Clause 121

In sections 375 to 377BN —“child abuse material” means material that depicts an image of any of the following:

a person who is, or who appears to a reasonable observer to be, or who is implied to be, below 16 years of age —

as a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual);

as a victim of sexual abuse;

engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or

in the presence of another person who is engaged in, or apparently engaged in a sexual pose or sexual activity;

the genital or anal region of a person who is, or who appears to a reasonable observer to be, or who is implied to be, a person below 16 years of age in circumstances (whether or not apparent from the depiction) which reasonable persons would regard as being offensive;

the breasts of a person who is, or who appears to a reasonable observer to be, or who is implied to be, a female below 16 years of age in circumstances (whether or not apparent from the depiction) which reasonable persons would regard as being offensive;“distribute” includes any of the following conduct, whether done in person, electronically, digitally or in any other way:

send, publish, supply, show, exhibit, transmit or communicate to another person;

make available for viewing or access by another person;“image” means a still, moving, recorded or unrecorded image and includes an image produced by any means and, where the context requires, a three‑dimensional image;“image”, in relation to a person, means an image of a human being that is not fictional or imaginary but includes an image that so closely resembles that of a human being as to make it difficult for an ordinary person to distinguish it from an image of a human being that is not fictional or imaginary;“material” means —

any film, photograph, printed matter or computer game depicting an image;

any electronic record depicting an image; or

any other thing of any kind depicting an image;“structure” includes a tent, vehicle or vessel or other temporary or movable structure;“touching” includes touching —

with any part of the body;

with anything else; or

through anything,and includes penetration of the vagina or anus, as the case may be, with a part of the body or anything else and penetration of the mouth with the penis;“vagina” includes vulva.(2) For the purposes of the definition of “distribute” in subsection (1), a person is treated as having distributed an image or recording whether or not another person views or gains access to the image.(3) In sections 375 to 377BN —

penetration is a continuing act from entry to withdrawal;

a reference to a part of the body includes a reference to a part which is surgically constructed (in particular, through a sex reassignment procedure);

for the purposes of identifying the sex of a person —

the sex of a person as stated in that person’s identity card issued under the National Registration Act (Cap. 201) at the time the sexual activity took place is prima facie evidence of the sex of that person; and

a person who has undergone a sex reassignment procedure is identified as being of the sex to which that person has been reassigned;

penetration, touching, communication or other activity is “sexual” if —

because of its nature it is sexual, whatever its circumstances or any person’s purpose in relation to it may be; or

because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual;

references to observation (however expressed) are to observation whether direct or by looking at an image;

a person is doing a private act if under circumstances in which the person has a reasonable expectation of privacy, the person —

is in a state where the person’s genitals, buttocks or breasts (if the person is a female) are exposed or covered only in underwear;

is using a toilet, showering or bathing; or

is doing a sexual act that is not of a kind ordinarily done in public.IllustrationA is showering in an open‑concept shower cubicle at the changing room of a swimming pool and cannot reasonably expect not to be casually observed. However, A has a reasonable expectation that A will not be surreptitiously recorded by a video camera.Meaning of exploitative relationship377CA.—

For the purposes of sections 375, 376, 376A, 376AA, 376EA, 376EC, 376EE, 377BL and 377D, whether an accused person’s relationship with a person below 18 years of age (called in this section a minor) is exploitative of the minor is to be determined by the court in the circumstances of each case and the court must have regard to the following in making such determination:

the age of the minor;

the difference between the age of the accused person and the minor;

the nature of the relationship;

the degree of control or influence exercised by the accused person over the minor.(2) For the purposes of subsection (1) and subject to subsection (3), it is presumed until the contrary is proved that an accused person’s relationship with a minor is exploitative where the relationship is any of the following:

the accused person is the parent, step‑parent, guardian or foster parent of the minor;

the accused person is the de facto partner of the parent, guardian or foster parent of the minor;

the accused person is a member of the teaching or management staff of the school or educational institution at which the minor is a student;

the accused person has an established personal relationship with the minor in connection with the provision of religious, sporting, musical or other instruction to the minor;

the accused person is a custodial officer of an institution in which the minor is detained;

the accused person is a registered medical practitioner, a registered traditional Chinese medicine practitioner or a psychologist and the minor is a patient of the accused person;

the accused person is an advocate and solicitor or a counsellor and the minor is a client of the accused person.(3) The presumption in subsection (2) does not apply to a person who is lawfully married to a minor even though the relationship may fall within any of the relationships mentioned in subsection (2).Consent given under misconception in sexual offences377CB.—

Despite section 90(a)(ii), a consent for the purposes of an act which is the physical element of a sexual offence is not a consent given by a person under a misconception of fact only if it is directly related to —

the nature of the act, namely that it is not of a sexual nature;

the purpose of the act, namely that it is not for a sexual purpose; or

the identity of the person doing the act,and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such misconception.(2) In subsection (1) —“sexual” has the meaning given by section 377C(3);“sexual offence” means any offence where the physical element of the offence under this Code or any other written law involves an act of a sexual nature and includes but is not limited to any offence under sections 375 to 377BN.Illustrations(a) A deceives B into allowing him to penetrate her vagina by inducing the misconception that he is extracting an evil spirit from B’s body. B believes A and thinks that what she has consented to is a procedure to extract an evil spirit, not sexual intercourse. B has given her consent under a misconception as to the sexual nature of the act. B’s apparent consent is therefore not a valid consent.(b) A deceives B into believing that he can heal B’s chronic disease by treatment involving sexual penetration. B gives her consent under the misconception that the act is treatment for a health purpose and not for a sexual purpose. B’s apparent consent is therefore not a valid consent.(c) A deceives B into believing that A is her husband. A is an imposter. B consents to sexual intercourse with A because she believes A is her husband. B’s consent is given under a misconception of the identity of A and is therefore not a valid consent.(d) A deceives B into believing that A is an influential movie director. A is in fact only an administrative assistant to that movie director. B consents to sexual intercourse with A because she believes A is that movie director. B’s misconception is as to A’s attributes and not of A’s identity. B’s consent is therefore a valid consent.”.