- Category: In brief
- Created: Thursday, 19 April 2012 14:57
- Published: Thursday, 19 April 2012 14:57
- Written by Michael Adorjan
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While the US continues with its “barbaric incarceration” of youth, Hong Kong retains a strong rehabilitative, ‘child-saving’ approach to children and youth in conflict with the law. Hong Kong has so far retained a system of juvenile jurisprudence that has been challenged in many other places. My own dissertation research, examining debates and policy responses to youth crime in Canada, traced a general historical pattern found in many Western regions: a slow gravitation away from the view of juvenile delinquents and young offenders as innocent victims of social circumstances to that of cold-blooded victimizers fully cognizant of (and thus culpable for) their crimes. For instance, the ‘juvenile super-predator’ scare in the US during the 1990s, despite the belated qualifications offered by its initial academic promulgator, expressed the same emotions that drive populist calls for ‘law and order’ youth crime policy reforms today [see the critique of this scare in Chambliss 2004]. In short, many Western regions have responses to youth crime which target their deeds rather than their needs.
Hong Kong’s ‘child-saving’ ethos was formed during Hong Kong’s colonial period (see Jones and Vagg, 2007). The view that youth in conflict with the law are worthy of sympathy, rather than condemnation, is frequently highlighted in the annual reports of the Social Welfare Department, the Correctional Services Department, and Hong Kong’s Fight Crime Committee. My own experience as an academic conducting research in Hong Kong is that the rehabilitative ideal (cf. Allen, 1981), at least regarding young offenders, extends beyond rhetoric and official statements. Criminal justice practitioners, supported by an array of non-governmental organizations and the social work system, genuinely believe in the potential of transformation of even the most ostensibly incorrigible young criminal (cf. Fenwick 2004, Van der Spuy 2004).
However, there have been several recent cases of young adolescents accused of raping other children and youth that have sparked alarm and moral panic (Cohen, 2002). Alarm has been fueled by the rapid release of a Law Reform Commission of Hong Kong (LRC, a government-appointed body) report in response to the incidents. The report challenges the present common law presumption that a youth under fourteen is immune from prosecution to rape and related sex offences, and supposes him or her capable of sexual intercourse and of willfully committing such offences. The government of Hong Kong responded very quickly, deciding in June 2011 to abolish the presumption “as soon as possible” (South China Morning Post, editorial, 28 June 2011).
The cases prompting both the LRC report and the governmental response were widely reported by local news outlets. One case in June 2009 involved two thirteen-year-old boys convicted of indecent assault against a girl one year younger. The girl was raped and, according to reports, later gave birth to a child conceived during the rape (LRC, December 2010). Another case in January 2010 involved five adolescents who forced a 14-year-old female into having sex with them during a game. Three of the youths charged had previously been charged with rape (Lee, 26 January 2010). The case that seems to have most directly triggered the LRC report involved a 13-year-old Korean youth who, in September 2010, was arrested for allegedly raping a 5-year-old girl in a mixed ward public hospital in Hong Kong. The boy could only be charged with indecent assault, not rape, given the presumption that boys under 14 could not commit rape intentionally (Moy and Lo, 2 October 2010).
Such incidents were reported alongside rising cases of sexual assaults involving youth. One article reported an increase of indecent assaults by 19.8% during the first six months of 2010, while another article reported that the average number of sex offence cases committed by youth under 14 was more than 100 a year (Moy and Lo, 2 Oct 2010; Yee, Jun 25 2011).
Responding to such reports, the LRC report argues that “the ancient presumption that a boy under the age of 14 is incapable of sexual intercourse is not in accord with the facts and perhaps it never was. It … belongs to the family of legal fictions that exist to protect the young” (LRC, December 2010: 8). The overall tone of the report, illustrated by such passages, is one of antagonism towards child offender protection – the idea that young people who commit serious sex offences deserve protection, or rehabilitation and treatment. The innocence frame that once guarded such youth from prosecution is being called into question; indeed the very notion of childhood and adolescence as a period of maturation and relative innocence is attacked by the report and governmental response.
I want to underscore here that I do not in any way condone the actions of the young offenders involved in the above cases, nor do I suggest a policy response involving changes to the Hong Kong’ system of juvenile jurisprudence is necessarily unwarranted. What I take issue with is the rapidity of the response which makes no effort to consider carefully the issues involved with the public (indeed the report makes it clear that it presumes the public supports ‘getting tough’ with youth charged with sex crimes), nor does it consider how such responses have played out in different parts of the world. The report does make reference to nations which have either repealed the presumption of innocence or lowered the age limit, and the report justifies its arguments with the idea that Hong Kong should ‘get in line’ with this global trend, or be faced with the risk of escalating youth violence and social disorder.
England, for instance, is cited positively in the report, due to England’s repeal of both the doli incapax (can do no harm) provision and the presumption of impunity for youth under 14 who commit sexual offences. However the broader impact of such changes has included a decline of the perception of youth in conflict with the law as ‘children in need’; being replaced with a view of such children as ‘criminals’ (Goldson, 2000). It is worthwhile considering more carefully the unanticipated consequences of an increasingly ‘tough’ legal response to such children, especially as the UK, it has been argued, remains “at the bottom of the league table of child well-being” within the European Union, given its “stubbornly high use of custodial remands and sentences” (Allen, 2006: 6, 9, 16).
It is true that England and Wales changed its common law presumption regarding youth aged 14 and younger in September 1993. It is also true that this change received broad public support (Soothill, 1997: 367). What the LRC, in its haste, left out was the fact that this response, alongside others in the UK, was part of a larger moral panic over delinquent and criminal youth - a disproportionate reaction given that after the legal changes there were only 10 males aged 10-13 prosecuted in the first year, with one of the convictions subsequently over-turned after an appeal (Soothill, 1997: 369). It is unlikely that changing the law in Hong Kong will necessarily ‘net’ a great number of young people involved in serious sex offences, nor, in my view, will the legal change act as a general deterrent to prevent or limit such offences from occurring in the future.
More significantly, the LRC and Hong Kong government fail to consider, in their strictly legalistic and political response, the wider contexts of victimization involved for those young people who engage in serious sex offences. The approach would undercut the need for assessment of youth whose sexually deviant behaviors may very likely stem from prior experiences of sexual abuse themselves (see Erooga and Masson, 2006).
This is not just academic speculation. A fact not very well underscored in the reports involving the Korean boy who raped a 5-year-old girl in a mixed-gender hospital ward is the fact that both were in the hospital related to previous cases of sexual abuse (Moy and Lo, 2 October 2010). Considering the broader context of victimization in no way diminishes the seriousness of charges of rape, nor the need to respond seriously. However, long-term prevention of such crimes is stymied by focusing on the prosecution of individual youth, and addressing the broader cycles and patterns of victimization becomes impossible with such a narrowly legalistic focus.
Michael Adorjan is an Assistant Professor at the University of Hong Kong and a member of its Centre for Criminology. A longer, more academic, version of this article will be published in the journal Youth Justice.
The Law Reform Commission of Hong Kong. December 2010. "The Common Law Presumption That a Boy Under 14 Is Incapable of Sexual Intercourse", Retrieved June 30 2011, http://www.hkreform.gov.hk
Allen, Francis. 1981. The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose. New Haven: Yale University Press.
Allen, Rob. 2006. From Punishment to Problem Solving: A New Approach to Children in Trouble. London: Centre for Crime and Justice Studies.
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Cohen, Stanley. 2002 [original 1972]. Folk Devils and Moral Panics (3rd ed.). London: Routledge.
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