CHILD ABUSE IN MALAYSIA: LEGAL MEASURES FOR THE
PREVENTION OF CRIME AND PROTECTION OF THE VICTIM
Yusnany Yusop＊

I. ABSTRACT
Child abuse is not a new phenomenon. It happens all over the world. From the statistics, child abuse is
not something that we should take lightly. Even though many steps have been taken by the government,
cases of child abuse keep increasing. Hence, it should be taken seriously, and we must provide the way toprotect the victim and to prevent it from happening. In Malaysia, many laws have been passed with theobjective of protecting the welfare of the child. At the same time, the law also tries to prevent the crimefrom being committed. This paper will discuss the Malaysian Child Act 2001 (Act 611) which came into
force on 1 August 2002. The Act attempts to promote the rights of the child and at the same time aims to
implement the United Nations Convention on the Rights of the Child (UNCRC). However, the discussions
will only focus on the provisions relating to the welfare of the child abuse victim and the rights and responsibilities of the public to prevent child abuse. As the victim of the abuse may later on be required togive evidence in a court of law, being a child, it is expected that a normal criminal justice proceduresshould not be applied to them. There should be a special way of obtaining and allowing them to give
evidence. In 2007, the Evidence of Child Witness Act was passed with the aims to make provisions relating
to giving of evidence by child witnesses. It is the aim of this paper to see how such laws are effective inprotecting the child abuse victim.

II. INTRODUCTION
Child abuse and violence are of global concern and have long been unresolved issues. Even thoughmany steps have been taken by the government to prevent them, statistics show that child abuse cases
keep increasing. Children experience violence in spaces most familiar to them: in homes, schools and in thecommunities they live in. They also suffer abuse and exploitation in orphanages, in places of detention andon streets. The willful maltreatment of children has been recognized internationally as a matter of greatsociological impact with legal significance and medical concern. Law is one of the mechanisms to ensurethat all the policy and planning of the government run smoothly. For example, it is a policy of the government of Malaysia that no child is abused or neglected. Therefore, the government of Malaysia has passed
legislation to protect the child from being abused and also to ensure the perpetrator is punished. The
Domestic Violence Act 1994 and the Child Act 2001 are the main laws which govern cases of child abuse.
The other laws which dealt with the case of child abuse are the Penal Code and the Evidence of Child
Witness Act 2007.

III. DEFINITION OF CHILD
Age is an important factor in determining whether a person is a child or not. It is important todetermine whether a person is considered as a child because if he is a child, specific provisions of law
which provides for the protection of a child will be applicable. Therefore, the child will be protected frombeing exploited. The Child Act was which passed in 2001 (Act 611) to consolidate three major statutes
governing children and young persons, i.e., the Juvenile Court Act 1947, Child Protection Act and Womenand Girls Protection Act 1973, defines a child as all persons aged below 18 years. The definition is also inline with Article 1 of the Convention on the Rights of the Child 1991, i.e., a child is defined as someone
who is under the age of 18.

Investigation Officer, Crime Investigation Department, Royal Malaysia Police, Malaysia.

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IV. DEFINITION OF CHILD ABUSE
It is difficult to define child abuse with precision as there can be no universal meaning based on abroadly acceptable value. This is because the form of neglect may not be an abuse of one community but
it may be considered as a form of abuse in another society. The World Health Organization defines childabuse as all forms of abuse whether physical, emotional, sexual, neglect, abuse, maltreatment or exploitation which may cause injury or damage to the health, life, development or dignity of the child done bythose who have the responsibility, trust or authority over the child. Sometimes we need to differentiate
between abuse and the rights of the parent to discipline their child. The parent has the right to discipline
their child as long as it is done in a reasonable manner and moderate in degree and otherwise does notconstitute cruelty.

