You are on page 1of 13

DRAFT RESEARCH PROPOSAL

PAEDOPHILIA CASES:
THE SEXUAL OFFENDING AGAINTS CHILDREN AND THE
INADEQUACIES OF LAW IN PROTECTING THE CHILDREN

HANIS SYAHIRAH BINTI MOHD ZULKEFLI


Undergraduate SMSU Student
Student No: 1120453

Supervisor Dr. Hazmi Rusli

Faculty of Syariah and Law,


Universiti Sains Islam Malaysia
2015

1. RESEARCH BACKGROUND
Sexual Offending against Children
Before the emerging of two cases related to the pedophilia which just
happened recently, the Malaysians have little issue about the pedophile
cases. Most Malaysians do not know what pedophile is and how does
pedophile can actually harm our children. We have heard the case of
Nurin Jazlin Jazimin which had been sexually abused to death. However,
Malaysians once again were shocked to hear the news that Nur Fitri
Azmeer Nordin, 23, a bright Malaysian student who was studying at
Imperial College under a government loan (MARA), was arrested for
possessing more than 30,000 videos and photographs of child
pornography. Many of the files were classified as Category A, meaning
they depicted the most extreme form of abuse.
For the second case, right after the news about the bright student, in
the same month, the case of Bunya Jalong, 60, who has been acquitted
from being charged of raping a 15-year-old girl in May, June, July and
August 2011 in a hotel in Sibu. The victim became pregnant and gave
birth to a child at Sibu Hospital on February 5, 2012. The DNA testing
also proved that Bunya Jalong is a father to the baby.
Less people care about paedophilia cases and its effects towards
children. The childhood sexual abuse is often a significant trauma that
may have a lifelong impact on survivors. They may grow up in fear and
traumatic conditions that the adults themselves may not understand.
Child Sexual Abuse is contracts interactions between a child and an
adult when the child is being used for the sexual stimulation of the
perpetrator or another person. (National Centre on Child Abuse and
Neglect, NCCAN, 1978)
The sexual child abuse usually related to the sexual contact of adults to
the children. It may happen in various circumstances. The first situation
is when there are any kinds of touching, talking or doing activity that an
adult tries to get a young person to do or say for the sake of the adults
sexual pleasure. Secondly, when an adult is trying to get a young
person to describe certain sexual acts on the telephone or over the
internet or in person. Thirdly, when an adult asks a young person to
touch him or her or creates a situation which the young person can be
touched. The last situation is when an adult wants the child to pose
nakedly or with very little clothes or in seductive (sexually arousing)
way for pictures and videos. When any of these situations made by any
adults towards any children, he or she may be called as paedophile.

The Inadequacies of Childrens Protection Law


It is absolutely essential for the criminal law to protect children from
sexual abuse and exploitation. While much of the media focus is on high
profile cases where children are raped and abducted by adults, the sad

truth is that male and female children are far more commonly the
victims of the abuse, both physical and sexual, at the hands of family
members or adults in relationship of trust. (Criminal Law in Malaysia
and Singapore, 2012)
These two cases have become eye-openers towards all Malaysians to
protect their children even more. Children are meant to be protected by
the adults. Thus, when this thing happened, it has caused great trauma
and fear towards all children and parents.
The Child Act is the current legislation on children and was enforced in
Malaysia in 2003. This Act was introduced to consolidate and amend the
laws relating to the care, protection and rehabilitation of children. The
Act provides the definition of a child and but there is no definition of the
term abuse.
However section 17(2) elaborates that a child is physically injured if
there is substantial and observable injury to any part of the childs body
as a result of a non-accidental application of force that is evidenced by
laceration, contusion, abrasion, scar, fracture or other bone injury etc. A
child is emotionally injured if there is substantial and observable
impairment of the childs mental or emotional functioning that is
evidenced by a mental or behavioral disorder, including anxiety,
depression, withdrawal, aggression or delayed development. A child is
sexually abused if he has taken part in any activity which is sexual in
nature for the purposes of any pornographic, obscene or indecent
material, photograph, recording, film, videotape or performance or is
sexually exploited by person for that persons or another persons
gratification.
According to section 2 of Child Act 2001 (Act 611) "child means a
person under the age of eighteen years. For instance, in a rape case, if
a person who is under 18 years old being raped, there are few options
under Malaysian Penal Code which are as follows:

If a man penetrates the vagina of a female under 16 with his


penis, the offence is rape under section 375(g) irrespective of any
suggested consent.
Under section 377A, if a man has sexual connection with a male
or female child by introducing his penis into the childs anus or
mouth, he commits the offence of carnal intercourse against the
order of nature irrespective of any suggested consent.

