Children Raping Children: Penal Elitism and the Contested Innocence Frame in Hong Kong

Introduction

Hong Kong, a special administrative region of the People’s Republic of China, should be of great interest to criminologists. The modern and cosmopolitan world city, with just over 7 million residents living within its 426 square miles, has internationally one of the lowest murder rates and fear of street crime, and one of the highest levels of confidence in the police (Broadhurst, 2000; Broadhurst et al., 2010). While the juvenile justice system in Hong Kong blends a welfarist concern for saving children with a disciplinary edge (Gray, 1991), there remains a trust in the rehabilitative ideal; a belief that rehabilitation, as well as deterrence through punishment, will be able to transform individuals – especially young people – and reintegrate them within their communities. A view of juvenile delinquents as victims, regardless of their crimes, is often underscored in the annual reports of the Social Welfare Department (SWD), Correctional Services Department (CSD), and bodies such as Hong Kong’s Fight Crime Committee (FCC) which gives recommendations on crime prevention and reduction strategies to the Chief Secretary for Administration (e.g. CSD, 2010; FCC, 2009; SWD, 2009).

Several recent cases of young teenagers accused of raping children and youth have raised alarm, however, as indicated by the rapid release of a report by the Law Reform Commission of Hong Kong (LRC), a government-appointed body (LRC, 2010), in response to several incidents of young adolescent males raping female children and young people. According to this report, the existing common law presumption that a young person under the age of 14 is immune from prosecution to rape and other sex offences, with the presumption that they are incapable of sexual intercourse, and of intentionally committing such offences, cannot be rebutted in Hong Kong. Despite the ancient origins of this presumption, the LRC takes a strong stand against the presumption, arguing that it should be repealed in law, and argues that the presumption has either never applied or has been abolished in a number of jurisdictions, including England and Wales, New Zealand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. In late June 2011 the Hong Kong government responded to the report, deciding to abolish the legal presumption ‘as soon as possible’, with the LRC recommending that the change be implemented by December 2011 (South China Morning Post, 2011a). More specifically, the Security Bureau (2011) said:

The Administration considers that the recommendation is worth supporting and notes that it has not aroused controversy in the community. The Administration will introduce legislative amendment to implement the LRC’s recommendation in order to abolish the common law presumption. The Security Bureau is working with the Department of Justice on the arrangements for amending the legislation with a view to implementing the recommendation of the LRC as soon as possible (cited in LRC, 2011).

We argue that the manner in which solutions to youth sexual offending in Hong Kong have been invoked evidence attempts at discursive closure under a context of penal elitism. Contemporary systems of juvenile jurisprudence in Hong Kong were forged under the previous colonial regime, and have retained, due to a non-democratic yet laissez-faire and ‘residual welfarist’ governing mentality (see McLaughlin, 1993), a mode of penal governance that offers an alternative to both penal populist and penal elitist formulations under Western liberal democratic contexts. While the history of response to youth crime in Hong Kong suggests an optimistic view, reflected in official discourses as well as policy responses, that youth crime is largely under control and that young people in conflict with the law deserve sympathy and ‘saving’ (see Adorjan and Chui, forthcoming), the recently proposed amendments suggest that moral panics related to youth crime find saliency when related to sex and sexuality. The lack of public consultation regarding the proposed amendments provides a contemporary example of the continued influence of the penal elitist governmentality related to youth crime. We highlight how the narrowly conceived penal responses advocated by officials not only stymie an historically sedimented view of youthful offenders as victims in need of treatment, but the broader contexts of victimization for those children and youth involved in sex crimes. Most significantly, we argue that revoking the presumption of innocence regarding young sexual offenders may lead to unintended consequences exacerbating the criminalization of children and young people in conflict with the law. These circumstances are explored regarding the larger context of Hong Kong’s juvenile justice system, as well as international trends in youth justice, with specific reference to research involving young people who have committed sexual offences.

Recent Sparks of Potential Moral Panics in Hong Kong

Several recent cases have brought focus to the question of the criminal culpability of youth involved in sex offences. In June 2009 two 13 year-old boys were convicted of indecent assault against a 12 year-old girl. Because of the common law presumption that youth under 14 are incapable of sexual intercourse, one of the boys, despite it being clear that sexual intercourse had taken place, could only be charged with indecent assault, not rape (LRC, 2010). The girl later gave birth to a child conceived during the rape. In September 2009 a probation (or so-called social enquiry) report indicated that his ‘ability to control himself was poor’. Noting that he could not ignore the ‘gravity of sexual offences against underaged girls’, the judge ordered that the boy be sent to a training centre as it ‘would have a deterrent effect and would reflect society’s disapproval of such offences and the pain suffered by the victim and her family’ (Fong, 2009).

