*SEXUAL OFFENCES AGAINST CHILDREN ACT 2017

This Act comes into operation on a date to be appointed by the

Minister by notification in the Gazette.

Application

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

“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—

of a child engaged in sexually explicit conduct;

“sexually explicit conduct” includes actual or simulated of the following:

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;

exhibition for sexual purpose of the genital, buttock, breast, pubic area or anus; and

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.

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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

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.

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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

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;

obtains, collects or seeks any child sexual abuse material; or

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.

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.

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

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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

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.

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 sexual abuse material. A is guilty of an offence under this section.

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A uses B’s computer and discovers a document containing child sexual abuse material stored in the computer’s hard disk. A transmits the said documents into his pen drive and keeps the pen drive in his office. A is guilty of an offence under this section.

sexually communicates with a child; or

encourages a child to sexually communicate, by any means, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding three years.

For the purposes of this section, a person is said to sexually communicate if—

No person shall be convicted of an offence under this section if the communication is for education, scientific or medical purposes.

Child grooming

In any proceedings under this section, the fact that any offence under section 5, 6, 7, 8, 14, 15, 15A or 15B or any offence specified in the Schedule has been committed need not be specified or proven.

In any proceedings under this section, the fact that any offence under section 5, 6, 7, 8, 14, 15, 15A or 15B or any offence specified in the Schedule has been committed need not be specified or proven.

touches any part of the body of a child;

makes a child touch any part of the body of such person or of any other person;

makes a child touch any part of the child’s own body; or

does any other acts that involve physical contact with a child without sexual intercourse, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years and shall also be liable to whipping.

Explanation 1—The act of touching may involve the act of touching with any part of the body or with an object and may be done through anything including anything worn by the person touching or by the child touched.

Explanation 2—In determining what constitutes sexual purposes, the court may take into consideration, among others, the part of the body that is touched, the nature and extent of the act of touching or the physical contact and all other circumstances surrounding the conduct.

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Non-physical sexual assault on a child

for sexual purposes—

utters any word or makes any sound, or makes any gesture or exhibits any object or his body or any part of his body with the intention that such word or sound shall be heard, or such gesture or object or body or part of his body shall be seen by a child;

(Deleted by Act A1687);

engages in an activity that is sexual in nature in the presence of a child;

causes a child to watch such person or any other person engaging in an activity that is sexual in nature;

causes a child to watch or hear 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, of such person or any other person engaged in an activity which is sexual in nature; or

makes a child engage in an activity that is sexual in nature, commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding twenty thousand ringgit or to both.

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Explanation—In determining what constitutes sexual purposes, the court may take into consideration, among others, the words uttered, the nature and extent of the gestures and all other circumstances surrounding the conduct.

Sexual performance by a child

offers, procures or makes available a child for a sexual performance;

makes or causes a child to engage in a sexual performance;

takes part, whether as a participant or viewer, in a sexual performance by a child;

advertises, promotes or facilitates a sexual performance by a child; or

receives any benefit, including monetary benefit, from a sexual performance by a child, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years and shall also be liable to a fine not exceeding fifty thousand ringgit.

For the purposes of this section, “sexual performance” means any sexually explicit conduct performed before one or more viewers, including one which is recorded or transmitted in whole or in part, by any means including but not limited to electronic, mechanical, digital, optical or magnetic means, or the combination of any means.

threatens a child to engage in an activity that is sexual in nature;

threatens a child to share 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, of a body or any part of the body of a child exposing a child’s genital, buttock, breast, pubic area or anus or of a child engaged in an activity that is sexual in nature; or

threatens to use or distribute 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, of a body or any part of the body of a child exposing a child’s genital, buttock, breast, pubic area or anus or of a child engaged in an activity that is sexual in nature, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years.

Explanation—The act of threatening under this section may involve the use of inducement, coercion or force.

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Z, a child, voluntarily shares a topless photo of herself with A. A then threatens Z to post the photo on A’s social media account unless Z sends A a full nude photo of Z. A is guilty of an offence under this section.

