By Phoebe Kwok

Hong Kong’s rape laws are oddly gender-specific and pertain to an out-dated, homophobic, and patriarchal system that has no place in the 21st century. 

Of all the crimes indictable by the Hong Kong legal system, rape is one of the worst. It promises severe punishments for perpetrators, with a maximum sentence of life imprisonment. This law has been crucial in ensuring justice for survivors of rape. Yet, it contains a serious flaw that creates one of the greatest legal loopholes in the system. This flaw not only makes it so that some rapists get lighter sentences, but actively upholds dated gender stereotypes and sexist perceptions about female and male sexuality. 

Under the current legal definition of rape, females can never be the rapist, and a man or woman cannot be charged with rape of the same sex. Section 118 of the Crime Ordinance, Cap 200 defines rape as the “non-consensual penile penetration of a woman’s vagina”. The wording of this law denies the existence of female perpetrators and implies that women lack the capacity to rape a man. It fails to consider possible scenarios that could occur, such as a woman inebriating a man and then raping him once he is unconscious. 

Since a woman cannot be convicted of raping a man or a woman, they would instead be charged with the following offences: assault by penetration, sexual assault, or causing sexual activity without consent. And herein lies the main issue. There are different sentences for charges of rape versus other sexual offences. For example, sexual assault is three to eight years, whereas rape has life imprisonment. Because women cannot be charged for rape, they receive unequal punishment compared to their male counterparts. Any rapist, regardless of their sex or sexual orientation, should receive equal sentencing guidelines for their crimes. Women should not be given a lighter sentence just because of their sex—it is not only unjust, but unfair to the people whom they’ve violated. 

Sexual offence laws should not be drafted based on gender, sex, or sexuality. Anyone can be a victim of sexual violence. Making statutory distinctions on the sex of perpetrators and victims is an uninclusive practice. Instead, we should focus on reforming laws to include all groups so that everyone is equally protected in court, regardless of their gender orientation or sexuality. 

The truth is, the word “rape” holds heavy meaning in our society. The phrase “sexual assault” is horrific, but rape brings to mind violence, violation, and, of course, rapists—one of the worst kinds of criminals. By denying male victims the right to call their offence “rape” in the eyes of the law, the system is actively encouraging the erasure of male victims’ voices and perpetuating gender stereotypes. What rape implies to most is someone physically controlling and taking advantage of a ‘weaker’ person—thus the connection to traditional gender roles. If men are the stronger sex and women the “gentler”, it stands to reason that only a man can rape, and only a woman can be raped. Psychotherapist Elizabeth Donovan says that society believes men cannot be raped at all because typically, women are subject to sexual violence at the hands of men. The combination of a prejudiced legal system and a dismissive, unbelieving society results in the lack of justice and closure for male victims, who feel they are not seen or not “deserving” of being a victim. 

Besides being principally unfair, Hong Kong’s current rape laws uphold centuries of out-dated gender stereotypes and roles. By implying that men can’t be raped, they enforce damaging beliefs. For example, that men aren’t vulnerable and are unaffected by crisis or trauma. These gender roles place men under heavy pressure to fulfill traditionalist criteria of masculinity, to the extent that it actively harms them. The majority of sexual assault and rape cases against men go unreported—male victims don’t seek help out of the fear that their rape makes them ‘unmasculine’ and ‘not strong’. 

Some have argued against the implementation of gender-neutral laws, especially regarding topics such as rape or domestic violence. Instead of providing justice for male and LGBTQIA+ victims, they believe that men would instead abuse this law to harm female victims. It is also essential to take into account the context for which these laws would be used. Women are the ones who suffer most from sexual violence, so it could be argued that they require unique legal protections, and thus gender-specific laws are necessary. This has already been taken into account in some countries, so sexual offence legislation for different countries changes based on their societal context.

In India, due to high rates of sexual violence towards women, the government introduced the Protection of Women against Domestic Violence Act (2005) and The Sexual Harassment of Women at Workplace (2013). There is certainly a case to be made here for the necessity of gender-specific laws. Isha Prakash wrote for Feminism In India that such Acts “ensures a safer environment for women with protective measures and safeguards in place.” Whereas, if sexual offence laws were not gender-specific, perpetrators could file counter-cases to prolong cases and “mislead” the law. Prakash added that “this… complicates the journey to justice for the woman who has already been violated”. In the words of Thomas Jefferson: “Nothing is so unequal as the equal treatment of unequal people.” 

It must be acknowledged that male rape survivors are indeed a minority and that most sexual violence is targeted towards women. But male victims being a minority does not mean that they do not matter. They exist and thus should be granted the same considerations as women in sexual offence cases. Globally, the number of rape cases are also vastly under-reported, even more so for male victims; hence it is assumed that the actual number is likely much higher. According to psychologist Sarah Crome, less than one in ten instances of male-on-male rape are reported, and a 2010-2012 CDC report found that one in seventeen men were raped at some point in their lives.

Feelings of shame and embarrassment stop many survivors from reporting their cases, who may also wish to avoid the stigma and scrutiny that would follow. In male victims, these feelings are exacerbated by the fear that being raped—especially by a man—makes them “unmasculine” because it happens mainly to women. Okar Wan Chi-ho from the Anti480 Anti-Sexual Violence Resource Centre reported that they received many enquires and requests for help from men over the years. However, the Hong Kong government never took claims seriously because it did not believe that sexual violence was an act that could be committed against men. He also says that there are “few sources of support available” for male survivors. 

When we talk of feminism and gender equality, it is crucial to recognise that patriarchy is a double-edged sword. Its stereotypes and gender roles harm both women and men. Therefore, we must not only strive for equal rights for women but also keep in mind that no one—not even men—truly benefits under a patriarchal system. As for whether Hong Kong will change its laws? Hong Kong’s Law Reform Commission has already spent years advocating for amendments to current rape laws with no success. For the time being, these rape laws remain.