In January 2010 another incident involved five teenagers who forced a 14 year-old girl to have sex with them during a game. The judge commented ‘[al]hough the court has to consider giving the defendants a chance to rehabilitate, a deterrence term is also necessary to prevent the recurrence of such a tragedy’. Three of the young people charged, each aged 16, had been previously charged with rape. Two youths were acquitted, another two were sent to the detention centre while two others were sent to rehabilitation centres (Lee D, 2010).

The case which had the most direct bearing on the decision by the LRC to issue a report on reforming the law occurred in September 2010. A 13 year-old Korean boy was arrested for allegedly having sexual intercourse with a 5 year-old girl in a public hospital in Hong Kong (the wards mixed boys and girls). As with previous similar cases the charge against the boy was indecent assault, rather than rape, due to the presumption of impunity for boys under 14 who have allegedly committed rape (Moy and Lo, 2010).

These stories were accompanied by reports of rising sex offence cases among youth in Hong Kong. One report focusing on the presumption quoted police figures which indicated that during the first six months of 2010, ‘reports of indecent assault rose by 19.8 per cent to 775… from 647 during the same period last year’ (Moy and Lo, 2010). A China Daily article pointed to a growing number of sex offence cases committed by children under 14, ‘averaging more than 100 cases a year’ (Yee, 2011). Similarly, one article in the South China Morning Post pointed to a doubling of incidents of sexual offences against teenagers between 2004 and 2009, among which ‘adults were seldom involved’ (But, 2009). The article also pointed to the ‘trend’ of increasing sex crimes involving underage girls: ‘A total of 256 males were arrested last year for having sex with girls under 16, compared with 175 in 2004. Another 35 were caught last year for having sex with girls under 13’. An unnamed police source explained the trend by arguing that ‘increasing openness about sex encourages young people to experiment at an earlier age.’ The source added ‘in some cases, youngsters at ages between 13 and 15 developed intimacy in their puppy love and thus broke the law’. The article presents mixed images of childhood sexuality. Crimes such as ‘indecent assault’ and ‘youth molestation’ are considered alongside the ‘puppy love’ of ‘young lovers’ who ‘cannot control themselves’. The moral panic generated over young male rapists may thus be related to fears of the disintegration of values and mores among young people in Hong Kong. It is within such a context that the LRC issued their report, explicated in the next section.

The Law Reform Commission of Hong Kong Report

The LRC report begins by stating the presumption it challenges: that a boy under 14 is ‘incapable of sexual intercourse’ (LRC, 2010). The LRC had previously engaged in debate over establishing a system of record checks for those who work with children to establish whether they have any previous sexual convictions. The report cites historical–cultural laws indicating the presumption that a boy under 14 is incapable of sexual intercourse, for instance under Roman law, as well as 19^th century England. It goes on to supportively cite other jurisdictions which have all relatively recently rebutted the presumption of impunity (or set up the possibility of determining culpability after a judicial process), e.g. England and Wales, New Zealand, Australia, Canada, South Africa (LRC, 2010: 4–6).

The LRC takes credit in the report for introducing proposals in 1999 to modify the minimum age of criminal responsibility (MACR), which came into effect in 2003 when the age was raised from 7 to 10. For youth between 10 and 14, a presumption of doli incapax (incapable of criminal behaviour) applies, where the onus is on the prosecution to prove that a child is criminally culpable based on mature cognition and intentionality. If the presumption of doli incapax is rebutted, full criminal responsibility applies. The report argues that even if the presumption of impunity for youth under 14 charged with sexual offences is repealed, the doli incapax provision would have to be rebutted before the charge could be applied (LRC, 2010: 6).

The report goes on to cite academics and court officials who refer to the presumption that a boy under 14 is physically incapable of sexual intercourse as a ‘fiction,’ an ‘anachronistic presumption’ and a ‘patently… absurd’ rule which ‘should have no place in our common law in this day and age’ (LRC, 2010: 7). During one interview on the report Eric Tat-ming Cheung, a subcommittee member of the LRC on the review of sexual offences, added ‘the presumption is ancient, outdated and at odds with reality’ (Lee C, 2010). In a related report he explained that the LRC recommendation is not geared to increasing punishments directed at children and youth, but to suitably linking the charge to the offence (Jiaxue, 2011).

