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Why it’s not just ‘beware the stranger’ for kids anymore, and how Malaysia’s add-on jail time can deter sexual offenders

Malay Mail
Malay Mail

KUALA LUMPUR, Jan 31 — Think the saying “Don’t talk to strangers” will be enough to keep children safe from harm including sexual crimes? Think again.

Bukit Aman’s Sexual, Women and Child Investigation Division’s (D11) principal assistant director Assistant Commissioner of Police Siti Kamsiah Hassan told Malay Mail that most sexual offences against children are committed by those known to the victims rather than strangers.

Based on statistics D11 gave Malay Mail, there were 35,659 perpetrators for nine types of sexual crimes against children during the 2018 to November 30, 2023 period, with only slightly more than 25 per cent of these being strangers to the victims.

During this period of nearly six years, about 74 per cent of the perpetrators are those whom the children know, whether they are family or non-family members. In fact, 4,804 or about 13 per cent of the 35,659 offenders were family members.

Addressing this, Siti Kamsiah said the Sexual Offences Against Children Act 2017 increases the punishment for those who abuse children entrusted to their care.

“For cases involving family members, there is a section — under Section 16 — where those who are in a relationship of trust would have an additional five years’ jail,” she said in an interview with Malay Mail, adding that protection orders could also be applied to temporarily prevent the suspect from accessing or going near the child victim pending investigation or trial.

For example, if a relative sexually assaults a child physically, they would be liable under the Sexual Offences Against Children Act 2017 to be punished with a maximum 20-year jail term and whipping, but could see up to five more years under Section 16 for a hypothetical ceiling of 25 years’ imprisonment.

What Section 16 says

Under Section 16, anyone who is in a “relationship of trust” with a child — but commits any sexual offences against the child — will receive additional punishment of a maximum five years’ jail and at least two strokes of whipping. This is on top of any sentence they receive for the sexual offences committed.

The section defines those in a relationship of trust with a child as someone who has “care, supervision or authority” over a child, with six categories listed as examples: a parent, a guardian or a person related through full-blood or half-blood (sharing both or one common biological parent) or if they are related through marriage or adoption including de facto adoption.

The other categories listed in Section 16 are a person who is paid to look after one or more children for any period; a teacher, lecturer or warden of a kindergarten, school, a public or private institution of higher learning; any person providing healthcare services in a government or private healthcare facility; a coach; and a public servant of any rank in the course of his duty in relation to the child.

Section 16 imposes this additional punishment on those in a relationship of trust with children, if they committed any of the crimes stated in a long list in the Sexual Offences against Children Act’s Schedule.

This list in the Schedule includes crimes in the Penal Code like assault with intent to outrage modesty, exploiting any person for purposes of prostitution, rape, gang rape, incest, carnal intercourse against the order of nature, outrages on decency, inciting a child to an act of gross indecency, or word or gesture intended to insult the modesty of a person.

Siti Kamsiah said Section 16 could help deter adults with higher access and proximity to children from committing sexual crimes against them, with harsher penalties.

“Punishments are part of prevention. If you are a family member, there is an extra five years,” she said.

As for juvenile offenders, they would not be imprisoned, but would be sent to rehabilitation centres. Siti Kamsiah said it may be easier to rehabilitate juveniles than adults who may have engaged in years of sexual offences against children and who may have become addicted.

Based on D11’s statistics provided to Malay Mail, the top three type of offences reported to the police for perpetrators who are acquainted with child victims during the 2018 to November 2023 period were rape, physical sexual assault on a child, and outrage of modesty.

For the same period, for perpetrators who are family members, it was incest, physical sexual assault on a child and rape; while for strangers, it was physical sexual assault on a child, outrage of modesty and sexual harassment.

Specifically for incest — sexual intercourse between family members — that is punishable by between 10 and 30 years’ jail along with whipping, there were 1,703 cases involving child victims reported during 2017 to November 2023, averaging over 200 each year.

Examples of sexual crimes against family members

Siti Kamsiah said the types of sexual crimes family members could commit against children could include grooming, physical sexual assault, rape, and recording such activities.

For example, she said there was a case of a man in Johor who photographed his sexual assault on his then-seven-year-old niece in a car seven years ago, and who also raped the child.

This man uploaded the images to Google’s online cloud storage platform and the tech firm — upon detecting that this account owner had uploaded child sexual abuse materials — then alerted the US-based non-profit organisation National Centre for Missing & Exploited Children’s (NCMEC) CyberTipline.

NCMEC forwarded the tip to Malaysian police, who then traced it to the Malaysian man and discovered the photographs as part of the investigation.

She said most offenders do not publicly post child sexual abuse material, and would typically share it among friends through private groups or private chats (such as via social media apps like WhatsApp) or put it up on cloud storage services or keep it on their own devices.

Siti Kamsiah stressed, however, that any form of capturing, accessing, uploading, downloading, sharing, or possessing child sexual abuse materials constitute criminal offences.

