SHAH ALAM - Legal experts are urging the government to overhaul Section 377 of the Penal Code, warning that existing gaps, particularly relating to consent, are preventing authorities from prosecuting cases involving acts against the order of nature.
The Malaysian Syariah Lawyers Association (PGSM) President Musa Awang said current provisions under Section 377C allow the element of “consent” to be used as a defence, creating significant obstacles for enforcement.
He said that the section only applies when intercourse “without consent”, “against the will” or under threats of death or injury occurs, creating a situation where offenders may escape prosecution if they claim the act was consensual.
“This means that when offenders say they consented and there was no coercion during the act, they cannot be prosecuted under that section,” he said.
The issue resurfaced after Kuala Lumpur Police Chief Datuk Fadil Marsus revealed that 202 individuals, including 17 civil servants, were detained in a raid at a spa in Chow Kit, but prosecution could not proceed because “none of them claimed to be victims”.
He said investigations were conducted under Sections 377 and 372 of the Penal Code, but the evidence was insufficient.
He also highlighted ambiguity in Section 377A, particularly concerning intention, victims and consent, calling for a holistic legal review.
Musa added that although Syariah law considers anal intercourse an offence regardless of consent, the 2021 Iki Putra Mubarak ruling had rendered the Syariah provision invalid, further complicating enforcement.
“However, the offence of anal intercourse under Syariah criminal law was declared invalid in the 2021 case of Iki Putra Mubarak. In that case, judges of the Federal Court unanimously ruled that Section 28 (Liwat) under the Selangor Syariah Criminal Enactment was invalid,” he said.
He called on the government, particularly Minister Datuk Seri Azalina Othman Said, to immediately review Section 377 in full, warning that the weaknesses cannot remain for too long.
He stressed that immediate amendment is necessary because “the existing gaps cannot be left unresolved, as they may allow some individuals to continue taking advantage of the situation”.