Even though there are laws relating to the statutory rape or sexual
abuse towards children, and the specific law to protect the children
itself (Child Act 2001), the laws are still not adequate to cater this
problem. This can be seen because there are many loopholes in many

cases in Malaysia where the accused has been acquitted from being
charged for sexually abused the children because of the lacuna in law. 1
Since Malaysia has signed The United Nations Convention on the Rights
of the Child (UNCRC)2 and upholding the UNCRC, there should be an
urgency of protecting the right and the safety of the children. By
referring to these two recent cases which have been mentioned above,
it can be said that the awareness of public citizen still at the lower
threshold and the pedophile crime is not seen as a serious matter. Plus,
the law which should cater the protection towards children still does not
preserve and promote the safety of the children themselves.

2. OBJECTIVES
a) To highlight the issues of child sexual abuse that caused by the
adults.
b) To explain the causes and effects of the pornography and the
criminal behavior relating to the pedophile cases.
c) To highlight on the inadequacies of laws which should protect the
safety of children and the urgency to amend or add certain
provisions in law to uphold the protection towards children.
d) To raise public awareness about the harmful of the child sexual
abuse and the impact on the children

3. HYPOTHESES
a) The adults who became pedophile are lack in self-confidence to
develop the sexual relationship with other adults

1 Relates to the rape incidence in Sibu which Bunya Jalong had been acquitted
from facing the sentence because it is said to be no penetration but it was only a
hand job which causes the girl to pregnant.
2 The United Nations Convention on the Rights of the Child (UNCRC) provides a child
centered framework that spells out the basic human rights that children everywhere
have: the right to survival; to develop to the fullest; to protection from harmful
influences, abuse and exploitation; and to participate fully in family, cultural and social
life. The four core principles of the Convention are nondiscrimination; devotion to the
best interests of the child; the right to life, survival and development; and respect for the
views of the child

b) The adults feel that the children are less likely will reject him/her
from having sexual intercourse
c) The adults feel more powerful and they are able to control the
children during sex
d) The adults who are pedophile are hard to trace since there is no
specification of the sign to show that one is a pedophile
e) Those who are pedophile are having psychological problems3
f) The children who had been abused sexually will have the tendency
to let himself or herself be abused repeatedly due to the sexual
desire developed during the abuse
4. RESEARCH QUESTIONS
a) How do the adults have the sexual inclination towards the children?
b) What emotions do the children feel when they have been sexually
abused by the adults?
c) Why the repeated occurrence of sexual abuse happened towards
the same child in some certain cases?
d) How psychological problems faced by the accused can be defense
for them to not being charged from the criminal offence?
5. RESEARCH METHODOLOGY
The research will be carried out in a mixture of desktop study and field work. The former
methodology include authentic literature review from library research, official
government reports and other related documents, inter alia international conventions,
case studies and the like. Reference will also be made to relevant internet sources
together with indication to its particular date. The later on the other hand, involve
participation in any relevant workshops, seminars, symposiums and conferences relating
to consumer education, especially those related to paedophilia cases and the sexual abuse
against children. Material figures and data from relevant governmental bodies to this
thesis will be collected throughout the research.
This research will also deal with an analysis of existing national and international laws,
on the protection of children from sexual abuse in Malaysia. This includes an
examination of relevant statutes and supervisions governing the existing laws and
provisions as well as the other stages involving the psychological part of children and

3 Paedophiles have certain brain functions and dysfunction. Hence, they may be
said to suffer from antisocial personality disorders (APD) much as those addicted
to a life of crime. (Fazel and Danesh, 2002).

