SHAH ALAM – Child activist Datuk Dr Hartini Zainudin has warned against calls to punish both boys and girls involved in consensual underage sex.
She stressed that such proposals risk overlooking the fundamental truth that children cannot legally or morally give consent.
"With respect, when we spoke of 'rogol suka sama suka' and proposed punishment for both boys and girls, we risked forgetting two very important truths.
“First, under both Malaysian law and international standards, children under 18 cannot give valid consent to sex.
"Consent by a child is not real consent. It was shaped by immaturity, power imbalance or even fear.
"To suggest otherwise undermined the very protection that Islam and our legal system are meant to uphold for the most vulnerable.
“Second, punishment alone would not prevent harm. Where was our investment in prevention? Where was the sex education that would equip our sons and daughters with knowledge, dignity and the tools to make safe, moral decisions?
“Our children are growing up in a digital world, exposed, unprotected and often left alone with confusing messages about their bodies and relationships. To simply punish them while failing to guide and educate is to abandon our duty," she told Sinar Daily.
The child rights activist placed her argument within the framework of Islamic principles.
She described that in Islam, the 'maqasid syariah' (the higher objectives of shariah) compelled us to protect life, dignity, lineage and intellect.
This responsibility went beyond punishment; it called for wisdom, compassion and foresight. It meant teaching before punishing and safeguarding before shaming.
Hartini also emphasised that children should never be treated as sinners when they were the ones being exploited.
“Let us be clear. A girl under 18 is not a sinner for being exploited. She is a child.
"She deserves knowledge, protection and justice, not the lash of the law. If we truly wanted to uphold justice and preserve the integrity of our faith, then let us direct our efforts to education, awareness and building a culture where our children are safe. Punishment without prevention betrays both justice and mercy,” she added.
The Broader Debate
On Sept 22, the Federal Territories Mufti Ahmad Fauwaz Fadzil supported Kelantan Police Chief Datuk Mohd Yusoff Mamat's proposal to prosecute complainants or victims if consensual underage sex was proven.
He argued that current laws unfairly burdened men while exempting women.
“Although the law defines sexual intercourse with an individual under 16 years old as rape, regardless of consent, it raised questions of fairness and the effectiveness of the law because women who also consent are not subjected to punishment,” he said.
His remarks followed Yusoff’s statement that nearly 90 per cent of underage rape cases in Kelantan involved mutual consent.
Fauwaz added that from an Islamic perspective, women should also be held accountable if proven guilty of zina (illicit sex).
In response, Women, Family and Community Development Minister Datuk Seri Nancy Shukri reiterated that minors involved in consensual sex needed protection, not punishment.
“These children must be given the opportunity and space to learn from mistakes, recover and rebuild their lives without being burdened by long-term stigma or trauma,” she said, stressing the importance of counseling, education and support.
Public Reaction and Legal Tensions
The issue has polarised public opinion online. Many Malaysians rejected the idea of punishing underage girls, stressing that children lacked maturity and required protection.
Others, however, questioned whether the law was fair, pointing to cases where boys faced institutionalisation at Henry Gurney Schools while girls were shielded under the Social Welfare Department's (JKM) care.
One case in Kelantan on Sept 4 highlighted the issue: an 11-year-old boy and his 15-year-old cousin engaged in sexual activity that resulted in pregnancy.
The police held the boy while the girl was placed under JKM's care.
Critics argued that the boy may have been groomed, yet the law still categorised him as the offender.
This controversy has spotlighted a deeper divide in Malaysian society; should the law remain focused on shielding girls as victims or should reforms introduce balanced accountability when both parties are minors?
Experts argued that the answer lies not in punishment, but in frameworks that protect children from exploitation while addressing adolescent relationships through education, guidance and rehabilitation.