Sexual Offences Against Children Bill (Eng)
Sexual Offences Against Children Bill (Eng)
ARRANGEMENT OF CLAUSES
Part I
PRELIMINARY
Clause
Part II
4. Child pornography
5. Making, producing, directing the making or production of, etc., child
pornography
6. Preparation to make, produce or direct the making or production of child
pornography
7. Using a child in making, producing, directing the making or production
of, etc., child pornography
8. Exchanging, publishing, etc., child pornography
9. Selling, etc., child pornography to a child
10. Accessing, etc., child pornography
11. Offence by body corporate
Part III
Clause
Part V
Part VI
Part VII
MISCELLANEOUS
A BILL
i n t i t u l e d
[ ]
Part I
PRELIMINARY
Application
2. (1) This Act shall apply to a child who is under the age of
eighteen years.
Extra-territorial application
Part II
Child pornography
4. In this Act—
(ii) bestiality;
(iii) masturbation;
Sexual Offences against Children 5
ILLUSTRATIONS
ILLUSTRATIONS
ILLUSTRATIONS
11. Where any offence under this Part has been committed by a
body corporate, any person who at the time of the commission
of the offence was a director, manager, secretary or other similar
officer of the body corporate, or was purporting to act in any such
capacity, or was in any manner responsible for the management
of any of the affairs of such body corporate, or was assisting in
such management, shall also be guilty of that offence unless he
proves that the offence was committed without his knowledge,
consent or connivance, and that he had exercised all due diligence
to prevent the commission of the offence as he ought to have
exercised, having regard to the nature of his functions in that
capacity and to all the circumstances.
Part III
OFFENCES RELATING TO CHILD GROOMING
Child grooming
(2) In any proceedings under this section, the fact that any
offence under section 5, 6, 7, 8, 15 or 16 or any offence under
the Schedule has been committed need not be specified or proven.
ILLUSTRATIONS
(2) In any proceedings under this section, the fact that any
offence under section 5, 6, 7, 8, 15 or 16 or any offence under
the Schedule has been committed need not be specified or proven.
ILLUSTRATIONS
Part IV
Part V
17. (1) If a person who commits any offence under this Act
or any offence under the Schedule against a child, is in a
relationship of trust with the child, such person shall, in addition
to the punishment to which he is liable for such offence, be
punished with imprisonment for a term not exceeding five years
and shall also be punished with whipping of not less than two
strokes.
a coach; and
(e)
Part VI
Part VII
MISCELLANEOUS
Abetment
24. Sections 173a, 293 and 294 of the Criminal Procedure Code
shall not apply in respect of any offence under this Act, or any
offence under the Schedule where the victim is a child, if the
person convicted for such offence is of or above the age of
eighteen years.
Schedule
26. The Minister may, upon consultation with the Public Prosecutor,
amend the Schedule by order published in the Gazette, including
to exclude or include any offence of any description under any
written law.
SCHEDULE
[Sections 13, 14, 17, 18, 19, 20, 21, 23, 24 and 26]
1. Section 354, 372, 375, 375b, 376, 376a, 376b, 377a, 377b, 377c, 377ca,
377d, 377e or 509 of the Penal Code, except for the purposes of section 24
of this Act relating to the non-application of sections 173a and 294 of the
Criminal Procedure Code to a serious offence under the Penal Code
The proposed Sexual Offences against Children Act 2017 (“the proposed Act”)
seeks to provide for certain sexual offences against children and their punishment
in addition to other sexual offences against children and their punishment in other
written laws, and in relation to it to provide for the administration of justice
for children and connected matters. The proposed Act is pertinent to address
the seriousness of sexual offences committed against children in Malaysia.
The ultimate object of the proposed Act is to provide for better protection for
children against sexual offences and to safeguard the interest and well-being of
children and to provide effective deterrence. In ensuring the effectiveness of the
proposed Act, the relevant parties dealing with children including the public are
obliged to furnish information to the relevant authority on the commission of or
the intention of any other person to commit any sexual offence against children.
Part I
3. Clause 1 contains the short title and empowers the Minister to appoint
the date of commencement of the proposed Act.
4. Clause 2 provides that the proposed Act shall apply to a child who is
under the age of eighteen years and any reference to a child shall include a
person whom the accused for an offence under the proposed Act believes is
a person under the age of eighteen years.
Part II
6. Part II of the proposed Act provides for punishment for offences relating
to child pornography and other relevant provisions.
8. Clause 5 seeks to provide for the punishment for the offence of making,
producing directing the making or production of, participating, engaging or being
involved, in any way, in the making, production or the directing of the making
or production of, any child pornography. Due to the seriousness of the offence,
any person who commits an offence under this clause shall, on conviction, be
punished with imprisonment for a term not exceeding thirty years and shall also
be punished with whipping of not less than six strokes.