An important argument substantiated in the report against the presumption is that it ‘flies in the face of common sense’ and that ‘it is difficult to see what purpose the rule now serves’ (LRC, 2010: 7). Moreover, the LRC indicated that it was responding to ‘widespread public concern’ about the issue (LRC, 2010: 2). Animated by the presumption of public support, repeal of the presumption, the report argues:

… will allow justice to be done to the victim of the crime to whom the lesser charge is a grave insult. Rape causes terrible distress. That distress is compounded if victims find that their assailants cannot be charged or convicted of the offence which they have actually committed (LRC, 2010: 8).

Such a view is laudable, though the presumption of victimhood begets an unspoken assumption regarding the inherent criminal disposition of a child. Tellingly, the LRC report contends:

… 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, 2010: 8, our emphasis).

Here antagonism towards child protection measures is rendered explicitly. What motivates this position is a view that children who engage in serious assaults such as rape do not deserve protection; indeed, their status as children is called into question.

The report concludes ‘the application of the presumption is at odds with reality and means that on occasion the true criminality of the defendant’s conduct cannot be reflected in the charge’ (LRC, 2010: 9, our emphasis). Here too there are assumptions regarding a public consensus regarding what the ‘reality’ is regarding children’s culpability. The passage also reiterates the assumption that children who engage in violent sex crimes are to be considered, ipso facto, criminals who deserve criminal punishment.

Dissenting groups responded to the LRC report by pointing to broader social conditions and issues of societal transformation that not only help to contextualize the individual cases of crime but indicate resolutions targeting broader systemic, rather than individual solutions. The Hong Kong Committee on Children’s Rights (HKCOCR), originally founded in 1992 as an arm of the child welfare organization Against Child Abuse (ACA), published a response paper which took a position against the LRC’s proposal. The report begins by listing both potential pros and cons from such a proposal. The ‘bright side’ lists the ability to:

… uphold the spirit of the law in stating the facts in the case instead of a cutting across presumption that often overlooks the real situation in many cases; fair treatment to the rape victims, as their assailants can be charged or convicted of the offence which they have actually committed and ‘a gesture to give better protection to young girls in Hong Kong’. (Hong Kong Committee on Children’s Rights, 2011)

However the report also lists a potentially ‘gloomy side,’ including the possibility that ‘immature teenage boys aged 10–14 will face more serious prosecution and penalty after the change’, and that the jurisdictions listed by the LRC report where the presumption of impunity holds is selective, based on only those areas where the MACR is 10 or above. This raises the question, the HKCOCR report suggests, of ‘the intention of more prosecutions towards the unruly children aged at 10 or above’ (the current MACR in Hong Kong) (HKCOCR, 2011). The report places particular emphasis on the provisions in the United Nations Convention on the Rights of the Child as well as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice or ‘Beijing Rules’; provisions which underscore the need to consider a child’s young age and aim of reintegration as hallmarks of juvenile jurisprudence. Explicitly stated, the report argues ‘we believe children in conflict with the law should be considered more of a victim than a culprit in crime. Juvenile justice shall focus in addressing the root causes rather than using a retributive and adversarial approach’. The report ends by reasserting its position, stated during previous debates over raising the MACR from 7, that raising the minimum age from 10 to 14 would ‘translate a certain attitude in the society that criminalizing our children is not the sole response to child offending’ (HKCOCR, 2011).

In a separate interview Billy Wai-yuk Wong, executive secretary of the HKCOCR, criticized the proposed changes to legislation as too narrow; that the juvenile justice system overall needs to be re-examined and changed. She argued ‘for the victim it will be fairer, and they will have more protection. But we don’t believe that a child between 10 and 14 years really grasps the concept of severe crime and punishment’ (Lee et al., 2011).

Other organizations, such as Against Child Abuse, gave more tentative responses. ACA had previously petitioned to raise the MACR from 7 to 14; the age of 10 was finally agreed upon. The former director of ACA, Priscilla Sun-kai Lui-Tsang, felt that if the minimum age were raised, more children could be protected, rather than punished under the law: ‘many teenagers are innocent of criminal offences; their lives will be very difficult if they are convicted of criminal offences with severe penalties’. She added that increased education for children 10 to 14 would act to discourage offending (Tsang, 2010). However, ACA did not explicitly renounce support for the LRC proposal. In one interview Lui-Tsang said she would need to study the types of sentences facing rape defendants under 14 before deciding whether to support the proposal (Lee C, 2010).

