Children are not criminals: Statutory rape is about protection, not punishment

By Ameena Siddiqi

When the Kelantan Police chief suggested that girls involved in ‘consensual’ underage sex should be charged alongside men – arguing that nearly 90% of statutory rape cases are consensual – it pushed the conversation in a dangerous direction.

This line of reasoning has since been amplified in religious commentary, published on the official Federal Territories mufti’s portal (Rogol suka sama suka: Islah perundangan demi memelihara keadilan dan maqasid Syariah [the higher objectives of Islamic law]). This argued that punishing both boys and girls would be more ‘fair’ and aligned with Islam.

However, this reframes a child-protection crisis as a gender quarrel. It distracts us from the real purpose of statutory rape laws: to shield children from sexual exploitation.

Law protects, it is not bias

Malaysia’s Penal Code is unambiguous: sexual intercourse with a child under 16 is rape, regardless of ‘consent’.

This asymmetry is intentional. A child cannot legally consent, so the burden rests with the adult.

Prosecuting girls alongside men would invert the law’s purpose. Victims would remain silent for fear of punishment. Predators would gain leverage: “If you report me, you’ll be charged too.” That is not justice. That is impunity.

Children are not accountable in Islam

Islamic sources are equally clear.

The Prophet ﷺ said: “The pen has been lifted from three: from the child until he reaches maturity, from the sleeper until he awakens, and from the insane until he regains his senses.” (Abu Dawud, Tirmidhi, Ahmad)

The Quran ties accountability not to puberty alone, but to rushd [sound judgement]: “Test the orphans until they reach marriageable age; if you perceive in them sound judgment, then release their property…” (Quran 4:6).

Classical jurists agree that minors are not subject to hudūd punishments. They require ta’dīb [education] and ḥimāyah [protection], not prosecution.

Collapsing this distinction by equating a 14-year-old with an adult man erases Quranic principles and centuries of consensus.

Harm of criminalising children

Those who advocate “equal punishment” overlook the very real consequences. Criminalising underage girls would silence victims, as many would avoid reporting abuse for fear of being charged themselves.

It would empower predators, who could easily threaten: “If you speak, you will be punished too.”

It risks normalising child marriage by reducing maturity to puberty, opening the door to early unions.

It would undermine public trust in legal and religious institutions, portraying them as punitive toward the powerless rather than protective.

And it would breach Malaysia’s obligations under the UN Convention on the Rights of the Child, inviting international backlash for criminalising victims.

These dangers are compounded by the fact that cases are already rising. According to the police, 5,401 sexual crimes against children were recorded in 2023, with another 2,059 cases in just the first four months of 2024 (media briefing, Ministry of Women, Family and Community Development, November 2024).

Meanwhile, the Department of Statistics’ Children Statistics Malaysia 2024 reported that “sexual offences involving children” rose by 26.5% in 2023 compared to 2022, including 1,389 cases of physical sexual assault, 91 non-physical assaults, 67 cases of child sexual abuse material, and 1,500 cases of rape involving children. Incest alone accounted for 248 cases.

Experts consistently warn these numbers under-represent the true scale, as stigma and fear still keep many cases unreported.

This is not about gender fairness

Much of the debate has been framed as a matter of gender: “Why punish only men and not girls?”

However, statutory rape laws are not about balancing punishment between the sexes. They are about recognising that children – whether boys or girls – cannot consent.

This is fundamentally a matter of adult responsibility versus child vulnerability. Reducing it to a gender tug-of-war distorts the issue and leaves children – the very group the law is meant to protect – at greater risk.

Way forward

If we want to align with both justice and Islam’s higher objectives [maqāṣid al-sharī‘ah], we must:

• Keep statutory rape protections intact: Children must never be prosecuted for their own exploitation.
• Place accountability on adults: Legal and moral responsibility lies with those capable of consent.
• Educate and protect minors: Islam calls for ta’dīb [education] and ḥimāyah [protection], not punishment.
• Address root causes: Invest in cyber-safety, parental guidance and safe reporting systems.
• Preach protection, not blame: Religious platforms should embody mercy and prevention, not victim-blaming.

Prosecuting underage girls in statutory rape cases would betray both Malaysian law and Islamic teaching.

The asymmetry in the law is not a flaw; it is its strength.

The Quran and Sunnah are clear: children are never ‘complicit’ in their own exploitation. They deserve mercy, dignity and protection. To criminalise them is not reform – it is injustice.

Our leaders – civil and religious – must stop reframing this as a gender issue and recognise it for what it is: a child-protection imperative. – SIS Forum

Ameena Siddiqi is the communications manager of SIS Forum (Malaysia).

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