9. Clause 6 seeks to provide for the punishment for the offence of preparing
to make, produce or direct the making or production of child pornography.
Any person who commits an offence under this clause shall, on conviction,
be punished with imprisonment for a term not exceeding ten years and shall
also be liable to whipping.
Sexual Offences against Children 17
10. Clause 7 seeks to provide for the punishment for the offence of using
or causing a child to be used in the preparation to make or produce, or in
the preparation to direct the making or production of, or in the making or
production of, or in the directing of the making or production of, any child
pornography. Any person who commits an offence under this clause shall, on
conviction, be punished with imprisonment for a term not exceeding twenty
years and shall also be punished with whipping of not less than five strokes.
This section does not apply where the preparation to make or produce or the
preparation to direct the making or production of child pornography or where
the making or production or the directing of the making or the production of
child pornography uses a person appearing to be a child.
11. Clause 8 seeks to provide for the punishment for the following offences:
Any person who commits an offence under this clause shall, on conviction, be
punished with imprisonment for a term not exceeding fifteen years and shall
also be punished with whipping of not less than three strokes.
12. Clause 9 seeks to provide for the punishment for the offence of selling,
letting for hire, distributing, exhibiting, advertising, transmitting, promoting,
conveying, offering or making available, in any manner, any child pornography
to a child. Any person who commits an offence under this clause shall, on
conviction, be punished with imprisonment for a term not exceeding fifteen
years and shall also be punished with whipping of not less than five strokes.
13. Clause 10 seeks to provide for the punishment for the offence of
accessing, or having in possession or control, any child pornography. Any
person who commits an offence under this clause shall, on conviction, be
liable to imprisonment for a term not exceeding five years or to a fine not
exceeding ten thousand ringgit or to both. A person is said to access child
pornography if he knowingly causes child pornography to be viewed by, or
transmitted to, himself.
14. Clause 11 deals with the provision relating to offences committed under
Part II by a body corporate.
Part III
15. Part III of the proposed Act provides for the punishment for offences
relating to child grooming.
18 Bill
16. Clause 12 seeks to provide for the punishment for the offence of
sexually communicating with a child. Child grooming is usually initiated by
the perpetrator through sexual communication with a child. This offence is
created to ensure that children are fully protected so as to allow for early
intervention to prevent more serious sexual offences against children.
17. Clause 13 seeks to provide for the punishment for the offence of child
grooming. Under this clause, any person who communicates by any means
with a child with the intention to commit or to facilitate the commission of
any offence under section 5, 6, 7, 8, 15 or 16 of the proposed Act or any
offence under the Schedule against the child commits an offence and shall, on
conviction, be punished with imprisonment for a term not exceeding five years
and shall also be liable to whipping. In any proceedings under this section,
the fact that any offence under section 5, 6, 7, 8,15 or 16 of the proposed Act
or any offence under the Schedule has been committed need not be specified
or proven.
18. Clause 14 seeks to provide for the punishment for the offence of meeting
following child grooming. Under this clause, any person who, having communicated
by any means with a child, meets with the child with the intention to commit
or to facilitate the commission of any offence under section 5, 6, 7, 8,15 or
16 of the proposed Act or any offence under the Schedule against the child
commits an offence and shall, on conviction, be punished with imprisonment
for a term not exceeding ten years and shall also be liable to whipping.
Part IV
19. Part IV of the proposed Act provides for the punishment for offences
of sexual assault.
20. Clause 15 seeks to provide for the punishment for the offence of physical
sexual assault on a child. Under this clause, any person who, for sexual
purposes touches any part of the body of a child, makes a child touch any
part of the body of such person or of any other person, makes a child touch
any part of the child’s own body or does any other act that involve physical
contact with a child without sexual intercourse, commits an offence and shall,
on conviction, be punished with imprisonment for a term not exceeding twenty
years and shall also be liable to whipping.
21. Clause 16 seeks to provide for the punishment for the offence of
non-physical sexual assault on a child. Under this clause, any person who, for
sexual purposes, utters any word or makes any sound, or makes any gesture
or exhibits any object or his body or any part of his body with the intention
that such word or sound shall be heard, or such gesture or object or body or
part of his body shall be seen by a child, makes a child exhibit the child’s
body or any part of the child’s body so that it can be seen by such person
or any other person, repeatedly or constantly follows or watches or contacts
a child by any means or threatens to use any representation whether visual,
audio or written or the combination of visual, audio or written, or by any
other means, of any part of the body of a child or the child engages in an
activity that is sexual in nature commits an offence. It is also an offence under
Sexual Offences against Children 19
this clause for any person to engage in an activity that is sexual in nature
in the presence of a child, cause a child to watch another person engaging
in an activity that is sexual in nature, cause a child to watch or hear any
representation, whether visual, audio or written or the combination of visual,
audio or written, or by any other means of another person engaging in an
activity that is sexual in nature or make a child engage in an activity that is
sexual in nature. Any person who commits an offence under this clause shall,
on conviction, be liable to imprisonment for a term not exceeding ten years
or to a fine not exceeding twenty thousand ringgit or to both.
