Avoid tragedy with sex-claim anonymity

| Cheng Huan 26 Nov 2018

Indecent assaults have been very much in the news. Two such reports within seven days certainly caught the attention of the media and the public.

Across Hong Kong there must be thousands of men who worry how they can protect themselves from allegations of what they believe were only acts of petty sexual misbehavior dating back to their adolescence and boisterous youth.

In particular, they must worry about the damage that any publicity could do to their careers, reputations and social lives.

In the first case, a 77-year-old coach - who, fortunately for himself, was only identified only as "WH" - was acquitted of molesting an athlete about eight years ago.

It was alleged that between September 2009 and April 2010, "WH" forcibly pulled off an athlete's underwear to touch her private parts.

In the other case, a 49-year-old senior prosecutor in the Department of Justice was charged with four indecent assaults that allegedly occurred more than four years ago.

It seems the four complainants were his colleagues at work and are presumably highly educated and well trained in the law.

In this instance, the unfortunate prosecutor was named and his photographs were spread all over the media.

Unlike "WH," he was not afforded the protection of anonymity and the publicity must have left him feeling deeply humiliated and embarrassed.

He felt so disgraced that he felt life was not worth living, and he committed suicide by jumping from the 37th floor of his apartment building in Mong Kok.

His friends, colleagues and family as well as the public at large were saddened and horrified to learn of this tragedy.

How was it, I wondered, that one defendant was granted anonymity while the other was denied the privilege and named?

The answer is that such decisions rest within the discretion of the deceased prosecutor's colleagues in the Department of Justice because it is that very department that normally advises the court whether a defendant is entitled to anonymity.

There are guidelines within the department that are designed to ensure consistency, and as recently as last year even the Legislative Council discussed the issue of anonymity in sexual cases with special regard to cases involving mental disability.

The system is that the department has to follow the guidelines and advise the magistrate or judge when anonymity is recommended.

Although the final decision rests with the court, it would be highly unusual for a court to disagree with such a recommendation by the department.

In reality, it is the department that decides and the court adopts its advice.

I am not privy to the reasons why the coach had anonymity and the prosecutor did not, but it seems to me that in recent times the pendulum of guilt has swung against those accused even before they are found guilty in a court of law.

In the distant past, the rationale was that if anonymity was not granted to victims they would be discouraged from making complaints.

But now we have this tragic case where an accused person's life could have been saved if he had been granted anonymity.

Perhaps the answer is that in such cases of alleged sexual assault the rule should be that both accused and accusers are granted anonymity.

That would seem to be a fair and logical solution.

It would encourage victims to make complaints, promote justice and prevent needless loss of life.

Cheng Huan is an author and a senior counsel who practices in Hong Kong.

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