Thursday, August 25, 2005
From The Standard.com: "In a landmark decision, the High Court ruled Wednesday that current laws on the age of consent discriminate against homosexuals. Justice Michael Hartmann acted in favor of William Leung, 20, who launched a Judicial Review against the government for what he considered unfair laws against gays. Hartmann said existing laws were "demeaning of gay men,'' stereotype them as "deviant,'' and interfere with their private lives on the assumption that homosexuality was "morally reprehensible.'' Civil rights groups described the ruling as "a historical moment for the Hong Kong gay community.'' Hartmann declared that four sections of the law covering homosexual acts, on the books since 1991, were unconstitutional. The Basic Law "must allow for a remedy in appropriate circumstances to those who say that their fundamental rights have been undermined by primary legislation,'' he ruled. Hartmann said that Leung, should not have to face prosecution and life imprisonment before he can use the courts to challenge the constitutionality of laws that infringe upon his rights. Previously, sexual intimacy between two men below the age of 21 was a criminal offence even though sexual intimacy between heterosexuals and lesbians is allowed after the age of 16. Group sex between gay men, even though in private and conducted by consenting adults, was also criminal, while such activities between heterosexuals and lesbians above 16 was allowed. An act of sodomy, submitted as the natural sexual expression of gay men, below the age of 21 was a criminal offence with possible life imprisonment if it was conducted between two men.
During the trial in July, the government conceded that three of the four sections were in breach of the Bill of Rights and Article 25 of the Basic Law safeguarding equal rights because they unfairly distinguished between homosexuals and heterosexuals. However, it maintained that the criminalization of sodomy between men under the age of 21 was not in breach of the constitution since sodomy between a man and a woman under 21 was equally a criminal offence. The judge added that the proposal not to make women criminally liable "demonstrates a reliance on the stereotyped view that the female is per se submissive, the man always sexually the active partner.'' The reason put forward by the government to make both partners of a homosexual act of sodomy below the age of 21 was the "potential for blackmail.''
Citing an Equal Opportunities report to Legco in 2001, Hartmann ruled this attitude exemplified "stereotypical assumptions made of the homosexual community.'' Hartmann also declared that criminalizing sodomy for homosexuals below the age of 21 was indirectly discriminatory of gay men since it deprives them of their natural sexual expression. "Put plainly, heterosexual couples may have sexual intercourse under the age of 21, homosexual couples may not,'' he said.
Leung said that previously, he could not form physical homosexual relationships because of this "criminal threat above my'' head. [Mark Godsey]