Background of Domestic Violence in Hong Kong
In 1984, before the Domestic Violence Ordinance was enacted in Hong Kong, Hong Kong’s hostel for battered women, Harmony House, was set up by the Hong Kong Council for Women. A number of studies had concluded that wife abuse in Hong Kong was similar in nature and scale on other jurisdictions. In October 1984, the Social Welfare Department began keeping statistics, and six-month survey conducted by the department in 1984 and 1985 found about 100 cases of domestic violence were reported to it, the Legal Aid Department and voluntary agencies (Wacks 1993).
Before, the Domestic Violence Ordinance was enacted, the extent of domestic violence in Hong Kong was not well-researched, and a battered woman has very few legal options. She may report violence to the police, but they may be reluctant to intervene in domestic or family disputes. Even if the police intervene, violence may be repeated. Criminal proceedings do not offer effective and speedy protection to the victims. Civil action for trespass to the person is inappropriate where emergency protection is needed. An interlocutory injunction restraining the aggressor from assaulting the victim may attract further violence. Divorce proceedings is only appropriate if the victim entertains no hopes of saving her marriage. In light with these problems, the Domestic Violence Ordinance was enacted in 1986, in order to fill the gaps of criminal and private law (Liu 1999).
Hong Kong is undergoing rapid changes in its demography, society and economy. These changes have undermined family solidarity and have resulted in increased incidents of family violence. Studies reveal that the prevalence of husband-to-wife physical violence is about 10 percent to 14 percent of families. Based in statistics released by the Central Information System on Battered Spouse Cases of the Government of Hong Kong SAR, the number of reported battered spouse cases increased threefold from 1,009 in 1998 to 3,298 in 2003. In 2003, about 88 percent of spouse abuse victims were women. Among these cases 82 percent of the perpetrators were husbands, in which 78 percent of the vases involved physical abuse (Social Welfare Development 2005).
Types of Abuse
1. Physical Abuse - Physical abuse occurs when one threatens, hits, kicks, chokes, scratches, pushes, shoves, pulls hair, slaps, punches, throws something, or uses a weapon against another. Walker (2000) cited other examples of physical abuse, which include refusing to help someone who is injured or sick, restraining another or preventing them from leaving, abandoning someone in a dangerous place, and locking someone out of his or her home.
2. Emotional and Verbal Abuse - Emotional abuse occurs when one ridicules, insults, blames, humiliates, criticizes, and ignores another purposefully. Other examples of emotional abuse, according to Walker (2000), include withholding approval or affection, threatening to leave or harm someone or their children, interrupting sleep, manipulating with lies, and continually finding fault with another. Another example is the abuser who uses his or her culture or race to intimidate, hurt, and manipulate by using racial slurs or putting down the other's culture or beliefs (Chung 1995). Verbal abuse occurs when the abuser says blatantly hurtful things, criticizes, calls his or her partner names, or constantly puts a partner down (Ashcraft 2000). For example, victims are often told that they are incompetent, ugly, useless, or stupid (Dutton 1995). Victims believe this and therefore do not have the self-esteem and confidence to leave or to pursue financial independence.
3. Financial Abuse - According to Dutton (1995), abusers may try to keep their victims financially dependent on them. The victims may be kept in debt, at home, or in a low-paying job. Also, abusers usually control the money and resources and keep everything in their name. Abusers may make the partner ask for money and demand that they account for every penny. Many victims do not have the job skills to support themselves and any children they may have, or they may have a disability. In sum, many victims believe that they must rely totally on the batterer to survive.
4. Social Isolation - As well as keeping their partners financially dependent, abusers may keep their partners socially isolated (Ashcraft 2000). Abusers exhibit traits of jealousy and possessiveness and attempt to control their partner's associates and friends. The abuser's goal is to keep his or her partner socially isolated (Ashcraft 2000). Victims are interrogated about their daily routines including where they have been, with whom they have been, and why they went to a certain place. Abusers may try to prevent their partner from interacting with family and friends or from having a job.
5. Sexual Abuse - Sexual abuse frequently occurs in relationships in which other forms of abuse are also present. Sexual abuse is also a form of domestic violence (Walker, 2000). Sex is used as a means of manipulation and gaining power. Walker (2000) listed many behaviors of sexual abuse: raping, exhibiting jealousy, accusing the partner of affairs, treating the partner as a sex object, withholding sex, using sexual names, having affairs, and coercing the partner sexually.
Domestic Violence Ordinance
The Domestic Violence Ordinance (DVO) in Hong Kong was enacted in 1986 and modeled on the Domestic Violence and Matrimonial Proceedings Act of 1976. The ordinance permits the victim of domestic violence to apply to the District Court for non-molestation, an exclusion order or an entry order. The law applies to cohabiting as well as married couples and the court can also grant a remedy to any child living with the applicant. A power of arrest may be attached only if there has been actual violence, as opposed to a threat of violence. These orders are independent of any other legal proceedings such as divorce or separation (Wacks 1993).