Asked whether there were examples of family members sharing child sexual abuse material to others, Siti Kamsiah said a recent case involved a Selangor mother recording sexual acts with her 14-year-old child and sharing the video in a private message with another individual, allegedly to fulfill the request of a loan shark who demanded explicit photographs and videos as payment for the husband’s debt.

How can children be protected from family members?

In cases where the offenders are family members, Siti Kamsiah said there are three types of protection orders that could be sought and issued to prevent the suspect from having access to or going near the child: emergency protection orders, interim protection orders, and protection orders.

She said interim protection orders are usually obtained when a police report has been lodged, and typically issued to prevent the suspect from going near the child throughout the police’s investigation.

“When there is a decision to charge and the person is charged, the interim protection order would no longer be valid.

“But the victim can apply for protection order, this protection order is valid during the trial; until the trial is over; or until the end of the protection order’s period,” she said, adding that the protection order — while the trial is ongoing — is valid for one year.

(Read this for more information on when and how these three types of protection orders can be obtained, and the type of protection they can give to victims.)

But when asked whether protection orders could be sought after a convicted sexual offender is released from prison, Siti Kamsiah said no as these only apply throughout the investigation or trial.

She said it would be against human rights to continue punishing such individuals after they have served their sentences.

As there are limits to how much the law could protect children, Siti Kamsiah stressed the importance of education to prevent sexual crimes from happening to children in the first place.

“Before a crime happens, how can you prevent it from becoming a crime?” she said, suggesting that this goes back to lifestyles and closing the door for opportunities for crimes to happen.

She said parents should take the initiative to teach morals to and cultivate values in their children, and set in place boundaries and protocols or rules on how to behave — based on religious teachings and societal rules.

Even if it is assumed family members around children would not carry out sexual crimes against them and know the boundaries in their behaviour, appropriate behaviour by children themselves is still required to reduce risks due to human nature where all humans have lust or desires, she said.

For example, teenage male and female siblings should not be allowed to sleep together, and teenagers should dress and interact appropriately with their parents, siblings, and relatives to avoid creating sexual attraction or inviting a crime, she said.

This is because teenagers could already start having sexual desires and curiosity, at a time when their bodies could be developing in ways considered physically attractive in adults, she said.

“So, we have to prevent from the start. Don’t open up space for a crime to happen,” she said.

Another way to prevent children from falling victim to sexual crimes is through awareness campaigns alerting them to the existence of such risks and dangers from those familiar to them, and not just strangers.

For example, they should know that it is wrong if a family member wants to take nude photographs of them.

Siti Kamsiah said children should be taught vigilance, with teachers also having a role in this area.

How children can be protected from known offenders

When asked about how the national child sex offender registry would prevent sexual offences against children, Siti Kamsiah said it could help by serving as an “early assessment” for hiring decisions for work related to children such as at nurseries.

“If the person is a sex offender and asking for employment at a nursery, work involving children, don’t allow as there is a record. But if for other work like factory work, carrying of load, no issue.

“To me, this sex offender registry can help in preliminary filters to prevent those with sex offender records from being involved in dealing with children, but for other work, there is no issue. They should also be given a chance,” she said.

But Siti Kamsiah also clarified that the national registry for child sexual offenders is solely handled under the Social Welfare Department, and that its data does not come from the police but directly from the courts that sentence offenders.

She said the private sector such as nurseries that vet potential candidates may apply for checks of the national registry of child sex offenders, but clarified that this would not include any information beyond confirming if an individual is in the registry.

The Women, Family and Community Development had on March 26, 2019 launched the registry also known as eDKK, which at that time carried around 3,000 names recorded during the 2017 to early February 2019 period.

During the launch, however, then women, family and community development deputy minister Hannah Yeoh maintained the need to remain vigilant even if there is no record of the individual in the registry, highlighting that many in the registry or those who are charged in court are first-time offenders.

MCA in 2020 had proposed for Malaysia to have a national registry covering all types of sexual offenders instead of those who had committed sexual crimes against children, including Malaysians convicted of sex crimes abroad and non-Malaysians — who were convicted of sex crimes locally or abroad — living in Malaysia.

According to the Social Welfare Department’s website, those who are allowed to apply to the department for checks on the registry are parents and individuals and employers hiring workers in child-related sectors. The checks can be done on both existing and prospective employees by submitting the necessary documents including a copy of the identity card of the person to be vetted.

The department listed the child-related jobs as those including babysitters at nurseries or homes; hostel wardens or attendants at institutions involving care of children; those in the education sector such as kindergartens and tuition centres (such as teachers, gardener, canteen operator, security guard); clinics and hospitals such as doctors, nurses and attendants; transportation sector such as school bus drivers; and sports and recreation.

The department’s website also states that search results would state whether there are records in the registry of an individual with the terms “Ada rekod” or “Tiada rekod”, and that the law does not allow information of offenders in the registry to be made public.