An Overview of the Law Reform Commission’s Consultation Paper on Miscellaneous Sexual Offences

In May 2018, the Law Reform Commission’s Sexual Offences Sub-committee published a consultation paper on miscellaneous sexual offences making preliminary proposals for the reform of sexual offences including incest, exposure, voyeurism, bestiality, necrophilia, acts done with intention to commit a sexual offence, and a review of homosexual or homosexual-related buggery and gross indecency offences in the Crimes Ordinance. These proposals reflect the Sub-committee’s guiding principles of gender neutrality, protection of the vulnerable, respect for sexual autonomy, and the avoidance of distinctions based on sexual orientation. This consultation paper is the third and final part of an overall review of the substantive sexual offences. The consultation period closes on 15 August 2018.

Overview of Principal Recommendations

Incest

The Sub-committee has recommended in their previous two consultation papers a range of non-consensual offences (based on sexual autonomy) and another range of offences involving children and persons with mental impairment (based on the protective principle). It may therefore be argued that given that much of the sexual abuse within a family may well be criminalised in terms of those general offences, a specific offence of incest is unnecessary.

We are not persuaded by that argument. Instead, we take the view that the offence of incest should be retained. We see the need to preserve the fabric of the family and to protect children and vulnerable people against sexual exploitation.

We also recommend that the term incest should be retained as it is well known to the community to reflect a serious offence involving sexual activity between close relatives. It is difficult to find an alternative term that can convey the same level of understanding to the community.

Regarding the elements of the offence, bearing in mind the guiding principles, we recommend that the offence of incest not be restricted, as is the situation now, to sexual intercourse. The new offence should be gender neutral and cover all penile penetration of the mouth, vagina and anus. However, we wish to consult the community as to whether the new offence should cover other forms of penetration or sexual activity. The Sub-committee had divergent views on this matter and noted that the inclusion of such activity in the offence would be a significant departure from the current law.

The current offence of incest is confined to relations in the direct blood line including half relations and siblings. An issue is whether the new offence should be extended to cover other relationships such as uncle/aunt and niece/nephew; adoptive parents; adoptive siblings; step-parents and foster-parents.

The Sub-committee recommends that the offence covers uncles/aunts and niece/nephews who are direct blood relatives. However, we do not consider that the offence should be extended to cover step-parents/foster-parents given that they have no blood relation with the step-child/foster-child. Moreover, there is lack of a statutory definition of a foster relationship in Hong Kong and we are not aware of any consensus as to when and how a foster relationship would arise. Attaching criminal liability to such an uncertain relationship would be against the principle of clarity of the law which is one of the Sub-committee’s guiding principles. Furthermore, children are already protected under the current legislation and our proposed offences involving children and young persons as recommended in the previous consultation paper.

Regarding adoptive parents: The Sub-committee does not see any justification for a distinction to be drawn between adoptive parents and natural parents as they both undertake lifelong trust and responsibility to their children and the law must apply equally to protect all children. However, the Sub-committee recognises that the introduction of such a law would give rise to other considerations (such as where the adoptive parent and adoptive child are consenting adults; and whether there should be an age limit in respect of sexual relations with an adoptive child etc.). Hence, the Sub-committee is of the view that these are matters which should be considered by the community. Accordingly, the community has been invited to express their views on these issues.

Sexual Exposure

We propose the creation of a new offence of sexual exposure. This offence should be distinguished from the existing offence of indecent exposure which is essentially a “public order” offence.

The new offence will cover the exposure of one’s genitals in a sexual manner, in a public or private place, targeting a specific victim for the obtaining of sexual gratification or for the purpose of humiliating, distressing or alarming the victim. Such type of exposure is more aggressive and may induce a greater degree of fear, shock, disgust to the victim similar to sexual assault. At the same time we recommend the retention of the offence of “indecent exposure”.

