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Malayan Law Journal Articles/2008/Volume 1/SEXUAL HARASSMENT IN SCHOOL INVOLVING YOUTH:

EXTENT OF LEGAL PROTECTION*
[2008] 1 MLJ xc
Malayan Law Journal Articles
2008

SEXUAL HARASSMENT IN SCHOOL INVOLVING YOUTH: EXTENT OF

LEGAL PROTECTION*
Ashgar Ali Ali Mohamed
LLB (Hons); MCL (IIUM); LLM (Hons) (NZ); PhD (Business Law) Advocate and Solicitor
Outraging the modesty of colleagues or using obscene language, suggestive remarks and unwanted
physical contact, among others, is improper, unbecoming and totally unacceptable as it is derogatory to the
standards of behaviour expected in our society. Even a single incident of unacceptable behaviour is sufficient
to constitute a detriment. In schools, sexual harassment may arise between the teaching and the
administrator through peer relationship or power relationship. It can also arise between teachers and the
students or between students themselves. In a sexual harassment scenario, there are two parties involved,
namely, the victim and the perpetrator. It is difficult to define sexual harassment in terms of specific acts or
behaviour because incidents of sexual harassment are difficult to measure. Generally, one has to look at the
context and the surrounding circumstances and this would include the victims" upbringing, culture and
religious sensitivities, among others. What is emphasised here is that the conduct of the perpetrator must be
offensive. If two parties have a good time exchanging sexual jokes, it would not be considered as sexual
harassment. However, if one person keeps telling another sexual jokes and the latter finds it offensive, it
would constitute sexual harassment. If the victim lodges a police report, investigation may be carried out and
if the allegation is established, the perpetrator may be charged in court under the Penal Code, depending on
the gravity of the offence. Having said that, the focus of this paper is that the young must know when they
are being sexually harassed either by their peers, teachers or others, during or after school hours and
probably even in their own homes. The discussion will include the avenue to seek for help and the available
protection under the law. In a nutshell, this paper will
1 MLJ xc at xci
discuss the circumstances that may give rise to sexual harassment, the criminal law regulating sexual
harassment and the mode of proving sexual harassment, among others.
*The writer expresses his sincere appreciation to the Research Management Centre, International Islamic
University Malaysia (IIUM) for the research grant, which made the research possible for its completion.
Introduction
One in 10 reported rape cases were committed by schoolboys below 18 1. For example, out of the 1,833 rape
cases reported from January to September 2006, 216 offenders were below the age of 18. Young offenders
viewed girls as objects and had no qualms using girls in any way they wanted without giving any thought to
their actions and this is partly attributed to pornography and other media that are easily assessable on the
net. Often reported in the media are crimes involving youths, which have been increasing in dismaying
proportions. For example, New Straits Times, Monday, 11 December 2006 '13-year-old gang- raped' by a
youth she had befriended and 10 of his friends. Again, New Sunday Times, 5 August 2007 the headline
reads: '12-year-old among six rape suspects'. Likewise, The Star, Thursday, 10 May 2007: 'Youth jailed nine
years for raping 14-year-old'. Again, The Star, Thursday, 9 August 2007: 'Over 400 minors stuck in jails'.
Again, The Star, 3 September 2007 reported: 'Alarming rise in teenage smokers -- Some are also having sex