Despite voices of dissent, the LRC report has motivated the government to act quickly to amend the law and remove the presumption. To appreciate the context under which the LRC, judiciary and dissenting organizations are responding to these concerns, we trace in the following section the unique approach to youth crime in Hong Kong; one that combines discipline with welfare but retains a sense of the rehabilitative ideal.

The Context of Reform: Penal Custody for Juvenile Delinquents in Hong Kong

The modern concept of childhood as a period of innocence and slow maturation took hold in Western nations beginning from the 18th century (see Aries, 1962; Patenaude, 2006). Such a view greatly influenced the ‘child savers’ in nations such as the US and Canada who viewed delinquent children as misguided souls who required rehabilitation, often instilled through the religious programming of training centres during the early 20th century (Bullen, 1991; Platt, 1969). It is thus significant to note that in contrast to such nations Hong Kong has only during the past four decades ‘quite literally seen the creation of childhood as a distinct phase in the individual’s development, and the emergence of “young people” as a separate segment of society’ (Traver, 2002: 228).

The problems facing juvenile delinquents in Hong Kong are not dissimilar to those found elsewhere. Most come from low socio-economic status backgrounds, broken homes and many suffer from drug dependency (see Choi and Lo, 2004; Vagg et al., 1995). Previous studies (e.g. Lam, 1995) have indicated that Hong Kong youth are susceptible to a variety of environmental factors luring them into deviant behaviour, including materialism, peer networks through which they can obtain illegal drugs and older youth who model deviant behaviour such as how to engage in shop theft. These bonds are enhanced further given home conditions where both parents work to make ends meet, and where interpersonal family communication is replaced by withdrawal. Pressure is also experienced from the local education system and its bombardment of innumerable examinations linked to expectations of professional success, yet the local education system provides limited choices for young people entering an increasingly hyper-competitive adult world (see also Lo, 1984; Ng, 1994). Such studies would suggest solutions to the problems youth face are best addressed not through the criminalization of individual offenders, but attenuating such anomic conditions in a systematized manner.

While crime prevention in a broad sense is a concern, the transformation of the individual offender remains the central focus of juvenile justice response. This focus is animated by a strong faith in the malleability of the individual offender’s personality and behaviour. Importantly, Hong Kong officials retain a strong faith in the ability of detention to enable rehabilitation (Chui, 2005: 68). This faith is further undergirded by remarkably successful rates of recidivism. Chui (2005: 73), for instance, reports a 94 per cent success rate for detention centre aftercare programmes. As he states, ‘Hong Kong criminal justice personnel are very concerned with rehabilitation, and do not see penal custody solely as a form of incapacitative punishment’ (Chui, 2001: 8).

While this system is still firmly in place for the broad majority of juvenile delinquents who commit relatively minor offences, the recent sex offence cases involving youth may be signalling a change from a view of juvenile delinquents as innocent victims to victimizers. During the investigation of the 13 year-old boy charged with raping a 5 year-old girl, the boy is said to have ‘smirked and smiled’ during conversations with a probation officer, initially denied the charge that he had penetrated the young girl and committed theft while out on bail (Lee, Chan and Lee, 2011; South China Morning Post, 2011;). Magistrate Adriana Tse, presiding over the case, described the existing laws on youth engaging in serious sex offences as ‘wholly and manifestly inadequate’, and expressed ‘disgust’ at the actions of the boy (South China Morning Post, 2011b). Tse stated that while she understood that rehabilitation is a main goal for dealing with juvenile delinquents, ‘Now, youngsters are capable of the most heinous crimes’.

The view of the youth’s incorrigibility led Tse to conclude ‘reform[atory] school is the only option’ (South China Morning Post, 2011b). The sentence drew support from the Law Society of Hong Kong. Stephen Wan-shun Hung, criminal law and procedure committee chair of the Law Society, stated ‘the presumption has existed for 100 years so children might not have been as sexually active back then’, adding ‘things have changed since’ (Lee et al. 2011). Nevertheless, in a separate interview Hung drew attention to the limited options facing the boy given his sentence. Hung stated:

… the priority in sentencing any [juvenile delinquents] aged under 16 is rehabilitation. No matter in which court the trial of the boy takes place… rehabilitation is still the main objective. Unless there is no other alternative, it is unlikely [the boy] will be thrown into jail (South China Morning Post, 2011b).