Voyeurism

At the moment, there is no specific legislation in Hong Kong dealing with an act of voyeurism involving observation or visual recording of another for a sexual purpose. The Sub-committee’s view is that such an act is a serious violation of another person’s sexual autonomy and hence a specific offence of voyeurism should be created in order to criminalise acts of non-consensual observation or visual recording (for example, a photograph, videotape, or digital image) of another person for a sexual purpose.

The proposed new offence of voyeurism would cover the recording of another person doing a private act, and where the offender knows that the victim does not consent to his recording. So, what constitutes a “private act”?

For the definition of “private act”, we recommend the definition along the lines of section 68(1) of the English Sexual Offences Act 2003 which provides that a person is doing a private act if he or she “is in a place which, in the circumstances, would reasonably be expected to provide privacy, and (a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear, (b) the person is using a lavatory, or (c) the person is doing a sexual act that is not of a kind ordinarily done in public.”.

Bestiality

Bestiality is an outdated term which does not convey the message as to what would constitute the commission of the offence. Hence, we propose the existing offence of bestiality be replaced by an offence of sexual intercourse with an animal, i.e. it would cover penile penetration of the vagina or anus of a living animal (the existing legislation limits the act to buggery with an animal).

Necrophilia

It surprised many people to learn that necrophilia or sexual activity with a dead human body is not a criminal offence in Hong Kong. The proposed offence would cover all forms of sexual activity with a dead person.

Acts done with intention to commit a sexual offence

In general the criminal law does not punish the mere intention to carry out a criminal act. A charge for an attempt to commit an offence would require the accused to have actually carried out some acts which are more than preparatory to the commission of the intended criminal offence.

We propose the creation of 3 new offences: (1) the offence of administering a substance for sexual purposes (to replace the existing offence of administering drugs to obtain or facilitate an unlawful sexual act); (2) the offence of committing an offence with intent to commit a sexual offence (to replace the existing offence of assault with intent to commit buggery); and (3) the offence of committing an offence of trespass with intent to commit a sexual offence (to replace the existing offence of burglary with intent to rape).

Review of some existing homosexual or homosexual-related buggery and gross indecency offences

The Sub-committee has previously reviewed a number of existing homosexual sexual offences and recommended their abolition in its Consultation Paper on Sexual Offences involving Children and Persons with Mental Impairment. In this paper, we have reviewed and recommended the abolition of some remaining homosexual or homosexual-related buggery offences. These offences are assault with intent to commit buggery; procuring others to commit homosexual buggery; gross indecency by man with man otherwise than in private; and procuring gross indecency by man with man.

We consider that these homosexual or homosexual-related offences should not continue to exist in our statute books. The principles of gender neutrality and avoidance of distinctions based on sexual orientation should lead to these offences being removed. The conduct covered by assault with intent to commit buggery will be included in the proposed new offence of committing an offence with intent to commit a sexual offence.

Consultation

The consultation period will last for three months until 15 August 2018 and the Sub-committee welcomes views, comments and suggestions on any issues discussed in the consultation paper. Copies of the consultation paper can be obtained either from the Secretary, Law Reform Commission, 4/F, East Wing, Justice Place, 18 Lower Albert Road, Central, Hong Kong, or on the Internet at www.hkreform.gov.hk

Jurisdictions: 

Review of Sexual Offences Sub-Committee, Chairman

Mr. Peter Duncan, SC practiced in New Zealand before moving to Hong Kong in 1973 to join the Attorney General’s Chambers as Crown Counsel. He then joined ICAC as one of its in-house counsel shortly after its inception in 1974. In 1983, he joined the Hongkong Land Company Limited as Group Legal Manager, and was appointed Regional Counsel with Dow Chemical Pacific Limited in 1990.  

Mr. Duncan left the business sector to join the Bar in 1998 and was appointed Senior Counsel in 2004. He has since developed a substantial practice in criminal law with an emphasis on “white collar” crime. He has also appeared in a number of High Court civil/commercial litigation cases and acted as an arbitrator. Mr. Peter Duncan has also sat as a Deputy High Court Judge of the Court of First Instance.