Legal codification on voyeuristic criminal offenses necessary, much-welcome

On Wednesday, the Hong Kong government announced it would launch a much-awaited three-month public consultation on the proposed introduction of offenses involving voyeurism, intimate prying, non-consensual photography, including videos, of intimate parts and the distribution of related images.

With technology facilitating myriad forms of offenses, including those of a voyeuristic and sexual nature, such legal reform is necessary and timely. Invasion of privacy and subsequent trauma brought about by circulation of derived imagery obtained without the victim’s knowledge or consent is near impossible to codify or inventorize in a manner easily deciphered in a courtroom.

The trauma can be lifelong and especially excruciating for victims whose privacy had been invaded as children and derived imagery were left to circulate in the cyberspace at a time when they had no conception of the violation visited on them or its lifelong repercussions. Imagine the mortification of a child who had suffered abuse without understanding it and then who chanced upon derived imagery at a later age to realize the gravity of it all. The feeling of helplessness could be so virulent that it could crush self-esteem forever. It is a known fact that unable to cope, many victims of abuse, whose privacy had been irrevocably invaded, chose to commit suicide.

In Asian societies, there’s general reticence about conversations regarding sexual offenses and violations of privacy of a sexual nature. This makes it more necessary to have clear legal codifications so that not only they act as deterrents but also encourage victims to report such offenses and seek justice without reservations. Such legal codifications especially empower young children who can be easily taken advantage of.

Currently, in the absence of relevant laws, those charged with voyeurism or non-consensual photography of intimate parts, such as upskirt photography, are prosecuted for “loitering” under Section 160 of the Crimes Ordinance with a maximum penalty of two years’ jail; “disorder in public places” under Section 17B of the Public Order Ordinance with a maximum penalty of a fine of HK$5,000 ($645) and imprisonment for 12 months; “outraging public decency” under common law with a maximum penalty of imprisonment for seven years; or “access to computer with criminal or dishonest intent” under Section 161 of the Crimes Ordinance with a maximum penalty of five years’ jail.

According to Hong Kong’s Department of Justice, “between 2015 and 2018, of 275 convicted cases under

Section 161 of the Crimes Ordinance, 73 percent of the convicted cases (or around 200 cases) related to upskirt photography using mobile phones in both public and private places, as well as the uploading of intimate images without consent”. Clearly, such violations of privacy are pervasive.

In April last year, the Court of Final Appeal ruled that obtaining access to a computer “with a view to dishonest gain for himself or another” does not extend to the use of the offender’s own computer. Since offenders’ use of their own devices is invariably instrumental in voyeurism or non-consensual photography, the need for legal reform is imperative.