Despite declarations of rehabilitation as a central goal, some news reports took a more decidedly punitive stance. One editorial in China Daily, for instance, commented that the current law is ‘outdated’ and should be amended to ‘reflect today’s social attitudes and present day realities’, and went to argue:

… very young sex offenders are usually tried in juvenile court here in Hong Kong. As such the sentences they receive can hardly be adequate, considering the damaging nature of the crime. That is why many people believe present practice is extremely unfair to the victims and their families (Yee, 2011).

Such apparently conflicting views indicate tension regarding the hermeneutics of punishment and the paradox of cultural notions of childhood identity which are forcefully challenged when the very young engage in acts of violence and (especially sexually oriented) criminality (King, 1995; Jenks, 2005; Spencer, 2005, 2011).

It is easier, perhaps, for officials to advocate custodial responses to youth crime in Hong Kong based upon their perceived rehabilitative orientation. A number of penal custody options for juvenile offenders such as the detention and training centres resemble the old ‘borstal’ training in England, with an emphasis on education over punishment (see Fox, 1998). For instance, the detention centre combines ‘vocational training, educational classes, counseling, therapeutic group activities, physical education and recreation’ (Chui, 2005: 71). However, there is simultaneously an emphasis on ‘strenuous physical labor, foot drill, physical education and work, providing a “short, sharp shock” punishment in the hope that [young] offenders may be deterred from further criminal activity’ (Chui, 2005: 71). In principle the training is ultimately geared to ‘appeal to all that is best in the future citizen’ (Chui, 1999: 310). It is recognized that the treatment juvenile delinquents receive in Hong Kong custodial institutions is ‘tough’, though it is believed that through such training youth will understand the consequences of their criminal behaviour (Choi and Lo, 2004). Rehabilitation, however, remains an ongoing emphasis. Educational and vocational training are combined through various programmes charged with ‘saving’ detained youth. Before being discharged, for instance, suitable employment or school placement must be secured by the youth. A period of aftercare supervision also follows for one to three years after discharge to ensure successful community reintegration.

Despite the rehabilitative virtues of Hong Kong training, rehabilitative and detention centres, it may be premature to consider such facilities as the most suitable correctional venues for reforming child rapists (as opposed to more informal social welfare programmes, and so forth). Chui’s (1999) interviews with a number of youth sentenced to detention centres revealed ‘bleak and meaningless’ experiences (Chui, 1999: 317) where the disciplinary emphasis overshadowed any rehabilitative ethos. In a related study Chui (2005: 70) showed that the majority of those admitted to detention centres are youth aged 16 to 20, with almost 92 per cent having no prior institutional experiences. Likewise, in her study of the decision-making practices of the juvenile court in Hong Kong, Gray (1994: 64) found ‘nearly 77% of those admitted to reformatory schools had only one previous conviction’. Within such facilities young offenders are often faced with regimes of silence alongside marching and drilling exercises which seem inspired by a modernist Benthamian faith in the ability of penitentiaries (in this case ‘Detention Centres’) to instill penitence through a ‘short sharp shock’ (Chui, 1999: 309, 316). This raises the concern that many young offenders sent to residential care or custody may experience an amplification of criminal behaviours and criminal self-identify reflected through custodial regimes as well as fellow young inmates (Becker, 1963; Lemert, 1951; Tannenbaum, 1938). As Pösö et al. (2010: 254) argue, ‘when something is called “care” it is far less likely to be interpreted as infringing on individual rights’.

It is well documented that young persons’ efforts to desist from crime become stymied by the criminal labels they internalize (e.g. Smith, 2006); this has been systematically documented in the UK (e.g. Allen, 2006; Kemp et al., 2002) and the US (e.g. Johnson et al. 2005; Steinberg et al., 2004) among many other regions. In the case of young sexual offenders in particular, the stigmatizing effects of punitive responses may further entrench a criminal self-view and sexual offending behaviours. Both the LRC report and the government’s enthusiasm in ushering in changes to the law have occurred without consideration of public views as well as the potential impact of a punitive response. In the next section we explore the irony of Hong Kong officials’ emulation of international trends in juvenile justice.

