HK legislators pass upskirting law that makes crime punishable by 5 years in jail

02-Oct-2021 Intellasia | South China Morning Post | 6:37 AM Print This Post

Advocates, legislators and legal experts in Hong Kong have welcomed the passing of a bill making upskirting and image-based sexual abuse criminal offences punishable by up to five years in jail.

Six new violations have been introduced in the city after a third reading of the Crimes (Amendment) Bill 2021 and its subsequent passage into law on Thursday by the Legislative Council.

Crimes covered by the bill include voyeurism, defined as observing or recording the intimate acts of others, and unlawful recording or observation of the intimate parts of a person dishonestly or for a sexual purpose, which includes upskirting and taking photographs down a person’s top.

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The offences cover acts committed in both public and private spaces, and people convicted of either of the first two offences will go on the sex offenders’ register.

The bill also prohibits the publication of images originating from voyeurism or unlawful recordings, as well as publishing or threatening to publish intimate images or videos without consent.

Pro-establishment lawmaker Elisabeth Quat called the bill a milestone in combating sexual violence in Hong Kong.

“Society had been in a legal vacuum [for years]. Thus, it was expedient to get the bill out at this moment,” she said.

Linda Wong Sau-yung, executive director of the Association Concerning Sexual Violence Against Women, said the law showed that victims’ experiences were now recognised by the criminal justice system, laying a foundation for increased reporting of such crimes.

Advocates and lawyers have also welcomed the inclusion in the bill of provisions regarding altered images, or “deep fakes”, in which artificial intelligence is used to make an image appear pornographic, as well as the introduction of a court order to take down and delete images.

“It really enables action to be taken against not only the individual defendant but anyone who has the images and controls their publication,” said Peter Reading, a senior legal counsel at the Equal Opportunities Commission, adding this would include social media providers, such as Facebook and Instagram.

The government would be able to make an application to the magistrate at any time during any criminal proceedings to seek an order to compel any person or organisation to remove, delete or destroy an image.

The application could also request that the summons be served in any overseas jurisdictions where, for example, the data of social media users who had published the images might be stored.

A person who failed to comply with the disposal order could face a HK$100,000 (US$12,840) fine and imprisonment for one year.

However, the commission raised several concerns about certain provisions in its submissions, such as the requirement to prove a purpose of dishonesty in relation to recording intimate parts.

“In most similar jurisdictions with equivalent criminal laws there is no requirement to prove such a purpose, which could possibly make such offences more difficult to prove,” Reading said.

Jacey Kan Man-ki, also from the Association Concerning Sexual Violence Against Women, similarly expressed misgivings about the requirement to prove dishonesty or a sexual purpose, noting there could be numerous reasons a perpetrator might take such images, including to humiliate or bully the victim.

With regards to permission to take intimate images, the bill specifies that someone under the age of 16 is not capable of providing such consent. However, the bill also allows for a defence in which a defendant is able to prove they honestly believed the victim was over 16 and that consent was given by the individual to have photographs taken a provision some advocates found problematic.

“Children are in a particularly vulnerable situation, so taking intimate images of them is arguably a situation where a defence should not apply,” Reading said.

Vince Chan, the association’s communications officer, said work still needed to be done to educate and train frontline police officers, the Department of Justice and social workers on the new offences so they could communicate them properly to victims.

Previously, there was no specific offence against voyeurism and non-consensual recording of intimate parts, such as upskirting, and culprits accused of committing such offences were prosecuted for “loitering”, “disorder in public places”, “outraging public decency” and “access to a computer with criminal or dishonest intent”.

The offences in the upskirting bill, Reading said, addressed forms of sexual harassment not currently covered by the Sex Discrimination Ordinance, and provided “new means of redress for victims, and enabled prosecution of such offenders”.


Category: Hong Kong

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