PETALING JAYA: While the amendments to laws governing sexual crimes against children are laudable, there are still gaps in the Sexual Offences Against Children Act (SOACA) that could see the underage being criminally prosecuted.
One loophole is the fact that the Act does not provide any defence for children who engage in consensual sexual activities, say experts.
This would result in teenagers being arrested and prosecuted under provisions for physical sexual assault and non-physical sexual assault, even when they are in genuine relationships, said CRIB Foundation (Child Rights Innovation & Betterment) co-chairperson Srividhya Ganapathy.
“Under the Penal Code, statutory rape is when a person has sexual intercourse with a girl under the age of 16.
“However, since SOACA defines a child as a person under the age of 18, which is correct and internationally the standard age, it means that if someone has sexual relations or sexual communication with a girl under the age of 18 but above the age of 16, they would be guilty of an offence.
“This is despite the fact that the girl is of legal consent, the couple are in a genuine relationship, and the perpetrator is also a child,” she said yesterday.
She cited a 2020 case in Sibu, Sarawak, in which two teens, aged 15 and 16, pleaded guilty to a physical sexual assault charge under Section 14 and a child pornography charge, although they were both in a relationship.
Srividhya said that with the passing of amendments to the Act, which now criminalises online sextortion and live-streaming of sex, it is hoped children in genuine relationships will not be penalised.
Voice of the Children chairperson Sharmila Sekaran said there is a need to decriminalise consensual, non-exploitative sexual acts and relationships between teenagers, as well as consider alternative “child-friendly” solutions when dealing with these offences.
This could include family-based solutions, warnings, education and awareness, said Sharmila.
The law can also be amended to accept a “Romeo and Juliet” defence or a Sweetheart Defence, she said, referring to a clause that decriminalises consensual sexual relationships between youths of similar ages.
“This should not be seen as condoning sexual activity between a young couple, but more about understanding natural curiosity and normative sexual behaviour,” said Sharmila.
“It is important that these children are not treated like criminals and sentenced to fines and detention.”
Taking the Richard Huckle case – which rocked the nation a few years ago – as an example and his subsequent sentencing by the United Kingdom court, Suriana Welfare Society chairman Dr James Nayagam said the law must be effective.
Touted as one of Britain’s worst predatory paedophiles, Huckle was accused of targeting, abusing and grooming up to 200 Malaysian children and sharing images on the dark web.
The Briton was handed 22 life sentences by the UK court after admitting to 71 offences, including rape, against young children aged between six months and 12 years between 2006 and 2014.
“I would measure the new law according to that incident,” Dr Nayagam said.
He said a pilot test should be conducted on the enforcement of the new law to determine the loopholes and weaknesses that need to be “patched”.
The law must also be reviewed and feedback sought,” he added.
The Women’s Aid Organisation, meanwhile, said criminalising stalking would protect all Malaysians, men and women.
One-third of Malaysians have also admitted to experiencing stalking that caused fear in the past, while 39% of women have experienced stalking in the past, and some cases have even led to the death of the stalking victim, it said in a statement.