Legal Definition of a Child in Malaysia and the Definition of Statutory Rape

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I made a mistake when discussing on the legal definition of a child in Malaysia and the definition of statutory, and so I thought it would be a good idea to revise on this topic.

I mistakenly thought that a child in Malaysia is defined as one aged 18 years old and below. I was wrong. According to the Malaysian Child Act 2001 or Act 611, a child is defined as

a person under the age of eighteen years or below 18 years old (NOT 18 years and below)

However, as Nadesan and Omar (2002) writes, the consenting age for sexual intercourse in Malaysia is 16 years old. As such, statutory rape is defined as sexual intercourse (regardless of whether WITH or WITHOUT consent) with a girl BELOW 16 years old (AND NOT with ANY child).

This definition is according to Section 376 of the Malaysian Penal Code (or Act 574).

Therefore, there exist a time period where a person under the age of 18 years old AND above the age of 16 years old, CAN consent to sexual intercourse, but cannot give consent to medical procedures and treatment (because she is below 18 years old).

The article written by Nadesan and Omar in 2002 is an excellent treatise of the current rape scenario in the Malaysian context. The article can be downloaded here.

The criteria of rape as per Section 375 of the Penal Code is as below:

1. Against her will
2. Without her consent
3. With her consent, when her consent has been obtained by putting her in fear of death or hurt to herself or any other person, or obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception 
4. With her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent
5. With her consent, when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent
6. With or without her consent, when she is under sixteen years of age (statutory rape)

The word rape originates from the Latin word "rapere", which means "to snatch".  Often, to snatch something from someone would entail some amount of violence imposed. Furthermore, according to Section 375 of the Penal Code above, rape is defined when the sexual intercourse is done "against her will". As such, this places the burden on the victim and the prosecution team to establish the evidence of violence and "against her will". This can pose serious problems because, as Nadesan and Omar (2002) said:

".....the absence of injuries does not necessarily mean that the woman was a willing partner. Owing to many reasons, a victim may not resist the rapist and in that event the chances of a physical attack by the rapist is reduced. When victims are taken by surprise they may be too scared to resist. More importantly, in many instances the rapist is an immediate family member, a close relative or a friend. Several cases are actually incest and many more are statutory rapes where the victims are under the age of sixteen years."

In many countries, the burden of proof has been shifted to the defendant (alleged perpetrator) to prove that there was consent for sexual intercourse, but in Malaysia, the position still remains unchanged for the prosecution to establish that the woman did not consent.

Another thing I learned from the article by Nadesan and Omar (2002) is that amendment to the 1988 Section 146A of the Evidence Act (Act 56) states that no question in cross-examination shall be adduced or asked concerning the sexual activity of the complainant with any other person other than the accused. Previously, victims during cross-examinations were asked about their sexual encounters with persons other than the suspect in order to discredit their moral behavior.

Doctors and nurses working in the emergency departments should have a general knowledge of this important issue as these victims will be presented to the One Stop Crisis Center (OSCC) in emergency department. It is of utmost importance that such victims be accorded to utter privacy and confidentiality. No gossiping of the nature of the suffering inflicted upon the victim should be discussed among healthcare professionals!

My previous post on OSCC: click here.

Reference:

1. Nadesan K, Omar SZ. Rape--the Malaysian scenario. Malays J Pathol. 2002 Jun;24(1):9-14. [Click here to download the FREE full text in pdf]