1 PART I PRELIMINARY-1. Short title and commencement.

(1) This Act may be cited as the Sexual Offences against Children Act 2017 .

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette .

2 PART I PRELIMINARY-2. Application.

(1) This Act shall apply to a child who is under the age of eighteen years and where this Act relates to any other written law, to a child of such age as specified in such written law.

(2) 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.

3 PART I PRELIMINARY-3. Extra-territorial application.

If any offence under this Act, or any offence specified in the Schedule where the victim is a child is committed by a Malaysian citizen against any child in any place outside Malaysia, he may be dealt with in respect of such offence as if the offence was committed at any place within Malaysia.

4 PART II OFFENCES RELATING TO CHILD SEXUAL ABUSE MATERIAL-4. Child sexual abuse material.

[Am. by Act A1687]

In this Act:

(a)   "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:

[Am. by Act A1687]

(i) of a child engaged in sexually explicit conduct;

(ii) of a person appearing to be a child engaged in sexually explicit conduct;

(iii) of realistic or graphic images of a child engaged in sexually explicit conduct; or

(iv) of realistic or graphic images of a person appearing to be a child engaged in sexually explicit conduct; and

(b) "sexually explicit conduct" includes actual or s

5 PART II OFFENCES RELATING TO CHILD SEXUAL ABUSE MATERIAL-5. Making, producing, directing the making or production of, etc , child sexual abuse material.

[Am. by Act A1687]

Any person who makes, produces, directs the making or production of, or participates, engages or is involved, in any way, in the making, production or the directing of the making or production of, any child sexual abuse material commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding thirty years and shall also be punished with whipping of not less than six strokes.

[Am. by Act A1687]

ILLUSTRATIONS

(a) 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 i

6 PART II OFFENCES RELATING TO CHILD SEXUAL ABUSE MATERIAL-6. Making preparation to make, produce or direct the making or production of child sexual abuse material.

[Am. by Act A1687]

Any person who makes any preparation to make, produce or direct the making or production of any child sexual abuse material commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years and shall also be liable to whipping.

[Am. by Act A1687]

7 PART II OFFENCES RELATING TO CHILD SEXUAL ABUSE MATERIAL-7. Using a child in making, producing, directing the making or production of, etc , child sexual abuse material.

[Am. by Act A1687]

Any person who uses or causes to be used a child in the preparation to make or produce, or in the preparation to direct the making or production of, or in the making or production of, or in the directing of the making or production of, any child sexual abuse material commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years and shall also be punished with whipping of not less than five strokes.

[Am. by Act A1687]

Explanation -This section does not apply where the preparation to make or produce or the preparation to direct the making or production of child sexual abuse material or where the making or production or the directing of the making or production of child sexual abuse material uses or causes to be used a person appearing to be a child.

[Am. by Act

8 PART II OFFENCES RELATING TO CHILD SEXUAL ABUSE MATERIAL-8. Exchanging, publishing, etc , child sexual abuse material.

[Am. by Act A1687]

Any person who:

(a) 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;

[Am. by Act A1687]

(b) obtains, collects or seeks any child sexual abuse material; or

[Am. by Act A1687]

(c) participates in or receives profits from any business that he knows or has reason to believe is related to any child sexual abuse material,

[Am. by Act A1687]

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.

ILLUSTRATIONS

9 PART II OFFENCES RELATING TO CHILD SEXUAL ABUSE MATERIAL-9. Selling, etc , child sexual abuse material to a child.

[Am. by Act A1687]

Any person who sells, lets for hire, distributes, exhibits, advertises, transmits, promotes, conveys, offers or makes available, in any manner, any child sexual abuse material to a child 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 five strokes.

[Am. by Act A1687]

10 PART II OFFENCES RELATING TO CHILD SEXUAL ABUSE MATERIAL-10. Accessing, etc , child sexual abuse material.

[Am. by Act A1687]

Any person who accesses, or has in his possession or control, any child sexual abuse material commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten thousand ringgit or to both.