V. FORMS OF CHILD ABUSEChild abuse can be divided into four kinds—emotional, physical, sexual and neglect. It usually consistsof a pattern of behaviour which may include more than one kind of abuse. It may take the form of failure
to meet a child’s need for affection, attention and stimulation (even though good physical care may beprovided) or that may be constant verbal abuse, rejection, threat of violence or attempts to harm the child.
It may also refer to the negative behaviour of the parents or guardians towards children under theircustody. Physical abuse occurs when a child is injured by a parent or guardian. An act or omission would
amount to “physical abuse” if they occur intentionally or with intent to injure the child. The examples ofphysical abuse are kicking, punching, shaking, strangling, beating until he passes out and breaking bones.
While injuries which are always associated with physical abuse are bruises, scratches, brain damage,
bleeding and some cases involving death, sexual abuse is defined as involvement of children in sexual activities where they do not fully understand what is being done or the impact of the consent given, or theact is something contrary to role of the family. The example of sexual abuse included the act of having
sex with a child, rape, incest, exposing genitals, sexual sadism, child prostitution and child pornography.
Acts of molestation like holding, kissing, rubbing private parts of children and unnatural sexual behaviour
are also sexual abuses. Neglect can be defined as the persistent and serious failure to provide basic
physical, emotional and developmental needs in terms of health, education, emotional development,
nutrition, shelter and a safe life for children. (Malaysia’s National Policy). Neglect occurs when caretakers
fail to provide children with essential food, clothing, shelter, medical care, education, nurturance, or love.

VI. FACTORS THAT CONTRIBUTE TO CHILD ABUSE
There is generally no single factor that results in abuse. There is also no known cause of child abuse.
Nor is there any single description that captures all families in which children are victims of abuse.
However, research has proved that there are a number of risk factors or attributes commonly associatedwith maltreatment. The risk factors can be grouped into four domains, i.e. parent or caregiver factors,
family factors, child factors and environmental factors.

VII. LEGAL MEASURES TO PREVENT AND PROTECT THE VICTIM
It is undoubted that law is the important component to prevent abuse and neglect. Therefore, mostcountries have passed laws for the protection of the children. For example, the Children Act 2001 in
Ireland, the Protection of Children and Juveniles Ordinance in Hong Kong, and the Children and Young
Persons Act 2001 in Singapore. As for Malaysia, a number of laws are providing the protection for theabused child.
A. The Child Act 2001
The Child Act 2001 brought major changes in the law relating to the protection of the child in
Malaysia where the rights of the child were recognized openly by the government. The preamble of the
Act recognized children as an important component of the society and since the children are not mature,protection and special care should be given to them. The Child Act provides provisions to protect abusedchildren or children in need of care and protection as follows:

