ACCESS TO JUSTICE is a fundamental human right. It can also be elusive. We often think of the law as inherently neutral or fair, but what one considers a “good law” on paper does not always translate to just results in reality. Although Malaysia has strong legislation on sexual crimes, including the commendable Sexual Offences Against Children Act 2017, justice remains out of reach for many victims.

Approximately 70% of all reported sexual crimes in Malaysia are committed against children, that is, persons below the age of 18. As of July 2023, there were 6,791 reported cases of sexual offences against children in the country. Most victims are girls between the ages of 13 and 15, and many perpetrators are family members. Victims are vulnerable because of their age, dependence on adult caregivers, and the lack of comprehensive sexuality education. Those particularly at risk are girls from poor and broken families with inadequate parenting.

Accessing justice in the formal legal system requires victims to first report the crime. Estimates vary, but consistently point out that sexual violence is among the least reported of all crimes—even more so in the case of child victims.

Inhibiting Factors

Children do not typically speak up about sexual abuse. Depending on their age and maturity level, a range of factors affect whether the child can or will report the incident. These include confusion (children may not realise that they have been abused, especially, as is commonly the case, when they have been groomed into a relationship of trust by their abusers); a sense of shame, guilt, or anger; and the fear of being blamed for upsetting their family members.

Regardless of their gender or age, it is important to understand that for victims, prior or existing vulnerabilities like physical or mental disability, a history of abuse, a lack of support, or a combination of these, can greatly exacerbate the situation, presenting barriers not just to reporting but also during the subsequent stages of the criminal justice process.

When victims disclose or report the crime, a lack of sensitivity to their needs can result in what is known as secondary victimisation—harm that can be caused by those who respond to the victim, such as justice system agencies, the media, family members or friends. Secondary victimisation includes trivialisation or disbelief of the abuse, blaming the victim instead of the abuser, and insensitive questioning or comments by the police, hospital and social welfare personnel, prosecutors and courts involved.

Trauma is also a significant factor. Literally meaning “wound” or “injury”, psychological trauma is the emotional shock or distress experienced in response to the sexual abuse. Symptoms include:

• Constant fear and anxiety.

• Eating and sleeping disorders.

• Depression.

• Suicidal or self-harm tendencies, including substance abuse.

Significantly, trauma can affect the victim’s ability to communicate about their experience. Their brain may block out some memories of the incident, and they may contradict themselves due to this memory loss or confusion. Struggling with dissociation, victims may not be able to express themselves fully or coherently, or may only be able to do so after some delay.

Agencies engaging with victims must be trained to recognise signs of trauma, as well as other pre-existing vulnerabilities faced by them, to avoid subjecting them to secondary victimisation. It goes without saying that secondary victimisation can retraumatise victims and leave them feeling isolated, insecure and mistrustful of the very process that is supposed to help and protect them in the first place, leading to an increased risk of victims dropping out of the system (also known as attrition).

In 2009, the Women’s Centre for Change (WCC) published a study showing that in 45% of 439 sexual crime cases in Penang courts (between 2000 and 2004), those accused were discharged not amounting to acquittal (DNAA), where victim attrition was a key concern. Other structural factors, such as multiple trial postponements and long delays, can also contribute to victims dropping out.

Various measures, including legislative protections, exist across different agencies and have continued to improve protection for vulnerable victims, especially children. These include the setting up of police Child Interview Centres (CIC) for victims, media restrictions on reporting on cases involving children, bail conditions prohibiting the accused from intimidating victims and other witnesses, child witnesses being allowed to use witness waiting rooms or give testimony via video live link with adults to accompany them, legal companions, and victim impact statements.

However, gaps remain in practice. CICs are resource-intensive and not readily available, especially in rural or remote areas. Victims with disabilities, such as the deaf, require additional support like sign language interpretation—which is, again, not readily available. Even with interpretation, there are fundamental communication gaps. In 2022, WCC found that in 35 cases of child sexual crime it supported, nearly 90% did not make use of video live link facilities for testimony. Often, these facilities were not in working order. WCC also found that nearly 80% of the child victims were left to testify alone in court without adult accompaniment. In further dialogues with justice agencies, we also noted that victim impact statements are rarely used, and that there is often a shortage of trained police investigators and prosecutors.

Ultimately, access to justice is a process requiring time, commitment and an integrated approach by multiple stakeholders. Victim support services, such as counselling and court support provided by organisations such as WCC are critical. In 2021, WCC found that for cases it supported, there was a significantly higher conviction rate of 30% compared to the 4% noted in its 2009 study.

Efforts are underway by the government and civil society to address these gaps, and the media is playing its part in raising awareness. Monitoring and evaluation are necessary for continuous improvement, as is specialised training for criminal justice personnel. For victims, justice is about having their dignity recognised and respected, not only within the letter of the law but also in its implementary structures, systems of enforcement and culture of engagement.