Emulating International Youth Justice Trends: Jumping Off Bridges?

Both the LRC and most news reports underscore their advocacy for a repeal of the presumption of innocence by arguing that other nations have similarly repealed or lowered the age limit. Hong Kong should ‘get in line’ with these global trends, it is argued, or be left behind with exacerbating youth crime trends and, it is always implied, the deterioration of social order writ large. Given the close legal ties between Hong Kong and England, it is no surprise that England’s repeal of both the doli incapax and the presumption regarding adolescents under 14 who commit sexual offences is cited prominently in the LRC reports and many news articles.

Yet such emulation does not heed scholarship which points to a general ‘punitive turn’ in responses to youth crime in England and Wales, as well as other parts of the world, and the detrimental effects it has had upon young offenders and the potential of their social reintegration. Under neoliberal New Labour policies in the UK, for instance, children and youth in conflict with the law have increasingly been characterized and treated as ‘offenders’ and ‘criminals’ first, and ‘children in need’ second (Goldson, 2000: 256). The UK remains ‘at the bottom of the league table of child well-being’ among European Union nations, accompanying ‘stubbornly high use of custodial remands and sentences’, both potentially linked to New Labour’s abolishment of the doli incapax provision under the Crime and Disorder Act 1998 (Allen, 2006: 6, 9, 16). While the presumption of criminal immunity under doli incapax in England had existed for 700 years, it took less than five years after the murder of James Bulger (the 2 year-old toddler brutally murdered by two ten year-old boys) to renounce it (Cipriani, 2009: 117). A ‘crude politics of toughness’ and penal expansion emerged despite statistical trends indicating stable ‘if not declining’ incidence of youth crime (Goldson, 2007: 107, 108).

The LRC report cites England as a nation where the law was changed to abolish the common law presumption that a boy 14 years and younger is incapable of sexual intercourse. This law was changed in England and Wales in September 1993 with broad support from the public (Soothill, 1997: 367). However, the LRC report fails to document that the concern ‘resonated with a more general moral panic about troublesome youth’ promulgated in part by news reports (Soothill, 1997: 368). The reaction was disproportionate, being based on the fact that even after the law was changed there were a very small number of males aged 10 to 13 prosecuted for rape (only 10 in 1994, the first full year during which the law applied; furthermore, one conviction was over-turned on appeal) (Soothill, 1997: 369).

Moreover, Hong Kong’s response fails to consider research which shows that children sent to:

… secure children’s homes in the UK, irrespective of their legal status at the point of admission, have experienced unsettling and unstable family and domestic circumstances; chequered education; emotional, psychological, physical and/or sexual abuse; and invariably have poor self-images that are the net result of multiple disappointments and histories of failed and neglectful relationships. (Goldson, 2007: 110–111).

Also ignored is international research regarding the wider context of victimization related to the circumstances under which young people engage in sexual offences. The LRC’s approach would leave little room to consider issues related to assessment of children and youth who have been sexually abused, and whose sexual deviancy is often a direct result (Erooga and Masson, 2006). Research has drawn strong connections between youth crime, poverty and problems in the family. Such deprivations are also identified as key factors related to child abuse (Hill et al., 2007: 30). Studies based in the UK and US report that on average one-third of child abuse cases are committed by teenagers (Grubin, 1998: v; Miner and Munns, 2005: 491). Young sexual abusers, usually male, often suffer from a variety of social and psychological problems, including social isolation, lack of intimacy skills and sexual knowledge, and high levels of social anxiety (Erooga and Masson, 2006: 7). Furthermore, researchers estimate that 30–50 per cent of children who have been abused go on to sexually abuse others, with experiences of physical and emotional abuse and exposure to violence and/or neglect even more common. One study examining the sexual aggression of boys aged 4–13 years found that 49 per cent had been sexually abused themselves and 19 per cent had been physically abused by people they knew (Erooga and Masson, 2006: 8–9). Miner and Munns (2005: 500) found that, compared with youth who committed non-sexual offences and youth who did not offend, youth who committed sexual offences feel more isolated from their friends and family, suggesting that at least some sexual offending may be related to a need to achieve intimacy stemming from a lack of self-confidence. Such problems are exacerbated given the particular living conditions often experienced by children and youth in Hong Kong (e.g. both parents working full time and the local educational systems’ abstinence from teaching about sex and sexuality).