adult. By doing so, it is hoped that we can create public awareness about the importance
of avoiding and handling the cases related to the sexual abuse of children in Malaysia.
6. SIGNIFICANCE
This research is significant in:
a) Understanding about the development of sexuality in the early years of the children
b) Understanding about the Pedophilic Behaviours4 and their sexual orientations
c) Having an adequate and effective laws in protecting the right of children
d) Providing the solutions and treatments in overcoming the traumatic situations that the
victims (children) may confront in their life
e) Supplementing the existing literatures on the urgency of protecting children from
being sexually abused by the adults
f) Raising public awareness to play the vital role of adults (especially parents 5) to be
responsible in taking care of their children
7. LITERATURE REVIEW
There are numerous literatures (see bibliography) written on the child
sexual abuse, be it in the form of scholarly books, journal articles,
conference proceedings, newspaper articles, online journals and so on.
Most of these literatures are seen to discuss more on the causes and
effects of the children who had been sexually abused and the urgency of
adding or amending the inadequate laws that we already have. Most of
these literatures discuss the meaning of Child Sexual Abuse, the effects
that the children may encounter in process of growing up, the solutions to
overcome the problems and the critical appraisal of Child Act 2001 and
4

Pedophilic behaviour has been described differently by medical and judicial


bodies.Medical: Adults having had physical sexual contact with a girl under
fourteen when they were at least five years older than victim or with a boy under
sixteen when at least five years older. (Martin and Esplin,1997) Sexual molesters
may not only seek out solely children for sexual activities. They may also be
attracted to adults. In other words, paedophiles may have either exclusive or a
nonexclusive attraction to children.
b. Judicial: From the perpetrators perspective, judicial processing for this offence
may vary widely from state to state. Consequently, while one perpetrator may
receive stringent sentencing for the offence in one state, a perpetrator with
similar crime may receive fewer sanctions or even case dismissal in a more
lenient state.

5 More recent research has shown that the primary caretakers, mainly fathers or
step-fathers, account for 90% of the cases of Child Sexual Abuse through
incestual relations (Greenfield, 1996; Weinberg, 1955)

Penal Code which are said not protecting children. Below are among the
extracts which successfully discussed on Child Sexual Abuse, but did not
go for it in any depth:
First Literature: Is Some Paedophilia Caused or Associated With Genetic
Predisposition? by Ludwig F Lowenstein
It is the object of this discussion to draw attention to the possible
genetic factors that predispose some individuals to turn to children
for their sexual gratification. This does not change the fact that what
they do with a child, or to a child victim, is wrong, but if genetically
influenced it explains why paedophiles continue to behave as they
do despite the pressures against such behaviour. One can
understand why paedophiles find it so difficult to change and why
treatment for their behaviour more often than not fails both within
and outside prisons. The re-offending rate of many paedophiles is
well known. We are a long way from dealing effectively with
paedophiles via treatment to prevent future offending. (Lowenstein,
2008)
Second Literature: Possibilities, probabilities and the standard of proof
in determining an unacceptable risk of sexual abuse by Patrick
Parkinson
As has been widely observed, cases in which there are allegations
of child sexual abuse often present perplexing problems for the
court. It is very unusual to find corroborative evidence which can
support the allegations of a parent or the purported disclosure of
the child. In the vast majority of cases, clinical evidence is not
available to confirm the abuse. Most sexual abuse, particularly of
younger children, does not involve acts of penetration or violation
sufficient to cause physical damage to the body of the child. The
abuse consists of the perpetrator touching, groping, fondling, and
exploring genitalia, with or without digital penetration, or
persuading or coercing the child to perform acts upon the
perpetrator such as fondling of his penis or masturbation. Even
where there is penile penetration, the chances of finding medical
evidence of this are very low. It is, in any event, possible for a tear
in the hymen to heal without scarring.
Third Literature: Child Act 2001: The Inadequacy of the Court and the
Court Procedure in Matters Related to Child Abuse by Assoc. Prof
Mashhor et al.
Another shortcoming of sexual abuse provisions in the Child Act is
related to the severity of the sentence imposed. Some academic
writers believe that the trend of law enforcement and officers of the
court to prosecute offender of children especially in sexual abuse
cases aggressively is to indicate that children are valued equally in
society and nothing less. (Andrea et al., 2006)

