Nuril’s Sentence and the Masculine Conspiracy
Baiq Nuril Makmun, a teacher in West Nusa Tenggara (NTB) who was convicted of defaming a man she accused of sexually harassing her, signs a witness protection letter, witnessed by deputy chairman of the Witness and Victim Protection Agency (LSPK) Hasto Atmojo (left) and a member of the People’s Consultative Assembly (MPR) of the PDI-P faction, Rieke Diah Pitaloka (third left). The signing of the letter was held on the sidelines of a discussion themed “Protection for Women against the Threat of Sexual Violence” at the House of Representatives complex, Jakarta, Wednesday (21/11/2018).
Baiq Nuril was a casual schoolteacher from Mataram, West Nusa Tenggara, before she was fired recently. To add insult to the wound, the Supreme Court (MA) is sentencing her to six months in jail and ordering her to pay Rp 500 million (US$34,234.06) in fines or an additional three months behind bars.
If she cannot pay the fine, she will have to spend nine months behind bars for a crime that she did not commit. From a women’s rights perspective, this has been a conspiracy of law enforcers who abuses a non-gender-equal legal system and an undemocratic electronic information and transactions (ITE) law.
The public is shocked by the case and their sense of justice is disturbed, especially in comparing Nuril’s sentence to those slapped on corruptors for their more heinous crimes.
What has also disturbed our conscience is that Nuril is a victim of sexual harassment. Back in 2012, she recorded a phone conversation she had with her superior — the principal of the school where she worked — as a way to defend herself and a cautionary measure if gossip were to spread that her superior often talked to her on the phone.
She fully realized that the victim’s voice is often disregarded in a masculine social and legal system and that victims are often victimized in the goal of maintaining and upholding the interests of a patriarchal society where men’s domination over women’s lives is terribly strong. She never expected that the recording would be spread by her friend who stumbled upon it in her cell phone’s files while repairing the phone.
In March 2017, Nuril was officially named a suspect. She was charged with transmitting an electronic recording with indecent content. This was stipulated in the so-called ITE Law, or Law No. 11/2008, in Article 27 Point 1 juncto Article 45 Point 1. The stipulations carry a maximum imprisonment of six years and maximum fine of Rp 1 billion.
Nuril has spent her days behind bars since then. The Mataram District Court (PN) ruled that Nuril was innocent and freed her from all charges. It was her friend, not her, who spread the recording, the court ruled.
The prosecutor then filed an appeal. The Supreme Court then ruled in favor of the prosecutor and handed out its sentence to Nuril. Meanwhile, her friend remained scot-free and the principal alleged to have sexually harassed her even gained a promotion.
This series of actions by the police, prosecutors, judges and the principal is clearly a form of masculine conspiracy that highlights law enforcers’ machismo at the expense of one Nuril.
Up until now, the infamous ITE law has affected around 381 individuals, most of whom are believed by experts and activists to be victims of crooked trials.
In Nuril’s case, it is highly evident how these people collude with one another to protect their own interests and masculinity by suppressing the independent existence of a single woman. In actuality, all efforts to punish Baiq Nuril has been nothing but an effort to silence and insult all women who struggle to fight all forms of discrimination and violence against them.
An imbalanced relation
Another problem is that our Criminal Code (KUHP), which we inherited from the Dutch colonial government, does not include any mention of the term “sexual harassment”. There are mentions of “indecent acts” but there is no clear definition on the term.
In the Great Dictionary of the Indonesian Language (KBBI), “indecent act” is defined as a dirty, inappropriate and cruel act that violates norms of decency or propriety. Long before the KBBI settled on this definition, legal experts defined the term as a cruel and inappropriate act of sexual nature.
Referring to the term sexual harassment, which essentially bans the provision of unwanted attention to those with imbalanced power relations with the perpetrators, we can find its equivalent in the KUHP’s Article 294. The article stipulates a punishment of seven years’ imprisonment for parents or adults who commit indecent acts against their children, adopted children or any other children within his guardianship.
Furthermore, Article 294 Point 2 also stipulates punishments for caretakers, doctors, teachers, employees and managers or staffers of prisons, government offices, places of education, orphanages, mental hospitals and social homes who commit indecent acts against persons committed or enrolled into these places. Observing Article 294 of the KUHP, we can see that the core element of the crime is the imbalanced power relations therein.