Caldwell (2010: 207), in a meta-analysis examining 63 studies of sexual recidivism amongst young offenders, stresses the need for ‘developmentally sensitive interventions, targeted over a short time frame,’ given factors such as:

… cognitive changes related to brain development, hormonal changes related to the onset of puberty, the role of family and peer relationships, judgment, impulse control, bonds to school and other pro-social groups, and the response to social stressors such as child abuse could all play an important role in repeated adolescent sexual misconduct but may have little influence on persistent adult sexual offending.

Similarly, Grubin (1998: 44–45) advocates for ‘primary prevention’ to effectively address the problem of child sexual abuse, including ‘good school programmes designed to instruct children (and parents) about how to avoid sexual abuse’. The fact that sexual abusers are increasingly children and adolescents is a fact obfuscated by the view of the sexual offender as ‘the ultimate demon’, which, when combined with law-and-order crime control ideology, does ‘not rest easily with the advocacy of a therapeutic response’ (McAlinden, 2005: 388). It is difficult to consider therapeutic solutions when the dominant view of the young sex offender is that of a victimizer rather than a victim.

Discussion: Hong Kong’s Penal Elitism in Comparative Context

The frame of innocence (Kappeler and Potter, 2005: 24; Spencer, 2011) through which juvenile delinquents’ actions are interpreted in Hong Kong, and through which a dominant rehabilitative ethos of response is justified, may be ameliorated by an emerging view of incorrigibility and adult sensibilities. The latter frame has been adopted by nations such as the UK and US, where children who act criminally are ‘conceptually evicted’ (Jenks, 2005: 128) from notions of childhood and innocence (Pitts, 2001; Pizarro, Chermak and Gruenewald, 2007; Zimring, 1998). Jenks (2005: 132) argues:

… as a society, and presumably as individuals, we do not know what actions to take (against children who engage in criminal behaviour) because we do not know what children are. They are steadily slipping from our conceptual grasp, and because we no longer know what children are then we can neither understand nor articulate their needs.

In contrast to the process of updating the MACR, an issue examined in ‘exceptional detail’ (Cipriani, 2009: 113) and for which the public and organizations were extensively consulted over a period of almost five years, the speed of the issuance of the LRC’s report and the subsequent legislative revisions suggests a penal elitist response and an attempt at discursive closure, rather than a careful consideration of issues related to criminal culpability and juvenile jurisprudence. One Security Bureau spokesperson’s comments that the LRC recommendations have ‘raised no controversy and is worthy of support’ (Jiaxue, 2011) presumes that public opinion not only will support ipso facto the proposals but that no real consultation is necessary on this basis. That young people are committing ‘heinous’ crimes is not in question; what is at issue is how these acts are interpreted and responded to. The effect of the policy will likely ‘define deviancy up’ and widen the net through which young sex offenders are identified, given not only increased attention to a preexisting problem, but a change in focus where the problem is hermeneutically reconstituted (Cohen, 1985; Krauthammer, 1993). Furthermore, despite a strong faith in deterrence to transform the criminal offender in Hong Kong, a wide body of criminological research should be heeded which consistently challenges the link between ‘getting tough’ on youth crime and effectively deterring offenders (Doob et al. 1995: 75; Kappeler and Potter, 2005).

An under-reported aspect of the case of the 5 year-old girl sexually abused in a mixed-gender hospital ward is that both the 13 year-old boy and girl were already victims of two separate child abuse cases and were in the hospital under medical examination related to these cases (Moy and Lo, 2 October 2010). The criminalization of the sexually deviant behaviour of boys under 14 would act to focus questions of criminal culpability upon the individual, with considerations for both deterrence and rehabilitation. However such a focus necessarily obfuscates the ability to consider wider currents of victimization; in the case of the rape at a public hospital, the victimization of the boy as well as the girl. Such a consideration is not in any way designed to mitigate the seriousness of rape, nor deny the victimization of young girls, in this case a female child of five. However, targeting children as criminal victimizers stymies efforts to prevent crime at a wider level and address broader social contexts that promulgate patterns and cycles of victimization.

