Page 1

Page 2 1 MLJA 15, *; [1993] 1 MLJA 15

12 of 12 DOCUMENTS 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)The Malayan Law Journal Articles 1993 Volume 1 [1993] 1 MLJ xv; [1993] 1 MLJA 151993 1 MLJ xv; 1993 1 MLJA 15 1993Article: CHILD ABUSE: FACING THE INADEQUACIES OF PROTECTION AFFORDED BY THE LAWAbu Bakar Munir LLM (Warwick), LLB (Hons) (Mal), DPA (ITM); Lecturer in Law, School of Administration and Law, Mara Institute of Technology and Siti Hajar Mohd Yasin LLB (Hons) (Mal), DPA (ITM); Lecturer in Law, School of Administration and Law, Mara Institute of Technology [*15] Introduction It is 30 years since Dr Kempe s article The Battered Baby Syndrome (1962) 181Journal of the American Medical Association, pp 17-24, which is often viewed as the starting point for the modern interest and concern with the issue of child abuse. n1 It has been considered that the recognition of the problem of child abuse has only very recently surfaced. n2 In Malaysia, there has been a hue and cry over child abuse and neglect cases over the last two years. n3 Child abuse has been recognized as a growing social problem in the country. n4 Various actions have been taken to combat the problem. The most recent and significant one is the passing of the Child Protection Act 1991 ( the Act ). The Act makes provisions for the care and protection of children who are in need of protection and for matters incidental thereto or connected therewith. n5 It is also the purpose of the Act to repeal the Children and Young Persons Act 1947 which is insufficient to meet the present and future requirements of the nation. n6

Page 3 1 MLJA 15, *; [1993] 1 MLJA 15

Child abuse and neglec Section 2(1) of the Act defines a child as a person under the age of 18 years. n7 A person is a human being, and an unborn child or a foetus is not

Page 4 1 MLJA 15, *; [1993] 1 MLJA 15

[*16a] person and is not entitled to any legal rights. Thus in C v S, n8 the court held that a foetus has no right of action until it is subsequently born alive. In Daigle v Tembray n9 the Supreme Court of Canada held that a foetus is not included within the term human being in the Quebec Charter of Human Rights and Freedoms and therefore, does not enjoy the right to life. n10 Consequently, one cannot be charged for abuse under the Act if in hurting pregnant women he/she causes injury to an unborn child or the foetus. There was a problem in defining a child before the existence of the Act because the term child does not only appear in the Children and Young Persons Act 1947 but also in other statutes with different age requirements. The Children and Young Persons Act 1947 describes a child as being below the age of 14 and a young person as being between the ages of 14-18. Section 82 of the Penal Code (Cap 45) provides that a child below the age of ten cannot commit a crime. Section 83 of the Code provides that a child above the age of ten but below the age of 12 must have understanding of the nature and consequence of his conduct on that occasion before he can be charged with the offence. Under the Criminal Procedure Code (FMS Cap 6), a youthful offender includes any child above the age of ten but below the age of 16 who has been convicted of an offence. Section 2(3) of the Act gives a definition of physical, emotional and sexual abuse. It provides as follows: a child is physically injured if there is substantial and observable injury to any part of the child s body as a result of the non-accidental application of force or an agent to the child s body that is evidenced by, amongst other things, a laceration, a contusion, an abrasion, a scar, a fracture or other bone injury, a dislocation, a sprain, haemorrhaging, the rupture of a viscus, a burn, a scald, the loss or alteration of consciousness or physiological functioning or the loss of hair or teeth; a child is emotionally injured if there is substantial and observable impairment of the child s mental or emotional functioning that is evidenced by, amongst other things, a mental or behavioral disorder, including anxiety, depression, withdrawal, aggression or delayed development; a child is sexually abused if he has taken part, whether as a participant or an observer, 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 for the purpose of sexual exploitation by any person for that person s or another person s sexual gratification. According to Augustin Paul, n11 s (2)(d) of the Act is a sufficient definition of child abuse by neglect. Under this section, neglected means the unwillingness of the guardian of the child to provide for adequate care, food, clothing and shelter.