as early as age 10 in Sabah'. In October 2006, a Form Four student was arrested for allegedly raping a 19year-old cybercafe worker at a house in Gombak.
The prime news headline has also reported, 'From truancy to rape, juveniles behaving badly 2'. It was
reported that students have graduated from bullying to rape, motorcycle theft and robbery. Juveniles are
becoming braver and more brazen as they have started committing more serious crimes such as raping
classmates and girl friends. In 2006, 3,358 juveniles were charged in courts nationwide for various offences
under the Penal Code. In fact, the number of
1 MLJ xc at xcii
students picked up by the police for various crimes but were not charged in courts were substantial 3.
The above merely illustrates the various crimes committed by youths, in particular the heinous crime of rape.
Thus, 'the age of innocence is no more. Today's kids are no longer in an 'awkward age' when they leave
primary school. The children, especially in the towns are blooming at 3G speed' 4. Having said the above, this
article will focus on sexual harassment involving youths at schools and thus, would exclude other types of
offences committed by them. The writer will analyse the extent of legal protection to victims of sexual
harassment. Further, the article will also propose mechanism which must be introduced in schools to curb
sexual harassment and mode of handling such cases, among others.
Sexual Harassment: Definition
Harassment consists of offensive, abusive, belittling, humiliating, threatening or intimidating behaviour
directed at a person or a group of persons. Sexual harassment means any unwanted conduct of a sexual
nature having the effect of verbal, non-verbal, visual, psychological or physical harassment: (i) that might, on
reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature; or (ii) that might,
on reasonable grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her wellbeing. Generally, sexual harassment refers to sexual conduct which is imposed on, and is unsolicited or
unreciprocated by the recipient. Examples would be repeated unwelcome sexual comments, looks or
physical contact, among others, which are usually committed by male against female.
Sexual harassment may occur in many places such as in the workplace, schools, or other public places.
However, as stated earlier, this article would focus on sexual harassment involving youths in schools or
institutions of higher learning. The conduct of sexual harassment may be committed either against teachers
or administrators of the institution or against peers or colleagues. The latter however, is the focus of this
article.
As a matter of interest, it may be noted that sexual harassment involving public servants is regulated by the
Public Services Department circular issued on 10 September 2005 known as Guidelines for Handling Sexual
Harassment in the Workplace
1 MLJ xc at xciii
Among the Civil Servant No. 22 of 2005. Whereas, employees in the private sector are regulated by the
Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace 1999 which
came into effect on 17 August 1999. The 1999 Code was basically drawn up to guide the employer to set up
an in-house mechanism that defines, regulates, investigates and penalises incidents of sexual harassment
within the workplace. It is further intended to educate and create awareness, thereby ensuring a working
environment free from the dangers of sexual harassment, apart from setting avenues for victims to lodge
complaints to their management.
At the outset the writer would like to point out that the range of sexual harassment reported within a school
setting is alarming. The examples of the sexual harassment conducts includes, sexual comments, jokes,
gestures or looks; touching, grabbing or pinching in a sexual way; making sexual rumours spread about
another; intentionally brushing up against another in a sexual way; blocking another in a sexual way;
showing, giving or leaving sexual pictures, photographs, illustrations, messages or notes; the clothing of the
victim pulled off or down in a sexual way; forcing the victim to kiss someone; had sexual messages written
about another on public walls; forced to do something sexual other than kissing; spied on while dressing or
showering, to mentioned but a few. Further, more girls are reported to have experienced sexual harassment
as compared to boys and it does impacts their school performance, such as difficulty of concentrating in their
studies, fear and lower self-esteem, among others.

Conduct constituting sexual harassment

Sexual harassment usually occurs between people of the opposite sex. However, it can also take place
between the same sexes although the latter is a rare occurrence. It may arise through peer relationship or
power relationship and there are two parties involved namely, the victim and the perpetrator. Normally, it is
done by a person in a superior position, for example, a senior male student harassing a female junior or vice
versa.
One can make sexual advancements as a prerequisite of getting something and the performance of the
sexual acts may either be in a positive or negative form. For example, 'sleep with me and you"ll get the
promotion, grades or letters of recommendations, among others' or it can also arise in the negative form
'sleep with me or your wrongdoing will be exposed'. Sexual harassment can also arise without a demand for
an exchange of sex for a benefit. For example,
1 MLJ xc at xciv
where a person does or says things that make the victim feel uncomfortable such as comments of a sexual
nature/sexually explicit statements, sexual jokes or anecdotes, showing obscene pictures, touching, leering,
unwanted requests for a date, among others. As noted earlier, the latter is a common recurrence in schools
settings involving youths.
It is impossible to define sexual harassment in terms of a specific act or behaviour because incidents of
sexual harassment are difficult to measure. Generally, one has to look at the context, the surrounding
circumstances that include the victims' upbringing, culture and religious sensitivities, among others. What is
emphasised here is that the conduct of the perpetrator must be offensive. If two persons have a good time
exchanging sexual jokes, it would not be considered sexual harassment. However, if one person keeps
telling another sexual jokes and the latter finds it offensive, it would constitute sexual harassment.
Further, the conduct must be unwelcome ie, it was not solicited or invited by the victim who regarded the
conduct as undesirable or offensive. The victim is not required to confront the harasser in order to establish
the behaviour to be unwelcome. Whether or not the behaviour to be unwelcome is determined by reference
to the surrounding circumstances, for example, the victim had been adversely affected and had made
previous complaints about the same conduct, among others. Sexual harassment however, does not include
verbal expressions or written material that is relevant and appropriately related to course subject matter or
curriculum.
Forms of sexual harassment
Sexual harassment involving youths in school can take many forms. Some forms of sexual harassment can
be annoying or irritating, while others can actually amount to sexual assault. Sexual harassment may be
broadly categorised into six possible forms, namely:

1i)
1ii)
1iii)

1iv)

Verbal harassment: Making sexually suggestive comments such as jokes, jesting, kidding,
sounds and questioning. For example, subjecting a female student to sexually suggestive
comments.
Non-verbal/ gestural harassment: It refers to sexually suggestive gestures such as leering or
ogling with suggestive overtones, licking lips or holding or eating food provocatively, hand
signal or sign language denoting sexual activity and persistent flirting.
Written harassment: It includes printed material for example, showing pornographic materials,
drawing sex-based sketches or
1 MLJ xc at xcv
writing sex-based letters. The mode of sending the printed material may include faxing, short
message service (SMS), multimedia message service (MMS) and electronic mail (e-mail),
among others.
Visual harassment: This could be something which is not directed to any particular person but
which, nevertheless, creates a hostile or humiliating environment for others to be, for example,
displaying obscene pictures. This had the potential effect of degrading or offending a female
student.

