Legality of Prostitution in Malaysia
The prostitution industry is widely believed as immoral, but it’s still a business where demand and supply exist. For some, being a prostitute is their bread and butter, but how does the law regard this industry?
Contrary to common assumptions, the Malaysian Penal Code does not directly regard prostitution as an illegal activity. Thus, individuals are not inherently breaking the law under the Penal Code solely by participating in sex work (this rule does not apply to Muslims in Malaysia). For Muslims, Sharia Law is the governing legal framework whereby under Section 21 of the Syariah Criminal Offences Act, women’s involvement in prostitution is absolutely and distinctly criminalised.
While prostitution may not be illegal under criminal law, several activities linked to the profession are prohibited. These include:
- acts such as benefitting from the profits made by a prostitute
- soliciting or persistently approaching people for prostitution
- exploiting and pimping sex workers (or what Malaysians referred them as “bapa ayam” or “mak ayam”)
The law surrounding prostitution in Malaysia
As mentioned, prostitution per se, i.e., the exchange of sexual services for money between consenting adults in private, is not directly addressed in the Penal Code, and this legal ambiguity leads to confusion and differing interpretations, thus clouding the overall understanding or should we say, misunderstanding, of the legal status of prostitution in Malaysia.
But, what is clear is that there are a few sections stipulated in the Penal Code of Malaysia that criminalises prostitution-related offences, and this can be seen in the schedule illustrated below:
| Relevant law | Prohibited acts | Who can be punished | Punishment |
| Section 372 of the Penal Code | Exploiting any person for purposes of prostitution including buying, selling, hiring or swapping people into the prostitution industry.
Advertising of sexual services in any form. If it’s clear to an average person that the ad promote prostitution, it is considered as illegal. |
Pimps and organised gangs who smuggle people and forcing them into prostitution
The law extends to those within any organisation including those on-watchers outside of illegal brothel or scouting the local are for police or customers. |
15 years of imprisonment, whippings or fines. |
| Section 372A of Penal Code | Living on or trading in prostitution and knowingly lives wholly or in part of the earnings of another person. | Pimps, middlemen and gangs living off an income which derives from the prostitution of another person.
Any family members who are aware that they are living on money made from sexual services given by another family members. I.e., mothers who forced their daughters to prostitution out of poverty. |
15 years of imprisonment or fines. |
| Section 373 of Penal Code | Keeping, managing, or assisting in the management of a brothel. | People including the owner, occupier or agent of an owner of a place which is used as brothel. | 15 years of imprisonment or fines. |
| Section 366 of Penal Code | Kidnapping a woman with intent to force her into being a sex worker. | Person who kidnap a woman with intention to turn her into a prostitute. | Imprisonment up to 10 years or fines. |
| Section 27(b) Minor Offences Act 1955 (MOA 1955) | Indecent behaviour in public as means of promoting sexual service. | Prostitute behaving indecently at the roadside offering their services. | Fine not exceeding RM100; or Imprisonment not exceeding one month. |
What happens when you are charged with a prostitution-related crime?
The Royal Malaysian Police reported 1,988 people arrested for prostitution-related offences in Malaysia in 2022, down from 2,336 in 2021. If a police officer suspects a person of prostitution, they will be arrested and taken to a police station. The incident will be investigated, and if there is enough evidence, the individual will be charged and appear in court before a judge.
Should the judge consider the individual guilty of the alleged offence, they would be sentenced under the Penal Code and be liable to the maximum penalties outlined above.
Sex-trafficking and Prostitution
According to the United Nations Office on Drugs and Crime, it is estimated that there are over 10,000 people who are victims of sex trafficking in Malaysia. Victims of sex trafficking are often abused, raped, and drugged for their exploiters to gain control and take advantage of them. A report from the Ministry of Health in Malaysia published in 2018 estimated that 7,500 sex workers were living with HIV in Malaysia. If left untreated, HIV will turn into AIDS. The Malaysian Government is aiming to end AIDS in Malaysia by 2030.
HIV and AIDS are the most dangerous sexually transmitted diseases. But many other diseases affect sex workers, such as chlamydia, syphilis, gonorrhoea, hepatitis and herpes.
The consequences of sex trafficking can be severe and everlasting. Victims may suffer physical, psychological, and sexual abuse. Victims often experience depression, anxiety, post-traumatic stress disorder, suicidal thoughts, and other mental health issues.
There is an inherent reluctance from sex workers to seek help from authorities if they become victims of crime. There are many reasons why this could be, but the most likely reason is a fear of criminal charges if they made their position known to the police. Prostitutes would be committing a criminal offence. This may result in jail time, fines, whippings, and a ban on certain things, such as travelling to certain countries. People who commit crimes against sex workers are often aware of the difficulty that sex workers face.
Plus, there is also a lack of funding to improve the safety of sex work. There is insufficient health testing, disease prevention, condoms, and personal safety. Regulation could promote better funding towards preventing these issues that sex workers face. Prostitutes would be committing a criminal offence. This may result in jail time, fines, whippings, and a ban on certain things, such as travelling to certain countries.
Prostitution in Malaysia vs Singapore
There is legal prostitution in Singapore, where government-regulated brothels exist. These brothels permit commercial sex between males and females, whereas all other forms of prostitution are illegal.
But there are also prohibitions on what prostitutes and people in the industry can do. For example, soliciting in public, people living on the earnings of a prostitute, and people running an unlicensed brothel may be charged under the law. A person who persistently loiters or solicits for prostitution on a public road or place shall be guilty of an offence. The first offence holds a fine of $1,000. A second conviction may result in a maximum fine of $2,000 and/or a maximum prison sentence of six months.
If caught carrying out sex work in public (even in the red-light district), a prostitute could be imprisoned for up to a maximum of three months and/or a fine whereas, if someone is found guilty of running an unlicensed brothel or knowingly living on the earnings of the prostitution of another person, they could be liable for a maximum of five years imprisonment and/or fined up to $10,000.
In Singapore, the age of consent is 16 years old. But, for commercial prostitution, it is prohibited to have sex with girls under the age of 18. If a person above 21 is caught engaging in sexual intercourse with a 16-year-old, they cannot plead the defence of a mistake. Those over 21 cannot assert that they mistakenly believed the girl was 18 or over.
It doesn’t matter if a minor participates in activities restricted to people aged 18 years or above; even if the minor is found in a nightclub or brothel, the adult who is responsible for the minor can be jailed for up to fifteen years and fined or caned if found guilty.
Conclusion
Despite the legal prohibition of prostitution in Malaysia, the industry thrives in certain areas, particularly in urban centres. Some argue that the criminalisation of prostitution only drives the industry underground, making it more difficult to regulate and protect the rights of sex workers. Others contend that legalising prostitution would only further perpetuate the exploitation of vulnerable individuals, particularly women and children.