Page 5 1 MLJA 15, *; [1993] 1 MLJA 15

[*17]

The various offence Under s 26, any person who, being a person having the care of a child, abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or causes or permits him to be so abused, neglected, abandoned or exposed, shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding $10,000 or an imprisonment for a term not exceeding five years or both. The offence is still committed notwithstanding the fact that the injury to the health of the child was avoided by the action of another person or that the child has died. n12 A person shall be deemed to have neglected a child if, being able to so provide him from his own resources, he fails to provide adequate food, clothing, medical or dental treatment, lodging or care for such a child. The interesting point to mention is that the court, alternatively, can order the person guilty of an offence to be released on bond with a condition, if the court thinks fit, requiring such person to undergo such counselling and psychotherapy. n13 Section 27 makes it an offence to procure or allow a child to beg, punishable upon conviction with a fine not exceeding $5,000 or to imprisonment for a term not exceeding two years or both. A new offence was created by s 28 of the Act. Under this section, it is an offence punishable upon conviction, with a fine not exceeding $5,000 or to imprisonment for a term not exceeding two years or to both for a person who, being a guardian or a person for the time being having the care of a child, leaves that child without making reasonable provision for the supervision and care of the child for a period or under conditions which are unreasonable having regard to all the circumstances.

Enforcement of the law The general attitude of the public is that the abusers must be prosecuted and punished. n14 But the reality is that only a few were prosecuted and even fewer convicted. Most of the abusers went unpunished. n15 For example, in 1987 and 1988, only one abuser out of 211 cases were convicted and none were convicted in 1989. Cases which went unprosecuted in those years were 97, 83 and 95 respectively. n16 The factors that lead to the unsuccessful prosecution of child abuse cases are as follows: n17

Page 6 1 MLJA 15, *; [1993] 1 MLJA 15

[*18] (1) inefficiency and insufficiency of police investigatio (2) violation of rights of the accused in terms of police procedure and investigation; (3) lack of proper police documentation of fa (4) poor testimony on the part of the witnesses in court;; (5) poor expert evidence; and (6) unreliable or uncorroborated evidence tendered in court. With regards to investigations, the Act has created two important sections - ss 43 and 19. Under s 43, any police officer may arrest without a warrant any person whom he reasonably believes to have committed or to be committing an offence under the Act. This is an important section because in most cases, the suspected abuser will always try to escape from being interrogated by the police and will refuse to reveal any information. At least in one case known to the writers, a police and social welfare officer who went to the suspected abuser s house was asked to leave in a very harsh manner. This provision however, must not be abused by the police. Section 19 makes it mandatory for a registered medical practitioner to notify any protector of a child, if he believes on reasonable grounds that the child has been physically or emotionally injured as a result of being ill-treated or neglected, abandoned or exposed. This can be done simply by filling in the standard form. Failure to do so on the part of the medical practitioner will result in the medical practitioner being liable, upon conviction, to a fine not exceeding $1,000. It is an important section because it provides for an early detection of cases of child abuse. Under the same section, a government medical officer may take the child into temporary custody until such time as the temporary custody of the child is assumed by a protector or a police officer. Under s 46(5) of the Act, the identity of the medical practitioner who makes a notification shall not be disclosed in court unless the report is tendered as evidence or the maker of the report is called as a witness. The interesting point to note here is that the words sexual abuse do not appear in s 19. Is it the intention of the drafter of the Act to exclude sexual abuse? If so, such an exclusion is very hard to rationalize. Consequently, the question which arises is whether the medical practitioner must notify a protector if he believes that a child is being abused sexually. The suggestion of mandatory reporting by the public in child abuse cases was made during a debate in Parliament. In response to that, the government argued that the enforcement of it will be difficult and stated that the toll free Talidera services is sufficient for the public to make their reports. Section 38 of the Act empowers the protector or police officer to enter any premises for the purpose of ascertaining whether there is any child who is in need of protection or whether any offences under the Act is being, or has been, committed therein.

