Policy Alert: Age of Consent

Not only does the age of consent sometimes vary for men and women in the same country, but it also might differ depending on one’s sexual orientation or preference. In other words, there is a difference in the age of consent for heterosexual and homosexual sex in many countries.

This is discriminatory.

Age of consent refers to the legal age at which a person is considered capable of giving informed consent to sexual acts with another person. There is a great deal of difference between age of consent, marriageable age, the age of majority and the age of criminal responsibility.

The age of consent varies in different countries, falling anywhere within the range of 14 to 18 years although it can be much lower than that, especially for women in Middle Eastern countries. Setting a bar on the age of consent implies that somebody engaging in sexual activity with a person below the age of consent, commits child sexual abuse, which is punishable as a crime.

Although the widespread assumption is that of sexual relations contained within marriage, the age of consent and age of marriage often differ amongst countries and even within the same country. Often the age of consent is much higher than the age at which people marry.

Not only does the age of consent sometimes vary for men and women in the same country, but it also might differ depending on one’s sexual orientation or preference. In other words, there is a difference in the age of consent for heterosexual and homosexual sex in many countries. An example of this disparity has recently been highlighted in Hong Kong where the age of consent for heterosexuals to engage in sexual activity is 16 years; whilst the age for homosexuals is 21 years. Though sexual relationships amongst gay men was legalized in 1991, Hong Kong’s laws regulating sexual relations between gay men still discriminate against gay men and violate international agreements such as the International Covenant on Civil and Political Rights. For instance, Sections 118 and 124 of the Crimes Ordinance of Hong Kong, stipulate different ages of consent for homosexual and heterosexual sexual relations, as well as different degrees of punishment.

According to Hong Kong law the age of consent for heterosexual intercourse is 16 years.  Men who engage in sex with women under the age of 16 are liable to imprisonment for up to five years. The age of consent for male homosexuals however is 21 years, five years more than for heterosexuals This is discriminatory, suggesting that young male homosexuals over the age of 16 years are less capable of making decisions than their heterosexual peers.

Moreover, the discrepancies lie not just in terms of the gender of the partner involved but also in terms of the punishment meted out for the same so-called ‘criminal activity’. Whilst men who engage in a sexual relationship with women under the age of 16 years are liable to imprisonment for up to five years, gay men are liable to life imprisonment if they were to have sex with other men below the age of 21 years.

This is not only discriminatory, but also raises other important public policy concerns. Because it is illegal to engage in homosexual sex before the age of 21, educators also face prosecution if they educate young gay men about safe sex.

Currently there is no separate law in Hong Kong about the age of consent for lesbian sex. The law does not address lesbians in any express provisions because of a historical colonial denial of their existence. This leaves young lesbians outside of the protection accorded to other young people by proper age of consent laws.

The Hong Kong government denies any kind of discrimination using the rationale that the law also prohibits any act of anal sex involving a woman below the age of 21 years and thus there is no difference in the laws for heterosexuals and homosexuals. This rationale fails however to acknowledge that anal sex is the only form of sexual intercourse open to gay men.

The discriminatory basis for the present legislation is further revealed by the fact that amongst homosexual couples, when one (or both) partners in a gay relationship  is below the age of 21 years, both partners are liable to conviction and imprisonment including the partner who is below the age of 21 years. This does not arise in the case of anal sex amongst heterosexual couples where the woman is below 21 years. She is not liable to prosecution. Again, among heterosexual couples, in the case of a man below the age of 21 years having sex with a woman above the age of 21 years, neither of the partners is held liable.

The logic accorded by the government and the administration behind making the act punishable for even the partners (men) who are below the age of 21 years in a consensual homosexual relationship is that those gay men will be deterred from blackmailing their older partners by disclosing their relationship. However, in a submission to the Legislative Council, Subcommittee on Discrimination on the Grounds of Sexual Orientation, the Hong Kong Equal Opportunities Commission (EOC) has offered a list of reasons why such logic is flawed, including the fact that there is no evidence to support the notion that gay men under 21 are likely to blackmail their partners. If the goal is to protect older men from blackmail, why not make blackmail laws more stringent and why not make a female partner liable to prosecution for the same reasons?

The gay rights movement across the world has been campaigning to establish equal age of consent regardless of the gender of one’s partner and this has led to many countries adopting an equal age of consent for gays and heterosexuals alike, sometimes amidst protest by self-appointed moral guardians of society.

In 2005, a young gay man in Hong Kong, William Leung, mounted a challenge to the laws which criminalise consensual sex between men aged over 16 years but under 21 years whilst allowing sex between consenting heterosexuals aged 16 and over. He won the first round, in the High Court  but the government has filed an appeal and the case is due for hearing on July 6 and 7, 2006. This however is not just a case about gay rights or the right to have sex. It is about people’s fundamental rights to equality and privacy. The Basic Law in Hong Kong which is the territory’s mini constitution, states that all residents of Hong Kong shall be treated equally before the law and are entitled to protection under the law without any discrimination.

Activists in Hong Kong and around the world are awaiting the Court of Appeal’s decision with interest to determine the current state of the Rule of Law in Hong Kong and are calling upon the Hong Kong government to adhere to its domestic constitution as well as its international treaty obligations.