1v)
1vi)

Psychological harassment: An example would be repeated unwanted social invitations;

relentless proposals for dates or physical intimacy. An example would be inviting the female
student to spend the night together.
Physical harassment: This may include unwanted physical contact for example, inappropriate
touching, patting, pinching, stroking, brushing up against the body, hugging, kissing and
fondling, among others. A clear example would be physically molesting a female student by
pulling her hand and inappropriately touching parts of her body.

Sexual harassment: A violation of individual rights

The Universal Declaration of Human Rights 1948 provides, inter alia, 'Whereas recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world'. It refers to the basic principles of life and ensuring a minimum
standard of dignity of a person -- which is spiritual and material as well. Spiritual dignity, for example, means
that no one should be treated like animals or be enslaved, while material dignity indicates a certain standard
of living such as proper housing. The former would include an inappropriate conduct of belittling a person's
dignity and honour, such as the act of sexual harassment.
Further, the Federal Constitution of Malaysia -- a highest 'positive law' -- again stresses on the importance of
preservation of 'life' which is regarded as a priceless possession which cannot be made a mockery. Article
5(1) of the Federal Constitution provides that no person shall be deprived of his or her life, liberty and
property without due process of law. The word 'life' in the aforesaid article is not merely confined to physical
existence alone but includes also the quality of life.
1 MLJ xc at xcvi
In Lembaga Tatatertib Perkhidmatant Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumal 5,
Gopal Sri Ram JCA stated; 'When a person is deprived of his reputation, it would in my judgment, amount to
a deprivation of 'life' within art 5(1) of the Federal Constitution. The right to reputation is part and parcel of
human dignity. And it is the fundamental right of every person within the shores of Malaysia to live with
common human dignity'. In short, a person's reputation, honour and dignity is a priceless possession, an
integral part of the rightful meaning of life. Therefore, it is the duty of every fair-minded person to respect
another's dignity and esteem and that he will not wilfully violate the same.
Sexual harassment in the Penal Code
A criminal act is an infringement of public right that leaves wide repercussions on the society. In every crime
there is firstly, intention to commit the crime, secondly, preparation to commit the crime; thirdly, attempt to
commit the crime; and fourthly, completion of the crime. If the perpetrator succeeds in the attempt he would
be deemed to have committed the offence.
An act is a crime only when all the following three essential elements are present; (i) an explicit provision that
prohibits an act constituting a crime and declares its punishment (also referred to as the legal element of the
crime); (ii) an act or actus reus, namely, the commission or omission of which goes to make up the crime;
and (iii) the maturity, responsibility and accountability of the offender (also referred to as the mental element
or mens rea of the crime). Thus, a crime is considered completed when the requirement of the law
concerning actus reus and mens rea has been satisfied. The maxim here is actus non facit reum, nisi mens
sit rea that explains the principle that 'an act does not make a person guilty of a crime unless his mind be
also guilty'. Where the requirement of the law concerning actus reus and mens rea has been satisfied, the
accused is guilty of the offence. However, if the distinct ingredients of the offence and the intention of the
commission or omission cannot be shown, no crime would have been committed and the accused would be
entitled to an acquittal.
The punishment for the commission of a crime must reflect the seriousness of the offence committed by the
accused, both, in public interest and the interest of the accused, and the sentence imposed ought to act as
deterrence to the offender to steer clear from
1 MLJ xc at xcvii
committing a similar offence in the future. Further, the sentence passed must serve as a plain warning to
others that in this country the severest possible penalty awaits any person who has no respect for the honour

