THE LAW REFORM COMMISSION OF HONG KONG REVIEW OF SEXUAL OFFENCES SUB-COMMITTEE CONSULTATION PAPER RAPE AND OTHER NON-CONSENSUAL SEXUAL OFFENCES This consultation paper can be found on the Internet at: <http://www.hkreform.gov.hk> September 2012 This Consultation Paper has been prepared by the Review of Sexual Offences Sub-committee of the Law Reform Commission. It does not represent the final views of either the Sub-committee or the Law Reform Commission, and is circulated for comment and discussion only. The Sub-committee would be grateful for comments on this Consultation Paper by 31 December 2012. All correspondence should be addressed to: The Secretary The Review of Sexual Offences Sub-committee The Law Reform Commission 20th Floor, Harcourt House 39 Gloucester Road Wanchai Hong Kong Telephone: (852) 2528 0472 Fax: (852) 2865 2902 E-mail: [email protected] It may be helpful for the Commission and the Sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential. It is the Commission's usual practice to acknowledge by name in the final report anyone who responds to a consultation paper. If you do not wish such an acknowledgment, please say so in your response. THE LAW REFORM COMMISSION OF HONG KONG REVIEW OF SEXUAL OFFENCES SUB-COMMITTEE CONSULTATION PAPER RAPE AND OTHER NON-CONSENSUAL SEXUAL OFFENCES _________________________________________________ CONTENTS Chapter Page Preface 1 Terms of reference 1 The Sub-committee 1 Work to date of the Sub-committee 3 Overall review of sexual and related offences 4 Overseas developments of significance 4 The consultation paper 5 1. What are "sexual offences"? 6 Introduction 6 Part XII of the Crimes Ordinance (Cap. 200) 6 Sexual Offences 6 Offences relating to prostitution or pornography 7 Criticisms of the existing provisions on sexual offences in 8 the Crimes Ordinance Classification of sexual offences 9 First category – offences based on sexual autonomy 10 Second category – offences based on the protective principle 10 Third category – offences based on public morality 11 The range of sexual offences to be covered in the current project 11 Division of the project into different parts 13 2. Guiding principles for reform 15 The need for a set of guiding principles 15 i Chapter Page Guiding principles of the Scottish Law Commission 16 (1) Clarity of the law 16 (2) Respect for sexual autonomy 17 (3) Protective principle 18 (4) No distinctions based on sexual orientation or gender 18 Gender neutrality 19 Avoidance of distinctions based on 19 sexual orientation Bestiality is not a form of sexual orientation 21 Homosexuality 21 (5) European Convention on Human Rights 22 Basic assumptions/principles in the Home Office's paper 23 (1) Any application of the criminal law should be fair, 23 necessary and proportionate (2) The criminal law should not discriminate 23 unnecessarily between men and women nor between those of different sexual orientation (3) The law should not intrude on consensual sexual 23 behaviour between those over the age of consent without good cause (4) Those who coerce, force or deceive anyone into 23 sexual activity are criminally culpable; any coercion, force or deception towards a child or vulnerable person is particularly serious (5) Those who induce or encourage children or other 24 vulnerable people to participate in, or be exposed to, sexual behavior are criminally culpable (6) The age of consent must not be lower than 16 24 (7) There should be a number of factors which could 24 aggravate a sexual offence against a child, such as the age of the child and the relationship between the child and the offender (8) The law should recognise the extent to which people 24 have the mental capacity to give informed consent to sexual activity (9) The law must ensure that people who do not have 24 the mental capacity to give informed consent are protected Recommendations on guiding principles for reform 25 Transitional arrangements 25 3. Consent 27 Introduction 27 The current law on consent 27 Should there be a statutory definition of consent? 