerned with the “Protective Principle” (ie, criminal law should give protection to certain categories of vulnerable persons against sexual abuse or exploitation). These vulnerable persons include children, persons with mental impairment, and young persons over whom others hold a position of trust.

The main recommendations contained in the Consultation Paper are:

(i) there should be a uniform age of consent in Hong Kong of 16 years of age, which should be applicable irrespective of gender and sexual orientation;

(ii) offences involving children and young persons should be gender-neutral with two separate types of offences, one involving children under 13 and the other involving children under 16, and capable of being committed by either an adult or a child;

(iii) the question of whether offences involving children aged between 13 and 16 should be of absolute liability should be a matter for consideration by the Hong Kong community;

(iv) consensual sexual activity between persons who are aged between 13 and 16 should remain to be criminalised while recognising the existence of prosecutorial discretion;

(v) the creation of a range of new offences involving children which are gender-neutral, and which provide wider protection to children;

(vi) the creation of a new offence of sexual grooming to protect children against pedophiles who might groom them by communicating with them on a mobile phone or on the internet to gain their trust and confidence with the intention of sexually abusing them;

(vii) the creation of a range of new offences involving persons with mental impairment which would be gender-neutral and provide improved protection; and

(viii) the question of whether there be legislation to deal with conduct involving abuse of a position of trust in respect of young persons aged 16 or above but under 18 should be a matter for consideration by the Hong Kong community.

The Law Society has reviewed the Consultation Paper with the assistance of its Criminal Law and Procedure Committee. The Law Society had no hesitation to support the Protective Principle. It also agreed that those persons with mental impairments were vulnerable and should also be protected against possible sexual exploitation. At the same time, however, it pointed out certain issues which it considered should merit careful legal analysis. The detailed views of the Law Society on the Consultation Paper, together with its comments on the individual recommendations of the LRC, can be found at: http://www.hklawsoc.org.hk/pub_e/news/submissions/20170118.pdf.

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