and dignity of another. In assessing an appropriate sentence, public interest must supersede other
considerations. The public would lose confidence in the courts if a lenient sentence is meted out for a serious
offence such as sexual harassment6.
In Kassim bin Utus v Public Prosecutor7, David Wong Dak Wah JC stated: 'The crimes committed by the
appellant involved sexual molestation of girls who were young and vulnerable. One of the victims was ONLY
six years and nine months old. The gravity of his offences was of a very high order. The circumstances of the
offences were deplorable. They were demeaning and degrading of the children involved and likely to have an
adverse effect on them for the rest of their lives and also on their parents. Their rights and interests must be
taken into account.... Public interest demands that people who commit sexual offences on the young and
innocent must be dealt with severely and sentences meted out must reflect the society's disdain for such
crimes'. Again, in Kurchang Singh Wedhawa Singh v Public Prosecutor8, Mahadev Shankar J stated: '...the
way things are going we cannot afford to be lax. Current trends indicate a need to take a harsher view of
sexual offences where criminal force has been used...'.
In Bohari Amit v Public Prosecutor9, David Wong Dak Wah JC noted that: 'there cannot be any doubt in
anyone"s mind that an offence under s 354 of the Penal Code is a serious offence'. The mental damage on
the young victim cannot be ignored and must be taken into account in passing sentence. 'In this case a
young lady's body had been trespassed upon in a manner which in my view is worse than physical violence.
She had to live through her ordeal as a thirteen year old during the trial and had been so affected that she at
one stage of the trial refused to testify. She will have this scar for life and if that is not substantial violence, I
don"t know what is'.
Having said the above, it must be noted that there are provisions in the Penal Code on sexual assault on
persons, grievous bodily harm
1 MLJ xc at xcviii
or acts of indecency, for example, s 294 deals with obscene public act and singing obscene songs to annoy
another, s 350 provides for the offence of using criminal force without the person"s consent, s 354 -- the
offence of assault or use of criminal force to a person with intent to outrage modesty, s 376 -- rape, s 377 -unnatural offences against a person, s 377D -- outrage of decency and s 509 refers to words or gestures
intended to insult the modesty of a person.
Section 294 of the Penal Code is related to obscene songs. The above section provides: whoever, to the
annoyance of others -- (a) does any obscene act in any public place, or (b) sings, recites, or utters any
obscene song, ballad or words in or near any public place, shall be punished with imprisonment for a term
which may extend to three months, or with fine, or with both.
Further, s 354 of the Penal Code provides: Whoever assaults or uses criminal force to any person, intending
to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished
with imprisonment for a term which may extend to ten years or with fine, or with whipping, any two of such
punishments. As from the above, a person who assaults or uses criminal force towards any person, with
intention or knowledge that the person's modesty will be outraged commits an offence and therefore, if found
guilty would be punishable in accordance with the above section. In Bohari Amit v Public Prosecutor10, it was
noted that 'there cannot be any doubt in anyone"s mind that an offence under s 354 of the Penal Code is a
serious offence'.
The above two sections are primarily intended to protect and preserve dignity of a person from unwanted
indecent assault and further, to safeguard public morality and decent behaviour in the society. The word
'force' in the above sections means using criminal force either directly or indirectly causing injury, fear or
annoyance to the other. While the word 'assault' refers to an act that threatens physical harm to another
person. The prosecution will have to establish an intention on part of the accused to outrage the modesty of
a woman, and an assault or the use of criminal force by the accused on the victim/complainant.
Section 355 of the Penal Code provides: whoever assault or uses criminal force to any person, intending
thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person,
shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.
Intention to
1 MLJ xc at xcix

