Sexual offences reform: Why Hong Kong needs a law against persistent child abuse

By Azan Aziz Marwah, Hong Kong Committee on Children’s Rights

The long-awaited reform of sexual offences is back on the agenda after the government launched its (brief) one-month public consultation on July 7. The consultation covers a wide range of proposals tackling the inadequacies and outdated language of the Crimes Ordinance.

File photo: Kyle Lam/HKFP.

The proposed improvements to the law include a clear definition of consent, gender neutrality, a new offence of grooming, and more deterrent sentences. It rightly addresses many long-standing gaps. We are also relieved to see the importance put in the proposals on protecting the vulnerable, such as children and people with mental impairments.

However, there are important deficiencies that go unaddressed in the new law.

See also: Hong Kong moves to reform its archaic sex laws, but victims of prolonged child sexual abuse feel left out

The authorities should follow other jurisdictions and introduce a new offence of Persistent Child Sexual Abuse (PCSA). Under the current regime, if sexual abuse continues for years or decades (e.g. in-family sexual abuse), the prosecution must prosecute each incident separately. As has been shown time and again, this leaves the most traumatised children without any recourse.

Persistent child sexual abuse is among the worst atrocities that can be committed upon a child. The nightmare forces the child to relive the trauma, melting the memories into one. Furthermore, child victims’ mental and cognitive development is not yet mature. When faced with prolonged, persistent, and repetitive sexual abuse, they are less likely to be able to identify the unique details of each incident (e.g. time, clothing) to meet the requirements for prosecution.

It is absurd that a court can be certain that a child has been sexually abused and sure of who the perpetrator was but unable to convict. Why? Precisely because the abuse did not occur once, but many times. That is not justice.

Lady Justice statue at the Court of Final Appeal. Photo: GovHK.

There is a clear solution: many overseas jurisdictions have established the offence of “persistent child sexual abuse” to address this gap. The law focuses on proving the existence of a pattern of sexual exploitation between an adult abuser and a child over a period of time. Even if the victim cannot provide specific details of every sexual assault, prosecution is still possible as long as the victim can describe a pattern of repeated abuse occurring over a specific period and can give details of at least two counts of sexual abuse that took place during that period. Sentencing for a conviction is based on the entire duration of the sexual abuse relationship, rather than on individual incidents, to ensure that the punishment reflects the true extent and severity of the trauma suffered by the victim.

The government put forward a PCSA offence proposal back in 2000, yet it could not gather sufficient support from the legal community. Twenty-six years have passed and there is already positive development of PCSA offences and experiences on how to close this gap for children in many overseas jurisdictions. For instance, all eight provincial jurisdictions in Australia have had the PCSA offence in place for decades. It is time to revisit the issue and bring justice to children.

PCSA should not be treated as an all-or-nothing choice. An appropriate balance could be drawn between fairness to the victim/survivors and the rights of defendants through careful drafting and proper jury directions. We need the government’s determination to bring this proposal back to the table and actively discuss it with all stakeholders in the child protection community.

Apart from the legal proposals, we need protection measures for vulnerable child witnesses. Victims of child sexual abuse often face lengthy and rigorous cross-examination during court proceedings. This not only leads to emotional breakdowns and secondary trauma but can even cause victims to withdraw or refuse to testify. Such situations are all too common.

Photo: Irene Chan/HKFP.

Therefore, we call on the Judiciary to draw on the practices of multiple overseas jurisdictions and establish Practice Directions for child sexual abuse cases, so that child witnesses can give testimony in a more reassuring environment and under more supportive conditions. For example, time limits should be set for cross-examination in court to ensure that proceedings cannot be extended indefinitely even if the cross-examination is not completed, and questions posed to child witnesses should be reviewed by the court in advance. Furthermore, court language should be strictly regulated; for instance, child witnesses should not be arbitrarily questioned or accused of lying.

When a tragic sexual assault occurs, the physical and psychological harm inflicted on the child is immeasurable. However, amid such complex emotions, under the current arrangements, child victims of sexual abuse are still required to visit hospitals, forensic departments, home video recording studios, and courthouses – multiple locations that are both unfamiliar and frightening to children – to provide evidence and seek justice. This often discourages child victims of sexual abuse from coming forward.

Therefore, we recommend that the government “adopt a trauma-informed one-stop support system” that integrates child protection mechanisms, medical services, forensic services, and judicial procedures under a single support framework (e.g. housed within a hospital). Through interdepartmental and interprofessional collaboration, this approach would reduce the number of times different individuals need to interview the child victim, thereby better safeguarding the well-being and rights of child victims and child witnesses.

Even the most well-crafted legislation is rendered futile without child-friendly legal procedures in sensitive cases such as child sexual abuse. Evidence of child witnesses is of paramount importance in such cases. No one wishes to see another child pluck up the courage to come forward, only for it to result in frustration, withdrawal, or a refusal to testify.

There remain unfinished chapters that need our joint and continuous efforts to improve the gaps both in laws and outside of the legal system.

Azan Aziz Marwah is a barrister-at-law and chairperson of the Hong Kong Committee on Children’s Rights

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