When ‘Yes’ Isn’t Truly Yes: Identifying Sexual Consent in Malaysia

Abstract 

This article examines the complexities in identifying sexual consent within the Malaysian legal system. Despite being the legal threshold between intimacy and violation, consent is often interpreted within narrow boundaries that prioritize physical violence over psychological impacts. This paper will study the definitions of consent in different statutory legislations. The particular issues that were raised are the question of consent in grooming, human trafficking among migrant workers, and the doctrine of irrevocable consent within marriage. Beyond the law, cultural taboos surrounding sexuality, patriarchal expectations, and victim-blaming continue to shape how society perceives women’s autonomy and silence. This paper argues that consent must be perceived as an evolving, informed, and revocable choice. 

Keywords : consent – sexual violence – sexual harm – coercion – emotional manipulation – control 

1.0 Introduction 

Consent is a requirement that distinguishes lawful intimacy from criminal violation. In layman’s terms, consent refers to a voluntary agreement made without any form of pressure, coercion, or external influence1. It requires mutual communication between participants when committing a sexual activity to respect the respective parties’ boundaries. However, the problem with consent lies when sexual abuse or any form of violence occurs during intimacy, even though consent was provided. The phrase ‘yes’ does not always reflect free will, as it may instead conceal fear, manipulation, or vulnerability. For instance, the lack of consent can be reflected when a person appears hesitant or remains silent in a sexual activity2. This difficulty in identifying consent lies in many sexual crime cases in Malaysia. While the Penal Code and related statutes recognise non-consensual acts as offences, the law continues to interpret consent in rigid terms. It overlooks the fact that complex psychological, social, and cultural factors may affect a person’s ability to give free consent. 

2.0 The Current Legislation 

The primary legislation that covers the punishments against sexual crimes is allocated in the Penal Code. It covers crimes such as rape, assault, incest, sexual exploitation, prostitution, and carnal intercourse against the order of nature. In Section 90 of the Penal Code, consent is invalidated if it is given under a misconception of fact, unsound mind, or intoxication, if the person does not understand the nature of the act, or if a minor gave the consent3. 

The Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM) extends criminal liability for trafficking for purposes of sexual exploitation and forced labour. Section 16 of the ATIPSOM has mentioned that the consent of a trafficked person is irrelevant. As mentioned earlier, minors’ consent generally does not constitute consent4. In protecting minors, the Sexual Offences Against Children Act 2017 (SOACA) specifically addresses grooming, child pornography, and sexual communication with a child, while the Child Act 2001 (The Child Act) provides a broader welfare-based framework for child protection. The Child Act 2001 was established based on the core principles of the United Nations Convention on the Rights of the Child (CRC). Additionally, Malaysia has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) that addresses sexual harm based on gender-based violence5. Although these laws have been made to combat sexual harm, there are still a few loopholes in the law in addressing such crimes. 

3.0 The Problem With Contextual Consent 

3.1 The Blind Spot In Identifying Grooming 

The trickiest situation in identifying consent is when the sexual act is a result of grooming. Grooming can occur in both minors and adults. Most victims of sexual grooming are usually unaware that they were groomed due to the power dynamic and trust that they have with their perpetrator, as such perpetrators are usually an authoritative figure in their life. Authoritative figures can include religious scholars, teachers, parental figures, and many more. Victims who have been groomed into any form of sexual work may initially appear to have acted consensually, yet such involvement is, in reality, profoundly harmful and exploitative. This is because consent in this context is quite nuanced, as true consent must be understood when it is freely given, fully understood, and genuinely wanted by the victim6. 

The scrutiny of consent committed by grooming is not directly reflected under the Penal Code. This is because Section 90 recognises consent caused by deception and not caused by control7. It shall be noted that the misconception of fact differs from grooming as it is based on deception, while grooming is a result of gradual manipulation and control. Rape resulting from sexual grooming can be implied by subsections (e) and (f) of Section 3758, where it is respectively mentioned that rape can be conducted when the victim is unable to understand the nature of the act when she gave her consent, and her consent is obtained by the power dynamic with an authoritative figure or person with trust. Although such invalidation of genuine consent is recognised under Section 375, the matter is not addressed nor extended to other sexual offences in the Penal Code. The lack of addressing consent by grooming is troubling, as Section 90 has a narrow definition that assumes that coercion or deception occurs at the point of any crime. It does not directly address the fact that consent can be obtained by manipulation. It overlooks the reality that many vulnerable victims are not forced or deceived in an instant, but slowly conditioned into compliance through control and emotional dependence. Offenders establish trust, provide attention or protection, and distort the victim’s sense of choice until submission appears voluntary. 