Child witnesses and corroboratio

Page 7 1 MLJA 15, *; [1993] 1 MLJA 15

In child abuse cases, like in criminal cases, the prosecution has a duty to prove the case beyond a reasonable doubt. And the question of whether or not the perpetrator can be convicted very much depends upon the evidence

Page 8 1 MLJA 15, *; [1993] 1 MLJA 15

[*19availabl] in court. Evidence can be adduced by calling the witnesses and/or producing the documents to the court. Logically, in a crime against a child one of the key witnesses would be the child himself/herself. Let us look at the position of a child in the eyes of the law of evidence. Under s 118 of the Evidence Act 1950, all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. Thus, the sole test in determining the competency of a witness is the capability and capacity to understand and to give rational answers to the questions put to them. A child is competent if she can meet those requirements. Section 6 of the Oaths and Affirmation Act 1949 says that witnesses must give evidence on oath. But s 8 of the Act provides that any person of immature age who ought not be affirmed or who is not able to take an oath, can give evidence after a caution by the court to speak the truth, the whole truth and nothing but the truth.. Section 133A of the Evidence Act 1950 provides that, where in any proceedings against any person for any offence, a child of tender years who has been called as a witness does not, in the opinion of the court, understand the nature of an oath, his/her evidence may be received, though not given upon oath, if in the opinion of the court, he/she possesses sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. The proviso of the section however, states that where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him. The combined effect of these sections is that a child can give evidence without oath in court but her evidence on its own is insufficient to convict the accused. A conviction cannot stand on the uncorroborated evidence of an unsworn child witness. There is a total ban on convicting an accused on the uncorroborated evidence of a young child who gives unsworn evidence, whatever the nature of the charge. n18 That seems to suggest that taking the oath will guarantee that a witness will speak the truth. The competency of witnesses however, depends on more than the mere ability to take an oath. Witnesses are expected to be able to communicate, to give an understandable account of relevant events, and to understand and respond to questions. n19 The competency laws are illogical and discriminatory. Only children s truthfulness had to be reviewed in advance by judges; yet in many criminal trials, adults lied. Only children s appreciation of an oath had to be examined; yet few adults perjurers were inspired to truthfulness by raising their right hands. n20

Page 9 1 MLJA 15, *; [1993] 1 MLJA 15

[*20] The basis of the need for corroborative evidence is the prejudice that adults have against children in thinking that they are unreliable or less reliable. n21 Adults tend to think that a child s memory is inferior and therefore, their evidence should be regarded as inaccurate or less accurate and must be supported by another adult s evidence. There is also an assumption that children cannot differentiate between fantasy and reality. n22 Numerous researches have been conducted and proved that all such perceptions are not true. n23 To quote some of the findings of researchers - existing research suggests that children are not uniquely incompetent as witnesses ; n24 the credibility of child witnesses in court has been undermined and children have wrongly been deemed unreliable witnesses n25 and a child of barely over three years can, give utterly convincing evidence - the unreliability of children s evidence has been exaggerated by lawyers . n26 Despite the findings of researchers, prejudice against child witnesses exists in the courts in Malaysia. The following statement was made by the High Court of Kuala Lumpur as recently as 1989. Here, PW6 was six years of age at the time of the incident and seven years of age when she gave evidence in this trial without corroboration. Whatever she said in evidence in this trial, it must be scrutinized with special care aschildren have the tendency to invent and distort. n27 (Emphasis added.) Since corroborative evidence is needed in child abuse cases, it is worthwhile to discuss briefly what corroboration is. The classical definition was delivered by Lord Reading CJ in R v Baskerville. n28 He said:

Page 10 1 MLJA 15, *; [1993] 1 MLJA 15

[*21] We hold that evidence in corroboration must be an independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence whichimplicates him, that is, whichconfirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. (Emphasis added.) This definition has been adopted by the Malaysian courts. Sharma J in the case of Attan bin Abdul Ghani v PP n29 summarized the corroboration rules. In part the rules are as follows: (1) there must be some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act upon it; (2) the evidence must come from independent sources; a (3) it must implicate the accused in the material particular. It confirms that the accused committed the crime. In simple words, corroboration is the evidence confirming n30 the evidence given by a child. Some practical problems arise. Firstly, there is the problem of getting the independent source. This is because in most of the cases, especially sexual abuse cases, the only parties involved are the child (victim as witness) and the perpetrator/s. The law seems to insist that only someone (an adult) who saw the incident can corroborate the evidence of a child. Secondly, the question arises as to whether the complaint made by a child to her mother or others amounts to corroboration. The answer is no, because it does not come from an independent source. In R v Whitehead, n31 the accused was charged with unlawful intercourse with a girl under sixteen years of age. She complained to her mother several months after the alleged offence. Lord Hewart CJ held that this evidence was not capable of amounting to corroboration because it emanated from the girl herself. He said: In order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated. A girl cannot corroborate herself, otherwise it is only necessary for her to repeat her story some twenty-five times in order to get twenty-five corroboration of it. Thirdly, the question also arises as to whether medical reports amount to corroboration. The answer is also no, because although it can prove that the offence has been committed, it cannot prove that the accused is the person who did it. It therefore, does not implicate the accused.In James v R n32 in which the accused was charged with rape, the trial judge directed that medical evidence which showed that someone had had intercourse with the victim at a time consistent with her evidence, was capable

Page 11 1 MLJA 15, *; [1993] 1 MLJA 15

[*22of] amounting to corroboration. The conviction was quashed by the Privy Council. Viscount Dilhorne said: Independent evidence that intercourse had taken place is not evidence confirming in some material particular either that the crime of rape had been committed by the accused. It does not show that the intercourse took place without consent or that the accused was a party to it. (Emphasis added.)

Hearsay evidenc Section 60 of the Evidence Act provides that oral evidence shall in all cases be direct. Murray Aynsley CJ in Lim Ah Oh v R n33 said that s 60 provides the rule against hearsay. What is hearsay evidence? The Privy Council in Subramaniam v PP n34 defines hearsay as an evidence of a statement made to a witness by a person who is not himself called as a witness when the object of the evidence is to establish the truth of what is contained in the statement. For practical purposes, hearsay can be identified by applying the following rules: (a) hearsay is anything said or written outside the courtroom, if (b) it is being used to prove the truth of what is contained in the words or writing. The general rule is that hearsay evidence is inadmissible in court and must be rejected. A witness who does not personally see or hear a child being abused, is not allowed to give oral evidence in court about the incident. Similarly if the child told her mother or a police officer, after a certain period of time n35 that she had been abused, they cannot testify in court as to what was said by the child to them, because they had not personally witnessed the incident. n36 Because of this and other rules, the child must therefore be personally present in court to give an account of what happened. n37 Research has proved that appearances in court and the whole trial process can be very traumatic for a child and thus cannot guarantee justice to both the abused and the abuser. n38

The case of Ernie and Juwi Two little girls Ernie, aged 6 and Juwita, aged 5 complained to their mother that Atuk had placed his penis on their private parts. The parents then brought them to the General Hospital Kuala Lumpur to be examined. At the hospital, they were interviewed by the doctor who stated in her patient record that, Ernie told mother that Atok" letak bendanya dekat pepet Nani. She was playing when this old man brought her into the flat and on

