SHAH ALAM - Proposals to criminalise statutory rape victims undermine the principles of child protection and twisting a law meant to shield minors from exploitation into one that punishes them instead.
Child rights activist Kokila Vaani Vadiveloo said such views were deeply troubling and fundamentally flawed.
"This undermines the very principles of child protection in Malaysian law, shifting blame away from adult perpetrators who hold full legal responsibility, onto vulnerable children.
"Victim-blaming of this kind risks silencing survivors and discourages families from reporting abuse for fear of punishment.
"From both moral and legal perspectives, such views contradict Malaysia’s laws as well as international standards such as the United Nations Convention on Rights of a Child (UNCRC), to which Malaysia is a signatory," she told Sinar Daily.
She was commenting on Kelantan police chief Datuk Mohd Yusoff Mamat's statement suggesting that girls involved in statutory rape cases should be charged alongside the adult male perpetrator.
He reportedly argued for the consideration of his proposal by saying nearly 90 per cent of statutory rape cases were consensual, based on investigations.
In the statement, he said the existing law was more geared towards prosecuting men only, while investigations have found that in many cases, both parties were willing.
Meanwhile, Federal Territories Mufti Datuk Ahmad Fauwaz Fadzil Noor has reportedly supported this proposal saying underage girls in consensual sex cases should not be fully exempted from liability.
Kokila, who is also a lawyer said authorities should instead focus on safeguarding and supporting victims, ensuring that justice was upheld and children were being protected.
She said children could not be treated as equally responsible in cases of statutory rape.
"Legally and ethically, it is wrong to place equal blame on children in situations where they may seem to have 'consented' to sexual activity.
"Children do not have the maturity or capacity to give informed consent, which is why the law establishes minimum ages of consent.
"Under Section 375 of the Penal Code, sexual intercourse with a girl under 16 is defined as statutory rape, regardless of whether she appears to agree. Furthermore, because rape requires an act of penetration, which only a man can commit under the law, charging female minors directly contradicts the intent of these provisions.
"To do so would not only misapply the law but also erode the very protections designed to shield children from exploitation and abuse," she said.
She added that the Malaysian law already provided safeguards for minors.
She said the legal definition of a child in Malaysia was set out under Section 2(1) of the Child Act 2001, which classifies anyone under 18 as a child.
For criminal responsibility, she said Section 82 of the Penal Code exempts children under 10 entirely, while those aged 10 to 12 may only be held responsible if they understand the nature of their act.
"In statutory rape cases, however, the law is clear. Any sexual activity with a girl under 16 is automatically considered rape, regardless of consent. This ensures that underage victims are not criminalised and remain within the protective framework of juvenile justice, which emphasises rehabilitation rather than punishment.
"Proposals to criminalise minors disregard these protections, conflict with existing statutes and risk undermining child welfare," she said.
She said compared to many other countries, Malaysia’s laws on child sexual offences were particularly strict.
In jurisdictions like South Africa, the United States and Canada, she said "close-in-age" or "Romeo and Juliet" clauses existed to avoid criminalising consensual relationships between teenagers close in age.
She added that similarly, European laws often set the age of consent around 16, with exemptions or graduated penalties to reflect the nuances of adolescent behaviour.
She said the Lanzarote Convention in Europe further required protective and preventive measures alongside criminalisation.
Kokila highlighted that Malaysia lacked clear exemptions for consensual sexual activity between minors, with statutory rape laws applied strictly to anyone under 16.
She said proposals to punish minors were damaging, as they disregard international best practices and twist Malaysia’s own legal framework, which was intended to protect children, not criminalise them.
Meanwhile, consultant paediatrician and child-disability activist Datuk Dr Amar-Singh HSS said Malaysia’s legal definition of a child was clearly outlined in Part I, Section 2(1) of the Child Act 2001, which states that a child is a person under the age of 18 years.
"This definition aligns with the UNCRC, which Malaysia ratified decades ago.
"Both the Child Act and the UNCRC recognise that children require special protection because they are not yet adults and therefore lack the maturity, reasoning capacity and full awareness needed to make decisions and take responsibility for their actions," he said when contacted.
He also pointed out inconsistencies in Malaysia’s laws that often created confusion. He said not all legislation was aligned with the Child Act and the UNCRC.
The Penal Code, in particular, he said still included provisions that clashed with these protections and needs to be revised to ensure children were better safeguarded.
He said these gaps in the law frequently led to misunderstandings about what it truly meant to be a child under Malaysian law.
He also cautioned against placing responsibility on minors.
"Recent remarks by police and religious authorities suggesting that underage victims of sexual activity should be held accountable reflect this lack of understanding.
"Children under 18 who engage in sex with an adult cannot and should not be held responsible, as the law recognises that they are vulnerable and unable to give informed consent.
"The responsibility lies entirely with the adult, who has taken advantage of the child and must be held accountable and punished accordingly," he said.