Sunday August 13, 2017
05:34 PM GMT+8

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AUG 13 — Recently a man captured national and international attention when he was charged before the court with more than 600 charges of alleged sex assaults against his own daughter, including offences for incest, rape, sodomy and others.

However, sadly, cases of sexual assault against minors are nothing new in Malaysia. In fact, only recently Datuk Seri Rohani Abdul Karim of the Women, Family and Community Development Ministry informed that there was a total of 13,272 rape cases involving victims below 18 years old that were reported between 2010 and May 2017. This means an average of 2000 cases a year.

Shocking perhaps, especially when it is only on rape cases and includes cases involving rape of own offspring, like the man mentioned above. Let us not forget also the many more cases that were not reported, either because the victim till this day is still fearful of letting anyone know, chooses not to report as it involves a family member, or cases that were “settled” out of court, whatever that means.

Therefore, the question becomes what have we done to address the problem? What can we do more to protect our children?

For one, credit must be given to the Government for two applaudable achievements this year.

First it is the Special Court on Sexual Offences Against Children at Putrajaya that was officially launched on 22 June 2017. The court would only sit for sexual offences against children cases, thereby expediting the resolution of these cases. By speeding up the court process, justice is served faster and victims get to obtain a closure of their traumatic ordeal faster. The Court is also equipped with technology equipment and toys to assist children in giving evidence more calmly and more accurately. This is especially important as the victim’s evidence is often the most crucial evidence in the prosecution.

Secondly, it is the passing of the Sexual Offences Against Children Act 2017 (“the Act”) which came into force on the 10th of July 2017. The commendable provisions introduced by the new act include provisions on substantive law i.e. new crimes, as well as procedural law, i.e. new standards in evaluating evidence.

Substantive law

Firstly, the Act provides that if an offence under it was committed outside Malaysia, the offender can still be prosecuted as if the offence was committed within Malaysia, i.e. a Malaysian committing an offence in the U.K. may be prosecuted once he returns to Malaysia. The MARA scholar, remember?

Secondly, child pornography under Section 4, sexual communication with a child under Section 11, child grooming under section 12, are new provisions to criminalise these heinous behaviour, previously only not clearly caught under the Penal Code.

Additionally, the new act also empowers prosecution of physical sexual assault under section 14 and non-physical sexual assault under section 15.

Section 14 provides that any person who, for sexual purposes:

1.         touches any part of the body of a child;

2.         makes a child touch any part of the body of such person or of any other person;

3.         makes a child touch any part of the child’s own body; or

4.         does any other acts that involve physical contact with a child

without sexual intercourse, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years and shall also be liable to whipping.

Section 15 whereas provides for sexual assaults that are non-physical, which cover harassment by uttering words or making certain sound, self-exposure (i.e. showing his private parts to a child) and stalking, for sexual purposes. Additionally, it is also now a crime to engage in an activity that is sexual in nature in the presence of a child, causes a child to watch another person engaging in an activity that is sexual in nature, including through visual audio or written, and make a child engage in an activity that is sexual in nature,

The sentence is imprisonment for a term not exceeding ten years or to a fine not exceeding twenty thousand ringgit or to both.

Consent?

The entire Act is silent on consent. So presumably consent is not a defence under this Act. This is understandable because children are deemed incapable of consenting in law, regardless factually they did or not. 

However, imagine a person who is 19 and have consented sex with his partner who is 17, while he will not commit a crime of statutory rape as under the Penal Code it only applies to children below 16, he would have committed a crime under sexual assault since consent is not a defence and under the act a child is defined to be under 18.

This is certainly a grey area which we would need the Courts to clarify.

Additionally, under section 16, if a person who commits any offence in this act, is in a relationship of trust with the child, then, in addition to the punishment he gets for the offence he will be punished with imprisonment for a term not exceeding five years and shall also be punished with whipping of not less than two strokes. People who are in a relationship of trust to the child include parents, guardian, step parents, a teacher, a lecturer, a warden, people in the healthcare services and others. This means that for example the man mentioned above, being the father he will be subjected to additional punishment under this section.

Procedural law

Interestingly also, are new provisions relating to evidence introduced by the new Act. Following the new act, under section 17 child witnesses are now presumed to have the capacity to give evidence until the court thinks otherwise. This is the opposite of the legal principles prior to the act, which directs the court to be very cautious of the evidence of a child witness and the court must conduct an inquiry on the capacity of the child before accepting his/her evidence.

Under previous laws, a Court has to conduct a two-tiered test: Firstly to ascertain whether understands what is an oath, and if the answer is negative, then whether the child is understands the importance of giving truthful statement. If the child does not understand what is an oath, but the court finds that he/she has the sufficient maturity and understand the importance of speaking truthfully, he/she can give an unsworn statement. However, if an unsworn statement by a child is taken, then under Section 133A of the Criminal Procedural Code, the Court cannot convict the accused unless the child’s evidence is corroborated by other evidence in one way or another.

The implication of the old principle means two things. Firstly, the presumption of credibility is against a child. A child is presumed not trustworthy; mainly because they are assumed to not understand the importance of giving truthful statement in court as well as their inability to separate imagination and reality.

Secondly, if they are allowed to give an unsworn statement, if there is no corroborative evidence, the court cannot convict the accused. More importantly, case laws have also shown that a failure by the Court in conducting the two-tiered inquiry, is a substantial failure that would warrant a court hearing the appeal to set aside the conviction. The stakes, in summary, are against the child victim.

However, with Section 17, and Section 18 which states that when a child give evidence, sworn or unsworn, the court is empowered to convict without corroborative evidence, the tide has now shifted in favour of the child witness, who often is the victim.

When it comes to sentencing, privileges afforded to youthful offenders and first-time offenders would not apply if a person commits an offence under this act is above the age of 18. This will also avoid the famous bowler rape case.

Conclusion

In conclusion, with this new act, our ability to prosecute and convict these crimes have largely been strengthened.

On top of that, the amendment to the penal code in 2017 that was passed but not yet in force, also would add another crucial change. Under the amendment, penetration by fingers or other objects will now constitute rape, so the case of bunya jalong would no longer happen.

Nevertheless, while we applaud these progression, we must not limit our efforts in tackling these social ills to law and law enforcement. The government must look at the big picture when cracking on these problems, including providing better jobs, better incomes, thereby enabling more fulfilling and higher quality life to the people, higher accessibility to high quality education, less taboo on sex education, and definitely less trash talk such as a rapist can escape conviction by marrying his victim. Prevention is better than cure.

* Louis Liaw is a criminal lawyer based in Kuala Lumpur.

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

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