Most of the literatures discuss on the causes and effects of child sexual
abuse generally and the inadequacy of laws in Malaysia. It is to be
submitted here that the existing literatures may have not discussed
comprehensively on the cases involving child sexual abuse in Malaysia
and the issues such as:

a) The statistics of children who had been sexually abused in Malaysia


b) The severe punishment towards the perpetrator who committed
sexual abuse towards children
c) The procedure of convicting or acquitting the perpetrator who
committed the sexual abuse towards children
d) The reluctance of children from reporting the sexual abuse cases to
the respective adults or body
e) The sufficiency of the existing legal statutes in protecting the right
of children in Malaysia

Hence, this thesis will research, examine and analyze the above issues to
put more guarantee over the children protection. It will further indirectly
determine solutions and ways to cater the problem relating to childhood
sexual abuse which will haunt the life of children throughout their grownup phase. Surely, the abundance of literatures will make this research
capable of being done as they assist the author with many resources to
construct the structure of the thesis.

8. STRUCTURE OF THE THESIS


It is proposed that the structure of the thesis be around the following issues:
i
ii
iii
iv
v
vi
vii

Definition of Child Sexual Abuse;


The Quranic verses and Hadith about the Responsibility of Protecting Children;
Significance of the Protection towards Children;
Statutes and Measures governing Children Protection in Malaysia;
Current Protection Provided to Children in Malaysia;
Issues on Paedophiles (whether they are mentally ill and whether this may be
defence under the law);
Proposed suggestions and ideas to rectify weaknesses and filling up lacunae in the
existing laws in governance.

Based on these, the proposed chapter of the thesis would be as follow:


Part 1 (Introduction)
Chapter 1
Introduction
1
2
3
4
5
6
7

Introduction
Research Questions
Objective of the Thesis
Significance of the Thesis
Research Methodology
Thesis Structure
Conclusion

Part II (The Background of the Sexual Offending Against Children)


Chapter 2
The interrelation of the development of the Sexuality in Children and the Sexual Orientation
of the Perpetrators
2.1

DEVELOPMENT OF THE SEXUALITY OF CHILDREN


2.1.1 Definition of Sexuality of Children
2.1.2 The Role of Parent-Child Interactions
2.1.3 Stage of Puberty
2.1.4 The Sexual Behaviour of Children

2.2

PERSPECTIVE OF PEDOLIPHIC BEHAVIOUR


2.2.1 Historical Belief
2.2.2 Causes of Paedophilia
2.2.3 Psychiatric Diagnosis
2.2.4 Motivation to Commit Child Sexual Abuse

2.3

CHILDHOOD SEXUAL ABUSE


2.3.1 Historical Review of Child Abuse Issues
2.3.2 Categories of Childhood Sexual Abuse
2.3.3 Accusations of Abuse in Custody Cases
2.3.4 The Impact of Child Sexual Abuse: From Childhood to Adolescene

Part III (Protection of Right of Children)


Chapter 3
Legal Framework of the Protection of Children
3.1

LEGISLATIONS AND POLICIES


3.1.1 General Child Rights

3.1.1.1 Child Act 2001 (Act 611)


3.1.1.2 United Nations Convention on the Right of Child 1989
3.1.1.3 Penal Code (Act 574)
3.2

SUPPORTING-ORGANISATIONS
3.2.1 Governmental Body
3.2.1.1 Ministry of Women, Family and Community Development
3.2.1.2 Department of Social Welfare
3.2.1.3 National Plan of Action for Children 2009
3.2.1.4 Suspected Child Abuse and Neglect Teams (SCAN Teams)
3.2.2

3.3

Child Rights Coalition Malaysia (NGO Group)


3.2.1.1 Malaysian Child Resource Institute
3.2.1.2 Childline Malaysia
3.2.1.3 National Early Childhood Intervention Council
3.2.1.4 Voice of the Children
3.2.1.5 Malaysian Care
3.2.1.6 Protect and Save the Children

ISSUES ARISING
3.3.1 Unreported cases
3.3.2 Traumatic Situation of Children
3.3.3 Inconsistent authoritative supervision
3.3.4 Court Cases

Chapter 4
Importance and Significance of Child Protection
4.1
4.2
4.3

Compliancy to the Islamic Teaching


Peoples Awareness
Treatment towards the Traumatic Children and Paedophiles

Part IV (Conclusion)
Chapter 5
Conclusion
9. TIMEFRAME
It is planned that the thesis to be written in the period of almost one year, between September
2016 up to June 2017. The schedule is as follows:
February 2015 May 2015
May 2015
May 2015
September 2016 October 2016
November 2016 December 2016
January 2017 February 2017
March 2017 April 2017

:
:
:
:
:
:
:

Research proposal writing


Research proposal presentation
Amendment on the research proposal
Chapter 1
Chapter 2
Chapter 3
Chapter 4

10.