dishonour denotes an intention to derogate one's dignity and reputation for example, unnecessary touching,
stroking, patting or pinching or brushing against another person's body, grabbing, kissing, sending obscene
material by mail, SMS, MMS or nuisance phone calls among others, may well fall within the purview of the
above section.
Further, s 375 of the Penal Code is related to the offence of rape. The offence of rape is said to be committed
by a man when he has sexual intercourse with a woman under any one of the following circumstances
namely, against her will, without her consent, with consent obtained under fear of death or of hurt, with
consent but given by reason of unsoundness of mind or under influence of intoxication, a girl under sixteen
with or without her consent. To absolve a person from criminal liability, consent must be given freely without
any fear of injury or under misconception of fact. However, sexual intercourse with a girl under the age of
sixteen shall be construed as rape, irrespective of whether she consented to the act or not.
Apart from the above, s 509 of the Penal Code provides: whoever intending to insult the modesty of any
person, utters any word, makes any gestures or exhibits any object, intending that such words or sound shall
be heard, or that such gestures or objects shall be seen by such person as intruding upon the privacy of
such person shall be punished with imprisonment for a term which may extend to five years or with fine, or
with both. This section is aimed at protecting the modesty and chastity of a person. The important ingredient
here being an intention to insult the modesty of a person, and the insult must be caused by uttering some
words, or making some sound or gesture or exhibiting any object so as to be heard or seen by such person
or by intruding upon the privacy of such person.
Finally, s 511 of the Penal Code is on attempt to commit an offence. The above section provides: Whoever
attempts to commit an offence punishable by this Code or by any other written law with imprisonment or fine
or with a combination of such punishment, or attempts to cause such an offence to be committed, and in
such attempt does any act towards the commission of such offence, shall, where no express provision is
made by this Code or by such other written law, as the case may be, for the punishment of such attempt be
punished with such punishment as is provided for the offence: Provided that any term of imprisonment
imposed shall not exceed one-half of the longest term provided for the offence. Attempt is an act done in part
execution of an offence wherein the accused has proceeded beyond the preparation stage but falling short of
the actual commission.
1 MLJ xc at c
In Kurchang Singh Wedhawa Singh v Public Prosecutor 11, it was stated that: 'there must be some further
overt act on the part of the offender which is directed towards the actual commission of the crime and which
is immediately and not remotely connected with the crime in order to constitute an attempt within the
meaning of s 511 of the Penal Code. On the other hand a crime is not completed if something should happen
when the attempt to commit is being made, breaking the chain of events which if not for the intervening
interruption would have led to the consummation of the crime. In such an event the offender will be liable
under s 511 of the Penal Code'.
Having mentioned the sections related to sexual harassment from the criminal law perspective, it would be
worthwhile noting that if a victim lodges a police report, investigation may be carried out and if the allegation
is established, the accused may be charged in court under any of the above provisions, depending on the
gravity of the offence and this is inclusive of offences of sexual harassment.
It would also be worthwhile referring to Public Prosecutor v Pretum Singh a/l Lal Singh12 -- a case related to
rape committed by the father. The father was charged and convicted for raping his daughter since she was
nine years old. RK Nathan J in passing the sentence stated: 'I considered the effect of the accused"s conduct
on his young daughter. She would have to live with the stigma of such a cruel act by a father who was both
duty and morally bound to have protected her. She would have to live with the trauma of having been raped
by her own father, for the rest of her life. The respondent"s lust knew no limits. He threatened and cowed a
little girl into submission to satiate his unnatural urge. Even in the animal kingdom the young are protected by
the parents'. As from the above passage, it is noted that rape is regarded as heinous crime, more so if
committed by the lawful guardian. It is submitted that molesting a child is also considered a serious offence
and deserves severe sentence.
Offences Involving Youth: Avenue for Trial

A person shall be criminally responsibility for the wrong committed. However, the age of criminal
responsibility is between the ages of 10 to 12. Section 82 of the Penal Code provides: Nothing is an offence
which is done by a child under ten years of age. Section 83 further provides: Nothing is an offence which is
done by a child above ten years
1 MLJ xc at ci
of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and
consequence of his conduct on that occasion. Further, s 113 of the Evidence Act 1950 (Act 56) (Revised -1971) provides: it shall be an irrebuttable presumption of law that a boy under the age of thirteen years is
incapable of committing rape.
A young offender, between the ages of 10 to 18, will be tried in accordance with the Child Act 2001 (Act 611).
Young offenders cannot be judged by adult standards or punished by convenience. The Child Act 2001
acknowledges that a child, by reasons of his physical, mental and emotional immaturity, is in need of special
safeguards, care and assistance, after birth, to enable him to participate in and contribute positively towards
the attainment of the ideals of a civil Malaysian society. Section 2 of the Act defined 'child' as '(a) a person
under the age of eighteen years; and (b) in relation to criminal responsibility as prescribed in section 82 of
the Penal Code (Act 574).
Offences committed by a child will be tried in the 'Court For Children' which shall consist of a Magistrate and
shall be assisted by two advisers, one of which shall be a woman, to be appointed by the Minister from a
panel of persons resident in the State. The functions of the advisers are -- (a) to inform and advise the Court
with respect to any consideration affecting the order made upon a finding of guilty or other related treatment
of any child brought before it; and (b) if necessary, to advise the parent or guardian of the child. The Court
shall have jurisdiction to try all offences except offences punishable with death 13.
Section 83(3) of the Act provides that when the offence is committed by a child but a charge in respect of that
offence is made against the child after the child has attained the age of 18 years, the charge shall be heard
by a court other than a 'Court For Children'. For example, in Public Prosecutor v Mohd Turmizy bin Mahdzir
& Anor14, the two accused were -- at the time of the commission of the offence, below 18 years of age -initially charged for an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('the DDA'). They pleaded
not guilty to the charge and the case was fixed for hearing. Subsequently, the prosecution tendered an
alternative charge, an offence under s 6 of the DDA and punishable under s 39A(2) of the same Act. At the
time the alternative charge was framed and tendered in court the two accused persons had attained the age
of 18 years.
1 MLJ xc at cii
They were tried in the High Court. They pleaded guilty to the said alternative charge and were accordingly
convicted.
Section 85 of the Child Act provides that an appropriate arrangement shall be made -- (a) to prevent a child
while -- (i) being detained in a police station; (ii) being conveyed to or from any Court; or (iii) waiting before or
after attendance in any Court, from associating with an adult who is charged with an offence; (b) to ensure
that a child, if a girl, while being so detained or conveyed, or waiting, is under the area of a woman; and (c) to
prevent the picture of a child while -- (i) being detained in a police station; (ii) being conveyed to or from any
Court; or (iii) waiting before or after attendance in any Court; from being recorded in any manner on tape or
film or by any electronic medium.
Section 91 further states that if a Court For Children is satisfied that an offence has been proved, the Court
shall, in addition to any other powers exercisable by virtue of this Act, have power to -- (a) admonish and
discharge the child; (b) discharge the child upon his executing a bond to be of good behaviour and to comply
with such conditions as may be imposed by the Court; (c) order the child to be placed in the care of a relative
or other fit and proper person -- (i) for such period to be specified by the Court; and (ii) with such conditions
as may be imposed by the Court; (d) order the child to pay a fine, compensation or costs; (e) make a
probation order under s 98; (f) order the child to be sent to an approved school or a Henry Gurney School;
(g) order the child, if a male, to be whipped with not more than ten strokes of a light cane -- (i) within the
Court premises; and (ii) in the presence, if he desires to be present, of the parent or guardian of the child; (h)
impose on the child, if he is aged fourteen years and above and the offence is punishable with imprisonment
and subject to sub-s 96(2), any term of imprisonment which could be awarded by a Sessions Court.

