V. Domestic violence acts: Possible offences contrary to the Crimes Ordinance
Where force or violence is used to obtain, or attempt to obtain, sexual gratification, the abuser may have commited rape, assault with intent to rape, attempted rape or indecent assault contrary to the Crimes Ordinance ( Cap. 200 ). Criminal intimidation (threatening injury) contrary to section 24 of the same Ordinance may also be a possibility where the abuser’s conduct falls short of an actual assault.
A. Criminal Intimidation (Threatening injury)
Under section 24 of the Crimes Ordinance ( Cap. 200 ) anyone who threatens another person with injury to their body, reputation or property, or who threatens another person with any illegal act with intent to alarm the person so threatened, or with intent to cause the threatened person to do an act they are not legally bound to do, or to cause the threatened person to omit to do an act they are legally entitled to do, commits an offence punishable upon summary conviction by a fine of $2,000 and imprisonment for two years, and upon indictment by imprisonment for five years.
Section 24 of the Crimes Ordinance addresses conduct directed towards alarming the victim. The threat can be to injure the body, reputation or property of a third party, for example a family member, if that is done with the intent specified in this section. This section addresses what may be referred to as intimidatory conduct by an abuser directed towards domination of the victim. Examples of conduct coming within section 24 of the Crimes Ordinance are seen in HKSAR v. Pearce Matt James . The defendant staged protests outside the school where a former girlfriend was employed and threatened the headmasters of the school by sending them letters saying he would continue such protests to inform pupils, members of staff and parents that there was a thief in the school, unless his former girlfriend returned a painting which he alleged she had stolen from him.
This is not an offence which can be used frequently because it is often difficult to get evidence of the offence, but it is available in appropriate cases.
As the law stands at present, though it is currently (2013) under review, a man who rapes a woman commits an offence contrary to section 118 of the Crimes Ordinance ( Cap. 200 ) and it is punishable with imprisonment for life. Rape occurs where a man has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it and at the time the man knows the woman does not consent or is reckless about whether or not she consents. The word “unlawful” means without consent.
The prosecution must prove that the accused had sexual intercourse with the victim who at the time did not consent to that intercourse. The minimum evidence is lack of consent which can take many forms, e.g. saying “No”, putting up resistance, or attempting to escape from the attacker. Submission, as in recognising the inevitable and not resisting, is not consent.
Marital rape, (or spousal rape or partner rape) is non-consensual sexual intercourse in which the perpetrator is the victim’s spouse or female partner. An English case R v R established that a wife does not, by entering into a marriage with her spouse, give an open ended commitment to sexual intercourse at all and any time with her spouse. The court held there was no longer any justification for the marital exception to rape. A wife has the right to decide whether or not sexual intercourse shall occur. The husband who forces his wife to have sexual intercourse with him irrespective of her consent commits rape. The same applies to a female cohabitee. It is a question of fact in each case whether the sexual intercourse occurred, and whether that was without consent or without the male having an honest, even though (objectively) unreasonable, belief in consent. See English case: DPP v Morgan .
C. Attempted rape
According to section 159G of the Crimes Ordinance , a person is guilty of an attempt to commit an offence where, with the intention of committing the full offence, he does an act which is more than merely preparing to commit the intended offence. A husband or male cohabitee who intended to have sexual intercourse with his spouse or cohabitee but fails because, for example, the victim resists, can be convicted of attempted rape provided the evidence shows clearly what was intended, and that but for resistance or the fortuitous intervention of a third party, the complete offence would have been committed, see e.g. HKSAR v Law Wing Hong .
Where the abuser’s conduct falls short of rape or attempted rape there may still be a conviction for indecent assault, assault occasioning actual bodily harm or common assault depending upon the circumstances of the particular case. There could also be a conviction for assault with intent to commit an arrestable offence contrary to section 36(a) of the Offences Against the Person Ordinance . Rape is an arrestable offence as it is punishable with more than twelve months imprisonment as are the other offences already referred to. Section 36(a) of the Offences Against the Person Ordinance is punishable by imprisonment for two years.
D. Indecent assault
A person who indecently assaults another person commits an offence contrary to section 122 of the Crimes Ordinance and it is punishable with imprisonment for ten years. Unlike rape, indecent assault is not gender specific. It can be committed by a male upon a female, a male upon a male, a female upon a male or and a female upon a female.
Most indecent assaults will clearly be of a sexual nature. The issue is whether right minded persons would consider the conduct indecent or not. The prosecution must prove that the accused intentionally assaulted the victim, that the assault and the circumstances in which it was committed are capable of being considered as indecent by right minded individuals and that the accused intended to commit that assault.