Page 12 1 MLJA 15, *; [1993] 1 MLJA 15

[*23the] floor, he removed her panties. Then positioned himself. No penetration. Not sore, no discharge. As regards to Juwita, the report says, She was brought by parents when they heard that this girl s best friend whom she was playing with, reported an incident of sexual abuse, whereby their neighbour - an old man about 70 years of age, Tok Kassim", put his penis between the girl s legs. This girl subsequently owned up to say something similar also happened to her, done by that atok. On confrontation by the parents the old man denied, but by the next morning, he has disappeared from his flat. An investigation was carried out by the police and later Kassim Akim was charged for using criminal force with intent to outrage the modesty of these two girls and another girl under the Penal Code. (The Child Protection Act was not in existence then.) All the three of them and 12 other witnesses were called by the prosecution to testify in court. One of the girls said in court that on the day of the incident, she, her sister and another friend wanted to play with Khatijah (a friend) outside Khatijah s flat, Atuk called me into his flat. He gave me some sweets, so I went in. My sister and friend followed . When cross-examined by the defence counsel she said, After giving the food, Atuk hugged me. He also fondled my private parts. He did the same towards my sister and friend. After that, he gave us more food. One of the witnesses, Encik Kamaruddin Husin (neighbour) testified that he received a telephone call from his neighbour, saying that there were children in Kassim s flat. I went outside and walked up and down the corridor in front of my flat. I could see four children in Kassim s flat which is opposite mine. He and another neighbour called the girls out of Kassim Akim s flat and asked them what Kassim had done to them. Kamaruddin said that they kept quiet at first, but when asked again, the elder sister told them that Kassim had undressed her sister and molested her. The eight-year-old girl did not say anything, but she nodded in agreement with her sister. He testified that the 11year-old-girl also told him that the accused had molested her before but not on that particular day. During the submission at the end of the prosecution case, the defence counsel argued that the children s unsworn evidence were uncorroborated. The girls were also said to have given conflicting evidence as to the number of people in Kassim s house at the time of the alleged offence. None of Kassim s neighbours called as witnesses saw the incident and they contradicted one another. The defence counsel also argued that the medical report should not be accepted as it was based on hearsay. The prosecution officer replied that the children s unsworn evidence was corroborated by a police report lodged by the parents of two of the children within an hour of the alleged offence. The magistrate gave the judgment that the three victims had given unsworn statement which were not corroborated by the other 12 witnesses. He also said that two of the girls testified that Kassim had undressed and molested them while the third said he had invited them into his flat and given them biscuits. He added that the victims were young and not sure whether there were only three or four of them in Kassim s flat and that children

Page 13 1 MLJA 15, *; [1993] 1 MLJA 15

could not differentiate between fantasy and reality. Kassim was acquitted without his defence being call

Page 14 1 MLJA 15, *; [1993] 1 MLJA 15

[*24]

Conclusion The new Act has created new offences called physical, emotional and sexual abuse which did not exist in any statutes or law before. The definition, especially for sexual abuse is wide enough to cover every form of sexual exploitation. The Act also establishes some preventive or protective measures by identifying and listing out situations where children are considered to be in need of protection n39 and empowering the authorities concerned to remove them from the places where they are at risk of being abused. n40 However, something more than the Act is needed and needed urgently. The corroboration requirement is based on the prejudices of the inability of children to understand. It seems to require some evidence which confirm the commission of the act. It is submitted that the focus of the present law on seeking confirmation of the accused s guilt has been the source of considerable conceptual confusion and that by shifting the focus of corroboration from strengthening the credibility of testimony to affirming the guilt of the accused, the courts have divorced corroboration from the original rational. n41 Apart from that, the practical problem is that there will hardly be any corroboration, at least in sexual abuse cases. As regard to the hearsay rule, several exceptions have been recognized by the laws in Malaysia. Perhaps it s time to add another one If the allegations against Tok Kassim were true, although the prosecution has failed to prove a prima facie case, Ernie and Juwita have suffered trauma at least in four different stages. Firstly, when the offence was committed; secondly, while waiting for the trial; thirdly, during the trial where they cried throughout the cross-examination in court; and fourthly, after the trial. This is something which will remain with them for the rest of their lives. Adding to that, they must have been confused by the whole trial process, especially in having to see the person whom they claimed to have committed the offence against them being set free without any punishment. Return to Text n 1Patrick Gallagher Abuse at the Hands of the States (1992) May Fam Law 204. n 2RK Oates, Why Children are Abused . Paper presented at the Seminar on Child Abuse and Neglect, 11-12 January 1986 at Kuala Lumpur. He stated that the work of Henry Kempe was a recognition of the seriousness of child abuse. n 3Rita Reddy, Trauma in Childhoods: Malaysian Law and Child Abuse . (1990) Insaf, p 20. n 4See the statement by the Deputy Minister of the National Unity and Social Development, The New Straits Times, 2 April 1991. n 5The preamble of the Act.