Proposal for Change
Quite different from the time when the DVO was first enacted to target physical abuse in spousal relationship and married couples, it is now commonly recognized that domestic violence exists in multiple forms, to different degrees and among different intimate relationships. Thus, widespread amendments to existing legislations were carried out by different countries to extend the coverage of protection for different kinds of domestic violence victims in the past decade. For example, in 2004, the UK introduced the Domestic Violence, Crime and Victims Act 2004 to enhance the protection of domestic violence victims and one of the key provisions is to strengthen the civil law on domestic violence to ensure cohabiting same-sex couples have the same access to protection orders as opposite sex couples.
Domestic Violence in Same Sex Relationships
In heterosexual couples, it is estimated that the man is the abuser in 95 percent of the cases (Walker 2000). It has been reported that gay men’s domestic violence might occur at a rate greater than heterosexual violence because both partners in a homosexual relationship are men and each has the same probability of being an abuser. In addition gay men are not less violent than straight men (Island and Letellier 1991). Domestic violence also occurs in one of four lesbian relationships (Barnes 1998). Chung (1995) suggested that the lesbian community chooses to believe that women are not abusive or violent. The idea of a lesbian being an abuser is considered impossible, and therefore domestic violence is largely ignored or kept quiet in the lesbian community (Nolan 2000). Besides being ignored in the gay and lesbian communities themselves, domestic violence between same-sex partners is a subject that has been largely avoided by governments, law enforcement, and society. Gay men and lesbians are less likely to report the abuse and more likely to stay with their partner because of homophobia, heterosexism, and ignorance in the community regarding domestic violence as well as homosexuality (Island and Letellier 1991). Some gays and lesbians have internalized society’s prejudices against them and believe they deserve to be violated (Nolan 2000).
Controversies
There is no single clear definition of same-sex cohabitation in local literature. The United Kingdom’s Civil Partnership Act of 2004 defines same sex cohabitation as ‘two people of the same sex are to be regarded as living together as if they were civil partners if but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex. Case law has identified the following ‘signposts’ to establish cohabitation:
- A shared home
- Shared tasks and duties of daily life
- Stability and a degree of permanence in the relationship
- Financial support or a mixing of funds
- A sexual relationship
- A bond with the other’s children
- A financial motive for the parties’ denial of cohabitation
- Public acknowledgement and the perception of friends Civil Partnership Act 2004)
The Hong Kong administration stated that it does not recognize same sex marriage, civil partnership, or any same sex relationship. The administration stated that recognizing same sex relationship is an issue concerning ethics and morality of the society and that changing the policy standpoint of the administration would have reverberating effects in society. The administration added that any acts of violence are liable to criminal sanctions under the relevant ordinances, irrespective of the relationship between the abuser and the victim. Persons in same sex cohabitation relationship are afforded the same level of protection as those in heterosexual cohabitation relationship under the administration’s existing framework. Lastly, the administration stated that persons who fall outside the scope of the DVO may continue to seek protection under the law of tort or inherent jurisdiction of the court (LC Paper No. CB(2)341/08-09(03).
Although the administration is preventing the issue of domestic violence in same-sex cohabitation, there are those who argue that the administration must take action. According to LC Paper No. CB(2)855/08-09(14) same-sex cohabitant relationships exist whether they are recognized under Hong Kong law or not, and therefore need to be afforded the same protections as their heterosexual counterparts. A party in same sex cohabitation may face additional risks compared to opposite-sex couples. For example one may be threatened into staying in an abusive relationship for fear of having one’s sexual orientation exposed. Existing criminal legislative framework alone simply is inadequate when dealing with such intimate violence.
During scrutiny of the 2007 Bill, some Members of the LegCo Bills Committee urged the administration to revisit its position of not covering cohabitation of persons of the same sex under DVO. Members commented that extending the protection under the DVO to persons in same sex cohabitation merely sought to protect such persons from being molested by their partners, and should not be regarded as equivalent to giving legal recognition to same sex relationships or providing legal entitlements to persons in such relationships (LC Paper No. CB(2)855/08-09(14).
Having regard to Member’s views, the Administration had very carefully examined the matter. It has been noted by the Administration that, in the context of domestic violence, incidents could quickly escalate into life threatening situations or even fatality. Since lives may be at stake, the Administration accepted the need to extend the protection under the DVO to victims of domestic violence who are in same sex cohabitation relationships (LC Paper No. CB(2)855/08-09(14).
