LETTER | The Reproductive Rights Advocacy Alliance Malaysia is gravely concerned over the misuse and interpretation of the Sexual Offences Against Children Act (SOAC) 2017.

We strongly condemn the arrest and prosecution of two teenage children, aged 15 and 16 years old, who engaged in consensual sexual activity, under Section 14 (physical sexual assault on a child) and Section 5 (making, producing or directing the making or production of child pornography) as reported in the Borneo Post on Oct 29, 2020.

The SOAC 2017 was gazetted and implemented to rectify legislation shortcomings and to better protect the young and adolescents from sexual crimes, including those operating on the dark web, and the distribution of child pornography. It was celebrated as a significant milestone in Malaysian law to protect children against child sexual abuse.

While the SOAC Act and Child Act rightfully seek to protect minors against sexual crimes and meet the critical need to address the inexcusably high prevalence of sexual abuse against children, criminalising consensual sexual conduct between adolescents does not reach this aim.

Instead, it punishes them for what is a natural part of development and stigmatises adolescent sexual conduct. The fear of prosecution and stigmas surrounding adolescent sexuality deters and hinders them from using health services, resulting in serious health problems, including untreated Sexually Transmitted Infections (STIs), unplanned pregnancy and unsafe abortions.

Section 375(G) of the Penal Code provides that if a man penetrates a female under 16, the offence is rape irrespective of any suggested consent. Statutory rape laws are written with the intent to protect children from predators, given the imbalance of power that exists when there is a wide age gap between abuser and victim.

In this case, a more appropriate course of action would be to ensure that Comprehensive Sexuality Education (CSE) is made available to all students, to prevent non-consensual sexual activity and to educate adolescents and children on the aspects both parties should consider, before engaging in any sexual activity.

A CSE programme includes knowledge about pregnancy prevention methods, discussions about consent and respect for one's partner, and discusses physical and sexual violence, in addition to abstinence. This should be provided to youth and adolescents to develop respectful and healthy social and sexual relationships.

RRAAM urges the Malaysian government to adopt the sweetheart defence clause into the SOAC Act, to introduce close-in-age exemptions for cases of consensual sexual conduct between adolescents and amend Section 2 of the SOAC Act immediately. An age gap of three to five years between teenagers having consensual sexual conduct is permissible in other countries (US and Australia).

In doing so, both the government and society will be empowered to put into practice the true intention and spirit of the SOAC Act which is to protect children from sexual predators and to eradicate child sexual abuse. We urge the Malaysian government to:

• Insert the sweetheart defence clause into the SOAC Act without further delay.

• Take steps to train and educate the police and public prosecutors on the SOAC Act.

• Implement and enforce the SOAC Act with the view of protecting children from sexual predators.

• Train schoolteachers to provide CSE, which includes knowledge about pregnancy prevention methods in addition to abstinence as a choice, and the importance of obtaining consent and practising respect for one's partner.

• Establish comprehensive adolescent and youth-friendly sexual and reproductive health services that respect the confidentiality of adolescents without judgement, to encourage teenagers to obtain accurate sexual health information and services, rather than through hearsay or the use of pornography. Such measures will also help to reduce teenage pregnancy rates.

DR SUBATRA RAJ is the president of Reproductive Rights Advocacy Alliance Malaysia.

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