HK proposes abolition of sex presumption

Hong Kong's Law Reform Commission has recommended the abolition of the common law presumption that a boy under 14 is incapable of sexual intercourse, said a report released by the Commission on Monday.

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The report was entitled 'The Common Law Presumption that a Boy Under 14 is Incapable of Sexual Intercourse'.

The existing common law presumption that a boy under 14 is incapable of sexual intercourse cannot be rebutted, even where there is clear evidence that the boy was physically capable of, and had had, sexual intercourse, according to the report.

'The result is that, regardless of the circumstances, a boy under 14 years of age cannot be convicted of rape, even though he had unlawful sexual intercourse with a non-consenting victim,' it said.

This common law presumption has ancient origins but it has either never applied or has been abolished in a number of jurisdictions, including England and Wales, New Zealand and a number of Australian jurisdictions, it said.

The report argued that whatever the historical rationale for the presumption, it is difficult to see what purpose the rule now serves. The application of the presumption is at odds with reality and means that on occasion the true criminality of a defendant's conduct can't be reflected in the charge.

The problems of the presumption were highlighted in Hong Kong in a case in September this year, when a 13-year-old boy was arrested for allegedly having sexual intercourse with a five-year- old girl at a hospital in Chai Wan District.

The boy was charged with indecent assault as the presumption prevented his being charged with rape.

If the presumption were to be abolished, the separate rebuttable presumption of doli incapax would continue to apply to a boy between the ages of 10 and 14, said the Commission.

That presumption means that the prosecution must prove beyond reasonable doubt that the boy knew his actions were seriously wrong, rather than merely naughty or mischievous, according to the report.

The report is the second in a series to be issued as part of the Commission's review of the law relating to sexual offenses. The first report, published in February, was Sexual Offenses Records Checks for Child-Related Work: Interim Proposals.

The Law Reform Commission of Hong Kong was established in January 1980. The Commission considers for reform those aspects of the laws of Hong Kong which are referred to it by the Secretary for Justice or the Chief Justice.

Members of the Commission are appointed by the city's Chief Executive, on the advice of the Secretary for Justice, and include academic and practicing lawyers, and prominent members of the community.