Part V
23. Clause 17 provides that where a person who commits any offence
under the proposed Act or any offence under the Schedule against a child,
is in a relationship of trust with the child, such person shall, in addition
to the punishment to which he is liable for such offence, be punished with
imprisonment for a term not exceeding five years and shall also be punished
with whipping of not less than two strokes. A person is said to be in a
relationship of trust with the child if the child is under his care, supervision
or authority, including but not limited to a parent, guardian or person who
is related through full-blood or half-blood, or through marriage or adoption,
including de facto adoption, a person who looks after one or more children for
valuable consideration for any period of time, teacher, lecturer or warden of a
kindergarten, school, public institution of higher learning or private institution
of higher learning, any person providing healthcare services in a Government
healthcare facility or private healthcare facility as defined in section 2 of
the Private Healthcare Facilities and Services Act 1998 [Act 586], coach and
public servant of whatever rank in the course of his duty under any written
law in respect of the child.
Part VI
24. Part VI of the proposed Act contains provisions on the credibility and
evidence of a child witness.
Part VII
29. Clause 21 seeks to provide that it is not a defence to a charge for any
offence under the proposed Act, or any offence under the Schedule where the
victim is a child, that the accused believed that the child was eighteen years
of age or more at the time the offence is alleged to have been committed
unless the accused took all reasonable steps to ascertain the age of the child.
30. Clause 22 seeks to provide for the abetment of any offence under the
proposed Act. Any person who abets the commission of any offence punishable
under the proposed Act shall, if the act abetted is committed in consequence
of the abetment, be punished with the punishment provided for the offence.
As to the punishment for any attempt of any offence under the proposed Act,
or any offence under the Schedule where the victim is a child, section 511 of
the Penal Code shall be applicable.
31. Clause 23 seeks to provide that notwithstanding any law or rule of law
to the contrary, evidence of agent provocateur shall be admissible in any
proceedings against any person for an offence under the proposed Act, or any
offence under the Schedule where the victim is a child, except for an offence
under sections 14 and 15 of the Anti-Trafficking in Persons and Anti-Smuggling
of Migrants Act 2007 [Act 670]. For the purposes of the Anti-Trafficking
in Persons and Anti-Smuggling of Migrants Act 2007, the provision on the
admissibility of the evidence of agent provocateur is already provided for in
section 59 of the Act. This clause also provides that a conviction in relation to
such offences solely on the uncorroborated evidence of any agent provocateur
shall not be illegal.
32. Clause 24 seeks to provide that sections 173 a , 293 and 294 of the
Criminal Procedure Code shall not apply in respect of any offence under the
proposed Act, or any offence under the Schedule where the victim is a child,
if the person convicted for such offence is of or above the age of eighteen
years. This clause however, shall not apply in respect of offence under the
Penal Code relating to the non-application of sections 173a and 294 of the
Criminal Procedure Code to a serious offence under the Penal Code. By
Sexual Offences against Children 21
virtue of the Criminal Procedure Code (Amendment) 2016 [Act A1521]which
came into operation on 1 March 2017, sections 173a and 294 of the Criminal
Procedure Code have been amended to provide that these sections shall not
apply, among others, to a serious offence under the Penal Code. Under the
Penal Code, “serious offence” denotes an offence punishable with imprisonment
for a term of ten years or more.
33. Clause 25 provides for the exception to the application of paragraph 289(c)
of the Criminal Procedure Code. Under paragraph 289(c) of the Criminal
Procedure Code, males whom the court considers to be more than fifty years
of age shall not be punishable for whipping if he is convicted of an offence
except for offences under section 376, 377c, 377ca or 377e of the Penal
Code. This clause seeks to provide that notwithstanding paragraph 289(c) of
the Criminal Procedure Code, where a person convicted for any offence under
the proposed Act is a male whom the court considers to be more than fifty
years of age, he may still be punished with whipping. This is provided after
taking into account the seriousness of the offences under the proposed Act.
34. Clause 26 seeks to provide that the Minister may, upon consultation
with the Public Prosecutor, to amend the Schedule by order published in the
Gazette including to exclude or include any offence of any description under
any written law.
FINANCIAL IMPLICATIONS
This Bill will not involve the Government in any extra financial expenditure.
[PN(U2)3051]