Advocates call for stronger consent laws as Hong Kong to criminalise persistent child sexual abuse and ‘cyberflashing’

A campaign group has continued to urge the government to impose limits on a defence allowing a sexual assault suspect to claim they mistakenly believed they had been given consent, after authorities announced stronger protections under upcoming sexual offences reforms.

The group, which calls itself We Are X, after the placeholder name assigned to sexual assault survivors in court, said that it welcomed the Security Bureau’s move to propose the criminalisation of persistent child sexual abuse and sending digital pictures of one’s genitals without consent, known as “cyberflashing.”

Hong Kong authorities are seeking to introduce dozens of new offences to Hong Kong’s archaic sex laws, including provisions to protect mentally impaired people, expand the scope of rape, and redefine consent during sexual activity.

We Are X’s Friday statement read: “We would like to remind the public that the purpose of creating this offence is to provide children who endure persistent sexual abuse with an avenue to seek legal recourse and receive comprehensive protection.”

The campaign group called on the government to make meaningful changes regarding what they called the stringent and unreasonable burden of proof placed on survivors.

Loopholes

The group had previously expressed concerns that defendants could still be acquitted by arguing that they had an “honest but mistaken belief” that consent was provided.

It “remains concerned” that the government has maintained it is up to the courts to decide whether a defendant’s “mistaken belief” is reasonable, the statement said.

That approach fails to address situations where a defendant relies on the “mistaken belief” defence even in cases where “vitiating factors” — such as force, fear, unconsciousness, or deception — are involved, the group said.

“We earnestly hope the Government will… ensure the law accurately reflects the reality of sexual violence and establishes an objective and effective legal framework for assessing ‘sexual consent’ within the judicial system,” the statement read.

The Association Concerning Sexual Violence Against Women (ACSVAW) had a similar response, saying in a statement that the current approach contains “severe legal loopholes,” adding that defendants have been acquitted after claiming they believed consent was given based on “absurd or unreasonable grounds.”

The association said that the defendant must be barred from raising the “mistaken belief” defence if they failed to take steps to ascertain the victim’s consent.

A limit must also be imposed if the defendant was reckless as to whether there was consent, and if the defendant was in a state of self-induced intoxication.

We Are X also called on the government to step up publicity and education efforts addressing misconceptions about false accusations or a lowered conviction threshold. The government itself has said that prosecution and conviction thresholds will remain unchanged.

It also continued to suggest that the government change the word “rape” in its sex crime laws to “sexual assault by penetration.” The clearer terminology would help the public understand that the offence covers all types of non-consensual penetrative sexual assault, regardless of gender, it said.

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James Lee is a reporter at Hong Kong Free Press with an interest in culture and social issues. He graduated with a bachelor’s degree in English and a minor in Journalism from the Chinese University of Hong Kong, where he witnessed the institution’s transformation over the course of the 2019 extradition bill protests and after the passing of the Beijing-imposed security law.

Since joining HKFP in 2023, he has covered local politics, the city’s housing crisis, as well as landmark court cases including the 47 democrats national security trial. He was previously a reporter at The Standard where he interviewed pro-establishment heavyweights and extensively covered the Covid-19 pandemic and Hong Kong’s political overhauls under the national security law.