1. In sexual related crimes where the victim is under the age of 16, if the defendant says that he/she got consent from the victim, can this be a defence?

No. The Crimes Ordinance contains offences designed to protect persons under 16 years of age from themselves. Under section 122 (indecent assault) for example, a person under 16 years of age cannot consent to an act that would otherwise be unlawful under the section. Sexual activity, even if it is short of intercourse, with a person under 16 years of age is still an offence notwithstanding that the person under 16 consented to such activity. Ignorance of the age of the person indecently assaulted is no defence.

In the case of sexual intercourse with a girl under 13 years of age, and sexual intercourse with a girl under 16 years of age, consent is similarly no defence. A person’s lack of knowledge of the age of the girl concerned is similarly no defence.

To know more about how the law protects children from sexual abuse, please refer to Child and Youth Affairs > Children’s protection and welfare > Sexual abuse of children.

2. What are the main characteristics of the Juvenile Court?

A juvenile court has jurisdiction over charges against a child or young person except if it is a charge of homicide. The emphasis with young offenders is upon long term reform and rehabilitation rather than simply punishment.

As part of the long term reform and rehabilitation approach, juvenile courts sit in private. No written report or broadcast of any proceedings in the juvenile court, or an appeal from a juvenile court which identifies the defendant or which would tend to identify the defendant, may be published.  The court may however dispense with the restrictions on identification if it is satisfied it is in the interests of justice to do so.

To know more about the Juvenile Court, please refer to Child and Youth Affairs > Children’s protection and welfare > Legal proceedings against a child > B. The Juvenile Court.

3. If a child is abused by his/her parents, who else can take care of the child?

A juvenile court, either on its own volition or upon the application of the Director of Social Welfare (“the Director”), which is satisfied that any child or juvenile is in need of care or protection, may appoint the Director to be the legal guardian of such child or juvenile. Alternatively, the court may commit the care to any person, whether a relative or not, who is willing to undertake the care of the child, or to any institution which is willing to do so. The court can also order parents or guardians to enter into a recognizance to exercise proper care and guardianship or place the person for a specified period, not exceeding three years, under the supervision of a person appointed for the purpose by the court.

The Protection of Children and Juveniles Ordinance enables police officers and social workers to take action to protect a child or juvenile in need of care or protection.

For more details, please go to Child and Youth Affairs > Children’s protection and welfare > Custody of children and guardianship.

4. My daughter has been sexually assaulted. I do not want her to give evidence in court. I am worried that she will be traumatized if she is asked to describe what has happened.

It is an ordeal for the child victim of violence or sexual abuse to face his/her abuser in open court and be subjected to traditional forms of cross examination. Protection must be afforded to children in such situations if their best interests are to be protected.

There are legislations that provide some protection for children and juvenile victims of certain sexual or physical offences when they are giving evidence in court as prosecution witnesses. This is done by shielding them from the full rigour of the traditional trial format. This includes allowing a child (other than the defendant) to give evidence and be cross examined by way of a live television link, or giving evidence by way of a pre-recorded video interview.

These provisions recognise and attempt to reduce the trauma that child and juvenile victims of physical and sexual abuse face when giving evidence as prosecution witnesses. Inevitably this means some reduction in the rights of defendants, but these reductions are proportional and objectively justified in the interests of protecting children when giving evidence in court.

If you want to know more about this, please go to Child and Youth Affairs > Children’s protection and welfare > Protection of child victims at trial.