A bizarre court case last October, when a man was acquitted of rape and indecent assault after allegedly disguising himself as a woman on an online lesbian dating platform, sparked debate about what some activists see loopholes in Hong Kong’s legal system when it comes to protecting victims of sexual violence.
For “X”, the woman at the center of this case, it was clearly a miscarriage of justice.
Chelsea Ma, president of the Association Concerning Sexual Violence Against Women (ACSVAW), told HKFP that the case shows how the current legal system “creates obstacles for victims” in their quest to seek justice.
X was in her twenties when she met Tsang Tsz-ho on Butterfly, an online dating app designed for lesbians. The 30-year-old pretended to be a tomboy on the app. He didn’t tell X he was a man.
The couple eventually ended up in a hotel and engaged in sadomasochistic activities. X told the court that she only realized Tsang was a man after she felt something enter her, pushed him away and saw his genitals.
The jury of six men and one woman exonerated Tsang Tsz-ho of raping X because they could not confirm beyond a reasonable doubt that Tsang was “reckless” on X’s consent, meaning he ignored the risk that she might not have consented and continued anyway.
“Genuine but mistaken belief”
In rape trials, once the prosecution establishes that the complainant did not consent to the act, most defendants argue that they “seriously but mistakenly” believed the complainant consented, said Ma, a former lawyer.
According to a document detailing the instructions to the jury, the latter must acquit the defendant if they find that he “honestly but wrongly believed that she was consenting”.
While the instructions also say the jury must consider whether there are reasonable grounds for the defendant’s belief, that belief need not be reasonable, Ma said.
“But the ultimate question remains whether, reasonably or not, he himself sincerely held or could have held this belief,” the instructions state.
To achieve a conviction, the prosecution must prove that the accused either knew that the complainant had not consented or that he was “reckless” as to whether she had consented.
Although the defendant could also be convicted if the jury felt they knew the plaintiff might not consent and continued anyway, the instructions leave room for the defendant’s subjective assessment of risk.
“However, if because of his age or personal characteristics, the defendant genuinely did not appreciate or foresee the risk that the plaintiff would not consent to sexual intercourse, he was not reckless,” state the instructions.
For Ma, the biggest problem in the established system was that legal control “ultimately rested on the subjective belief of the accused”.
“The jury is required to think what the defendant’s subjective beliefs are, instead of what an ordinary person would think with more objective standards,” Ma said.
During Tsang’s trial, the defense argued that he did not intentionally conceal that he was male and that X should have known he was male by his voice, which was clearly “a voice of ‘man”. Tsang also said that X should have realized after he took off his pants and she saw the hair on his leg, and that she should have felt his erection.
The defendant also said he thought X might be bisexual because she never said she either liked or hated men. Tsang also said that while he knew Butterfly was a dating app for lesbians, he didn’t know it was only for women and there were no rules against men using the app.
In a 2012 consultation paper, the Hong Kong Law Reform Commission suggested that the city take a “mixed approach”, which would require the defendant’s belief to be reasonable, while also taking into account whether the defendant had considered steps to ensure that the complainant consented.
“The recommendations are there, the question is when will the government think it’s necessary to table this for public consultation,” Ma said.
X told HKFP that she hoped the court could have asked the jury to consider her perspective as a lesbian.
“The court must remind the jury that when considering all the evidence, as well as my testimony, if they believe I am a lesbian. And from there, ask yourself if I had agreed to engage in sexual acts with the defendant,” X said.
Doesn’t saying no mean “yes”?
Even though the government has moved to close the gaps in dealing with sexual assault in the courts, the city still needs to think about its approach to consent.
Hong Kong currently operates on a “negative consent model”, which means saying no to show that you are not consenting.
The alternative, an affirmative consent model, could help avoid victim blaming, as well as issues around the gray “no” area, according to Jacey Kan, advocacy manager at ACSVAW.
The affirmative consent model means that the initiator of a sexual act has the responsibility to check whether his partner has consented.
Often, in criminal trials, the focus is on the reaction of the complainant, to decide whether he expressed his refusal, for example if he pushed the defendant away or immediately reported his assault to the police. , Kan said.
“However, in reality, many times the victims would freeze up or not know how to react, or some would be so scared and not know what to do,” Kan said. “They wouldn’t be able to resist, it’s actually rare in sexual violence.” .”
“There is also a gray area, is silence worth ‘yes’? Doesn’t saying no mean “yes”? said the advocacy officer.
“A lot of the time we put the emphasis here, when we ask these questions, we’re actually criticizing the victims, and that’s why blaming the victim is so serious, it’s because our current model is to see what that the victim did or did not do,” Kan said.
Ma said that regardless of how future legislation is drafted, the law should reflect “a value that all sexual activity requires consent, and consent is obtained through active and constant communication.”
During the trial, X had to explain the meaning of each of the letters in “LGBTQ,” a question she hoped she wouldn’t be asked to answer.
“I think the prosecution doesn’t understand the LGBTQ community, other than asking me to explain each letter, when I was explaining the difference between sexuality and gender identity, the prosecutor had a confused expression,” X said.
Not only did X feel that the jury may have misunderstood her perspective as a lesbian, but she was also reluctant to report the incident to the police.
X said in court that she initially debated whether to file a police report, as she feared it would expose her as a lesbian to her family. X also feared that he would have to undergo invasive medical checks and that reporting to the police would affect his future job applications.
Eventually, accompanied by a friend and a social worker, X reported her case to the authorities. Even then, X had to tape her testimony three times the night she went to the police, where she was asked to describe in detail what had happened.
Many victims of sexual violence experience secondary victimization when they come to the police or testify in court.
Evelyn Tsao, a barrister and partner at Patricia Ho & Associates, said one of her clients was “shattered” when she learned her case might have to be retried after the defendant appealed her conviction.
“In those situations, you’ll think that even though the legal system was supposed to be there to protect you, but to get that so-called protection, you have to go through a grueling process,” Tsao said.
In the name of the general interest
Tsao, who often provides pro bono services to victims of sexual offences, said it is the prosecution’s responsibility to address and compensate for possible gender biases in the trial, and to send the right message. to the society.
The lawyer said the Crown had broad discretion in deciding whether to press charges and did not have to explain why it decided not to prosecute.
“The prosecution has a duty to ensure that it has a chance of success or else it will waste taxpayers’ money, but at the same time sex crimes are the most uncertain because the evidence is often the words of one person against another. That is why, from the prosecution’s point of view, they cannot guarantee a conviction,” Tsao said.
However, the government could put more emphasis on protecting the public interest when considering prosecuting a sex crimes case, the lawyer said.
“There is another consideration, which is the public interest… even [if] there may not be enough evidence, but in the public interest they have to prosecute or they will send the wrong message to society that these people might get away.
Better let the culprit escape
Tsang was eventually acquitted on two counts with a five-to-two jury decision following a trial in the High Court.
Judge Joseph Yau said at the time that the tenet of Hong Kong’s legal system was that it was better for the guilty to escape the suffering of the innocent, adding that this offered the greatest protection to residents.
X told HKFP that she asked the Department of Justice (DoJ) through the Rainlily Sexual Assault Center if they could appeal. The DoJ said there was no reason to reverse the decision.
“I hope the DoJ can reconsider the appeal of the case and set a precedent in Hong Kong for this type of deceptive gay sexual assault cases,” X said. “And at the same time encourage others victims to report to the police, so that the accused can get the sentence they deserve.