As from the above, the priority must be rehabilitation and it has to be in the best interests of the child. A child
below 14 cannot be imprisoned for any offence, even if they are unable to pay a fine, compensation or costs
ordered by the 'Court For Children'. Those above 14 can only be sent to prison if they cannot be 'suitably
dealt with' in any other way -- including probation, fine or detention in an approved school or other
institutions.
In Public Prosecutor v Mohd Turmizy bin Mahdzir & Anor15, VT Singham J stated: 'The message must be
made clear that not all first
1 MLJ xc at ciii
offenders and youths who have pleaded guilty to the offence and appeal to this court for non custodial
sentence will be shown mercy and leniency and granted as a matter of course, as each case will be
dependant on its own set of facts and mitigating circumstances. The prevalence in the criminal scene
presently and public safety must also be considered as the administration of justice is undeniably a matter of
public interest. Therefore, it is legitimate for the public to expect the courts to impose severe sentence to
those and including children who commit serious or grave crime which affects public health and safety, so as
to commensurate with the nature of the crime and as a deterrence'. However, s 96(b) of the Act expressly
provides that a child aged fourteen or above shall not, if ordered to be imprisoned, be allowed to associate
with adult prisoners.
As noted earlier, if an offence is proven after a trial, the penalties which can be meted out includes admonish
and discharge the child, releasing him on a bond of good behaviour, putting him in the care of a relative or
other 'fit and proper' person, sending him to an approved school or the Henry Gurney School, or imposing a
fine, probation, whipping or imprisonment. Prison is the last resort and usually for repeat offenders or for
serious crimes including culpable kidnapping. If children are imprisoned, they must be kept separate from
adults. Section 91(2) of the Act expressly provides that the words 'conviction' and 'sentence' shall not be
used in relation to a child dealt with by the Court For Children and any reference in any written law to a
person convicted, a conviction and a sentence shall, in the case of a child, be construed as a child found
guilty, a finding of guilt and an order made upon a finding of guilt respectively.
May it also be noted that recently, the Court of Appeal, in Kok Wah Kuan v Public Prosecutor16, had affirmed
the conviction against the appellant, a child, for murder committed, but had set aside the sentence passed. It
was stated that the appellant had committed a gruesome murder and that there was abundant material on
record to support the conviction of the appellant. However, the sentence passed by the trial judge was set
aside. This was because by consigning to the Executive the judicial power to determine the measure of the
sentence that is to be served by the appellant in this case, as provided in s 97(2) of the Child Act 2001, was
clearly contravenes the doctrine of separation of powers housed in the Constitution. The Federal Court
however, had on an appeal, reversed the Court of Appeal's decision on the constitutional of s 97(2) of the
Child Act 2001.
1 MLJ xc at civ
Substantiating Allegations of Sexual Harassment
An allegation of sexual harassment, if established, can cause enormous embarrassment and damage on the
social status of the perpetrator. Therefore, there must be sufficient evidence to support the allegation.
Evidence is of prime importance in seeking to establish the truth. The onus shall always be on the
complainant to prove that the assailant committed such acts by relying on victims own evidence, evidence of
other witnesses and documents. Section 134 of the Evidence Act 1950 provides: no particular number of
witnesses shall in any case be required for the proof of any fact. All evidence adduced has to be scrutinised
properly. If the evaluation of evidence results in doubt in the prosecutions case, benefit of the doubt must go
to the accused.
If the evidence of the complainant is riddled with inconsistencies and contradictions, it would not be prudent
to rely solely on victim's evidence unless it is corroborated. Corroborative evidence is confirmatory proof of
some fact on which other evidence has been given17. It is independent evidence which tends to show that the
story told by the complainant is the true account of what occurred.
In relation to the importance of evidence in establishing sexual harassment, Jennico Associates Sdn Bhd v
Lilian Therera De Costa and Anor18, -- a leading case on sexual harassment in the workplace -- would be