Page 15 1 MLJA 15, *; [1993] 1 MLJA 15

n 6See the Parliamentary Speech of the Parliamentary Secretary of the Ministry of the National Unity and Social Development during the debate on 29 July 1991. n 7This is similar to the provision of the Convention on the Rights of the Child, see art 1 of the Convention. n 8[1987] 1 All ER 1230. n 9[1990] 16 CLB 443. n 10S Augustine Paul, Child Abuse: The New Law [1991] 3 CLJ 1 xxiii. n 11Ibid. n 12Section 26(5) of the Act. n 13However, at least in cases of abuse by parents, it has been shown that the majority of abusive parents do not suffer from any particular personality or psychiatric disorder. Not more than 10% of abusive parents suffer from such disorders, see RK Oates, supra n 2. n 14See eg, the Parliamentary debate on 29 July 1991. Some of the members of Parliament who took part in the debate even suggested that the abuser, upon conviction, should be given strokes of the rotan. n 15The Sunday Star, 23 August 1992. n 16Supra n 3. n 17Ibid. n 18JR Spencer Children Witness, Corroboration and Expert Evidence [1987] Crim LR 239. n 19DJ Birch, Children s Evidence [1992] Crim LR 262. n 20Billie Wright, D Ziech and Judge Charles B Schudson, On Trial (1991), Beacon Press, Boston, p 134. n 21For further discussion, see Abu Bakar Munir, Child Abuse and The Law of Evidence [1992] 1 MLJ ixv; Video-taped Evidence of Children in Malaysia [1991] 3 CLJ xciv. n 22The prejudice spreading among the laymen, the earlier researchers, lawyers, ministers and even the judiciary. This is reflected in the report of the researcher, the statement by the minister and lawyer and the judgment of the court. See eg the statement by the Minister of Law of Malaysia Child Abuse and The Law - Important Aspect ; keynote address at the Second National Conference on Child Abuse and Neglect, Kuala Lumpur, 13-14 July 1991; per Thompson in Chao Chong & Ors v PP [1960] MLJ 238; and per Azlan Shah inTham Kai Yau & Ors v PP [1977] 1 MLJ 174. n 23See eg JR Spencer and Rhona Flin, The Evidence of Children: The Law

Page 16 1 MLJA 15, *; [1993] 1 MLJA 15

and The Psychology (1990), Blackstone Press Ltd; Goodman and Vicki Hegelson, Child Sexual Assault: Children s Memory and The Law (1985) 40 University of Miami Law Review 181. n 24Graham Davies, Yvonne Stevenson Robb and Rhona Flin, The Reliability of Children Testimony (1986) International Legal Practitioner 95. n 25Kevin Browne, When is it Safe for the Abused Child to Return Home . The paper was presented at the Second National Conference on Child Abuse and Neglect, 13-14 July 1991, Kuala Lumpur. n 26Glanville William More about Videotaping Evidence [1987] 137 NLJ 351. n 27Faiza Tamby Chik J in the case of PP v Chan Choon Keong & Ors [1989] 2 MLJ 427. n 28[1916] 2 KB 658, for the critical analysis of the definition see Simon Bronitt, Baskerville revisited: The Definition of Corroboration Reconsidered [1991] Crim LR 30. n 29[1970] 2 MLJ 143. n 30This is the general belief commonly held by the judiciary evidenced in numerous dicta. See eg DPP v Hester [1973] 3 All ER 1456 where Lord Diplock said of corroboration: What is looked for under common law is confirmation from some other source that the suspect witness is telling the truth in some part of his story which goes to show that the accused committed the offence with which he is charged . n 31[1929] 1 KB 99. n 32(1970) 55 Cr App Rep 299. n 33[1950] MLJ 269. n 34[1956] 1 WLR 965. n 35If the complaints were made shortly before or after the incident, the evidence might be admitted under s 6 and/or 8 of the Evidence Act 1950. n 36See s 60 of the Evidence Act 1950. n 37Some writers consider this as a double abuse or abuse by the system. n 38Supra n 19. n 39Section 2 of the Act. n 40Section 13 of the Act. n 41Supra n 28. LOAD-DATE: 11/06/2009