What deficits in criminal law is the draft revised criminal code seeking to address and…
Over the last two weeks, the bitter debate over whether lesbian, gay, bisexual and transgender (LGBT) Indonesians should be criminalised has reached new heights of acrimony. The never-ending argument about LGBT rights was revived following the decision of the Constitutional Court to reject the Family Love Alliance (AILA) petition that sought to extend the scope of articles in the Criminal Code (KUHP) on same sex relations and sex outside marriage.
The speaker of the Constitutional People’s Assembly (MPR), Zulkifli Hasan, added fuel to the fire when he made unsubstantiated claims that the People’s Representative Council (DPR) was discussing a bill on LGBT and same-sex marriage and five political parties were attempting to legalise LGBT behaviour. In reaction, politicians are now expediting efforts to pass long discussed reforms to the KUHP, including provisions that would criminalise same sex relations.
But while the media and the public have focused on the criminalisation of homosexuality, the proposed revisions to the KUHP are much broader, and seek to criminalise all extramarital sex, regardless of gender. The anti-LGBT propaganda has obscured the threat the revisions pose to the privacy and human rights of all Indonesians. There is a real danger that society will support increasing criminalisation based on moral and religious arguments without knowing or thinking about the consequences.
As is stands, the KUHP already criminalises adultery (zina). But the provision on adultery applies to sex between a married person and a person who is not their spouse, and is a complaint offence (delik aduan). This means it is only considered a crime if a party who feels they have suffered from the act reports it to the police. Article 484 of the revised criminal code, however, converts zina where one of the parties is married into a ‘normal offence’ (not based on a complaint or report), meaning that anyone can report cases to police.
Most concerning is that Article 484 extends the definition of zina to all extramarital sex. If a man and woman who are not bound by a “legitimate marriage” have sexual intercourse, they could face up to five years in prison. Article 484(2) explains that this type of adultery (between two unmarried people) will be prosecuted based on complaints of any concerned third party. The article doesn’t contain a clear definition of third party, which could be interpreted loosely. Can society claim to be a third party? A neighbour? Or the police? The revised code could pave the way for anyone in society to interfere in their fellow citizens’ affairs, essentially providing the legal basis for the persecution of people who engage in extramarital sex.
The risks of this reform are plain to see. Even in the absence of laws providing for this kind of persecution, some residents have already acted as moral police, arresting or exposing other citizens in the name of morality. In November 2016, for example, the Islamic Defenders Front (FPI) raided Kalibata City apartment complex and pressured police into arresting 13 men they accused of having a sex party in a private room. And in November last year, a group of local residents forced their way into a private home in Cikupa in Tangerang, Banten, and accused a young couple of having premarital sex. They forced the couple to strip naked and paraded them down the street, where other residents filmed and photographed them and then shared the videos online.
If the proposed revision of criminal code actually becomes law, these vigilante attacks will only increase. People will likely feel they have the right to conduct raids on LGBT Indonesians, teenagers, unmarried couples, or even married couples. Not only that, politicians and other advocates for reform better be careful – they may be just as likely to get caught as the LGBT people they demonise! It is not hard to imagine politicians using the law as a tool to bring their opponents down by having them arrested for extramarital sex.
The proposed changes will also disproportionally affect the most vulnerable groups in society, such as women, children, poor and indigenous people. Although many members of the public believe that the revisions to the KUHP are about enforcing moral standards against homosexual relations and so-called “free sex”, the draft code targets all sex outside legitimate marriage. According to the 1974 Marriage Law, a marriage is legal when it is registered with the government – unregistered marriages are not legally recognised. Most Indonesians with unregistered marriages are poor. A 2012 Women-Headed Household Empowerment Program (Pekka) survey of almost 90,000 households across Indonesia found that 55 per cent of couples in the poorest 30 per cent of households did not have marriage certificates.
If the new criminal code is enforced, unregistered marriages, such as informal religious marriages (nikah siri) often associated with polygamy will be criminalised, as will marriages made under customary law. But it seems the majority of people are in denial about this, because they think nikah siri marriages are legal even though they are unregistered. In fact, the police will need evidence, such as a marriage certificate, to halt a prosecution. How many of the moral crusaders agitating for reform realise that they could be jailed for their informal religious marriages?
The zina provision in the criminal code revision could also affect women victims of rape and sexual violence. Rape and sexual violence are very difficult to prove. Women victims bear the burden of proving their accusation. If they fail, and the perpetrator claims that the sex was consensual, police could accuse the couple of having extramarital sex (zina). The victim of rape could then be considered a perpetrator of adultery. Women already face considerable barriers to reporting sexual violence – this will only discourage victims even further from reporting their cases.
The revised provision on zina could also lead to criminalisation of children. Proponents of reform do not appear to have paid any attention to the rights of children, especially in relation to sexual violence and exploitation. Under the Child Protection Law, if an adult engages in sexual relations with a minor, the minor will be considered a victim and be protected by the state. But the revised article on zina makes no reference to age, and as such overlaps and conflicts with the protection built into other provisions. According to National Commission for Child Protection (KPAI) data, 60 per cent of violations of children’s rights are related to sexual violence. If the new criminal code is implemented, millions of people, including women and children, could be imprisoned, worsening the already acute prison overcrowding problem that Indonesia is facing.
Indonesia is a morally conservative society so it is little surprise that many people are concerned about widespread extramarital sex. But to push for criminal policy to address activities considered sinful or in violation of religious or moral values is wrong and highly dangerous. Not all immoral acts need to be criminalised.
If the revised criminal code is passed in its current form, it would represent a major setback for human rights and democracy in Indonesia.