Salient points of the Sexual Offences Against Children Bill

Salient points of the Sexual Offences Against Children Bill

Salient points of the Sexual Offences Against Children Bill

28 March 2017

The Sexual Offences Against Children 2017 Bill has finally been tabled in Parliament, amid concerns that the existing laws have been inadequate in protecting children against sexual predators.

The bill defines a child as someone who is under the age of 18.

Here are the salient points of the proposed law, which contains a total of 26 sections:

Child pornography

  1. Anyone who produces or is involved in the production of child pornography may be punished with up to 30 years in jail and at least six strokes of whipping.
  2. Anyone who makes preparation for the production of child pornography may be punished with up to 10 years’ imprisonment and whipping.
  3. Anyone who uses or offers a child for child pornography may be punished with up to 20 years’ imprisonment and at least five strokes of whipping.
  4. Anyone who exchanges, publishes, advertises, sells, transmits, promotes, imports, exports, obtains, collects, profits from businesses he knows are related in child pornography may be punished with up to 15 years’ imprisonment and at least three strokes of whipping.
  5. Anyone who sells, distributes, exhibits, promotes, offers child pornography to a child may be punished with up to 15 years’ imprisonment and at least five strokes of whipping.
  6. Anyone who accesses or has in his possession or control of child pornography may be punished with up to five years’ imprisonment, or a fine of up to RM10,000 or both.

Sexual communication & grooming

  1. Anyone who sexually communicates with a child, with the exception of being for educational, medical and scientific purposes, may be punished with imprisonment of up to three years.
  2. Anyone who communicates with a child with the intention to commit sexual offences against the child may be punished with up to five years of jail and whipping.
  3. Anyone who communicates with a child, follows up by meeting the child with the intent to commit or facilitate in sexual offences against the child, may be punished with up to 10 years of imprisonment and whipping.

Sexual assault on a child

  1. Anyone who, for sexual purposes, touches any part of a child or makes a child touch any part of another person or his own or engages in physical contact without intercourse, may be punished with up to 20 years of jail and whipping.
  2. Anyone who, for sexual purposes, utters any word or sound, or makes gestures, or exhibits his body parts to a child, or makes a child exhibit his body parts, or stalks a child, or threatens a child with the child’s sexual material may be punished with up to 10 years’ imprisonment or up to RM20,000 fine or both.
  3. Anyone who engages in sexual activity in the presence of a child or causes a child to watch another person engage in sexual activity or makes a child engage in sexual activity may be punished with up to 10 years’ imprisonment or up to RM20,000 fine or both.

Other points

  1. Malaysians who commit sexual offences against children abroad can still face Malaysian laws as if the offences were committed in Malaysia.
  2. A person who commits any sexual offences against a child while being in a relationship of a trust in relation to the child, such as a parent, guardian, teacher, healthcare provider or public servant, will receive an additional punishment of up to five years’ imprisonment and at least two strokes of whipping, on top of the punishment for the offence.
  3. Anyone who fails to provide information on the commission or intention to commit a sexual offence against a child may be fined up to RM5,000.
  4. An accused claiming that he did not know a child is under the age of 18 is not a defence unless he can prove that all reasonable steps to ascertain the age of the child was taken.
  5. Those aged above 50 can still be whipped for offences under this law.
  6. Evidence of an agent provocateur in an entrapment is admissible.
  7. No leniency even if the accused is a first time offender or youth.
  8. The minister may include or exclude offences outlined in other laws in a schedule that would allow this Act to cover them.

Should sex offenders be monitored?

Should sex offenders be monitored?

Should sex offenders be monitored?

James Nayagam | 2 March 2017

The question before us is – should a sex offender convicted and who had served his sentence overseas be monitored upon return to Malaysia? This question has received mixed responses.

Some felt that he has paid for his crime and that he is a free man. Others felt that taking into account the nature of the offence committed, he should be monitored.

To help us understand the situation, we must ask ourselves as to whether the person is a threat to society. To consider this question we must consider the nature of the offence committed. In this case, it was rape and sexual abuse and the victims being young girls. In fact, it was reported that in one case that he could have sexually abused over 1,000 women. Therefore sexual offences are not to be equated with any other forms of crime. For one, it has to do with causing bodily harm.

We must understand that sex offences/paedophilia is a sickness of the mind and not any ordinary crime. So even after a person has served his sentence, it does not mean he is free of his mental health condition. Therefore, like any form of a contagious disease, preventive measures must be taken to ensure that such a form of crime is contained. This can be done by monitoring the convicted offender.

The monitoring does in fact act as a follow-up for the person to live a normal life and to control his craving to commit a sexual crime. The offence-specific treatment that research has shown to be most effective holds offenders accountable. It is based on the notion that if an offender can be taught to manage successfully his propensity to sexually abuse, he becomes less of a risk to past and potential victims.

Sex offenders must be monitored intensively during community supervision in order to evaluate their level of commitment to and compliance with all imposed special conditions. This supervision typically should include:

  • Ensuring that the offender is actively engaged in and consistently attending an approved community-based treatment programme;
  • Verifying the suitability of the offender’s residence and place of employment;
  • Monitoring the offender’s activities by conducting frequent, unannounced field visits at the offender’s home, at his place of employment, and during his leisure time (eg, is he engaging in inappropriate, high-risk behavior such as collecting items that depict or are attractive to children?); and
  • Helping the offender to develop a community support system – including friends, family members, and employers who are aware of the offender’s criminal history, are supportive of the community supervision plan, and can recognise the sex offender’s risk factors.
    As such any convicted sex offender regardless if they are convicted in the country or overseas must be monitored for the benefit of himself and the possible future victims.

