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SOAC Act 2017: What is it to the health care providers?

The Sexual Offenses Against Children (SOAC) Act 2017 [Act 792], which was recently gazetted and implemented by the Malaysian Parliament, was welcomed by many and hailed as a successful step to further protect our children from sexual perpetrators. Originally tabled in Parliament, with its first reading on March 27th, the then much anticipated Child Sexual Offense Bill 2017, went through a very swift second and third reading, and in less than a week, subsequently passed by Parliament on April 2nd 2017 and implemented July 10th. Some law observers commented that this Bill was probably one of the fastest read, approved and implemented Act in the country. It could be due to the fact that the Bill had prior widespread support from 115 Members of Parliament, both from government Backbenchers and Opposition parliamentarians alike.  This proved that this country’s law makers can achieve to an agreement, regardless of their political affiliation, if a law benefits the majority. Furthermore, this issue was extensively lobbied by the Star newspaper, especially after its R.AGE team released a documentary on sexual crimes against Malaysian children. Nonetheless, the overwhelming support, which came from both the political divide, was timely as cases of child grooming and pornography have gone to an alarming high rate.  In 2013, statistics from PDRM showed that there were close to 10,000 cases of children being victims of ‘some kind of’ sex crime.  This included 2893 cases of outraging modesty of a child, 6200 cases of child rape and over eight hundred cases of child incest.

Sexual and reproductive health of the child (teenager)

Approximately 13,000 to 17,000 teenage pregnancies occur annually and the 5th Malaysian Population and Family Survey in 2014 has shown that 2.3% of our 13 to 17-year-olds are already sexually active, with very poor sexual and reproductive health knowledge. In addition, The National Health and Morbidity Survey conducted by the Ministry of Health (MOH) Malaysia had revealed that the prevalence of sexual activity among teenagers had rose from 1.8 % in 1996 to 8.3% in 2011. Correspondingly, a survey done by the LPPKN (Lembaga Penduduk dan Pembangunan Keluarga Negara) had shown that the percentage of teenagers engaging in sexual activity had rose from 0.9% in 1994 to 2.2% in 2004 and 6.5% in 2010. As regards to teenage pregnancy, data from MOH indicated that new cases of teenage pregnancies for those ages 10 to 19, from January to December 2011, was 18,652, of which 4,222 (23%) were out of wedlock. This issue is closely linked to other social problems such as sexual intercourse outside marriage (Zina), baby dumping, incest, sexually transmitted diseases and HIV infection.  Other contributing factors have been identified which included the lack of knowledge on sexual and reproductive health, peer pressure, family conflicts, lack of religious education, and influence of social media and the internet.

Owing to this, the MOH, being the largest health care provider for this country, had published a guideline to address the sexual and reproductive health issues in teenagers. This comprehensive guideline considered not only the medical management of contraception for the young but also expanded to other aspects which included law, medical ethics, religion, children’s rights and local socio-cultural influences in handling such issue. This 2012 guideline serves as a manual to all primary health care givers in handling sexual health and reproductive problems for teenagers aged 18 and below.

The teenager and consent

Section 2 of the Age of Majority Act 1971 [Act 21] and Child Act 2001 [Act 611] stated that the majority age for both male and female is eighteen (and above).  Concurrently, the SOAC Act 2017, as applies to Section 2, defines a child as those who are under the age of eighteen. Generally, the law sees that only adults are capable in giving consent.  To put it in another way, those below 18 cannot legally give consent, which also includes consent to medical treatment. In this aspect, when a health care provider is approach by a young ‘client’, he/she is obliged to see and treat the young lady accordingly.  However, subsequent medical investigations and treatment should require consent from the patient, and since the young lady is a minor, consent should be obtained from her guardians or parents.  As stated in the MOH guideline, even though there is no written law in this country that consent is required for non-invasive procedures (e.g. counselling), the MOH encourages its staff to obtain consent from the child’s parents nonetheless.  This is to ensure that the practice done by its staff is in harmony to the local law as well as professional ethics of the Ministry. Conversely, the guideline specified that invasive procedures (including ultrasound and UPT) must require consent from the child’s parents or guardians, however it was noted that a verbal consent would suffice.

