Sexual Conduct Law — Malaysia

Key takeaways

Federal Penal Code — core provisions

Rape & statutory rape (s375/376)

The Penal Code defines rape in section 375 and prescribes penalties in section 376. Sex with a girl under 16 is rape even with consent; aggravated cases attract long prison terms and whipping^[WCC].

“Statutory rape… [below 16] … imprisonment minimum 10 years, maximum 30 years and whipping.”^[WCC]

Marital rape gap (s375A)

Malaysia does not criminalize marital rape per se. Instead, s375A punishes a husband who causes hurt or fear of death/hurt to obtain sex (up to 5 years)—criticized as inadequate relative to rape penalties^[BurgieLaw].

“Unnatural offences” (s377A/B/D)

Sections 377A & 377B criminalize “carnal intercourse against the order of nature” (anal/oral sex), with penalties up to 20 years and whipping; s377D covers “gross indecency.” These underpin criminalization of consensual same‑sex intimacy under federal law^[HDT].

Pornography & obscenity (s292; Film Censorship Act; CMA)

It is a crime to produce, sell, or distribute obscene material (Penal Code s292), and online dissemination of obscene/indecent content can be charged under the Communications & Multimedia Act (s211/233); the Film Censorship Act also penalizes obscene/indecent media^[CMA/Film].

Syariah offences (Muslims only) & punishments

Each state enacts Syariah criminal offences (e.g., zina, khalwat, “against nature”, gender‑expression rules). Punishments are capped by federal law at 3 years’ jail, RM5,000 fine, and 6 strokes in any combination (the “3‑5‑6” cap)^[SUHAKAM].

• Khalwat / zina: frequently prosecuted in conservative states; public canings have occurred (e.g., Terengganu 2018 case involving two women; Dec 2024 khalwat caning after Friday prayers)^{[2018], [2024]}.
• Gender‑expression offences: some states criminalize “posing as a woman” or similar; penalties can include caning^[HDT].
• Jurisdictional limits (2024): the Federal Court struck down 16 Kelantan Syariah crimes (incl. sodomy, sexual harassment, incest) as ultra vires because Parliament already legislates those crimes^{[Kelantan ruling]}.

Sex work & related offences

Malaysia criminalizes the ecosystem of prostitution rather than the act of selling sex by an adult. Offences include exploiting a person for prostitution (s372), living on earnings/acting as intermediary (s372A), and keeping/managing a brothel (s373)^[NSWP].

Penalties overview (selected)

What is not a crime (federal)

• Adultery / fornication: not a Penal Code offence (but Syariah offences may apply to Muslims).
• Consensual premarital sex between adults in private: not criminal under the Penal Code; Syariah offences may still apply to Muslims. Public indecency is separately criminalized.

“Old punishments” still applied today?

Malaysia does not use stoning or amputation in its courts. However, caning (whipping) remains lawful and is used under both the Penal Code and Syariah. Notably, Syariah public canings have taken place—e.g., the 2018 Terengganu case of two women convicted for lesbian sex and the Dec 27, 2024 public caning for khalwat in Terengganu^{[2018], [2024]}.

In Feb 2024, the Federal Court invalidated 16 Kelantan Syariah offences (including sodomy and sexual harassment) for encroaching on federal criminal law—reinforcing constitutional limits on state criminalization^{[Kelantan ruling]}.

Quoted snippets

“377A. Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.”^[BurgieLaw]

“375A… any man who… causes hurt or fear of death or hurt… in order to have sexual intercourse with his wife shall be punished with imprisonment… [up to 5 years].”^[BurgieLaw]

SUHAKAM: “Syariah courts are empowered to impose maximum sentences of imprisonment not exceeding three years, any fine not exceeding RM5,000, or with whipping not exceeding six strokes or with any combination thereof.”^[SUHAKAM]