The support for including same-sex cohabitation in the DVO continues to pour. The Hong Kong Human Rights Monitor (2009) stresses equality among all persons and that everyone must not be discriminated against and must enjoy equal protection of the law. The Hong Kong Human Rights Monitor insists on the inclusion of homosexual cohabitation relationships to the DVO stressing that cohabiting or former cohabiting same sex couples, in accordance with the amendment of the Ordinance in 2008, must be granted the same protection given by the DVO to cohabiting or former cohabiting opposite sex couples. The Human Rights Monitor also cited that the Basic Law stated that all persons, irrespective or their sexual orientation are equal before the law and shall be so protected without distinction. While domestic violence victims in heterosexual relationships are provided with additional legal protections and remedies under the current DVO, singling out victims in homosexual cohabitation relationships from such protections and remedies under the DVO is clearly a discrimination based on ‘sexual orientation’ and thus breaches Article 25 of the basic law. The Hong Kong Human Rights Monitor basically aims to protect the rights of every person and to promote equality and to ensure the everyone, regardless of their sexual orientation is protected by the law.
Counter Arguments
In Hong Kong, the current ordinance does not provide protection to victims of domestic violence in same-sex relationships. The Hong Kong administration does not present any proposal to amend the ordinance to include same sex relationship. the administration stated that “in Hong Kong a marriage contracted under the Marriage Ordinance (Cap. 181) is, in law, the voluntary union for life of one man and one woman to the exclusion of all others. Our law, which reflects Government’s policy position, does not recognize same sex marriage, civil partnership, or any same sex relationship. Recognizing same sex relationship is an issue concerning ethics and morality of the society. Any change to this policy stance would have substantial implications on the society and should not be introduced unless consensus or a majority is reached by the society”. The administration added that persons in same-sex cohabitation relationships are afforded protection under the existing criminal legislative framework.
One argument that supports the administration’s reluctance to include same-sex cohabitation in the DVO is that the provisions of the Bill and the DVO do not discriminate any person on the ground of his or her sexual orientation. It has been argued that the primary goal of the DVO is to provide additional protection in the form of civil injunctive orders to individuals in certain specific relationships who were particularly prone to falling victim to violence in the domestic context. The DVO does not aim to apply all categories of person who might, for one reason or another, decide to live in the same household.
It is also argued that including same-sex relationship under the DVO will have big impact on the Hong Kong society because of its ethical and moral elements. Same-sex relationships are still not accepted by the general public and some religious sectors. In the situation of Hong Kong, there is a claim that the inclusion of homosexual cohabitation relationships under the protection of the DVO would challenge the legal definition of marriage and harm the concept of family.
My Point of View
My take on the issue is that, everyone regardless of their sexual orientation deserve respect and must be protected by the law. I believe that same-sex cohabitation should be included in DVO basic it is everyone’s Basic Right to be protected from abuse and harm. Violence does not only occur in heterosexual relationships and homosexual people are equally entitled to the rights and privileges that heterosexuals receive. The inclusion of homosexual cohabitation in the DVO, I believe, will not endanger Hong Kong’s society, rather it will affirm the government’s commitment to equality and respect for every citizen.
References
Ashcraft, C 2000, ‘Naming Knowledge: A Language for Reconstructing Domestic Violence and Systemic Gender Inequity’, Women and Language, vol. 23, pp. 1-3.
Barnes, P G 1998, ‘It's Just a Quarrel: Some States Offer no Domestic Violence Protection to Gays’, ABA Journal, vol. 84, pp. 24-26.
Chung, C 1995, Pathway to Wellness: A California Statewide Resource Handbook for Asian Women and Girls, National Asian Women’s Health Organization, San Francisco.
Dutton, D G 1995, The Batterer: A Psychological Profile, Basic Books, New York.
Island, D and Letellier, P 1991, Men Who beat Men Who Love Them, Harrington Park Press, New York.
Liu. A 1998, Family Law for the Hong Kong SAR, Hong Kong University Press.
Nolan, R 2000, Domestic Violence in Gay and Lesbian Couples, viewed 27 March, 2009 from <http://www.psychpage.com/learning/library/gay/ gayvio.html>.
Peace at Home: Report on the Review of the Social and Legal measure in the Prevention and Intervention of Domestic Violence in Hong Kong, Social Welfare Development, viewed 27 March, 2009 from
<http://www.swd.gov.hk/doc/Report%20on%20the%20Review%20of%20the%20Social%20and%20Legal%20Measures%20in%20the%20Prevention%20and%20Intervention%20of%20Domestic%20Violence%20in%20Hong%20Kong.pdf>.
Wacks, R 2003, Hong Kong, China and 1997: Essays in Legal Theory, Hong Kong University Press.
Walker, L A 2000, Battered Woman Syndrome, Springer, New York.
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