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worth looking at. In the above case, the claimant, considered herself constructively dismissed, following two
incidents of sexual harassment. The Industrial Court held in favour of the claimant and accordingly awarded
appropriate remedy for dismissal without just cause or excuse.
On a judicial review application, the High Court quashed the Industrial Court's award on the ground that the
claimant"s evidence of the allegations was not adequately corroborated. This was because the credibility of
the testimony of the claimant had been proven to be seriously unreliable due to the presence of
inconsistencies and contradictions in her evidence for the following reasons; firstly, the claimant did not lodge
any police report against the acts of sexual harassment. Secondly, she did not inform her husband about this
1 MLJ xc at cv
incident until after her letter of resignation. Her reason for not immediately informing the husband was that
she was afraid that he might do something out of anger.
The High Court stated that, 'normally, faced with such incident, one would at first opportunity communicate
with one's husband, either personally or through phone and would also lodge a police report. These are acts
consistent with truth. Not informing one's husband or failure to inform the actual incident to him are acts
which can give rise to a lot of suspicion19'. Thirdly, there was serious inconsistency in her evidence. When the
claimant was cross-examined as to her whereabouts on the night of the second incident, she told the court
that she was at home the whole night and denied partying away at the Ming Court Hotel. However, she
eventually had to admit having gone out and being at the vicinity of the Hotel car park on the night in
question, when the counsel for the applicant produced a police report lodged by her on the night in question
regarding a fight between her brother and a group of men from the Ming Court Hotel. All this, in the view of
the Court, automatically triggered off the need to have her evidence corroborated.
Is relation to the evidence of a child of tender age, s 133A of Evidence Act provides that any child of tender
years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence
may be received, though not given on oath, if, in the opinion of the court, he possessed sufficient intelligence
to justify the reception of the evidence and understands the duty of speaking the truth. Provided 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. In Lim Teng Leng v Public Prosecutor20, it was stated that where the
evidence of the child witness is received upon oath, as in this case, there is no rule of law demanding that
such evidence should be corroborated. However, as a matter of prudence, the court is mindful of the danger
of accepting evidence of a child of tender age without corroboration.
As from the above and with reference to Lilian Therera De Costa's case, it is noted that the core issue
involving sexual harassment is proving the allegation. Exposing the aggressor"s wrongdoing may inevitably
expose some degree of unpleasantness to the victim from the perpetrator's colleagues or friends. It would be
1 MLJ xc at cvi
worse for the victim if the perpetrator turns the situation around. Be that as it may, the court would normally
look for additional evidence of relevant circumstances which may render it probable that the allegations of
the complainant was true and that it was reasonably safe to act upon it.
To make the case on sexual harassment more convincing, various factors would have to be considered, for
example, whether the victim made a police report or lodged a complaint with the disciplinary teacher, getting
eye witnesses of the victim"s reaction right after the incident, immediately relating the experience verbally or
in writing to more than one person, among others, on a case to case basis. However, keeping quiet and
acting normally may sometimes be construed as consenting to the advances made by the sexual harasser.
In reality however, many sexual harassment cases are never reported because of the embarrassment and
fear of ill treatment. And further, proving sexual harassment could be difficult given the fact that it frequently
occurs without witnesses. In most circumstances the evidence of the victim will only be circumstantial. In
dealing with circumstantial evidence, the court must be satisfied that the evidence, when considered
together, points only to the guilt of the accused person and it must not be capable of any other meaning 21.
Mechanism in school to prevent and eradicate sexual harassment
School administrators, teachers and students must be able to work together in an atmosphere free from all
forms of harassment, intimidation or exploitation. The authority concern must take necessary steps to

