SEXUAL OFFENCES AGAINST CHILDREN ACT 2017

LAWS OF MALAYSIA ONLINE VERSION OF UPDATED TEXT OF REPRINT Act 792 SEXUAL OFFENCES AGAINST CHILDREN ACT 2017 As at 11 July 2023 This text is ONLY AN UPDATED TEXT of the Sexual Offences Against Children Act 2017 by the Attorney General’s Chambers. Unless and until reprinted pursuant to the powers of the Commissioner of Law Revision under subsection 14(1) of the Revision of Laws Act 1968 [Act 1], this text is NOT AN AUTHENTIC TEXT. 2 SEXUAL OFFENCES AGAINST CHILDREN ACT 2017 Date of Royal Assent … … … ... 3 July 2017 Date of publication in the Gazette … … … … 7 July 2017 Latest amendment made by Act A1687 which came into operation on … … … … 11 July 2023 3 LAWS OF MALAYSIA Act 792 SEXUAL OFFENCES AGAINST CHILDREN ACT 2017 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and commencement 2. Application 3. Extra-territorial application PART II OFFENCES RELATING TO CHILD SEXUAL ABUSE MATERIAL 4. Child sexual abuse material 5. Making, producing, directing the making or production of, etc., child sexual abuse material 6. Making preparation to make, produce or direct the making or production of child sexual abuse material 7. Using a child in making, producing, directing the making or production of, etc., child sexual abuse material 8. Exchanging, publishing, etc., child sexual abuse material 9. Selling, etc., child sexual abuse material to a child 10. Accessing, etc., child sexual abuse material 4 Laws of Malaysia ACT 792 PART III OFFENCES RELATING TO CHILD GROOMING Section 11. Sexually communicating with a child 12. Child grooming 13. Meeting following child grooming PART IV OFFENCES RELATING TO SEXUAL ASSAULT, SEXUAL PERFORMANCE AND SEXUAL EXTORTION 14. Physical sexual assault on a child 15. Non-physical sexual assault on a child 15A. Sexual performance by a child 15B. Sexual extortion of a child PART V PERSON IN A RELATIONSHIP OF TRUST 16. Person in a relationship of trust PART VI CAPACITY AND EVIDENCE OF CHILD WITNESS 17. Presumption as to capacity of a child witness 18. Evidence of child witness PART VII MISCELLANEOUS 19. Failure to give information 20. Presumption of age of a child 21. Abetment 22. Evidence of agent provocateur admissible 23. Offence by body corporate Sexual Offences Against Children 5 Section 24. Non-application of sections 173A, 293 and 294 of the Criminal Procedure Code 25. Provision regarding whipping 26. Rehabilitative counselling 26A. Order for payment of compensation to a child victim 26B. Provisions as to payment of compensation 27. Police supervision 28. Schedule SCHEDULE 7 LAWS OF MALAYSIA Act 792 SEXUAL OFFENCES AGAINST CHILDREN ACT 2017 An Act 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. [10 July 2017, P.U. (B) 340/2017] ENACTED by the Parliament of Malaysia as follows: PART I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Sexual Offences against Children Act 2017. (2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette. Application 2. (1) This Act shall apply to a child who is under the age of eighteen years and where this Act relates to any other written law, to a child of such age as specified in such written law. 8 Laws of Malaysia AKTA 792 (2) Any reference to a child in respect of any offence under this Act, or any offence specified in the Schedule where the victim is a child shall include a person whom an accused believes is a person of or under the age as specified in the respective provisions of such offences. Extra-territorial application 3. If any offence under this Act, or any offence specified in the Schedule where the victim is a child is committed by a Malaysian citizen against any child in any place outside Malaysia, he may be dealt with in respect of such offence as if the offence was committed at any place within Malaysia. PART II OFFENCES RELATING TO CHILD SEXUAL ABUSE MATERIAL Child sexual abuse material 4. In this Act (a) “child sexual abuse material” means any representation in whole or in part, whether visual, audio or written or the combination of visual, audio or written, by any means including but not limited to electronic, mechanical, digital, optical or magnetic means, or manually crafted, or the combination of any means— (i) of a child engaged in sexually explicit conduct; (ii) of a person appearing to be a child engaged in sexually explicit conduct; (iii) of realistic or graphic images of a child engaged in sexually explicit conduct; or Sexual Offences Against Children 9 (iv) of realistic or graphic images of a person appearing to be a child engaged in sexually explicit conduct; and (b) “sexually explicit conduct” includes actual or simulated of the following: (i) sexual intercourse, or lewd acts including physical contact involving genital to genital, oral to genital, anal to genital, or oral to anal, between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse in a sexual context; (v) exhibition for sexual purpose of the genital, buttock, breast, pubic area or anus; and (vi) use of any object or instrument for lewd acts. Making, producing, directing the making or production of, etc., child sexual abuse material 5. Any person who makes, produces, directs the making or production of, or participates, engages or is involved, in any way, in the making, production or the directing of the making or production of, any child sexual abuse material commits an offence and 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. ILLUSTRATIONS (a) A, an actor approaches Z, a film producer so that A can act in one of Z’s film. Z offers A to act in a film which has a scene where A is engaged in a sexually explicit conduct with a child and A agrees to do so. A acts in that sexually explicit scene. A is guilty of an offence under this section by participating in the production of child sexual abuse material. 