EOC’s recommendations adopted in Government’s bill to criminalise non-consensual recording of intimate parts
The EOC welcomes the introduction of the Crimes (Amendment) Bill 2021 (the Bill) into the Legislative Council for first and second reading on 24 March 2021. The Bill has adopted recommendations submitted by the EOC earlier this month on the Security Bureau’s previous proposals to criminalise non-consensual recording of intimate parts and introduce other related offences. Aimed at strengthening the proposed legislation to better protect the public from image-based sexual violence, the EOC’s recommendations marked the Commission’s second submission on the subject, following an initial response to the public consultation in October 2020.
The EOC recommended that the offence of non-consensual recording of intimate parts should include the breasts of a person in its definition of intimate parts, whether the breasts are bare or covered by underwear. While there are concerns that the expanded definition might unduly criminalise inadvertent contraventions by innocent people (e.g. taking a selfie and accidentally including in the photograph a down-blousing view of a person’s breasts), the EOC believes that an express requirement of intention as an element of the offence would serve as a sufficient safeguard against over-criminalisation.
Indeed, other common law jurisdictions with similar offences, such as Scotland, New Zealand, Canada, Singapore and most of the Australian states, do include non-consensual photography of breasts. Given that there is clear evidence of prevalence of such conduct in Hong Kong, the EOC advised the Government to reconsider the definition of intimate parts in the previous proposal. Also, the principle of gender neutrality should mean that non-consensual photography of a man’s breasts should also be unlawful where the person’s breasts would not otherwise be visible. Accordingly, situations where a person voluntarily exposes his/her breasts to be photographed (e.g. in a magazine photo shoot) would not fall within the scope of such an offence.
The EOC is glad to note that the definition of intimate parts has been revised in the Bill to include breasts irrespective of gender. Moreover, the Bill has taken forward another recommendation by the EOC in introducing an additional offence, namely making a threat to publish intimate images without consent. For details, please click the links below.