[Am. by Act A1687]

Explanation - A person is said to access child sexual abuse material if he knowingly causes child pornography to be viewed by, or transmitted to, himself.

ILLUSTRATIONS

(a) 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

11 PART III OFFENCES RELATING TO CHILD GROOMING-11. Sexually communicating with a child.

(1) Subject to subsection (3), any person who:

(a) sexually communicates with a child; or

(b) 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.

(2) For the purposes of this section, a person is said to sexually communicate if:

(a) the communication or any part of the communication relates to an activity that is sexual in nature; or

(b) any reasonable person would consider any part of the communication to be sexual.

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

12 PART III OFFENCES RELATING TO CHILD GROOMING-12. Child grooming.

(1) Any person who communicates by any means with a child with the intention to commit or to facilitate the commission of any offence under section 5, 6, 7, 8, 14, 15, 15A or 15B or any offence specified in the Schedule against the child commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding five years and shall also be liable to whipping.

[Am. by Act A1687]

(2) 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.

[Am. by Act A1687]

ILLUSTRATIONS

(a) A communicates with Z , a child via social media by pretending to be a teenager and develops a love relationship with Z with the intention o

13 PART III OFFENCES RELATING TO CHILD GROOMING-13. Meeting following child grooming.

(1) Any person who, having communicated by any means with a child, travels to meet with the child or meets with the child with the intention to commit or to facilitate the commission of any offence under section 5, 6, 7, 8, 14, 15, 15A or 15B or any offence specified in the Schedule against the child commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years and shall also be liable to whipping.

[Am. by Act A1687]

(2) 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.

[Am. by Act A1687]

ILLUSTRATIONS

(a) A communicates with Z , a child via social media by pretending to be a teenager and develops a

14 PART IV OFFENCES RELATING TO SEXUAL PERFORMANCE AND SEXUAL EXTORTION-14. Physical sexual assault on a child.

Any person who, for sexual purposes:

(a) touches any part of the body of a child;

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

(c) makes a child touch any part of the child's own body; or

(d) 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, amon

15 PART IV OFFENCES RELATING TO SEXUAL PERFORMANCE AND SEXUAL EXTORTION-15. Non-physical sexual assault on a child.

Any person who:

(a) for sexual purposes:

(i) 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;

(ii) makes a child exhibit the child's body or any part of the child's body so as it is seen by such person or any other person; or

(iii) repeatedly or constantly follows or watches or contacts a child by any means;

(b) [Deleted by Act A1687] ;

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

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

(e) causes a child to watch or hear any representation in whole or in part, whether

15A PART IV OFFENCES RELATING TO SEXUAL PERFORMANCE AND SEXUAL EXTORTION-15A. Sexual performance by a child.

(1) Any person who-

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

(b) makes or causes a child to engage in a sexual performance;

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

(d) advertises, promotes or facilitates a sexual performance by a child; or

(e) 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.

(2) 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 elec

15B PART IV OFFENCES RELATING TO SEXUAL PERFORMANCE AND SEXUAL EXTORTION-15B. Sexual extortion of a child.

Any person who-

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

(b) 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

(c) 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 p

16 PART V PERSON IN A RELATIONSHIP OF TRUST-16. Person in a relationship of trust.

(1) If a person who commits any offence under this Act or any offence specified in the Schedule against a child, is in a relationship of trust with the child, such person shall, in addition to the punishment to which he is liable for such offence, be punished with imprisonment for a term not exceeding five years and shall also be punished with whipping of not less than two strokes.

(2) 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:

(a) a parent, guardian or person who is related through full- blood or half-blood, or through marriage or adoption, including de facto adoption;

(b) a person who looks after one or more children for valuable consideration for any period of time;

(c) a teacher, lecturer or warden of a kindergarten, school, public institution of higher l

17 PART VI CAPACITY AND EVIDENCE OF CHILD WITNESS-17. Presumption as to capacity of a child witness.

Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, a child is presumed to be competent to give evidence unless the court thinks otherwise.

