Hong Kong urged to clarify consent in reforms to close sexual offence loopholes

Including clear, comprehensive definitions of consent in Hong Kong’s reform of sexual offence laws will provide greater clarity for all parties and better protect victims, experts and a survivor have said.Barrister Stephen Keung Pit-chun said on Saturday current interpretations of consent relied on “common sense”, creating legal loopholes.Establishing a statutory definition of consent would also be key to sentencing in future cases, he said.Keung was speaking at a forum at the University of Hong Kong alongside other legal experts and rights advocates working with survivors of sexual assault.They shared frontline experiences and discussed changes they hoped to see in the city’s review of sexual offences laws. A public consultation is expected to launch soon, with legislation to be introduced before the end of 2027.In its 2019 report, the Law Reform Commission proposed defining consent as voluntary and given by a person with capacity. Keung said this would exclude any form of consent obtained through violence, coercion or intimidation.“Currently, lawyers have a mutual understanding of what constitutes consent based on common sense,” he said.“But this is not enough. These terms must be written into law, so that all of us, from teachers, social workers, law enforcement officers or even artificial intelligence, are all on the same page.”The reforms come two decades after the commission set up a subcommittee in 2006 to review sexual offences. The broad scope of the review led to multiple reports over the years, with some recommendations – such as a new voyeurism offence – already implemented.Keung said the reforms aimed to widen the scope of consent, making clear that consent to one sexual act cannot be assumed for another, and that consent can be withdrawn at any time.“This would apply to removing condoms without consent during consensual sex promised to be safe,” he said, referring to the act commonly known as “stealthing”.Further ReadingUnder the proposed changes, the accused would also be required to show that they took steps to obtain affirmative consent from the victim – a move Keung said could help dispel the myth of a “perfect victim”.Action for Reach Out, an organisation supporting sex workers, said the reforms could improve protection for a group that often distrusts law enforcement, while helping to guard against exploitation by clients.Senior programme officer Cherry Chui said that stealthing was very common in the sex work industry and “happened every day”.“But fewer than one in 100 sex workers who approach us want to make a police report, as they said no one would believe them,” she said.Chui added that the most common forms of sexual violence they face include being forced to perform acts not previously agreed to, being assaulted, humiliated and filmed without consent.“With the reforms, sexual workers can be very sure if any acts have violated their rights and confidently make reports,” she said. “In an industry where such lines are often blurred, clear definitions of consent are very important.”In its 2019 report, the Law Reform Commission proposed defining consent as voluntary and given by a person with capacity. Photo: Jelly TseJessie, a survivor of sexual assault, said she hoped reforms redefining rape and consent would better protect victims of all genders facing similar circumstances.Under Hong Kong’s current law, rape is narrowly defined as male-to-female penile penetration of the vagina. As a result, her male perpetrator could only be charged with indecent assault and was eventually acquitted.“Because it was not considered rape, the case could not go to the High Court and the accused was not tried in front of a jury,” she said.“I later learned that what I went through could be considered the highest degree of sexual assault in other jurisdictions.”The commission has proposed replacing the term “rape” with “sexual penetration without consent”, covering penetration of the vagina or anus, as well as penile penetration of another person’s mouth.Jessie also called for greater empathy towards survivors, describing how she endured hours of repeated questioning by police, prosecutors and defence counsel.“I don’t understand why I had to undergo such ridiculous questioning. I tried very hard to be a reliable witness, but I was asked in extreme detail about the assault, which I could not remember,” she said.The judge ultimately acquitted the man, saying he had genuinely misunderstood her consent, while noting that she did not leave the scene after the incident.“The law must provide a clear definition of consent so that the judge and the jury have the same understanding,” she said, adding that the reforms must address grey areas and loopholes that had been repeatedly exploited.“We should go from questioning why the victim did not fight back to questioning why the accused might have misunderstood consent.”