Should a New Anti-Sexual Violence (RUU PKS) Bill be legalized in Indonesia?

Ovy Hayatuddin (EAP 9M-2020) 

*Published and presented for Australia Awards Scholarship Pre-Departure Training in Bali, September 2020

*Warning!! Typo, Grammatical Errors, appropriate language & vocabs

The increasing number of sexual violence cases in Indonesia over the past decade has led to a desire to pass a new bill against sexual assault. Created by experts from the National Commission on Violence Against Women (KOMNAS Perempuan) in 2014, the first draft of a new Sexual Eradication bill was initially discussed by the Indonesian House of Representatives (DPR RI) in 2016. In the following year, after discussions between the DPR RI and the Ministry of Woman Empowerment & Child Protection, the draft was added to a list of national priorities. Although a new law was not legalized by DPR RI members (2014-2019), the issue of this law is still being debated up till now. Dasopang (as cited in Sari, 2019) says that there are three key reasons why this draft was rejected in 2019. Firstly, there was a debate about the title of the law (the first draft was named Sexual Violence Eradication law and the DPR RI members wanted it named Sexual Abuse law). Another factor is about its definition which assumed that it was ambiguous (Article 1 defines 9 sexual assault whether from domestic or public violence, meanwhile from the DPR RI point of view, it is too broaden). Finally, regarding punishment, this new law is assumed as a contradiction to the Indonesian Criminal Code (KUHP) because punishments in the Sexual Eradication bill by now have been regulated in KUHP, although in the Sexual Eradication bill the punishment is more detailed). As a result, in 2020, the bill has been erased from the list of national priorities as a new law. This action, furthermore, has contributed to massive protests from different supporters because the new law is claimed as one of the most important laws to prevent sexual assault in Indonesia. 

Before going to the details of the pros and cons of the new law, we should define the terms used in this essay. What is the Criminal Code and the Domestic Violence Act (UU KDRT)? Also, if Indonesia has an existing law, why does it need a new law to protect citizens from sexual assault? One of the reasons is mentioned by Ramada (2017) stating that the Criminal Code, also known as the Penal Code, does not contain a definition of victim or child victim. Penetrative sexual offenses, which are stipulated in article 285 and 286 of the Penal Code, only depicts a narrow description of sexual violence (Purwanti & Prabowo, 2018). Therefore, to regulate punishment and prevention of sexual assault, the article 285 of the Penal Code (1999) stipulated that "any person who by using force or threat of force forces a woman to have sexual intercourse with him out of marriage, shall being guilty of rape, shall be punished with a maximum imprisonment of twelve years", whereas the Domestic Violence Act is a legal protection for all family members from different forms of domestic violence. The law is based on the concept that domestic violence attacks independence, honor and family member’s safety (Arief, 2017). In addition, this law can be only applied if the violence occurs in the domestic area, and not to catch perpetrators from the public area. 

In contrast, according to Purwanti & Prabowo (2018), the sexual violence eradication bill focuses on how law enforcement works on sexual violence, especially against women. This bill rearranges the sexual violence definition, which has a narrow meaning in the Criminal Code. Article 11 of the Anti-Sexual Violence bill defines sexual violence as namely nine types of sexual acts, such as sexual harassment and exploitation, rape, forced contraception, abortion, marriage, prostitution, also sexual slavery and torture. It also stipulates that all forms of sexual violence, including sexual violence acts in any aspects of human life, whether in personal relationship or public area, during ordinary or emergency conditions should be punishable by law (Purwanti & Prabowo, 2018). There are five other fundamental principles of women’s rights in the new law which are prevention, the victims and families rights procedural law, criminal punishment, monitoring and victim recovery (National Commission on Violence Against Women, 2019). What is more, even though this essay will look at the pros and cons of the Anti-Sexual Violence bill, the urgency of the legalisation of this law will be discussed from several different perspectives.  

Looking first at the opposite groups of the law, even though Sister for Change reported that the new law petition was supported by 217 thousand people, an opposing petition was signed by almost 162 thousand supporters in January 2019 (Jones et al., 2019). Yet, Pratiwi & Talib (2019) stress that group of people rejecting the New Anti-Sexual bill claimed that it promoted premarital sex and homosexuality. The Prosperous Justice Party (PKS) insists that the new bill is too liberal or open-minded which may lead to free sex and deviant sexual behaviour. Criminalised rape, including in a marriage relationship, is one of the critical reasons why PKS is against the new anti-sexual violence bill (Walton, 2019). In addition, according to Hastanto (2020), one division in DPR RI which focuses on religious, social and women aspects has decided to erase the Sexual Eradication draft from the 2020 legislation priorities lists, because its definition of sexual assault is difficult to discuss.  

However, numerous groups of people which support the new law are from different fields, such as the Ministry of Women’s Empowerment and Child Protection, NGOs and Indonesian Feminist Lawyers club (Margret & Pandjaitan, 2020). The proponents are looking at different perspectives, from prevention to punishment for both the victims and criminals. As Diani (2016) underlines, the definitions and all forms of sexual assaults, from prevention to protection and victims’ recovery are included in the new bill. To the criminals, the law regulates the trial and its punishment and includes compensation to be paid to the victim as part of punishment and rehabilitation.  