Generally, consent given by minors is invalid. On a progressive note, the SOACA acknowledges the issue of child grooming under Section 12. Section 12 addresses communication-based child grooming that leads to sexual abuse, child pornography, or assault9. Section 16 identifies groomers under the definition of ‘person in a relationship of trust’10. The section has also identified the type of relationships that arise from a relationship of trust with a child. When comparing to the Penal Code, it is clear that the identification of groomers and acknowledgment of psychological coercion are much clearer in cases involving children than in those involving adult victims. This disparity underscores the urgent need for Malaysia to expand its legal definition of consent to reflect the reality of grooming and to extend protection beyond the age of minority. 

3.2 The Impact On Trafficking of Migrant Workers 

Slavery has existed for more than four centuries, evolving in form but not in essence11. One of its earliest manifestations is forced prostitution, which remains prevalent today under the guise of modern slavery12. Modern slavery has now been expanded to different types of exploitation aside from sexual exploitation, such as domestic servitude, forced labour, and trafficking13. In Malaysia, these forms of exploitation are visible among migrant workers who remain among the most vulnerable groups in society. Most migrant workers mainly come from countries such as Indonesia, Bangladesh, India, Thailand, and Vietnam, who seek opportunities but often find themselves being trapped in conditions of coercion and abuse. 

Based on the ATIPSOM, it has interpreted exploitation as all forms of sexual exploitation, forced labour or services, slavery, servitude, and any illegal activity or the removal of human organs14. Trafficking in persons refers to all actions involving the acquisition, retention, or exploitation of a person’s labor or services through coercion, including recruiting, transporting, harboring, or receiving that person for exploitation. To prove a person is being trafficked under the ATIPSOM requires proving that there was exploitation and the essential element of coercion15. Coercion consists of threats of serious harm or physical restraint, deceptive conduct or schemes that cause a person to believe harm will result from non-compliance, and the misuse or threatened misuse of legal procedures to intimidate or control16. The identification of coercion and exploitation is subjective. 

In the context of sexual exploitation, a trafficked person’s consent is legally irrelevant. The real challenge arises in identifying who actually qualifies as a trafficked victim. In Malaysia, some migrant workers voluntarily enter the country and engage in sex work, which complicates the distinction between voluntary participation and trafficking. This difficulty is further reinforced by Malaysia’s perception that treats all sex work as inherently exploitative and in need of rescue17. As a result, consent functions as a double-edged sword for migrant sex workers. Those classified as ‘trafficked’ are often infantilised and presumed incapable of exercising consent, while those who assert their agency and willingly engage in sex work are criminalised as illegal workers18. 

Since consent is deemed irrelevant, women identified as trafficked are often placed in mandatory shelters and required to testify in court proceedings, all under the justification of ‘protection’19. However, these measures are typically carried out without their voluntary consent. Such practices perpetuate the notion that women serve primarily as instruments of the state’s anti-trafficking agenda, rather than being recognised and treated as victims20. Additionally, many shelters remain inadequate and discriminatory, with poor living conditions and reports of mistreatment by officers, which further compounds the trauma of victims who were meant to be protected21. 

3.3 Vulnerability to Marital Rape 

The common law perspective has introduced the doctrine of irrevocable consent when marital vows are in existence. Irrevocable consent refers to the proposition that a wife, upon entering into the marriage contract, is considered to have given a single, non-retractable consent to sexual intercourse with her husband for the entire duration of the marriage22. This legal presumption of perpetual consent is rooted in outdated patriarchal views that treat marriage as a contract of sexual submission rather than a partnership based on mutual respect and autonomy. It fails to recognise that consent in sexual relationships must be continuous, freely given, and revocable at any time. The notion that a wife’s marriage vow equates to ongoing consent undermines her bodily integrity and violates the principle that every sexual act requires active, present consent. 

The doctrine of irrevocable consent can be reflected in the Penal Code. Section 375 of the Penal Code criminalises rape, but provides an exception to rape that sexual intercourse between married couples is valid in any written law and recognized by the Federation. Marital rape is said to occur when the husband causes hurt or fear of death or hurt to his wife to have sexual intercourse under Section 375A. In comparing these two sections, marital rape can only be recognised when there’s physical violence. 

