Is there a gap in Malaysia’s statutory rape laws when case involves two minors?

SHAH ALAM - The debate over Malaysia’s statutory rape laws has reignited following a proposal suggesting victims should also face legal action.

At the heart of the discussion lies a difficult question: when both parties are minors, is it fair that boys were often held responsible while girls are treated as victims?

Child rights activist Kokila Vaani Vadiveloo said the law must be sensitive to the realities of adolescent relationships.

She said it must distinguish between consensual peer experimentation and exploitation or coercion when both parties were minors.

"Many jurisdictions use close-in-age or ‘Romeo and Juliet’ exemptions to prevent criminalising normal teenage relationships, recognising that minors close in age may engage in consensual sexual activity without harmful intent.

"However, situations involving manipulation, power imbalances, force or deception should be treated seriously and punished accordingly to protect vulnerable children," she told Sinar Daily.

Kokila, who is also a lawyer said both capacity and maturity needed to be taken into account.

She said the ability to understand and the level of emotional and mental development were crucial factors in such cases, with some legal systems even allowing judges to evaluate a minor’s readiness in these areas.

She added that focusing on rehabilitation through education, counselling and family support, offered a more effective way to address peer experimentation than imposing harsh punishments.

She also highlighted that Malaysia currently does not have such measures in place.

"While Malaysia does not have a formal close-in-age exemption, it categorically treats any sexual intercourse with a girl under 16 as statutory rape, highlighting the need for sensitive legal frameworks that balance child protection with the realities of adolescent experiences," she said.

Meanwhile consultant paediatrician and child disability activist Datuk Dr Amar-Singh HSS shared similar concerns, warning against the dangers of punitive measures.

He said when both parties involved were children of a similar age, the response should be different, as what they truly needed was support.

"We of course need to differentiate between exploitation, peer experimentation and coercion. If we take a punitive stance and hold children responsible, what will happen is that we will victimise them and this will result in a reduction in reporting of such activities.

"Parents and teenagers will be reluctant to report unaged sexual activities," he said when contacted.

Recently, it was reported that Kelantan police chief Datuk Mohd Yusoff Mamat in a statement suggested that girls involved in statutory rape cases should be charged alongside the adult male perpetrator.

He 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.

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 welfare protection.

One case in Kelantan reported 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 boy was held by the police while the girl was placed under the Social Welfare Department’s care.

Critics argued that the boy may have been groomed, yet the law still categorised him as the offender.