11

prevent, stop, correct, or discipline behaviour that violates individual dignity and honour. Disciplinary action
may be in the form of oral or written warning, transfer, suspension or even dismissal from school.
It is submitted that all schools must establish a sexual harassment policy prohibiting sexual harassment. All
schools should introduce a statement which should provide a declaration prohibiting all forms of sexual
harassment and a caution stating that sexual harassment constitutes a serious wrong and will incur
disciplinary actions. The written policy must clearly convey that sexual harassment will not be tolerated in any
form and must be made available to all students. Periodical notices must be sent to them about the schools
policy against sexual harassment.
1 MLJ xc at cvii
Students must be encouraged to report incidents of sexual harassment. A proper channel to report acts of
sexual harassment must be clearly stated. All incidents or complaints must be responded or attended to
promptly. The complaints must be investigated, and a due inquiry or domestic inquiry may be held following
appropriate action.
Being sensitive and personal in nature the suggested complaint procedure above should be very discreet
and should provide measures to protect victims from further embarrassment in the course of reporting and
investigation into the complaint. The school must take reasonable steps to ensure confidentiality. Further, the
victim of harassment should be provided, if requested, in-house psychological counselling.
It is also suggested that lessons should be conducted in schools so as to increase the children's knowledge
of what constitutes sexual harassment and further, to help them understand the broad scope of behaviour
that fall within this form of violence. Last but not least, teachers must heighten their awareness of sexual
harassment and how to respond to the problem.
Conclusion
Outraging modesty of another or using obscene language, suggestive remarks and unwanted physical
contact is improper, unbecoming and totally unacceptable as it is derogatory to the standards of behaviour.
Even a single incident of the unacceptable behaviour is sufficient to constitute a detriment. Sexual
harassment is a violation of individual rights. The existing provisions in the Penal Code is, apart from
regulating morality or personal lives of individual, intended to safeguard the sanctity of individual rights for
protection against unwelcome, unsolicited or unwanted sexual advances and thereby ensuring their privacy
and decency. There are two important ingredients to establish sexual harassment firstly, the conduct must be
unwanted or unwelcome by the recipient and secondly, the conduct from the recipient's point of view is
offensive or threatening. The unwanted or unwelcome and offensive sexual conduct is not acceptable in any
society.
The school is but one setting in which sexual harassment occurs. Sexual harassment is a pervasive and
persistent form of violence experienced in the lives of girls and young women -- it is becoming a social
disease. Among the youths, the sexual harassment may be committed against them either by adults or
peers, although peer harassment is the most common occurrence in schools. In the school setting we have
victims comprising of youths and perpetrators who
1 MLJ xc at cviii
are youths as well. Something has to be done to save potential young victims from falling prey to
perpetrators, youth and adult alike. Schools play an important role in educating children to recognise sexual
harassment when they see it and report it to a teacher whom they perceive as a caring and understanding
person. Proper guidelines should be provided to prevent or deter sexual harassment and further, proper
procedures should be introduced for the settlement or prosecution.
1 MLJ xc at cix

1 Marc Lourdes, One in 10 rapists in below 18, Sunday Star 10 December 2006, p 6 (National). Table: Rape cases from 2000 to
2005.
Categories200020012002200320042005Rape1,2171,3861,4311,4791,7601,931
(Source: Police Report of cases of Violence, Sunday Star, Sunday 10 December 2006, StarMag p 3).

12

2 Lee Shi-Ian & David Yeow, From truancy to rape, juveniles behaving badly, New Straits Times, Thursday 4 January 2007 p
10.
3 Ibid.
4 New Age Kids, New Straits Times, Monday 11 December 2006 p 1.
5 [2000] 3 MLJ 281, p 294 (CA).
6 For the guiding principle in ascertaining appropriate sentence for the commission of a crime, see Public Prosecutor v Toha bin
M Yusuf & Ors [2006] 4 MLJ 63 (HC); Mohd Zandere bin Ariffin v Public Prosecutor [2006] 5 MLJ 685 (HC).
7 [2005] 6 MLJ 320.
8 1989] 2 CLJ 442.
9 [2005] 8 CLJ 43.
10 [2005] 8 CLJ 43.
11 [1989] 2 CLJ 442.
12 [2004] 6 MLJ 599.
13 See Child Act 2001, s 5.
14 [2007] 6 MLJ 642 (HC).
15 [2007] 6 MLJ 642 (HC).
16 [2007] 5 MLJ 174 (CA).
17 In R v Baskerville [1916] 2 KB 658, Lord Reading said that to amount to corroboration evidence must come from
independent evidence which connects the accused with the crime. It must be evidence which implicates him, that is, which
confirms in some material particular not only the evidence that the crime has been committed but also that the accused
committed it
18 [1998] 3 CLJ 583 (HC); re'v [1996] 2 ILR 1765(IC).
19 Ibid, at p 592.
20 [1998] 5 CLJ 400; [1998] MLJU 152.
21 See Public Prosecutor v Inthiran a/l Renganathan & Ors [2007] 6 MLJ 469, 483.