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1. Restrictions on Media Reporting and Publications
In order to protect the interest and welfare of the child, any mass media report regarding any child inrespect of whom custody is taken under Part V of the Child Act shall not reveal the name, address or educational institution, or include any particulars calculated to lead to the identification of any child soconcerned whether as being the person against or in respect of whom action is taken or as being awitness to the action. The picture of any child concerned or any other person, place or thing which maylead to the identification of any child concerned also shall not be published in any newspaper or magazine
or transmitted through any electronic medium (section 15(1) and (2) of the Child Act 2001).
2. Taking a Child into Temporary Custody
It is the duty of a protector/police officer to take a child into temporary custody and put him or her ina safe house. Here, protector means the Director General, the Deputy Director General, Divisional Directorof Social Welfare, Department of Social Welfare, the State Director of Social Welfare of each state, anysocial Welfare Officer appointed under the Child Act 2001. If the protector or police officer is satisfied onreasonable grounds that a child is in need of care and protection, they may take the child into temporary
custody (section 18 of the Child Act 2001).
3. Duty to Inform the Relevant Authority of Abuse
The duty to inform is imposed on the medical officer or medical practitioner who believes on reasonable grounds that a child he is examining or treating is physically or emotionally injured as a result of
being ill-treated, neglected, abandoned or exposed, or has been sexually abused (section 27(a) of the ChildAct 2001). Failure to report is an offence and shall on conviction be liable for a fine not exceeding five
thousand ringgit or imprisonment for a term not exceeding two years or both (sections 27(b) of the ChildAct 2001). The duty to report is also extended to the family members of the child and the child careprovider (sections 28 and 29 of the Child Act 2001). This is different as compared to the Child Protection
Act 1991 which only imposed the duty on medical practitioners. Looking to these two additional categories, it can be said that there are two categories that also have the possibility to know of the abuse cases
earlier than the medical practitioner. Section 2 of the Act defines “member of the family” as including aparent or a guardian, or a member of the extended family, who is a household member, while household
member is defined as a person who ordinarily resides in the same household as a child. While child careprovider is defined as a person who looks after one or more children for valuable consideration for any
period of time, the duty to report arises according to section 28(1) and section 29(1) when the respective
parties have the reasonable grounds to believe that a child is physically or emotionally injured as a resultof being ill-treated, neglected, abandoned or exposed, or has been sexually abused. Here, the standard used
is whether a reasonable man based on reasonable grounds believes that the child is being abused. Since
the law makes it compulsory for the family member and child care provider to report abuse, failure tocomply with the duty is an offence under section 28 of the Act and if convicted is to be released on bondon conditions to be determined by the Court. Failure to comply with the bond will render the person liable
to a fine not exceeding RM5,000.00 or to imprisonment for a term not exceeding two years or both. It issuggested that the duty to report should be extended to neighbours as well as teachers because they are
the people who always deal with the child and may have seen the signs of abuse.
B. The Child Witness Act 2007
As the victim of the abuse may later on be required to give evidence in the court of law, being a child,
it is expected that a normal proceeding cannot be applied to them. There should be a special way ofobtaining and allowing them to give evidence. According to section 118 of the Evidence Act 1950 if thechild can understand the nature of the question put to him and can give a rational answer to that question,
he is competent to give evidence. A child being a competent witness will be treated as an adult witness.
He is expected to retell the story, live, on the day of the trial in front of the judge, court officials, defence
counsel and the alleged offender. This is a strange environment for the child, and it can rapidly confuse
him. The young child may also find it frightening to see the accused in court. The child will also be
subjected to cross-examination by the defence counsel which will not only traumatize the child but also
make him less likely to tell the truth. In Malaysia, the Evidence of the Child Witness Act was passed in2007 with the objective of reducing the trauma experienced by child witnesses in court appearances. The
Act provides for child witnesses to give evidence in the courtroom but shielded by a screen between thewitness and the accused person or a child charged with the offence or by the live link or by video
recording.
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1. Video Recording
In this case, the child witness should be interviewed by a qualified and experienced person and avideotape of the interview should be used as evidence at trial. Video recording means a video recording of
the oral evidence of the child witness in the form of an interview conducted by a police officer or otherofficer and the child witness, expressed upon any format, made with a view to its admission as evidence of
examination in chief of the child witness. The major advantages of the use of the recorded evidence areless trauma for the child, the freshest possible evidence is obtained, pleas of guilty are encouraged and theaccused who asserts his/her innocence is in a better position to do so when he/she knows all the detailsof the child’s evidence before the trial. However, the video recorded evidence may be attacked as
improper by the defence counsel since it may involve leading questions asked in order to conduct aneffective interview. This may discredit the reliability of the statement given by the child witness.
(Appendix)
2. Live Links or Closed-Circuit Television
Live link means a live TV link or other arrangement whereby the child while absent from thecourtroom is able to see or hear or be seen and heard by the persons in the courtroom. The section
provides for the evidence to be given in a normal way except that the witness will not be in the
courtroom. It is mainly introduced to minimize the stressful effect of a court appearance upon childwitnesses in alleged child abuse cases. Examination of the child witness may be done through the court oran interpreter or an intermediary authorized by the court. The intermediary communicates the questions
put to the child witness and communicates the child’s answer to the person putting the questions. He also
explains the questions and answers to be understood by the child but shall not prompt or influence thechild or disrupt the questioning. If the accused person is unrepresented, he is not entitled to question achild witness directly but he may do so through an intermediary.
3. Screening
A child witness, while giving evidence in Court, may be prevented by means of a screen or other arrangement from seeing and being seen by the accused or a child charged with an offence. However, thescreen or other arrangement shall not prevent the child witness from being able to see, and to be seen by,
the Court, the prosecutor, the advocate for the accused or the child charged with any offence and the interpreter.
4. Accompanying Adult
The court may allow a child witness to be accompanied by an adult while giving evidence, presumably
to give physical comfort and assurance to the child to lessen the trauma. Section 9 of the Child Witness
Act provides that the court may allow a child witness to be accompanied by one or more adult but theadult accompanying the child shall not prompt the child witness to answer the question or influence theanswer or disrupt the questioning of the child witness.
5. Formal Court Attire
Formal court attire may be dispensed with. This is provided in section 10 of the Evidence of Child
Witness Act 2007. This can be seen as one of the ways to make the courtroom appear friendly and normal
in cases where the child witness gives evidence in the courtroom. It cannot be denied that the experienceof being a witness is unpleasant and even daunting for most children. The usual set-up of courtrooms andcourt personnel are intimidating from children’s perspectives, who, for this very reason may be discouraged from giving reliable testimony. The objective of this section is to make the courtroom appear friendly
and normal in cases where the child witness gives evidence in the courtroom.

