Protection of children against sexual offences with specific reference to the offence of rape

Abstract

The coming into force of the Sexual offences Against Children Act 2017, commonly referred to as SOACA 2017, underscores the necessity for unique legislative strategies to address Child Sexual Abuse (CSA) in Malaysia. This further highlights the limitations of general criminal legislation, such as the Penal Code, to cater to the needs of vulnerable child victims in sexual abuse cases. The objective of this study is to analyse the adequacy of the existing legal framework of CSA under the jurisdiction of Malaysian law. Special emphasis was placed on SOACA 2017, the legal and procedural challenges of CSA cases in Malaysia, and the suggestion of pertinent reforms inspired by the Indian legislation, namely the Protection of Children from Sexual Offences Act 2012. The responsibilities of various bodies, including but not limited to the welfare department, Royal Malaysian Police (PDRM), Attorney General Chambers (AGC/DPP), and the Child Commissioner of Malaysia, were scrutinized through the lens of pertinent laws, among others the Child Act 2001, Evidence Act 1950, and other enabling laws. The research methodology combined both doctrinal and qualitative approaches, focusing primarily on conceptual literature and semi-structured interviews. Approximately 26 key stakeholders and professionals from diverse fields involved in CSA management, including but not limited to the judges, AGC, advocates & solicitors, PDRM, Department of Social Welfare, politicians, child commissioners, academicians, healthcare providers from the SCAN Team, and Non-Government Organizations were consulted. The results of this study are a synthesis of thematic analysis derived from semi-structured interviews, which were verified against the doctrinal study of extant literature. Principal findings of this research reveal that SOACA possesses certain distinguishing features that set it apart from other general provisions. For instance, for the first time, child grooming, production, distribution, and access to child pornographic materials are identified as offences in Malaysia. Conversely, fundamental weaknesses are present in the Act, which prompted the introduction of the proposed Amendment Bill 2023. These shortcomings include and are not limited to the absence of a definition or interpretation section, absence of supremacy clause, exclusion of specific offences such as penetrative assault, minimum imprisonment as punishment of the offences, no imprisonment for nonreporting of CSA cases, and lack of a compensation framework within the Act. Legal revisions were proposed, taking inspiration from the Indian legislation, with the goal of enhancing Malaysian law. These findings will be of paramount importance to child protection advocates, parliamentarians, and legal practitioners seeking a deeper understanding of the level of protection and handling of CSA cases under the legal frameworks of Malaysia and India.