28 The proposed definition of consent 29 ii Chapter Page Capacity to consent to sexual activity 31 (i) Mental incapacity 32 The Scottish Act 33 The English Act 33 Conclusions 34 (ii) Intoxication (whether by alcohol or drugs) 34 (iii) Minors 34 Statutory provisions on the determination of consent 35 The English Act 35 Rationale for distinction between evidential presumptions 35 and conclusive presumptions Evidential presumptions about consent 36 Evaluation of the evidential presumptions in the English Act 37 Conclusive presumptions about consent in the English Act 38 Evaluation of the conclusive presumptions in the English Act 39 The Scottish Act 41 The Queensland Criminal Code Act 1899 43 Different reform options for the determination of consent 43 Reasonable belief in consent 45 The scope and withdrawal of consent 45 The Scottish Act 45 The English Act 46 Reasons for specific provisions on scope and 46 withdrawal of consent in Scottish Act 4. Rape 48 The present law 48 Scope of the offence of rape 49 Distinction between rape and other forms of sexual penetrative acts 50 Should rape be separated from other penetrative acts? 51 Should the word rape continue to be used? 52 Application to surgically constructed sexual organs 53 The English Act 53 The Scottish Act 53 Meaning of "penetration" 54 The English Act 55 The Scottish Act 55 Mental element as to the act of penetration and other relevant 56 sexual acts Mental element as to consent in rape 58 The Morgan principle – a subjective test in belief 59 as to consent The enactment of section 118(4) of the Crimes 59 Ordinance – clarification of the Morgan principle Different reform options for dealing with genuine (but mistaken) 61 belief in consent iii Chapter Page Option 1 – the subjective test 61 Option 2 – the objective test 62 Option 3 – the mixed test 62 The English Act 62 The Scottish Act 63 Our proposed option 63 Should the offence of procurement of an unlawful sexual act 66 by false pretences be retained? Sexual intercourse obtained by threat or intimidation not 69 involving the use of force (such as economic threat) 5. Sexual assault by penetration 70 Introduction 70 The need for the creation of a new offence to cover non-penile 70 penetrative assaults Elements of the new offence 71 The English Act 71 The Scottish Act 71 Name of the new offence 72 Definition of "sexual" 72 The English Act 72 The Scottish Act 73 Activities which are always considered sexual by a 74 reasonable person Activities which may or may not be sexual 74 Refinements of the limb (b) of the English approach 74 Should the offence of sexual assault by penetration cover 77 penetration of the mouth? Section 2(4) of the Scottish Act 78 Buggery offences to be reviewed 80 Recommendation on sexual assault by penetration 81 6. Sexual assault 83 Introduction 83 Issues arising from the present law 83 The case for the creation of a new offence of sexual assault 84 Elements of the offence of sexual assault 85 The English Act 85 The Scottish Act 85 A general definition of touching? 86 Sections 3(2)(d) and (e) of the Scottish Act 88 Sexual assault to cover non-contact assaults? 89 Extension of sexual assault to cover "under-the-skirt" 91 photography and public bodily exposure iv Chapter Page "Under-the-skirt" photography 91 How should the scope of sexual assault be expanded? 92 Bodily exposure in a public place 93 Recommendations with regard to sexual assault 93 7. Causing a person to engage in 95 sexual activity without consent Introduction 95 The need for a new offence of compelling others to engage in 95 sexual activities Elements of the new offence 97 The English offence – Causing a person to engage in 97 sexual activity without consent The Scottish offence – Sexual coercion 98 The name of the new offence 98 "Engage in" or "participate in" 98 Different penalties depending on compelled acts 99 The offence of procurement by threats 100 Sexual activity "in Hong Kong or elsewhere" 101 Recommendation on causing a person to engage in sexual activity 101 8. Summary of recommendations 103 Annex 110 Website addresses of the English Sexual Offence Act 2003 110 and the Sexual Offences (Scotland) Act 2009 v Preface __________ Terms of reference 1. In April 2006, the Secretary for Justice and the Chief Justice of the Court of Final Appeal asked the Law Reform Commission to review the law relating to sexual and related offences in Hong Kong. The terms of reference were as follows: "To review the common and statute law governing sexual and related offences under Part XII of the Crimes Ordinance (Cap. 200) and the common and statute law governing incest under Part VI of the Ordinance, and to recommend such in the law as may be thought appropriate." 2. As a result of judicial comment in various judgments in Hong Kong as well as the public's comments on the desirability of setting up a register of sex offenders, the terms of reference were expanded in October 2006 to add the words shown underlined: "To review the common and statute law governing sexual and related offences under Part XII of the Crimes Ordinance (Cap. 200) and the common and statute law governing incest under Part VI of the Ordinance, including the sentences applicable to those offences, to consider whether a scheme for the registration of offenders convicted of such offences should be established, and to recommend such changes in the law as may be appropriate." The Sub-committee 3.