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Sodomy is no longer criminal, court rules
August 25, 2005 - The Standard
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.
However, he said he was too young to think about gay marriage.
Article 35 of the Basic Law states that ``all Hong Kong residents shall be equal before the law.''
Law Yuk-lai, director of the Hong Kong Human Rights Monitor, said the ruling was long overdue. ``The Hong Kong government should have reviewed its legislation in 1994 when the United Nations Human Rights Committee declared that discrimination on the basis of sexual orientation was a violation of human rights,'' Law said.
Liz Whitelam, of Amnesty International, congratulated those who brought the case .
But Choi Chi-sum, general secretary of the Hong Kong Alliance for Family, a conservative Christian and family values group, described the decision as regrettable.
``This is about anal intercourse, not homosexuality,'' he said. ``Anal sex is a high risk activity and participants are much more likely to contact sexually transmitted diseases,'' Choi added.
Choi warned that amending the law to make gay sex legal for those between the ages of 16 and 21 would encourage the activity.
Pardons urged for jailed gays
August 25, 2005 - The Standard
The High court's ruling on gay discrimination not only sparked a legal challenge, but also demands for erasing past criminal records for consensual sex between men under 21.
``It is good news. After all these years, finally we see no difference between heterosexual and homosexual's legal age of consent,'' a spokesman for a homosexual rights group said in a radio program.
Paul Lui, spokesman for the Tongzhi Community Joint Meeting, a gay and lesbian pressure group, said the group will ask the government to erase criminal records of 63 homosexuals convicted of sodomy under 21 between 1998 and 2003.
Under Section 118 of the crimes ordinance, such men face life imprisonment. They can also be sentenced to a two-year prison term if they commit ``acts of gross indecency.'' But this ordinance does not apply to heterosexuals and lesbians who are free to have sex from the age of 16.\ The group also plans a public campaign calling for an anti-discrimination law.
Lui said yesterday's ruling also renewed calls for equal rights for homosexual and heterosexual marriage.
Hong Kong University law professor Eric Cheung admitted the anti-discrimination law will become a hot issue after the case. However, same-sex marriage may still have a long way to go because it concerns many moral judgments, he said.
Same-sex marriage is legal only in Belgium, Canada, Netherlands and Spain. A Civil Partnership Act will come into force in 5 December 2005. The act creates a new legal relationship of ``civil partnership,'' which two people of the same-sex can form by signing a registration document . It also provides same-sex couples who form a civil partnership with parity in a wide range of legal matters as with married heterosexual couples.
Hong Kong strikes down gay ban
Wednesday 24 August, 2005 12:49
A judge in Hong Kong’s High court has ruled that a ban on gay sex between men under 21 is unconstitutional and must be amended.
The former British colony, handed back to Chinese rule in 1997, currently allows heterosexual and lesbian sex from 16, but gay men can be imprisoned for life if caught having sex before 21.
Judge Michael Hartmann ruled that the ban was discriminatory against gay men and should be dropped by the government, after a 20-year-old man challenged the law.
The gay man said he should be allowed to have sex with his partner legally before he turns 21.
So far, the government has not said whether it will drop the ban, although it has said it was “study” the decision, the BBC reports.
It says the judge decided the legislation loophole was “demeaning” to gay men.
This is not the first time Hong Kong has faced criticism for its stance on gay issues.
In May this year, the Human Rights Monitor said the Chinese territory had a “poor standing” on gay issues.
However, a protest was held in Hong Kong in the first International Day Against Homophobia earlier this year, with demonstrators calling for more recognition and rights.
Last Updated: Wednesday, 24 August 2005, 09:41 GMT 10:41 UK
HK gay sex rules 'discriminatory' - BBC
A Hong Kong judge has ruled that laws prohibiting gay sex by men under the age of 21 are unconstitutional.
The High Court judge, Michael Hartmann, said the current laws discriminated on the basis of sexual orientation.
A 20-year-old gay man, William Roy Leung, had challenged Hong Kong's existing laws on the issue.
They allow sex between heterosexuals and lesbians from the age of 16, but anyone under the age of 21 who engages in sodomy could face life in prison.
The government says it will study the judgement.
Mr Hartmann said the current laws were "demeaning of gay men who are, through the legislation, stereotyped as deviant".
The laws prohibit "gross indecency" or sexual intimacy between men if one or both are younger than 21.
Gay rights activists welcomed the ruling, saying that 63 men have been arrested under the laws in the past five years.
They said that the law was now unenforceable.
"It is a landmark case and a long overdue judgement," said activist Roddy Shaw.
"It's the first time that sexual orientation has been upheld as a protected ground against discrimination in a Hong Kong court," he was quoted as saying by the Associated Press.
Hong Kong is now holding consultations on the legislation. The territory's security bureau said it was studying the ruling.
Gay Hong Kong Man Wins Legal Battle
Wednesday August 24, 2005 11:31 PM
By SYLVIA HUI
Associated Press Writer
HONG KONG (AP) - A judge struck down Hong Kong's sodomy laws on Wednesday, siding with a 20-year-old homosexual man who challenged the measures - including one that demanded a life sentence for gay sex when one or both men are younger than 21.
As he left the High Court, William Roy Leung said his legal victory means that ``I can finally have a loving relationship without being scared of (being) thrown into jail for life imprisonment.''
The judge ruled the anti-gay laws ``discriminate on the basis of sexual orientation'' and ``are demeaning of gay men who are, through the legislation, stereotyped as deviant.''
In the ruling, High Court Judge Michael Hartmann also said that the laws are a ``grave and arbitrary interference with the right of gay men to self-autonomy in the most intimate aspects of their private lives.''
The laws prohibited ``gross indecency'' or sexual intimacy between men if one or both are under 21. But heterosexual and lesbian couples who are 16 or older can legally have such relations.
Under the laws, gay men who engage in consensual sodomy when either is under 21 face life imprisonment.
``It is a landmark case and a long overdue judgment,'' said Roddy Shaw, a gay activist. ``It's the first time that sexual orientation has been upheld as a protected ground against discrimination in a Hong Kong court.''
Shaw said police have arrested 65 men under gay sex laws in the past five years, and 26 were convicted.
The laws have been on the books for 14 years - well before the former British colony returned to Chinese rule in 1997.
Some Christian groups condemned Wednesday's decision, saying it would encourage more young people to try sodomy.
Homosexuals are treated differently throughout Asia. Countries like the Philippines and Thailand tend to be more tolerant, while ethnic Chinese cultures like Hong Kong are less open.
In Europe, an EU charter of rights adopted in 2000 protects against discrimination, including sexual orientation, in the 25 European Union nations. Spain, the Netherlands and Belgium also legally recognize same-sex marriage.
In June 2003, the U.S. Supreme Court ruled that sodomy laws were unconstitutional, striking down a Texas law that made homosexual sex a crime. The ruling invalidated sodomy laws in 13 states.
Hong Kong's government, which said Wednesday it was reviewing the decision, can still appeal Wednesday's ruling.
But Law Yuk-kai of the Hong Kong Human Rights Monitor said the decision meant the government no longer had a legal basis for enforcing the law.
``Once a judge strikes down a law as unconstitutional, the government has lost its legal authority to enforce the law, even though the law is still on the books,'' Law said.
The ruling came as Hong Kong debates whether a law prohibiting discrimination against homosexuals is needed. There has been heated arguments on call-in radio shows, and religious groups have been taking out large newspaper ads urging the public not to support such legislation.
The government has so far provided few details about what an anti-discrimination bill would say, but Shaw said he thought Wednesday's ruling would help advance the bill.