Legal Politics of Sex Crimes
With regard to the protection of women (victims), the Criminal Code no longer meets the demands of the times. The Criminal Code of the colonial legacy is oriented toward punishment of perpetrators.
Over the past two weeks, beside the uproar over the revision of the Corruption Eradication (KPK) Law, the media landscape was also full of news about the plan to pass the Criminal Code bill (RKUHP) into law and negligence in the deliberation of the draft law on the elimination of sexual violence (RPKS).
The first stage of the RKUHP deliberation has been completed (Kompas, 17/9/2019), while the discussion on the RPKS has not yet begun. Last Tuesday, women\'s groups in a number of cities simultaneously demanded a promise from the House of Representatives (DPR) to immediately pass the RPKS, while other groups rejected the draft. In the article The Dilemma of Reforming the Law on Sexual Violence and Victim Protection (Kompas, 21/8/2019), Sri Wiyanti Eddyono said there was a tug of war between criminal law experts and women\'s groups supporting the RPKS besides touching the historical differences in the formulation and placement of sexual crimes in the two bills.
The subject of the debate is actually much more profound in the politics of national law regarding the criminal law codification regime vs. the birth of various laws, which are special rules (lex specialis) outside the Criminal Code (KUHP), and also stem from the battle between the regime of public order, moral rules and decency (which changes according to place and time) on the one hand and universal human rights on the other, especially victim protection, which is a point of reference in formulating the law and putting it up for priority deliberation. For a long time, with regard to the protection of women, legislators have produced many provisions outside the KUHP.
Let\'s just say the Law on the Elimination of Domestic Violence (PKDRT) which is in the Criminal Code is regulated in Article 356 (violence against father, mother, wife and children) under the chapter on maltreatment. Also, the criminal law on people trafficking (TPPO) in the Criminal Code is regulated in Article 297 (trafficking of women and boys) under the chapter on crimes against decency as well as in Article 326 (slave trade) and article 526 (trafficking of people with violence for the purpose of exploitation).
In principle, the Criminal Code is a collection of rules about crime and violations of public order and contains threats that cause suffering for the perpetrators.
With regard to the protection of women (victims), the Criminal Code no longer meets the demands of the times. The Criminal Code of the colonial legacy is oriented toward punishment of perpetrators (law as a means of controlling behavior and repression), whereas in the last two examples, beside punishment, the law requires the government -- in this case the Ministry of Women\'s Empowerment and Child Protection -- to coordinate preventive and rehabilitation/recovery efforts for victims.
In this case, due to the complexity of the problem, especially regarding the perspective of the community, which generally tends to see women as sexual objects that are correlated with unbalanced gender relations, the makers of the two laws use a more comprehensive and holistic approach than the Criminal Code. The two laws were indeed born when the reform spirit was still strongly felt and when open minds, which were oriented toward universal values, both within the DPR and among women movement activists, could collaborate constructively.
As can be read in the provisions of Article 3 of the PKDRT Law, for example, the principle of this law is respect of human rights, justice and gender equality, nondiscrimination and protection of victims.
Human rights regime vs public order
In principle, the Criminal Code is a collection of rules about crime and violations of public order and contains threats that cause suffering for the perpetrators. In other words, the Criminal Code uses the public order regime as the main basis for its formation and formulation.
In a patriarchal society, which generally characterizes many communities in Indonesia, victims of sexual violence are placed in a very disadvantaged position and even sacrificed again.
Provisions related to sexual violence, such as rape, sexual harassment, sexual violence in marriage and trafficking of women, are under the chapter of decency crimes. This chapter also covers a wide variety of actions, ranging from acts or writings that are contrary to decency, adultery, pedophilia and abortion to gambling and animal cruelty.
Basically, crimes against decency are interpreted as crimes contrary to ethics and general decency. Therefore, criminal experts said, its implementation is very dependent on the sense of decency of the local community and can change according to place and time.
In the context of sexual violence, this view is very detrimental to victims, because the protection of the integrity of their body and soul is very dependent on public opinion. In a patriarchal society, which generally characterizes many communities in Indonesia, victims of sexual violence are placed in a very disadvantaged position and even sacrificed again. Therefore, it is not surprising that women victims are often blamed (for example because of their clothes, going out at night, or walking by themselves) despite the fact that more violence occurs at home and in the immediate environment.
Because of these assumptive reasons, the perpetrators are punished lighter than they could be. The inclusion of living law in the community as a basis for criminal acts (Article 2 of the RKUHP), by ignoring the principle of legality, will clearly trigger persecution by nonstate actors and communities. In the criminal code of any country, no one overrides the principle of legality, because this principle is a universal principle and guaranteed in the Constitution [Article 28 I (1), which is a form of social contract between the authorities and citizens to prevent arbitrariness and guarantee legal certainty].
