Putrajaya tables new law to protect children from sex predators

By Ida Lim and Kamles Kumar
According to Thangaraja’s family’s lawyers, he was detained on November 15, 2015 at around 11.40pm by police to assist in investigation of a car theft case, before being brought over to the IPD Cheras criminal investigation division with another man and placed in the IPD Dang Wangi lock up at around 1.30am. — AFP pic

KUALA LUMPUR, March 28 — The federal government presented today its draft of a new law that aims to cast a wider net on sexual predators targeting children.

If passed by Parliament, the Sexual Offences against Children Bill 2017 will introduce a range of new offences with harsh penalties that can go up to maximum 30 years’ jail, a minimum whipping of six strokes, or a maximum RM20,000 fine.

New specific offences against child porn

The proposed law that seeks to beef up protection of children from sexual offences and provide effective deterrence focuses heavily on banning all forms of action related to child pornography. This will be the first law in Malaysia to deal specifically with child pornographic material.

Lawyers had in the past told Malay Mail Online that Malaysian laws do not  differentiate between pornographic materials depicting adults or children, with the same penalties applicable to possession or distribution of both types of materials.

Those who make or direct the production of child pornography will face a maximum 30-year jail term and a minimum whipping of six strokes, while those who make preparations to do so will be jailed for up to 10 years and be whipped.

Anyone who uses a child to make child pornography will be jailed up to 20 years and be whipped a minimum five strokes, while those who sell child pornography to a child will be jailed a maximum of 15 years and similarly be whipped a minimum five strokes.

A person who makes available child porn in any way — including exchanging, publishing, selling, distributing, advertising — as well as collecting or seeking child porn, engaging or profiting from child porn-related businesses will be punished with a maximum 15-year jail term and a minimum whipping of three strokes.

Clamp-down on sexual assault

Children will also be protected from sexual assault, whether in physical or non-physical form, which would respectively be punished with a maximum 20 years’ jail and whipping for physical assaults, and a maximum 10 years’ jail or a maximum RM20,000 fine or both.

The offence of physical sexual assault on a child includes acts done for sexual purposes, such as the touching of any part of a child’s body; making a child touch any part of the child’s own body or any other person’s body; or making any physical contact with a child without sexual intercourse.

As for the offence of non-physical sexual assault on a child, it covers acts done for sexual purposes such as through repeated or constant following or watching or contacting of a child; making the child exhibit the child’s own body or any of the child’s body parts.

The non-physical sexual assault also includes engaging in a sexual activity in front of a child or making a child engage in sexual activity; causing a child to watch another person engaging in sexual activity or causing a child to watch or hear another person engaging in sexual activity.

Child grooming to be a crime

The Bill also proposes to introduce specific offences against child grooming, which relates to the befriending and building of an emotional relationship with a child to pave the way for sexual abuse of the child.

Those who sexually communicates with a child will face a maximum three-year jail term, while those who engage in child grooming — which covers communication with a child with the intention to commit offences related to child porn or child sexual assault — will face a maximum five-year jail term and whipping.

Anyone who meets a child after child grooming — with the intention to sexually assault the child or to commit child porn offences — will be punished with a maximum 10 years’ jail term and whipping.

Trusted person

On top of being punished for any sexual offences against children, the offenders will be slapped with additional penalties of maximum five-year jail and minimum whipping of two strokes if they are a person “in a relationship of trust” with the child.

Those who are defined as being in such a relationship of trust includes parents; guardians; persons who look after children; teachers, lecturers or wardens of places like kindergarten, schools and institutions of higher learning; coaches; healthcare providers; and civil servants.

Any man convicted for any sexual offences against children will still be punishable with whipping even if there are aged over 50 years old, despite the Criminal Procedure Code barring such whipping except for selected offences, the Bill said.

An offender cannot claim in his defence to have believed that the child was already aged 18 and above at the time of offence, unless they had taken all reasonable steps to determine the child’s age. Even those who help the offender commit the sexual offences will face the same punishments listed for the offence, if the sexual abuse is carried out as a result of the abetment.

Anyone who fails to give information of any other person’s intention to commit sexual offences against children or information on commission of such offences to the police will be penalised with a maximum RM5,000 fine.

Children can be witnesses

In a significant departure from an existing Evidence Act 1950 provision barring conviction based on a child’s uncorroborated evidence not given on oath, today’s Bill also said the courts can allow a child’s uncorroborated evidence — even when not under oath — to be admissible evidence if it is determined that the child has “sufficient intelligence and understands the duty of speaking the truth”.

The Bill was tabled by Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said.

The Bill also says the courts can accept evidence by agent provocateurs or those who entice others to commit the offences, and states that a conviction for child sexual offences based solely on the uncorroborated evidence of any agent provocateur “shall not be illegal”.

The Bill also allows for the Minister to subsequently add on or remove any child sexual offences covered by this new law.

The Bill was tabled for its first reading by Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said.

Azalina said the second and third reading of the Bill will be in the same parliamentary meeting --- which will run until next Thursday.