A bizarre court case last October, when a man was acquitted of rape and indecent assault after allegedly masquerading as a woman on an online dating platform for lesbians, has sparked debate about what some campaigners see as loopholes in Hong Kong’s legal system when it comes to protecting victims of sexual violence.
For “X,” the woman at the centre of this case, it was a clear miscarriage of justice.
Chelsea Ma, chairperson of the Association Concerning Sexual Violence Against Women (ACSVAW), told HKFP that the case showed how the current legal system “created barriers for victims” in their quest to achieve justice.
X was in her 20s when she met Tsang Tsz-ho on Butterfly, an online dating app designed for lesbians. The 30-year-old claimed to be a tomboy on the app. He did not tell X that he was a man.
The pair eventually met up in a hotel and engaged in sadomasochistic activities. X told the court that she only realised Tsang was a man after she felt something penetrate 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, without reasonable doubt, that Tsang was “reckless” to X’s consent, meaning he ignored the risk that she might not have consented and continued anyway.
‘Genuine but mistaken belief’
In rape trials, after the prosecution establishes that the complainant did not consent to the act, most defendants argue that they had a “genuine but mistaken” belief that the complainant had consented, Ma, a former barrister said.
According to a document detailing instructions to the jury, they must acquit the defendant if they find that “he held a genuine but mistaken belief that she was consenting.”
While the directions also state that the jury should take into account whether there were any reasonable grounds for the defendant’s belief, such belief did not have to be reasonable, said Ma.
“But the ultimate question remains whether, reasonably or not, he himself genuinely held or may have held that belief,” the directions read.
To reach a conviction, the prosecution must prove that the defendant either knew that the complainant did not consent, or that he was “reckless” as to whether she had consented.
While the defendant could also be convicted if the jury deemed that he knew the complainant might not consent and continued anyway, the directions give leeway to the defendant’s subjective assessment of risks.
“However, if due to his age or personal characteristics the defendant genuinely did not appreciate or foresee the risk that the complainant was not consenting to sexual intercourse, he was not reckless,” the directions read.
To Ma, the biggest problem under the established system was that the legal gatekeeping “in the end, fell on the defendant’s subjective belief.”
“The jury is required to think what the defendant’s subjective beliefs are, instead of how an ordinary person would think with more objective standards,” Ma said.
During Tsang’s trial, the defence argued that he did not intentionally conceal that he was a man, and that X should have known that he was a man from his voice, which was clearly “a man’s voice.” Tsang also said that X should have realised after he took of his trousers and she saw his leg hair, and that she should have felt his erection.
The defendant also said that he thought X could be bisexual as she never said she did not like or hate men. Tsang also said that while he knew Butterfly was a dating app for lesbians, he did not know that it was only for women, and that there were no rules banning men from using the application.
In a 2012 consultation paper, Hong Kong’s Law Reform Commission suggested that the city should adopt a “mixed approach,” which would require the defendant’s belief to be reasonable, while also taking into account whether the defendant had taken any steps to make sure the complainant had consented.
“The recommendations are here, the question is when will the government think there is a need to table this for a 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 needs to remind the jury that, when considering all evidence, as well as my testimony, whether they believe that I am a lesbian. And from there, consider whether I had agreed to engage in sexual acts with the defendant,” X said.
Does not saying no mean ‘yes’?
Even if the government decided to plug the loopholes in the way sexual assault is handled in court, the city still has to think about its approach towards consent.
Hong Kong currently operates on a “negative consent model,” which means that one must say no in order to show that they do not consent.
The alternative, an affirmative consent model, could help avoid victim blaming, as well as the issues that came with the grey area of “no,” according to Jacey Kan, an advocacy officer at ACSVAW.
The affirmative consent model means that the initiator of a sexual act has the responsibility to ascertain whether their partner has consented.
Often in criminal trials, much emphasis is put on how the complainant reacted, to decide whether they had expressed their lack of consent, such as whether they had pushed the defendant away or whether they had reported their assault to the police immediately, Kan said.
“However, in reality often victims would freeze or not know how to react, or some would be so scared and not know what to do,” said Kan. “They would not be in a state to resist, it’s actually rare in sexual violence.”
“There is also a grey area, does silence equal to ‘yes’? Does not saying no mean ‘yes’?” the advocacy officer said.
“A lot of the times we put the emphasis here, when we are asking these questions, we are actually criticising victims, and this is why victim-blaming is so serious, it’s because our current model is to see what the victim did or did not do,” said Kan.
Ma said that regardless of how future legislation is drafted, the law should reflect “a value that any sexual activities require consent, and consent is obtained through active and constant communication.”
During the trial, X was required to explain what each of the letters in “LGBTQ” meant, which was a question that she hoped she would not be asked to answer.
“I think the prosecution does not understand the LGBTQ community, apart from asking me to explain each letter, when I was explaining the difference between sexuality and gender identity, the prosecutor had a confused expression,” said X.
Not only did X feel that the jury might not have understood her perspective as a lesbian, she was also hesitant to report the incident to the police.
X said in court that she initially debated whether to file a police report, as she was concerned that it would out her as a lesbian to her family. X was also worried about having to undergo invasive medical checks, and that reporting to the police would affect her future job applications.
Eventually, accompanied by a friend and a social worker, X reported her case to the authorities. Even then, X had to record her testimony three times the night she went to the police, where she was asked to describe in detail what happened.
Many victims of sexual violence experience secondary victimisation when they report to the police or testify in court.
Evelyn Tsao, a solicitor and partner at Patricia Ho & Associates, said that one of her clients basically “broke down” upon hearing that her case might have to be retried after the defendant filed an appeal against his conviction.
“In these situations, you will think that even thought the legal system supposedly was there to protect you, but in order to achieve that so-called protection, you have to go through a gruelling process,” said Tsao.
In the name of public interest
Tsao, who often offers pro bono services to victims of sexual offences, said that it is the prosecution’s responsibility to address and offset possible gender biases in the trial, and to send the correct message to society.
The solicitor said that the prosecution has great discretion in deciding whether to press charges, and that they do not have to explain why they decide not to prosecute.
“The prosecution has a duty to ensure that they have a chance of success, or else they will be wasting taxpayers’ money, but at the same time, sex crimes are the most uncertain because the evidence often are one person’s words against another. That is why, from the prosecution’s viewpoint, they cannot ensure a conviction,” Tsao said.
However, the government could put more emphasis in protecting public interest when considering whether to pursue a sex crimes case, said the solicitor.
“There is another consideration, which is public interest… even [if] there might not be enough evidence, but under public interest they have to prosecute, otherwise they will send a wrong message to society that these people could get away.”
Better to let the guilty escape
Tsang was eventually acquitted of two charges with a five-to-two jury decision following a trial at the High Court.
Judge Joseph Yau said at the time that the principle of Hong Kong’s legal system was better the guilty escape than the innocent suffer, adding that this offered the greatest protection to residents.
X told HKFP that she had asked the Department of Justice (DoJ) through the sexual assault crisis centre Rainlily whether they could file an appeal. The DoJ said that there were no grounds to overturn the ruling.
“I hope that the DoJ can reconsider appealing the case, and set a precedent in Hong Kong for these type of homosexual deceptive sexual assault cases,” said X. “And at the same time encourage other victims to report to the police, so that defendants can get the punishment they deserve.”
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