Long before the draft law on sexual violence, LBH APIK and other women\'s groups insisted on transferring sexual crimes to the chapter on crimes against people\'s safety.
Women\'s groups have long demanded a change in the Criminal Code paradigm from the Dutch colonial heritage. In the case of rape and trafficking of people, as well as other cases of sexual violence, it is not morality and public order that are under threat, but the integrity of the body and soul, even the lives, of the victims.
Therefore, long before the draft law on sexual violence, LBH APIK and other women\'s groups insisted on transferring sexual crimes to the chapter on crimes against people\'s safety. Lawmakers are quite sensitive to this demand, because rape, for example, has been transferred to the chapter on crimes against the body even though it is not only the body that is threatened but also the safety and integrity of the body and soul.
In cases of sexual harassment, which is also a gender-based crime, for example, what is threatened is not the body, but the soul, because the harassment does not lead to sexual abuse, such as whistling while commenting on women\'s body parts, clearly means insulting the integrity of the woman\'s body and soul as a human. Unfortunately, however, the perspective of women\'s rights and protection of victims, especially those related to power relations between men and women, parents and children, employers or superiors with subordinates, and relations between the state and citizens, received less attention.
Since the Reform Era, there are chapters on human rights in the 1945 Constitution. To be specific, there are 40 constitutional rights that should be the basis for forming laws, and one of them that is important for women is the right to be free from discrimination and violence, vide Articles 28 B92 and 28 I of the 1945 Constitution. This provision is a basic right for the protection of citizens, especially the protection of women from violence and discrimination.
In the rules on adultery and cohabitation, its implementation depends on complaints of the disadvantaged parties.
Because it was formulated during the Dutch colonial era, more than a century ago, aspects of citizen rights and particularly women\'s rights were ignored, and unfortunately colonial legal politics still continues up to the present. In terms of protecting the right to privacy, for example, the RKUHP has no clear direction. For example, in the rules on adultery and cohabitation, its implementation depends on complaints of the disadvantaged parties.
In the RKUHP, the complaint offense is expanded with the addition of parents, children and village heads (Kompas, 17/9/2019). How can an act that occurs in a private space, without violence, be categorized as a criminal act, which means a crime against public order, but the prosecution be dependent on (disadvantaged) members of the community? Does this not deviate from the principles of criminal law itself, namely to protect the public interest, which in this case is represented by the public prosecutors?
The provisions above are some examples of how unclear our criminal law politics is in relation to sexual violence crimes. Because it does not clearly define which public interests should be protected and who should be protected in the RKUHP and also in the RPKS, confusion occurs both in relation to understanding of the criminal offense position in criminal law and in terms of understanding the public interest.
For me, the public interest is the interest of the wider community, which refers to the upholding of human rights that is guaranteed by the 1945 Constitution, international conventions and international consensus that has been ratified and signed, specifically the Women\'s Convention and the Declaration on the Elimination of Violence against Women.
Many people have criticized the RKUHP as over-criminalizing and entering too far the private rights of citizens which are fully guaranteed by the Constitution and are rights that cannot be contested by the authorities.
Furthermore, ambiguity in the understanding between the codification regime and the regime of special rules, which contains not only punishment, but also prevention and rehabilitation, must be ended. The balance between the public interest and respect for human rights in criminal law must be reflected in all articles of the Criminal Code in order to avoid the criminalization of acts that are actually expressions of citizens\' privacy rights that do not interfere with public order.
Prioritize protection of victims, avoid criminalization
Many people have criticized the RKUHP as over-criminalizing and entering too far the private rights of citizens which are fully guaranteed by the Constitution and are rights that cannot be contested by the authorities. However, in the context of the RPKS, what must be emphasized is that members of the DPR and pro-codification criminal law experts do not need to be adamant with their opinions that reject the existence of special rules (in casu RPKS), simply because it has been regulated in the Criminal Code.
A special law is needed not only because there is specificity in the act that is about to be convicted (for example due to gender inequality relations), but also in order to give a mandate to the government to eradicate discrimination and violence, make efforts to prevent crimes and rehabilitate victims and to break the culture of silence due to the strongly patriarchal system. This is in accordance with the mandate of Article 5 of the Women\'s Convention (CEDAW), which has not yet been implemented by the government.
Meanwhile, the Criminal Code is only oriented to the punishment of perpetrators and there is no concern for efforts to prevent crimes and rehabilitate victims. There is no dilemma in legal reform, only a political choice as to the legal point of reference: strictly upholding universal principles and values of justice or orienting the law toward the notion of decency, which changes according to place and time.
Nursyahbani Katjasungkana, National Coordinator of Legal Aid Foundation of Indonesian Women\'s Association for Justice (LBH APIK)