Letters

Statutory rape laws: Protection, not prosecution, must be the priority

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The recent proposal by Kelantan police chief, Datuk Mohd Yusoff Mamat, that underage girls – not just their male counterparts – who are involved in consensual sexual activity should also be prosecuted raises serious legal, ethical, and policy concerns.

While his intention to address the rising trend of teenage sexual activity is understandable, the solution he proposes risks undermining the very framework of child protection enshrined in our legal system.

Under Malaysian law, as in many other jurisdictions, a minor is considered legally incapable of giving consent to sexual intercourse. This principle is not arbitrary; it reflects a universal understanding that children and adolescents lack the cognitive and emotional maturity to make fully informed decisions about sex, and thus require legal protection, not criminal punishment.

The concept of “suka sama suka” (mutual consent) must therefore be handled with nuance and clarity. While statistics may show that many cases of statutory rape involve willing participation from both parties, the law presumes, and rightly so, that a child cannot consent in the same way an adult can. This is especially relevant in situations involving older male partners, where clear power imbalances exist, even if coercion is not overt.

To prosecute an underage girl as if she were an equal participant in such an act ignores the psychological, social, and emotional vulnerability that minors face. It also opens the door to re-victimisation through legal processes, which runs counter to the protective spirit of laws such as the Child Act 2001 and the Sexual Offences Against Children Act 2017.

Rather than resorting to criminalisation of girls, Malaysia would do well to study how other advanced democratic societies deal with similar issues.

In Canada, the age of consent is 16, but the law contains a “close-in-age” exception. This means that a 14- or 15-year-old can legally have sex with someone less than five years older, provided the relationship is non-exploitative.

The objective here is not to criminalise teenagers for engaging in consensual relationships with their peers, but to prevent older individuals from taking advantage of younger ones. In this model, peer relationships are treated differently from exploitative ones, with the focus on education and prevention, not punishment.

Similarly, Germany has an age of consent set at 14, but it criminalises sexual relations only when one party is over 21 and the younger party is under 16, if there is evidence of exploitation.

The law thus distinguishes between natural adolescent behaviour and manipulative or abusive relationships, offering courts room to assess each case based on context rather than enforcing a blanket rule.

In Sweden, sexual acts with minors under 15 are criminalised, but the public prosecutor has discretion not to pursue cases where both parties are close in age and the act was clearly consensual.

Even in the United States, which often has a harsher criminal justice approach, many states adopt a similar “Romeo and Juliet” provision to prevent minors from being prosecuted for engaging in consensual sex with other minors. In California, for example, while the legal age of consent is 18, the law allows prosecutors to treat certain close-in-age cases as misdemeanours rather than felonies. These provisions recognise that while the protection of minors is essential, criminalising them for sexual activity with their peers can be more damaging than constructive.

Malaysia’s current framework, by contrast, tends to place the entire burden of criminal liability on boys or young men, even when both parties are underage and involved willingly. This has led to legitimate concerns about gender bias in enforcement. However, the solution is not to extend the punishment to girls, but to develop a more graduated and context-sensitive legal approach. Instead of blanket prosecution under Section 376 of the Penal Code or Section 14 of the Sexual Offences Against Children Act, we need legal reform that includes tiered offences, judicial discretion, and rehabilitative options for minors.

Furthermore, we must consider the broader implications of such proposals. Prosecuting girls could deter them from coming forward in cases where they are genuinely coerced or abused, fearing that they too might face legal consequences. This is especially dangerous in a cultural environment where discussions around sex are already highly stigmatised. In effect, this would deepen the silence around sexual abuse and push more cases into the shadows.

It is also worth noting that punitive approaches have limited efficacy in curbing adolescent sexual activity.

Studies across countries consistently show that education, open communication, and access to accurate information are far more effective in reducing risky sexual behaviour than fear of punishment.

This is where Malaysia must focus its efforts through nationwide, age-appropriate comprehensive sexuality education, stronger parental and community engagement, and collaboration with religious and cultural leaders to foster environments of guidance rather than judgment.

While concerns about the rise of teenage sexual activity are valid, criminalising underage girls is not the answer. It is legally flawed, morally questionable, and practically counterproductive. The objective should always be to protect, educate, and rehabilitate, not punish, our young people.

Malaysia must craft a legal and social response that is grounded in justice, informed by evidence, and consistent with the best practices of modern democratic societies. Anything less would compromise both the integrity of our legal system and the wellbeing of our youth.

DATO’ DR P. SUNDRAMOORTHY
Criminologist
Centre for Policy Research
Universiti Sains Malaysia