10 Laws of Malaysia AKTA 792 ILLUSTRATIONS (b) A is a director of child sexual abuse material. A hires Z, an art director to oversee the artistic aspects of A’s direction of child sexual abuse material. Z does as required of him by A. Z is guilty of an offence under this section by participating in the directing of the making of child sexual abuse material. Making preparation to make, produce or direct the making or production of child sexual abuse material 6. Any person who makes any preparation to make, produce or direct the making or production of any child sexual abuse material 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. Using a child in making, producing, directing the making or production of, etc., child sexual abuse material 7. Any person who uses or causes to be used a child 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 sexual abuse material commits an offence and 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. Explanation—This section does not apply where the preparation to make or produce or the preparation to direct the making or production of child sexual abuse material or where the making or production or the directing of the making or production of child sexual abuse material uses or causes to be used a person appearing to be a child. ILLUSTRATIONS (a) A entices Z, a child through a fake singing competition advertisement and uses Z in making child sexual abuse material. A is guilty of an offence under this section by using a child in the making of child sexual abuse material. A is also guilty of an offence under section 5 by making child sexual abuse material. Sexual Offences Against Children 11 ILLUSTRATIONS (b) A offers his six-year-old daughter Z, to B for Z to be used in the production of child sexual abuse material for a certain amount of money. Z was used in B’s production of child sexual abuse material. A is guilty of an offence under this section by causing Z, a child to be used in the production of child sexual abuse material. B is guilty of an offence under this section by using Z, a child, in the production of child sexual abuse material and under section 5 by producing child sexual abuse material. Exchanging, publishing, etc., child sexual abuse material 8. Any person who— (a) exchanges, publishes, prints, reproduces, sells, lets for hire, distributes, exhibits, advertises, transmits, promotes, imports, exports, conveys, offers or makes available, in any manner, any child sexual abuse material; (b) obtains, collects or seeks any child sexual abuse material; or (c) participates in or receives profits from any business that he knows or has reason to believe is related to any child sexual abuse material, commits an offence and 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. ILLUSTRATIONS (a) A is an administrator of a website showing child sexual abuse material. A is guilty of an offence under this section by making available child sexual abuse material online. (b) A carries on a logistic services business and manages the transportation and storage of publication material owned by Z’s company. Z’s publication material includes child sexual abuse material. Z reveals such information to A and makes profit sharing plan with A in relation to the sale of the child sexual abuse material with a condition that A continues to perform the logistic services for Z. A accepts Z’s offer. A is guilty of an offence under this section by receiving profits from a 12 Laws of Malaysia AKTA 792 ILLUSTRATIONS business that he knows or has reason to believe is related to child sexual abuse material. Selling, etc., child sexual abuse material to a child 9. Any person who sells, lets for hire, distributes, exhibits, advertises, transmits, promotes, conveys, offers or makes available, in any manner, any child sexual abuse material to a child commits an offence and 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. Accessing, etc., child sexual abuse material 10. Any person who accesses, or has in his possession or control, any child sexual abuse material commits an offence and 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. Explanation— A person is said to access child sexual abuse material if he knowingly causes child sexual abuse material to be viewed by, or transmitted to, himself. ILLUSTRATIONS (a) A receives an e-mail from an unknown sender with an untitled attachment. A opens the attachment without knowing that the attachment contains child sexual abuse material. Upon viewing the content of the attachment, A immediately deletes the e-mail from his e-mail account. A is not guilty of an offence under this section. (b) A receives an e-mail from an unknown sender with an untitled attachment. A opens the attachment without knowing that the attachment contains child sexual abuse material. Upon viewing the content of the attachment and despite knowing that the attachment contains child sexual abuse material, A continuously views the child