Breakthrough in Protecting Same-sex Cohabitants

The Domestic Violence (Amendment) Bill 2009 (the Bill) gazetted today (June 5) seeks to further extend the scope of the Domestic Violence Ordinance (DVO) to include same-sex cohabitants.

Over the past six months, there has been an animated discussion in the community on the subject. The focus is on whether the proposed amendment would undermine the prevailing institution of marriage and family values.

I must reiterate that the Government does not recognise same sex marriage, civil partnership or any same sex relationship as a matter of legal status. The proposed amendment will not affect this policy stance, nor will it involve or affect other existing legislation. A marriage contracted under the Marriage Ordinance is, in law, the voluntary union for life of one man and one woman to the exclusion of all others.

The DVO is designed to provide individuals in specific intimate or familial relationships with additional civil protection on top of the criminal legislative framework.

Generally speaking, individuals subject to threats of violence or molestation may report to the Police to seek redress and protection under the present criminal legislative framework. However, in reality, the intricate emotional or financial involvement between individuals in specific relationships may render the victims reluctant to approach the Police, hence resulting in injuries or even tragedies. Since personal safety is at stake, we consider it necessary to provide such individuals with additional civil protection so that they can apply to the court for an injunction order under the DVO for protection against further molestation.

The crux of the DVO thus lies in the intimate or familial "relationship" between the victim and the abuser. It is never our legislative intent to cover all persons living under the same roof or all violent acts that may happen in a domestic setting. These persons are already afforded protection under the existing criminal legislative framework. They may also seek protection under the law of tort or inherent jurisdiction of the court.

The DVO, enacted in 1986, was originally applicable to a party to a marriage, a party to a cohabitation relationship between a man and a woman, and their children living with them. In June last year, the Legislative Council endorsed our proposal to bring former spouses, former heterosexual cohabitants, other immediate and extended family members, such as mothers and daughters-in-law, grandparents, grandchildren etc under the coverage of the DVO, and remove, at the same time, the former "living-with" requirement.

In scrutinising our earlier amendment, Bills Committee Members from various political parties supported unanimously the inclusion of same-sex cohabitants under the DVO. In response to Members' request, we agreed to further amend the DVO to include this category of persons under its coverage.

Having taken careful and thorough account of the views expressed in the past six months, we have adopted a "three-pronged" approach in preparing the Bill.

First, the existing provisions in the DVO confining its coverage to only heterosexual cohabitation relationships will be removed. We will introduce a new definition of "cohabitation relationship", i.e. "a relationship between two persons who live together as a couple in an intimate relationship" and include such a relationship that has come to an end. Such a definition will be devoid of any references or linkage to "marriage", "spouse" or "husband and wife";

Second, different categories of protected persons will be clearly delineated, namely spouses, former spouses and their children; immediate and extended family members; and cohabitants in an intimate relationship, former cohabitants and their children. These three categories of protected persons will be dealt with under different provisions; and

Third, the short title of the DVO will be amended to read "Domestic and Cohabitation Relationships Violence Ordinance" (家庭及同居關係暴力條例) to highlight that "domestic violence" and "cohabitation relationships violence" are two different categories of protected persons and are not inter-related.

Some people have asked that a separate legislation be enacted to address the violent acts among cohabitants in an intimate relationship. We do not see any policy justification for this, nor is it in line with the established practice adopted in Hong Kong laws whereby legal provisions addressing the same or similar policy issue are usually tackled in the same piece of legislation. Moreover, comparing to enacting a new legislation, it would be more expedient to amend the DVO, thus providing early protection to same-sex cohabitants.

All in all, whilst views may differ on the means, the end of protecting same-sex cohabitants is shared by all. With this common goal as the basic premise, we have struck a reasonable and pragmatic balance in addressing the concerns of different quarters. The Bill is the best viable option acceptable to all.

Ends/Friday, June 5, 2009