18 PART VI CAPACITY AND EVIDENCE OF CHILD WITNESS-18. Evidence of child witness.

Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, the court may convict such person of such offence on the basis of the uncorroborated evidence of a child, given upon oath or otherwise.

19 PART VII MISCELLANEOUS-19. Failure to give information.

Notwithstanding section 13 of the Criminal Procedure Code [Act 593] , any person who fails to give information of 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 five thousand ringgit.

20 PART VII MISCELLANEOUS-20. Presumption of age of a child.

It is not a defence to a charge for any offence under this Act, or any offence specified in the Schedule where the victim is a child, that an accused believed that the age of the child is or more than that as specified in the respective provisions of such offences at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the child.

21 PART VII MISCELLANEOUS-21. Abetment.

Any person who abets the commission of any offence punishable under this Act shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.

22 PART VII MISCELLANEOUS-22. Evidence of agent provocateur admissible.

(1) Notwithstanding any law or rule of law to the contrary, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to commit or to abet, or having abetted or having been engaged in a criminal conspiracy to commit, such offence if the main purpose of such attempt, abetment or engagement was to secure evidence against such person.

(2) 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 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 agai

23 PART VII MISCELLANEOUS-23. Offence by body corporate.

If any offence under this Act, or any offence specified in the Schedule where the victim is a child has been committed by a body corporate, any person who at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate, or was purporting to act in any such capacity, or was in any manner responsible for the management of any of the affairs of such body corporate, or was assisting in such management, shall also be guilty of that offence unless he proves that the offence was committed without his knowledge, consent or connivance, and that he had exercised all due diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his functions in that capacity and to all the circumstances.

24 PART VII MISCELLANEOUS-24. Non-application of sections 173A, 293 and 294 of the Criminal Procedure Code.

Sections 173A, 293 and 294 of the Criminal Procedure Code shall not apply in respect of any offence under this Act, or any offence specified in the Schedule where the victim is a child, if the person convicted of such offence is of or above the age of eighteen years.

25 PART VII MISCELLANEOUS-25. Provision regarding whipping.

Notwithstanding paragraph 289 (c) of the Criminal Procedure Code, if a person convicted of any offence under this Act is a male whom the court considers to be more than fifty years of age, he may still be punishable with whipping.

26 PART VII MISCELLANEOUS-26. Rehabilitative counselling.

(1) The court may, in addition to any punishment imposed for any offence under this Act, or any offence specified in the Schedule where the victim is a child, order period of rehabilitative counselling on the person convicted of such offence within the period of his detention.

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

26A PART VII MISCELLANEOUS-26A. Order for payment of compensation to a child victim.

(1) The court before which a person is convicted of any offence under this Act, or any offence specified in the Schedule where the victim is a child, may make an order against the convicted person for the payment by him of a sum to be fixed by the court as it deems just and reasonable as compensation to a child victim in respect of the injury suffered by the child victim as a result of the offence committed.

(2) 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.

(3) 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.

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

(a)

26B PART VII MISCELLANEOUS-26B. Provisions as to payment of compensation.

(1) Where the person convicted of any offence under this Act, or any offence specified in the Schedule where the victim is a child is ordered to pay any sum as compensation under section 26A, the court making the order may do all or any of the following:

(a) allow time for the payment of that sum;

(b) direct payment of that sum by installments;

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

(d) 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 defaul

27 PART VII MISCELLANEOUS-27. Police supervision.

(1) Notwithstanding subsection 295(1) of the Criminal Procedure Code, whether or not he has previously been convicted of any offence, when a person is convicted of any offence under this Act, or of any offence specified in the Schedule where the victim is a child, the court shall direct that he be subject to the supervision of the police for a period of not less than one year and not more than three years commencing immediately after the expiration of the sentence passed on him.

(2) 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.

28 PART VII MISCELLANEOUS-28. Schedule.

The Minister may, upon consultation with the Public Prosecutor, amend the Schedule by order published in the Gazette , including to exclude or include any offence of any description under any written law.