A offers Z, a child, money to strip for A during a video call. A records the video call and then threatens Z that A will send the recorded video to Z’s parents unless Z agrees to have sexual intercourse with A. A is guilty of an offence under this section.

In this section, a person is said to be in a relationship of trust with a child if the child is under his care, supervision or authority, including but not limited to—

Notwithstanding any law or rule of law to the contrary, a conviction of any offence under this Act, or of any offence specified in the Schedule where the victim is a child, solely on the uncorroborated evidence of any agent provocateur shall not be illegal

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and no such conviction shall be set aside merely because the court which tried the case has failed to refer in the grounds of its judgment to the need to warn itself against the danger of convicting on such evidence.

Offence by body corporate

The rehabilitative counselling ordered under subsection (1) shall be under the Minister charged with the responsibility for prison.

Order for payment of compensation to a child victim

Where the person convicted of an offence referred to in subsection (1) is a child, the court shall make an order for the payment of the compensation to be made by the child’s parent or guardian.

Where the child victim is deceased, the court shall make an order for the payment of compensation to be made to a representative of the deceased child victim.

The court shall, in making an order under subsection (1), take into consideration any factor which the court thinks fit including—

For the purpose of making an order under subsection (1), the court may hold an inquiry as it thinks fit.

Where the court makes an order for payment of costs of prosecution under section 426 of the Criminal Procedure Code against the convicted person in respect of any offence under this Act, or any offence specified in the Schedule where the victim is a child, an order for payment of compensation under this section shall have priority over an order for the payment of costs of prosecution.

To the extent of the amount which has been paid to the child victim, or to the representatives of the child victim, under an order for payment of compensation, any claim of such child victim or representatives of the child victim for any injury, damage or loss suffered by reason of the offence shall be deemed to have been satisfied, but the order for payment shall not prejudice any right to a civil remedy by the child victim or by the representatives of the child victim against the convicted person for the damages beyond the amount of compensation paid under the order.

Every order made by the court under this section shall be appealable to the High Court.

Provisions as to payment of compensation

allow time for the payment of that sum;

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direct payment of that sum by installments;

issue a warrant for the levy of that sum by distress and sale of any property belonging to the convicted person;

direct that in default of payment or of a sufficient distress to satisfy such sum, the convicted person shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may be sentenced or to which he may be liable under a commutation of sentence:

Provided that where time is not allowed for the payment of that sum, an order for imprisonment in default of payment shall not be issued in the first instance unless it appears to the court that the convicted person has no property or insufficient property to satisfy the sum payable or that the levy by way of distress will be more injurious to him or his family than imprisonment;

direct that the convicted person be searched and that any money found on him when so searched or which in the event of his being committed to prison, may be found on him when taken to prison shall be applied towards the payment of that sum, the surplus, if any, being returned to him:

Provided that such money shall not be so applied if the court is satisfied that the money does not belong to the convicted person on whom it was found or that the loss of the money will be more injurious to his family than his imprisonment.

The term for which the court directs the convicted person to be imprisoned in default of payment or of a sufficient distress to satisfy any sum shall not exceed the following scale:

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When the money to be paid does not exceed RM500

… … … …

One month

When the money to be paid exceeds

RM500 but does not exceed RM1000

… … … …

Two months

In any other case

… … … …

Six months

The imprisonment which the court imposes under this section shall terminate whenever the money is paid or levied by process of law.

If before the expiration of the time of such imprisonment such a proportion of the money is paid or levied that the time of imprisonment suffered is not less than proportional to the part of the money still unpaid, the imprisonment shall terminate.

A warrant for the levy of any such sum may be executed at any place in Malaysia but if it is required to be executed outside the State where it is issued, the warrant shall be endorsed for that purpose by a

Judge or a First Class Magistrate having jurisdiction in the State where it is to be executed.

Police supervision

When any person subject to the supervision of the police under subsection (1) is, while still subject to such supervision, sentenced to a term of imprisonment within Malaysia, any term spent in prison shall be excluded from the period of supervision.

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