Children Raping Children: Penal Elitism and the Contested Innocence Frame in Hong Kong
| Author | Wing Hong Chui,Michael Adorjan |
| DOI | 10.1177/1473225412459834 |
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
Youth Justice
12(3) 167 –183
© The Author(s) 2012
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DOI: 10.1177/1473225412459834
yjj.sagepub.com
Children Raping Children: Penal
Elitism and the Contested
Innocence Frame in
Hong Kong
Michael Adorjan and Wing Hong Chui
Abstract
Recent incidents involving rape committed by young adolescents against other youth has led Hong Kong
officials to repeal the presumption that young persons under the age of 14 are incapable of sexual intercourse.
Examining reports advocating legislative change as well as those which dissent, we argue that a lack of
consultation with the public, the small number of cases and the speed with which the changes are set to be
implemented evidence penal elitism in Hong Kong, which potentially undercuts a long standing view in Hong
Kong of young offenders as victims, and ignores wider contexts of abuse and victimization.
Keywords
doli incapax, Hong Kong, innocence frame, penal elitism
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 rehabilita-
tion, 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)
Corresponding author:
Dr Michael Adorjan, Department of Sociology, The University of Hong Kong, K.K. Leung Building, Pokfulam Road, Hong Kong.
Email: madorjan@hku.hk
459834YJJ12310.1177/1473225412459834Youth JusticeAdorjan and Chui
2012
Article
168 Youth Justice 12(3)
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 presump-
tion, 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 presump-
tion ‘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 arrange-
ments 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 elit-
ism. 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 con-
flict 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 con-
ceived 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
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