House Commission III member Supriansa relaying the House’s testimony at the judicial review hearing of the Criminal Code for case No. 21/PUU-XIX/2021 virtually, Monday (10/4/2021). Photo by Humas MK/Ilham W.M.
Monday, October 4, 2021 | 22:54 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing of Article 288 paragraphs (1), (2), and (3) and Article 293 paragraphs (1), (2), and (3) of the Criminal Code (KUHP) for case No. 21/PUU-XIX/2021 virtually on Monday afternoon, October 4, 2021 to hear the statements of the House of Representatives (DPR) and the Government.
At the virtual hearing, House Commission III member Supriansa explained that the provisions in the current KUHP are a legacy of the Dutch East Indies colonial government, which is inconsistent with the development of law and society today. Therefore, it is necessary to immediately update them comprehensively, including by synchronizing and harmonizing them with the existing laws and regulations.
“Nevertheless, as the new KUHP has not been promulgated, the provisions of the existing KUHP that are still in force still have binding legal force,” Supriansa said.
Supriansa also said that Indonesia already has a KUHP legal instrument that can be used to provide protection for children. However, as time went by, more and more crimes against children are commonplace. One of them is sexual crimes.
The state upholds human rights, including children’s rights, whose protection and fulfillment are guaranteed in the 1945 Constitution. This guarantee is strengthened through the ratification of the convention on children’s rights through Presidential Decree No. 36 of 1990 on Ratification of the Convention on the Rights of the Child.
The House asserted that the Child Protection Law has become a lex specialis on crimes committed against children. However, it does not mean that the provisions stipulated in the KUHP are unconstitutional because it is still valid as a criminal law. Regulations on the crimes of sex and/or obscene acts against minors as regulated in the KUHP and relevant laws and regulations can still be used by the law enforcement, depending on the legal events and the fulfillment of the criminal elements.
“The legal politics of the legislatures related to the legal policy of crimes against decency or violence against children has been pursued in the KUHP Bill, which is being prepared to replace the current KUHP. In the KUHP Bill, which is included in the discussion process during the House’s 2014–2019 term, the provision is regulated in Article 420, Article 421, Article 422, and Article 423,” Supriansa explained virtually.
Those provisions stipulates that such crimes are regular crimes, not litigated crimes. Article 24 paragraph (2) of the KUHP Bill stipulates that litigated crimes must be determined explicitly in the law. Meanwhile, Article 420-423 of the KUHP Bill do not include affirmation that the crimes are litigated crimes.
“This shows that the legislatures have tried to provide legal policy that keeps up with the latest developments, especially on child protection. The discussion of the KUHP Bill in the House’s 2014-2019 term, did not conclude, so [it] is included in the National Legislative Program or Prolegnas 2020-2024 based on the agreement between the legislatures,” Supriansa added.
Crimes Against Decency
At the same hearing, the Government gave a testimony through expert staff for Interagency Relations Dhahana Putra, who said that the a quo articles contains provisions on heterosexual, homosexual, and non-sexual connection crimes. Heterosexual relations in crimes against decency are regulated in Articles 285-288 of the KUHP, which basically states that women are objects of the criminal acts. Article 285 of the KUHP stipulates that violence or threats of violence to force a woman to have sexual intercourse outside of marriage qualifies as a crime of rape or rape or d'aggression sexuelle.
Article 286 stipulates that anyone who has carnal knowledge of a woman that is unconscious or helpless, shall be punished by imprisonment. Meanwhile, Article 287 charges anyone who outside of marriage has carnal knowledge of a woman who is not yet marriageable. Article 288 charges anyone who outside of marriage has carnal knowledge of a woman who is not yet marriageable and if it results in bodily harm, serious physical injury, or death. These articles concern sexual intercourse with a woman outside of marriage, except Article 288.
“Article 288 of the KUHP aims to deal with what is called memorie van toelichting as kinderhuwelijken according to customary law. The punishment is limited to when it results in bodily harm, serious physical injury, or death. The punishment depends the woman’s marriageability. Apart from the subjective requirements, there are three elements of dolus and culpoos in Article 287, but they are not required in the Article 244 and Article 245 of the Dutch [Wetboek van Strafrecht (WvS)],” Dhahana said. Articles 285-288, he added, are criteria for carnal intercourse with a woman or heterosexual crimes against decency.
“However, it is not easy to set the boundaries of the rules of crimes against decency because the definition and boundaries of decency are quite clear and vary according to the views and values prevailing in society. Moreover, because the law itself is essentially a das recht das ethische minimum moral values, so the boundaries for crimes against decency are hard to determine,” he explained.
Meanwhile, Articles 288 and 293 of the KUHP regulates pro parte dolus, pro parte culpa or the elements of intention and negligence. Thus, if one of these elements exists, a sentence can be imposed on the crimes. The criminal element as referred to in Article 288 means that a man can marry a minor or a woman who is not yet legally marriageable.
Dhahana emphasized that in this provision, in the event that sexual intercourse occurs, if it does not result in bodily harm, serious physical injury, or death of the woman, there is no criminal element. However, if it does, the man can be charged with a crime. Meanwhile, Article 293 of the KUHP stipulates that anyone who persuade a minor to commit any obscene act or to tolerate such act by gifts or promises of money or goods can be charged with a crime.
Dhahana also explained that the criminal element in those articles is determined based on the loss of the victim, which cannot be known in general and can only be determined by the victim, so only the victim can or has the right to claim it. These provisions determine the crime as a litigated crime, for which a complaint can be filed within 7 to 12 months.
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UKI Students Revise Petition on Provision on Sexual Harassment Complaint
Christian University of Indonesia’s (UKI) law students Leonardo Siahaan and Fransicus Arian Sinaga (Petitioners I and II) challenge Article 288 paragraphs (1), (2), and (3) and Article 293 paragraphs (1), (2), and (3) of the Criminal Code (KUHP). They asserted that the articles are multi-interpretive and unconstitutional. Petitioner I stated that both articles were multi-interpretive and didn’t provide clear legal certainty. He expressed his concern for his female sibling, who is vulnerable to sexual harassment of a minor and to domestic violence due to the lack of legal certainty.
The Petitioners feel that the vague age limit in Article 288 shown in the phrase “not yet marriageable” could lead to a debate. Therefore, in their petitum, the Petitioners requested that the Court declare Articles 288 and 293 of the Criminal Code along the phrases “a minor” and “not yet marriageable not legally binding. They also requested that the Court declare Article 293 paragraph (2) conditionally constitutional.
Writer : Utami Argawati
Editor : Nur R.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/5/2021 11:18 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
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