 


James Nayagam is the chairperson of Suriana Welfare Society Malaysia.

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James Nayagam | 2 March 2017

Though the phrase ‘Fight Child Sexual Abuse’ sounds positive, yet one must realise the realities and challenges surrounding the effort. Otherwise, we may have the thought but meaningless and ineffective strategies to deal with the issues.

I am writing this as a child’s rights activist for over 35 years, having dealt with the issues relating to child sexual abuse. I have realised that whilst there may be good ideas and proposals, yet the issues have been lacked commitment, implementation, follow-up and change in our present system.

One must bear in mind that in Malaysia it takes about more than five years before a case of child sexual abuse is reported. During which time young girls are subjected to severe forms of sexual abuse and remain silent, unable to tell anyone about the abuse. Despite having education programmes in schools and other forms of services, yet in terms of effectiveness, nothing much has changed.

Suriana Welfare Society did a survey of the issues that affect child sexual abuse. When dealing with the issue of rape, we realise that a child had to face much trauma due to lengthy court proceedings, coupled with postponements that could go on for years before the court reaches a decision. By which time the child has forgotten the details of the rape.

Yet during this period, it’s the child who loses her freedom in that she is kept in a protection centre and the offender is still on the loose.

In some cases, the rapist may be allowed to marry the victim. Then again what choice has she when prematurely she loses her childhood and becomes a wife of an adult who raped her. Society seems to be ignorant to as whether she is ready for child-bearing and parenthood, and disregards the psychological damage that may impact her permanently.

In some states in Malaysia, incidences of incest appear prevalent but due to the standard of proof required, the cases are never reported and the situation continues to be a topic of discussion at every child-related seminar.

Richard Huckle’s case is an example of the weakness in our legal system. It was reported that he had sexually abused over 200 young children, the youngest being a six-month-old baby. Although could have been charged in Malaysia, but as to whether he would have been convicted is uncertain as there are no laws to punish effectively a paedophile on charges of with child pornography.

It simply shows that our system is outdated and change may take some time from the commencement of drafting new laws to discussions and to the implementation. One example being the Child Act, where it has taken almost 10 years for the amendments to be brought to Parliament.

Reservations over Sex Offenders Register

After the amendments to the Child Act, yet there is much debate over the Sex Offenders Register. Various agencies have declared their reservations over the use of the register. Some of the reasons being that there is already an existing police record of offenders and that such a register is a breach of one’s privacy.

Yet even with the register, only a few offenders are registered as in many cases, especially offences relating to fondling, pornography and other forms of sexual abuse are never brought to court due to weak investigation into the cases, and thus the prosecution is unable to proceed with the cases to be heard in court.

Experts tell me that an estimated 750,000 of cases of child abuse occur each year in Malaysia and a ratio that out of every 10 children, one is a victim of abuse. I cannot imagine the statistics for sexual abuse which takes place behind walls and in most cases, 80 percent of the abusers are known to the child.

With the issues mentioned above I would like to see one day an effective system to deal with the issue of child sexual abuse. Not just to spicy juicy talk and proposals but real commitment, action, implementation and follow-up.

We speak on behalf of babies, young children and young girls who at this very moment are being abused and their cries for help go unheard and justice is not seen done.


James Nayagam is the chairperson of Suriana Welfare Society Malaysia.

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Desa Mentari Satu is one of many places in the country filled with poor blue collar workers and their families. With few funds and little resources to aid them, many of them still struggle to make ends meet. The people who live in places like this tend to go about unseen and unheard from the authorities, making them extremely vulnerable to crime and abuse.

James Nayagam, the founder and chairman of The Suriana Welfare Society, has spent over 35 years working to help children from impoverished families. The NGO runs several free art and music classes, providing the children with a place where they can play and express themselves freely. The group also carefully observes their student’s behaviours in order to identify if they are victims of abuse.

We ask them to relate to us what happens in their house. And then during play therapy we see how they play with the children. During art therapy we see what colors they use. If they say they feel sad, we ask ‘who made you sad?’ and then the story will come out.

The Suriana Welfare Society is one of the only organisations in Malaysia that works to identify and prevent child abuse among the lower sections of society. Unfortunately, there are only so many that they can help. While the statistics are kept locked up by the Official Secrets Act (OSA), many believe that a majority of child abuse cases go unreported. According to the police, over 13, 000 child sex abuse cases were reported in Malaysia between 2012 and 2016, of which only 1% resulted in convictions.

Child sex abuse cases

The horrible thing is that is may only be the tip of the iceberg – it is believed that many other cases go unreported due to fear or apathy.

We used to teach the child. But the children say they don’t want to tell the adult because they’ll say ‘what nonsense are you talking about?

Shaney Cheng, the Training and Education Executive of P.S the Children.

The arrest of paedophile Richard Huckle in 2016 revealed a shockingly large number of victims that had apparently slipped through the system. The shock and outrage caused by this revelation prompted Prime Minister Najib Razak to set up a special task force to “look into ways to combat sexual crimes against children” But for many victims, it was already too late.

Child abuse is a horrible crime, one that can leave permanent scars. The physical and mental negative effects can potentially ruin the victim’s life. The problems are only amplified by an apathetic, judgemental society that is quick to complain and blurt out their outrage on social media, only to forget all about the problem in a few days. Some conservative families even try to force their children to marry their rapists in order to save face!

Richard Huckle the pedophile

To fight back against this menace, we as Malaysians must stop trying to ignore the problem or pretending that it doesn’t exist. Child abuse is a stain on the fabric of society, one that should be removed as thoroughly as possible.

To find out more about what you can do to identify or prevent child abuse, contact Suriana Welfare Society at their facebook

Or visit their official website

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