It does not consider that psychological coercion can equally invalidate consent. Marital relationships often involve subtle coercion such as guilt-tripping, emotional manipulation, or invoking religious or cultural obligations. Yet the Penal Code remains silent on these forms of pressure, implying that sexual compliance achieved through mental abuse is legally consensual. The failure to recognise psychological coercion in marital rape contravenes Malaysia’s obligations to CEDAW. The CEDAW Committee, in General Recommendations No.19, has explicitly acknowledged that violence within families can take any form, including rape, mental cruelty, and coercion23. It also notes that women’s lack of economic dependence often forces them to remain in abusive marriages, which causes them to submit to such violence. These observations directly reflect the Malaysian reality, where the legal presumption of irrevocable consent and the absence of recognition for mental or emotional abuse perpetuate women’s vulnerability. 

As a result, most scholars have opined that the exception under Section 375 and Section 375A should be removed to eliminate the husband’s immunity when committing marital rape without physical force24. By removing these provisions, marital rape could either fully be relied upon under the offence of rape of Section 37525, or introduce a new provision that recognizes the right of consent when it comes to marital intercourse to distinguish it from marital rape. The determination of consent in marital intercourse could be tailored based on the CEDAW’s principles to ensure that equality is achieved. 

4.0 The Socio-Cultural Barriers In Understanding Consent 

Beyond the limitations of statutory interpretation, the issue of sexual consent in Malaysia is deeply influenced by socio-cultural attitudes that shape how society perceives gender, morality, and sexual autonomy. Conversations about sex remain taboo in many Malaysian communities, where traditional and religious values discourage open discussion of sexual boundaries and pleasure. This silence perpetuates misconceptions that sexual relations are inherently a male entitlement and that a woman’s refusal, particularly within marriage, is an act of defiance rather than the exercise of a human right. Most women are not taught appropriate sex education, as most consider teaching this subject to be immoral, but in reality, it affects a woman’s discretion in building their boundaries when it comes to sexual intercourse. 

Patriarchal norms have affected a woman’s right to enjoy pleasure. The sexualised gender has traditionally been female. Even during previous years, advertisements often utilized women to appeal to the male gaze. Such presentations often send messages that women should always be ready to partake in sexual activities26. Such portrayals contribute to a culture of victim-blaming, where survivors of sexual abuse are scrutinised for their clothing, behavior, or inability to resist. This mindset not only trivializes sexual violence but also undermines the principles that consent is an inherent right, where it is an empowered choice that belongs solely to the individual. 

Ultimately, consent is power. It represents ownership over one’s body, boundaries, and dignity. When a society treats consent as negotiable or assumes it can be given once and for all, it strips individuals of that power. Recognising consent as an autonomous decision is not merely a moral imperative, but it is a foundation of equality. Only when consent is truly understood and respected can “yes” genuinely mean yes. 

5.0 Conclusion 

Consent, though often seen as a simple word, carries profound legal and moral weight. Its meaning has been diluted by rigid statutory interpretation and overshadowed by cultural silence. The law’s insistence on visible coercion, whether through physical violence, threats, or overt resistance, fails to recognise the many invisible ways in which consent can be taken away. Victims who are groomed, manipulated, or emotionally coerced may appear compliant, but their “yes” is often shaped by fear, trust, or dependency rather than free will. 

At the same time, the law’s silence within marriage and its reluctance to acknowledge psychological harm expose a deeper societal discomfort with women’s autonomy. The persistence of the marital rape exception and the narrow definition of consent under the Penal Code reveal that the legal system still privileges control over equality. These legal gaps mirror a cultural narrative that equates a woman’s obedience with virtue and her refusal with rebellion. If Malaysia is to progress toward genuine gender justice, consent must be reimagined not as a one-time permission but as an ongoing, conscious affirmation of autonomy. Recognising the nuances of power and vulnerability does not weaken the law, yet it strengthens it by aligning it with human experience. 

Bibliography 

Statutory Legislations 

CEDAW General Recommendation No.19: Violence Against Women 

Penal Code 

Sexual Offences Against Children Act 2017 

The Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 

Case Laws 

Public Prosecutor v Hii Hiong Ping [2021] MLJU 828 [31] 

Blogs and Online Journals 

American Sexual Health Association, ‘Understanding Consent’ (ASHA, 8 September 2025) <https://www.ashasexualhealth.org/understanding-consent/> accessed 24 October 2025 JGA, ‘Saying Yes, is Not Enough’ (JGA Group, 2 November 2023) accessed 24 October 2025 Balasingam A and Shamsuddin J, ‘Section 375 Exception, Explanations and Section 375A Malaysian Penal Code –Legitimising Rape within Marriage: A Call for Reform’ (2015) 42 (2) JMCL <file:///C:/Users/User/Downloads/28063.pdf> accessed 24 October 2025 Baraka J, ‘Why Prostitution Is Slavery’ (Exoduscry, 29 January 2020) 