So, what can be done to help the victims and punish the criminals? Walton in Sister for Change (2019) points out that to make the criminal procedure enforcement more responsive for women as victims, the new law must emphasize sexual violence forms, such as sexual harassment, sexual exploitation and forced prostitution. To represent the victims’, families and witnesses’ rights, as Purwanti & Prabowo (2018) demonstrate in detail, the protection and recovery during and after the trial process are emphasized in the new law, article 23. All of these fulfilments are planned to re-establish and give a boost to victims and their families. Furthermore, as a part of victims’ rights, the sexual assault victim can ask for protection from the Witness and Victim Protection Agency during and after the trial process. The purpose of this action is to protect the victim from discrimination or judgement during the process of law enforcement. It is also to protect victim’s relatives, the community, and personal assets from other threats of violence.  

Another argument to support the law is from the gender equality perspective. There are a lot of victims whi have experienced biassed questions about clothes, or did they enjoy the forced sex and other discriminative actions throughout the investigation procedure such as disparaging gesture and actions. The United States Department of Justice (2015, p. 6) discovered that discrimination in some cases in sexual assault or domestic violence investigations may be caused by stereotypes about women and other minority groups. Gender bias in the investigation often occurs when officers are swayed by subjectivity often based on personal opinion or stereotypical assumptions, especially if the victims are women, gay or lesbian, or if the assault was by someone the victim knows or if the victim was intoxicated at the time of the assault. However, in the new Anti-Sexual Violence bill, all of the law enforcement and gender-responsive investigations are classified in ‘complete sexual crimes investigation procedures, including the burden of evidence and trial, that attuned to the victims’ needs’ (Purwanti & Prabowo, 2018). 

Turning to the effects of sexual assault, the victims might experience some problems, physical and psychological. Psychologically, the victims possibly suffer from Post Traumatic Stress Disorder (PTSD) that is classified ‘under the category of trauma and stressor-related disorders’ (Tull, 2020). Becoming pregnant after being rapped is an example that causes the victims torture in PTSD syndrome. Mostly, an unwanted pregnancy is addressed by forcing the marriage between the victims and the rapist, especially if they are known each other. When the rapist is a stranger, the society -including the opposing groups of the new law- do not allow the victim to have an abortion by using culture and religion as the reasons. This action might cause the victims to suffer from deep depression and try to suicide because the unwanted pregnancy after being raped involves women feeling abused. As Robin West states in Bridges (2013), even though a culture does not acknowledge unwanted fetus or unwanted pregnancy as an unwanted thing that invades a women body and thoughts, it is harmful and devastating for the victims. So, after experiencing a traumatic incident, they may feel various emotions and symptoms ‘that cause clinically significant distress’ that affects personal and work life (Tull, 2020). Survivors may experience different PTSD symptoms for months or years such as nightmares, invasive thoughts, memories and feel or be suspicious of other people. Furthermore, the sufferer may have physical health problems such as premenstrual syndrome, digestive problems, arthritis or even non-epileptic seizures. Additionally, the victims are also "at an increased the risk of contracting a sexually transmitted disease" (Tull, 2019). In addition to help the victims, article 22-23 in new law regulates the facilitation for the victims including legal and psychological assistance and health treatments. 

What is more, prevention is better than cure but does it define this in the new law? In fact, it emphasizes that the prevention sexual violence is not only included in fields such as education, infrastructure, public services, governance and institutional but also in the economy, social and cultural sectors. It can be seen from article 5 to 10 in the new law (2014) that prevention can be not only by teaching about gender equality and types of sexual violence, but also about the impact on the victims. Another preventative action is integrating the security systems such as routine security patrols, providing lighting and CCTV, and also 24 hour hotline for emergency sexual situations. In addition, Indonesia can adopt other countries' measurements and policies. In Western countries, as an example, secondary and tertiary educational sexual assault prevention has been the primary prevention approach, to equalize gender assumptions which cause sexual violence, alongside legal strategies such as heavier penalties (Carmody, 2006).

 In a nutshell, the new Sexual Violence Eradication law is not only a legal action that aim to protect women and children from sexual assault but also to stress the strick punishment to the sexual violence criminals. Even though there are numerous reasons to reject the new law, by looking from several perspectives the proponents support it to be legalized as an effort to develop safety environment that free from sexual assault, whether in domestic or the public area. The only obstacle to the new law to be legalised is from the House of Representative, as a legal institution to pass a law. Yet, after looking from different perspectives of the pros and cons of the new law, I strongly support the Sexual Eradication law to be legalized in Indonesia. The urgency of the new law to prevent sexual assault and to punish the criminals is needed more than only debating the issue of LGBT content that if ascertained is not included in the new law. The reasons behind the opponent groups are also not too clear because they are only based on culture claiming and other speculations. Moreover, the government should legalize the new law in Indonesia and learn from other countries that already have polices and laws against sexual violence as a part of the responsibility of the citizens security. 

 

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