VIII. CONCLUSION
Despite significant strides made by the government in improving child protection measures, in recent
years, the cases of child abuse keep increasing. The laws and procedures alone cannot solve the problem.
It is only one of the methods of providing a solution to the problem. More efforts should be taken to makesociety aware that child abuse is a crime and can cause a country to lose human potential. The Department of Social Welfare under the Ministry of Women, Family and Community Development and NGO’s
have carried out awareness campaigns periodically in mass-media and a nationwide campaign throughposters and billboards as the main source of medium. As for the protection of the victim, they also provide
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shelter for the victim. Community-based projects should also be developed which involve the society atlarge to create awareness that child abuse is a crime. They should be made aware of the current situation,
the law concerning the issues and measures taken by the government and government agencies.

Appendix
Abstract:
Child victim safety and comfort were ensured by the establishment of the Child Interview Centre (CIC)
which has started in 2002. The main purpose for its establishment is to record the evidence of victims /witnesses through video recording (DVD) under the provisions of the Evidence of Child Witness Act 2007(sec 6 and 7). Therefore, since its establishment, child victims were dealt with in a friendly environment
where audio and video recordings of the child’s interview at the CIC were being used as evidence in chiefof the child.
This practice reduces the trauma suffered by the child victims/witnesses. Moreover, from the recordings tendered in courts, we can see that the whole process was made in a comfortable environment andthey did not show fearful expressions. Apart from that, the professionally trained interviewer did give thechild chances to utilize the equipment provided in the centre to explain the acts done by culprits. This
practice has proven to be efficient as they can explain better using this equipment and were very helpful
to the Prosecution.
Issues (Background):
1) The CIC was introduced in the year of 2002, and until recently CICs were only in 3 different states.
Small districts were facing problems to refer a child victim to CIC since these districts are locatedin remote areas.
2) Several problems have been detected in relation to the implementation of the CIC. These includedifficulties in translating the languages other than the National Language, shortage of interpretersin other languages/dialects (in cases where the victims were not fluent in Bahasa Malaysia), mannerof questioning by the recording officers such as the use of leading questions during recordings
giving rise to a challenge by the defence and shortage of trained recording officers because of promotions or being transferred to another department.
Strategy and Implementation:1) In 2003, the CIC were established only in three states which are Johor, Pulau Pinang and Kuala
Lumpur. Now, the number has increased to 15 with a ratio of 1 CIC for each state in Malaysia.
2) To enhance the quality of the CIC, (with regard to the facilities and environment) as well as recordings of interviews, Training of Trainer on Child Interviewing Skills for D11 officers were organizedwith full support from Unicef Malaysia (in 2013). The Ministry of Women, Family and Community
Development of Malaysia, also organized various trainings, which includes counselling skills,
religious input, handling specific groups of children (young/older/disabilities), child development (behavioural, language and cognitive), Preparation Of Transcript Course, Preparation Of Transcript
immediately after recording and preparation for accredited interpreters. For sexual cases, only experienced Investigating Officers who were certified as interviewing officers were allowed to deal
with sexual victims because they have better knowledge on the matter.
Progress and Results:
1) As far as the CIC records are concerned, since 2003 up to now, a total number of 15 CIC have been
established with a ratio of one CIC for each state. A total number of 2711 recordings have been
conducted throughout Malaysia with a total number of 108 recordings used and tendered in court.
This number is not much compared to the recordings done due to the accused who had pleaded
guilty at the very early stage of trials and there are also victims who can speak extremely well incourt, better than the video taken.
2) An evaluation of the effectiveness of the CIC and the recordings tendered in courts was done
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course, feedback was given by the judicial officers informally. From the feedback, the evaluation
showed that Magistrates and Judges exhibited a higher level of sensitivity in dealing with thevictim during the cross examination process where lawyers are not allowed to badger the childvictim and there were occasions where the court dismissed irrelevant questions from the defence
which made the child uncomfortable.
Good Practice:1) The Child Interview Center has been very helpful for children to give evidence with more confidence and they were free from the rigid courtroom processes. Hence, the Prosecution Division inensuring that the child witness is protected from the normal courtroom processes of having to
confront the perpetrator in court has issued a directive that evidence of a child witness (especiallyin sexual cases) to be taken by way of recordings from the CIC.
2) The focus of CIC on producing quality recordings has led to trainings organized for the recording
officers.
3) The judicial officers on the other hand have shown a high level of sensitivity when dealing withchild victims. Moreover, judges who have experienced a trial using the CIC recordings have shared
their valuable experience with their colleagues to create awareness of CIC and the law involved in
the process of admitting the CIC recordings.

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