<https://exoduscry.com/articles/why-prostitution-is-slavery/> accessed 24 October 2025 Begum H, ‘Exploring Consent In Sex Work And Sex Trafficking’ [2022] 3 MLJ Christin Aletky and others, ‘Adult Sexual Grooming: A Systematic Review’ (2025) 9 JSWGC Johannsdottir NK, ‘Patriarchy and the subordination of women’ (2009) 

<https://skemman.is/bitstream/1946/3017/1/Nina_Katrin_Johannasdottir_fixed.pdf> accessed 24 October 2025 

Malaysia’s Arbitrary Detention of Migrants and Refugees, ‘We Can’t See The Sun’ (HRW,5 March 2024) 

<https://www.hrw.org/report/2024/03/05/we-cant-see-sun/malaysias-arbitrary-detention migrants-and-refugees> accessed 25 October 2025 

Scutt JA, ‘Consent in Rape: The Problem of the Marriage Contract’ (1977) 3 Monash U L Rev 255

Shah K and Adolphe J, ‘400 years since slavery: a timeline of American history’ (The Guardian, 16 August 2019) 

<https://www.theguardian.com/news/2019/aug/15/400-years-since-slavery-timeline> accessed 24 October 2025 

Women’s Aid Organisation, ‘Marriage Not a License to Rape: Delete the Exception in Penal Code Section 375’ (WAO, October 2018) 

<https://wao.org.my/wp-content/uploads/2018/11/WAO-Policy-Brief-2018-1-Marital-Ra pe.pdf> accessed 24 October 2025

1 American Sexual Health Association, ‘Understanding Consent’ (ASHA, 8 September 2025) <https://www.ashasexualhealth.org/understanding-consent/> accessed 24 October 2025

2 JGA, ‘Saying Yes, is Not Enough’ (JGA Group, 2 November 2023) accessed 24 October 2025 

3 Penal Code, s.90

4 The Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM), s.16

5 CEDAW General Recommendation No.19 Violence Against Women <https://www.legal-tools.org/doc/f8d998/pdf/&ved=2ahU%20KEwi4r8KY2ofd> accessed 24 October 2025 

6 Christin Aletky and others, ‘Adult Sexual Grooming: A Systematic Review’ (2025) 9 JSWGC

7 Penal Code, s.90 

8 Penal Code, s.375 (e) and (f) 

9 Sexual Offences Against Children Act 2017, s.12

10 Ibid, s.16 

11Khushbu Shah and Juweek Adolphe, ‘400 years since slavery: a timeline of American history’ (The Guardian, 16 August 2019)<https://www.theguardian.com/news/2019/aug/15/400-years-since-slavery-timeline> accessed 24 October 2025 

12 Jewell Baraka, ‘Why Prostitution Is Slavery’ (Exoduscry, 29 January 2020) <https://exoduscry.com/articles/why-prostitution-is-slavery/> accessed 24 October 2025

13 The Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007, s.2 

14 Ibid 

15 Public Prosecutor v Hii Hiong Ping [2021] MLJU 828 [31]

16 The Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007, s.2 

17 Haezreena Begum, ‘Exploring Consent In Sex Work And Sex Trafficking’ [2022] 3 MLJ 18 Ibid 

19 Ibid 

20 Ibid 

21 Malaysia’s Arbitrary Detention of Migrants and Refugees, ‘We Can’t See The Sun’ (HRW,5 March 2024) <https://www.hrw.org/report/2024/03/05/we-cant-see-sun/malaysias-arbitrary-detention-migrants-and-refugees> accessed 25 October 2025 

22 Jocelynne A. Scutt, ‘Consent in Rape: The Problem of the Marriage Contract’ (1977) 3 Monash U L Rev 255

23CEDAW General Recommendation No. 19: Violence against women, Art.16, Art.5 

24Women’s Aid Organisation, ‘Marriage Not a License to Rape: Delete the Exception in Penal Code Section 375’ (WAO, October 2018) 

<https://wao.org.my/wp-content/uploads/2018/11/WAO-Policy-Brief-2018-1-Marital-Rape.pdf> accessed 24 October 2025

25 Usharani Balasingam and Johan Shamsuddin, ‘Section 375 Exception, Explanations and Section 375A Malaysian Penal Code –Legitimising Rape within Marriage: A Call for Reform’ (2015) 42 (2) JMCL <file:///C:/Users/User/Downloads/28063.pdf> accessed 24 October 2025 .

26 Nina Katrin Johannsdottir, ‘Patriarchy and the subordination of women’ (2009) <https://skemman.is/bitstream/1946/3017/1/Nina_Katrin_Johannasdottir_fixed.pdf> accessed 24 October 2025