May 2017 June 2017


May 2017- June 2017
May 2017 - June 2017
June 2017
CONCLUSION

:
:
:

Chapter 5
Submission of Draft Thesis
:
Revision of Thesis
Submission of Thesis

The fight against abuser who committed sexual abuse in Malaysia is not
vast and wide if we compared to other countries like England and
Sweden. The Child Act 2001 itself needs to be reviewed in order to
enhance the protection of the rights of children. Among the problems
redressed from the Act is the provision under the Child Act is too
general as opposed to the provision under the Penal Code. For instance,
usually the Public Prosecutor will charge the offender under section 375
of the Penal Code instead of the Child Act.
The second problem is there are the difficulties in gathering evidence
for conviction when it involves child victim. This is irrespective of
whether the prosecution is under the Child Act or the Penal Code. This is
because it is hard to fulfill the requirement of the law of evidence.
Justice Wilson stated in the case of R v F (1997) S.C.R 1883 that even
though a child statement cannot be accorded the same weigh as adult
statement; it does not mean that they are not telling the truth. The
doubt of the statement given by the child in court causes the
perpetrator may be acquitted from being charged with the offence.
The problems stated above have to be solved in order to protect the
children from being the subject of fulfilling adults lust and desires. A
great deal of research has been undertaken over the past twenty years
to explore the consequences in adult life of childhood abuse. The most
common reported consequences of abuse are depression, sexual
difficulties, problems in relationship, low self-esteem and poor selfimage.
The main objective is we do not want this to happen again in future. As
in line with the Article 3(1) of the Convention Right of Children (CRC) to
establish the best interests of the child and thus shall be a primary
consideration in all actions concerning children, whether undertaken by
public or private bodies. Any interpretation of best interests must be
consistent with the spirit of the entire CRC, particularly the General
Principles of the CRC, and the emphasis on the child as a rights-bearing
individual with his or her own views. States cannot interpret best
interests in an overly culturally relativist way and cannot use their own
interpretation of best interests to deny rights guaranteed to children
by the CRC.

11.

BIBLIOGRAPHY

Books
Yeo, S., Morgan, N., & Cheong, C. W (2012), Criminal Law in Malaysia and
Singapore, Singapore: Lexis Nexis
Hill, C. A (2008), Human Sexuality: Personality and Social Psychological
Perspectives, California: SAGE Publications Inc
Basso, M. J (2006), Teenage Sexuality Opposing Viewpoints: Teen Sex with
Adult is Harmful, United States: Greenhaves Press
Ferrara, F. F (2002), Childhood Sexual Abuse: Developmental Effects
Across the Lifespan, United States of America: Brooks/Cole Cengage
Learning
Draucker, C. B (2000), Counselling Survivors of Childhood Sexual Abuse,
London: SAGE Publications Inc
Dale, P (1999), Adults Abused as Children: Experiences of Counselling and
Psychotheraphy, London: SAGE Publications Inc
Herman J (1981), Father-Daughter Incest, Cambridge, MA: Harvard
University Press

Articles
Parkinson, P. (2015), Possibilities, probabilities and the standard of proof
in determining an unacceptable risk of sexual abuse, Australian Journal of
Family Law, (2015) 29 AJFL 1
Loweinstein, L. F (2008), Is Some Paedophilia Caused or Associated With
Genetic Predisposition? Justice of the Peace, (2008) 172 JPN 505

Masshhor, et al., (2006), Child Act 2001: The Inadequacy of the Court and
the Court Procedure in Matters Related to Child Abuse
Jonit, N. A (2006), Country Report Regarding to the Cases of Domestic
Violence and Child Abuse in Malaysia