Hong Kong, as a special administrative region of China, is not at all fully democratic when compared with Western countries, where officials are not concerned with catering penal policy to secure electoral advantage. While regions such as the UK have experienced a gravitation away from an elitist to populist governing mentality (see Ryan, 1999; Johnstone, 2000), both systems were instilled under a liberal democratic context. Hong Kong resembles more closely the older elitist mode of paternalist governance in the UK, though in contrast officials in Hong Kong never needed to be responsive to a voting constituency (cf. Ryan, 1999: 5; McLaughlin, 1993). Despite obvious differences, penal elitism in Hong Kong is more in line with the top-down mode of governance in Mainland China. ²

In some respects Hong Kong may seem to resemble the consensus democracy model in nations such as Norway much more closely than the current penal populist model of the UK. Green (2008) offers a detailed analysis of the political cultures of these nations to explore the contrasting reactions to children killing children. Nordic democracies governments, he argues, retain comparatively higher levels of trust and legitimacy that prevent penal populist responses (Green, 2008: 222). Interestingly, his description also aptly captures the political culture of Hong Kong in many respects:

… consensual ways of doing politics in Norway tend not to subject existing structures to the same kind of frequent and rigorous challenge experienced in England. There is, as a consequence, less of a need to adjust the structures to accommodate any new thinking. This is in part because there are simply fewer incentives to invoke crisis and to call for radical overhaul of the status quo. The legitimacy of traditional structures is not in doubt because the system is not broken, and the system is not broken because there are fewer incentives for political players to say that it is. Citizens in turn receive fewer cues that things are in crisis. (Green, 2008:223).

The greatest point of contrast, of course, remains the lack of democratic processes in Hong Kong. As Olsen (1996: 144) writes, the law’s legitimacy under consensus democracies is engendered under ‘extensive consultation in the society.’ Despite the lack of democracy in Hong Kong, and despite the ‘crisis of legitimacy’ relating to governance leading up to the 1997 transition of power (Scott, 1989), the juvenile justice system has retained its legitimacy and has not undergone any major changes (Traver, 2002: 230). Criminologists have recently argued that, overall, youth crime has been ‘contained’ in Hong Kong (Choi and Lo, 2004: 212). However, we argue that the more elaborate consultations regarding raising the minimum age of criminal responsibility in 2001 were largely superfluous demonstrations of pseudo-democratic responsiveness in relation to juvenile delinquency in general. Moreover, the more recent events seem to have ignited a moral panic related to the sexual criminal behaviour of youth where the pretence of consultation is no longer tenable.

Although beyond the scope of this article, further analysis is warranted regarding how the doli incapax provision test will be employed for youths under 14 charged with sexual offences. Present diagnostic instruments are not reliable in determining ‘mature’ youths with ‘adult’ mens rea (intentionality/culpability). As Scott and Steinberg (2003: 836-37) acknowledge, ‘litigating maturity on a case-by-case basis is likely to be an error-prone undertaking, with the outcomes determined by factors other than immaturity…. Immaturity often may be ignored when the exigencies of a particular case engender a punitive response’. In other words, the lens under which young rapists are seen as criminals directs attention (fused with strong emotions) towards the offence and culpability of the offender rather than broader currents of victimization. Cipriani (2009: 125) adds that:

… a single violent youth crime is sufficient to smash victim–perpetrator divisions, and children-as-victims narratives then capitulate quickly to children-as-perpetrator panics. These bring real consequences for individual children, and the backlash undercuts larger fronts in the children’s rights agenda. That broader agenda includes fostering an enduring social value on treating all children fairly and with dignity, and creating institutions that consistently do so.

It is worth underscoring, in order for our arguments not to be misinterpreted, that we are in no manner condoning or justifying rape (by anyone at any age) nor any criminally sexual behaviour by young people. Our aim has been to draw attention to the ways in which solutions to this problem in Hong Kong have been ushered in, in our view, too quickly and without adequate consultation; to the narrow targeting of potential responses to individual youths deemed amenable to deterrence through punishment; and to the broader devolvement of the view of child offenders as victims requiring nurturance and readjustment into their communities.

We began this article by noting that Hong Kong deserves serious interest among criminologists due to what appears to be an exceptional cultural context, where the ‘story’ of responses to crime (gravitating from largely rehabilitative to crime control orientations) is not identical to, for instance, Western neoliberal and democratic regions. South East Asian regions share unique histories shaped by colonialism and what appears to be different governing mentalities. In Hong Kong’s case, we have argued that the most recent official responses to young offenders involved in sex crimes evidences a penal elitist mode of crime control response. While such a response may appear to provide evidence of a globalizing culture of control with respect to youth crime and justice, further exploration regarding regions on the periphery of mainstream criminology is warranted in order to explore this empirically and systematically.