The Common Law Presumption that a Boy Under 14 is Incapable of Sexual Intercourse
(HKLRC Report)
On 13 December 2010, the Law Reform Commission released a report on The Common Law Presumption that a Boy Under 14 is Incapable of Sexual Intercourse, recommending abolition of the presumption.
The existing common law presumption that a boy under 14 is incapable of sexual intercourse cannot be rebutted, even where there is clear evidence that the boy was physically capable of, and had had, sexual intercourse. The result is that, regardless of the circumstances, a boy under 14 years of age cannot be convicted of rape, even though he had unlawful sexual intercourse with a non-consenting victim.
This common law presumption has ancient origins but it has either never applied or has been abolished in a number of jurisdictions, including England & Wales, New Zealand and a number of Australian jurisdictions.
The report argues that whatever the historical rationale for the presumption may have been, it is difficult to see what purpose the rule now serves. It is contrary to common sense that the law in Hong Kong should refuse to accept that a boy under 14 may be capable of sexual intercourse, regardless of the evidence to the contrary. 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.
The problems of the presumption were highlighted in Hong Kong in a recent case in September 2010 where a 13 year old boy was arrested for allegedly having sexual intercourse with a five-year-old girl in the Pamela Youde Nethersole Eastern Hospital in Chai Wan. He was charged with indecent assault as the presumption prevented his being charged with rape.
If the presumption were to be abolished, the separate rebuttable presumption of doli incapax would continue to apply to a boy between the ages of 10 and 14. That presumption means that the prosecution must prove beyond reasonable doubt that the boy knew his actions were seriously wrong, rather than merely naughty or mischievous.
Because the issue is straightforward and not expected to be controversial, the Commission has proceeded straight to a final report, without first issuing a consultation paper. The report is the second in a series to be issued as part of the Commission's review of the law relating to sexual offences. The first report, published in February 2010, was Sexual Offences Records Checks for Child-Related Work: Interim Proposals.
| Press Release (PDF) (MS Word) |
| Executive Summary (PDF) (MS Word) |
| Report (PDF) (MS Word) |