Opinion | Why are Hong Kong’s rape laws still rooted in the past, given all the progress elsewhere?

Name: Malaysian schoolgirl slams teacher’s rape joke in viral TikTok video
Uploaded: 2021-10-27T01:15:10.000Z
Duration: 2 min 23 s
Description: Malaysian schoolgirl slams teacher’s rape joke in viral TikTok video

Last changed in 1978, Hong Kong’s rape laws still place undue emphasis on the male accused’s belief that the woman had given consent. It’s past time for reform, including on the definitions of consent and rape

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A general view of The High Court in Admiralty, Hong Kong, in August 2018. The laws on rape were ostensibly put in place to protect women, but are often also a reflection of the social imperatives imposed on them. Photo: Roy Issa

Evelyn Tsao

Published: 9:15am, 27 Oct 2021Updated: 3:20pm, 1 Nov 2021

The recent acquittal of a Hong Kong man accused of concealing his sex to rape a woman he met on a lesbian forum caused uproar among women rights activists and LGBT communities who saw the case as typical of the forms of sexual violence condoned by society.

The defendant was found not guilty of rape by a vote of five to two, and cleared of indecent assault by an unanimous vote from the jury of six men and one woman. While many may attribute the verdict to the sex ratio of the jury, I believe the problem lies deeper than the notion of in-group bias, where men are inclined to protect other men against allegations of sex crimes.

The laws on rape were ostensibly put in place to protect women, but are often also a reflection of the social imperatives imposed on them. Feminists and women’s rights groups have spent decades trying to overcome the inherent difficulties entrenched in a man’s world by illuminating what “consent” really should mean and, hopefully, reverse the situation where the victim of a sex crime is put on trial rather than the accused.

While other jurisdictions may have made positive changes along the way, Hong Kong’s laws on rape remain unchanged since 1978. No wonder then that, in this city, the past 40-plus years of progress in sexual and gender politics have fallen into oblivion.

Under the laws, a man commits rape if (a) the woman did not consent and (b) at the time, he either knew she did not consent or “was reckless as to whether she consents”.

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Malaysian schoolgirl slams teacher’s rape joke in viral TikTok video

Even as a legal practitioner, I find it difficult to explain the test of recklessness to a layman. A real question, therefore, is whether members of the jury could fully grasp the nuances and technicalities necessary to bring justice to the case in point (in fact, one of the few clarifications sought by the jury in the case above was to ask what “recklessness” meant in the context).