The term sexual harassment was first popularized in Indonesia in a seminar held by the Jakarta Legal Aid Foundation (LBH Jakarta) and Kalyanamitra in 1992. As organizers, myself and criminologist Syarifah Sabaroedin from the University of Indonesia’s (UI) school of social and political sciences, tried to find a proper Indonesian equivalent for the term “sexual harassment” that was in the news at the time due to Clarence Thomas’s nomination as a United States Supreme Court justice.
Several local media chose to use perundungan seksual (with perundungan often used as a translation for “bullying”). However, considering the element of the act that denigrates women in inappropriate ways and the perpetrators’ wish to obtain attention or sexual service from the victim, we eventually decided on pelecehan seksual as the translation for “sexual harassment”.
Clarence Thomas’s nomination as US Supreme Court justice was opposed by Anita Hill, a lawyer and law professor at Brandeis University. Hill went on the record with saying that Thomas had sexually harassed her when he was her superior at the Equal Employment Opportunity Commission. Thomas’s good character was presented as a primary qualification in his Supreme Court nomination because he had only been a judge for slightly more than one year at the time.
A similar public uproar erupted during the nomination of Brett Kavanaugh as Supreme Court justice by President Donald Trump. His nomination was opposed by Christine Blasey Ford, who publicly accused Kavanaugh of sexually violating her.
Amid the uproar of Kavanaugh’s nomination, Hill wrote an opinion piece at The New York Times. She said that Kavanaugh’s case stood in parallel with Thomas’s and that Americans had learnt nothing from the mistake made 30 years before. Both Thomas and Kavanaugh gained the US Senate’s approval and are currently sitting at the Supreme Court.
Good lessons
For us, there are good lessons from the work of the House of Representatives’ council of ethics in 2004-2009. A lawmaker found to have sexually harassed and assaulted his secretary at his office was fired. Unfortunately, the criminal and civil case against him was later dropped as the police had difficulties obtaining the necessary evidence.
The fight against sexual violence is a global one. The #MeToo movement has successfully uncovered various sexual violence cases that have been long-buried due to the strong barriers of patriarchy and masculine culture, along with the silencing that follows. Consequently, males often feel as if they have the right to sexually harass and violate women as women are often culturally seen as sexual objects.
Even more, it is sometimes seen that acceptance for symbolic violence is in women’s vain, resulting in them not realizing that they have been objected to violence throughout their life. We can allege that the Indonesian public does not even understand what “unwanted attention” means.
The words of female victims are often discredited and they are often accused of making it up. This is clearly seen in the experiences of so many women who reject unwanted attention only to be called smug, ungrateful or pretentious. If the female is either unmarried or a widow, the slurs against her will be even worse.
This is despite the fact that it is a woman’s right to make any rejection she wants. In any condition, the integrity of a woman’s body, soul and sexuality must always be respected and it is prohibited to touch or even comment about her.
Evidence
In the legal process, the situation is even more complicated. Police investigators and prosecutors will need to obtain two pieces of evidence in order to name someone a suspect of sexual harassment. This can be incredibly difficult, considering that most acts of sexual harassment take place in secluded areas. In Nuril’s case, the sexual harassment occurred over the phone.
Fortunately, cellular phones have grown to be highly sophisticated and phone conversations can be directly recorded. However, the ITE Law may ensnare women who share stories of harassment to their friends or report them to law enforcers.
Therefore, the Supreme Court (MA) recently issued MA Regulation (Perma) No. 3/2017 on procedures for trying women in court, which includes stipulations for women facing criminal charges. The regulation is the result of a struggle of academicians and women’s rights activists based on their experiences that legal considerations often neglect women’s interests.
Explicitly, Article 3 stipulates that judges are required to identify situations of imbalanced treatment women face in facing the law. However, in Nuril’s trials, it seemed that either this stipulation was unheeded or that the judges in her trials had no awareness of gender-based perspectives.
It is high time for the Women’s Empowerment and Child Protection Ministry to come up with a national action plan to improve the gender perspective of law enforcers and social workers, including psychologists who provide counseling services for victims.
It is also high time for the government to uphold Article 5 of Law No. 7/1984 on the ratification of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), namely to eliminate all forms of standardization of roles based on culture and religious interpretation that discredit women.
The House should also deliberate and pass the long-gestating draft bill on the elimination of sexual violence immediately.
A conspiracy of masculinity, involving both law enforcers and the entire social and legal systems must be eliminated soon so that a “civilization that respects women” will be more than just words. (Nursyahbani Katjasungkana, National Coordinator, Indonesian Women’s Association for Justice)