Has the SOAC Act now ‘protect’ the 16 to 18-year-old teenager?

The Malaysian Penal Code [Act 574], Section 375 subsection (g) defined statutory rape as a man having sexual intercourse with a woman with or without her consent, when she is under sixteen years of age. This means that any consensual sex, outside legal marriage, to a 15-year-old female teenager is considered a crime and should be reported to the authorities.  Therefore, it is compulsory that a health care provider report to the police, of any consensual sexual activity of his/her below 16-year-old single ‘client’ has had.  It is not mandatory, however, to make a police report of any sexual inferences of the 16 to 18-year-old ‘clients’, but this practice may change with the introduction of the new Act.

Prior to the implementation of the SOAC Act, there is no clear provision in the law to ‘protect’ children between the ages of 16 to 18, of any sexual offenses.  However, this Act has broadened the protection to teenage girls between this age brackets.  In addition, it has also expanded the scope of protection beyond that of the act of sexual intercourse alone, to include criminalising ‘touching’ in a sexual manner. Section 14 refers to the physical sexual assault on a child which included, any person, for sexual purpose, touches a child or making a child touch any part of her body or a person’s body or other acts that involve physical contact with a child, without sexual intercourse, is considered commits an offence.  The person then shall be punished, upon conviction, to not more than 20 years of imprisonment and liable to whipping.  Section 14 is meant to protect the teenager, either male or female, from being sexually molested or touched in a sexual manner by a perpetrator, presumably a male. It does not however specify whether exemptions apply if the individuals were consensual in that sexual yet non-coital activity.  In other words, if the 17-year-old girl had a consensual romantic relationship, not amounting to sexual intercourse, with her 19-year-old boyfriend, that male partner has committed a crime and can be punishable by imprisonment and whipping.  It was further explained that, it is up to the court to determine what constitutes as sexual purposes.

As discussed above, consensual sexual acts, not leading to intercourse, done by or unto minors between the ages of 16 to 18 are now considered an offence.  Unlike in some states in the USA, where the “Romeo and Juliet Law” may be applied, Malaysia has not included the so called “Sweetheart Defence” clause in its provision of the current Act. Hence, the new Act might have ‘indirectly’ criminalised Zina amongst youngsters, in the eyes of the common law?

Failure to give information is now an offence

The new Act has also made it compulsory by law that any forms of sexual crime to the teenager be reported to the police, failure which can be subjected to a heavy fine.  Section 19 states “[n]otwithstanding section 13 of the Criminal Procedure Code [Act 593], any person who fails to give information of or the commission of or the intention of any other person to commit any offence under this Act, or any offence specified in the Schedule where the victim is a child, to the officer in charge of the nearest police station, commits an offence and shall, on conviction be liable to a fine not exceeding RM 5000.”  In other words, if the health care provider sees a young 17-year-old ‘client’, seeking contraceptive consultation, that doctor/nurse is now obligatory to make a police report of the sexual activity of his/her ‘client’.  Prior to this, the doctor would only need to seek parental consent before counselling and treating the teenage girl. However, with the implementation of the new Act, failure to report to the police of sexual encounters the 16 to 18-year-old girl has had, with or without the act of coitus, may subject the doctor or nurse to criminal charges and a hefty fine.

Conclusion

The new law was drafted to protect our children from sexual advances by predators and Section 2, 14 and 19 of the new Act has added ‘extra protection’ to them, presumably not covered by the Child Act 2001.  All medical and health care providers should be aware of the new Act and how it could impact their work when providing sexual and reproductive health care services and advice to their teenage ‘clients’.

 

 

 

 


Dr. Mohamed Hatta Tarmizi
Consultant Obstetrician and Gynaecologist
Post Graduate Certificate in Law and Medical Ethics (Edinburgh University).

*Disclaimer: any views expressed in this article are those of the author and do not necessarily represent the official views of, and should not be attributed to I-Medik

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