Written by: Averroes
Introduction
In Malaysia, headlines of 'sugar baby' are breaking every news outlet from newspapers, television, social media and other mass media. It has brought large attention of the public and is among a hot topic discussed by many.
Some have suggest that sugar baby is now the modern prostitution. 'Sugar Baby' as according to Dictionary.com is;
"A younger person who provides romantic companionship or sexual intimacy to a wealthy older person in return for gifts or financial support."
When compared to any laws in Malaysia, we find that it falls within the ambit of criminal prostitution. Though, it may be difficult to proffer evidence of prostitution, since both parties would have consented to the act.
Definition of Prostitution
Prostitution may be defined as when any person offers his or her body for sexual gratification for hire whether in money of in kind.
According to the Oxford Concise Dictionary (8th Edn, 1990) defines prostitution when "a woman who engages in sexual activity for payment; a man or boy who engages in sexual activity especially with homosexual men for payment; a person who debases himself or herself for personal gain;"
A more persuasive legal authority would be in Koh Ah Peng v Rex [1939] MLJ 19, where McElwaine CJ defined prostitution as follows;
"a woman who offers body to indiscriminate sexual intercourse especially for hire; a woman who is kept habitually by one man and who is chaste in her relations with all other men is not a prostitute, if she cohabits with her keeper to the exclusion of all others."
Here, there is a conflict on the definition as some definitions confine prostitution only to women offering such services. It could also be argued that men are 'technically' liable for the offence of offering prostitution services as the reproduction of the provision of prostitution under section 372B of the Penal Code (PC) is as follows;
"Whoever solicits or importunes for the purpose of prostitution or any immoral purpose in any place shall be punished with imprisonment for a term not exceeding one year, or with fine, or with both."
Therefore, the word 'whoever' would mean any person, including both men and women. Though, generally it is socially accepted that it is women whom solicit such services.
Islamic Penalty
Under Malaysian Syariah Law, the punishment is more severe as compared to the civil version. As under section 32 of the Syariah Criminal Offences (Federal Territories) Act 1997 states that;
"Any woman who prostitutes herself shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof."
However, this provision is criticised, as it inflicts severe punishment only on women and exempts men. Hence, there are double standards when it comes to syariah criminal offences
Framing of Charges
An example for a charge of prostitution under the PC could be found in Miss Prathumthai Sirinya v Public Prosecutor [2021] MLJU 2398;
“Bahawa kamu pada jam lebih kurang 10.30 malam, bertempat di bilik hotel bernombor 202, Big Big Hotel, Jalan Putra 1, Taman Tan Sri Yaakob, di dalam daerah Johor Bahru, di dalam Negeri Johor, telah mencari langganan bagi maksud persundalan. Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 372B Kanun Keseksaan.
Hukuman : Penjara tidak lebih setahun atau denda atau dengan kedua-duanya.”
Reasons for Prostitution
A research conducted by Jenita Kanapathy from the University of Malaya on her research topic 'Legalising Prostitution in Malaysia' found that prostitution is contributed by numerous factors, including the following.
Number 1: jobs such as massage parlours, bars, hotels are the stepping stone towards prostitution.
Number 2: women who were already promiscuous gravitate towards prostitution
Number 3: a women with limited education and from poverty is not the prime reason for prostitution, but high financial returns. Women from all different social backgrounds would offer prostitution due to large income generated as compared to other employment.
Number 4: girls who had traumatic experiences due to broken homes and childhood abuse are prone to prostitution, due to the poor treatment of the parents from neglect, physical and sexual abuse.
Number 5: human trafficking is a contributor to prostitution, as women and children are trafficked from neighbouring countries of Indonesia, Thailand, the Philippines, Cambodia, Vietnam, Myanmar, Chinda, India, Nepal, Bangladesh and Pakistan.
They were promised opportunities in factories, construction and agricultural sectors or domestic workers, but were defrauded nevertheless.
Decriminalisation and Regulation
Services of sugar baby may be decriminalised, regardless of religious and moral grounds. For that to happen, such services should subjected to tax and there must be proper occupational and health regulations imposed for it to be a legitimate business.
Advertisement of such services should also be monitored.
To further secure this service, a safe environment, comfortable, hygienic and the use of contraceptives are needed. The government may issue licenses to determine whether sex workers are healthy, fit and are not underage. They may also be required to periodically assess their health, free from any STDs.
The government may also establish certain areas or spots for prostitution, while also banning certain categories of people from entering, such as Muslims and minors.
Though, this may cause backlash, especially in a Muslim-Malay conservative country of Malaysia.
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