The Petitioners’ expert Beniharmoni Harefa taking an oath to testify at the judicial review hearing of the KUHP (Criminal Code) for case No. 21/PUU-XIX/2021 virtually, Monday (11/1/2021). Photo by Humas MK/Teguh.

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Monday, November 1, 2021 | 17:44 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 KUHP (Criminal Code) for case No. 21/PUU-XIX/2021 virtually on Monday afternoon, November 1, 2021 to hear the Petitioners’ expert.

At the virtual hearing, criminal procedure and child protection law expert Beniharmoni Harefa testified for the Petitioners about sexual crimes against children and women. Obscene acts against and sexual intercourse with children are in the category of graviora delicta or the most serious crimes, he said.

He added that sexual crimes, obscene acts, and intercourse against children have various repercussions: trauma, physical impacts such as diseases and injuries including that in the internal organs, as well as social impacts such as ostracism. They potentially destroy the victims’ future. Those crimes are super mala per se or very evil and despicable and deserving of people’s condemnation nationally and internationally.

Beni also said Article 293 paragraph (2) of the KUHP, which reads, “Prosecution shall be instituted only upon complaint of the person against whom the crime has been committed,” regulates absolute litigated crime. This hinders protection of person, honor, and dignity of the victims. Victims, especially children, who experience psychological shocks due to obscene acts and sexual intercourse, could refrain from reporting the perpetrator, which prevents prosecution.

The article, he said, does not explicitly state the age of the ‘minor.’ In several cases, as the Petitioners elaborate in their petition, public prosecutors often define it based on Article 220 of the Civil Code—21 years. This leads to legal uncertainty and multiple interpretations.

Also read: Provision on Sexual Harassment Complaint Filing Challenged

Similarly, Article 288 of the KUHP does not elaborate on the phrase ‘not yet marriageable,’ which could lead to debate and multiple interpretations. It should refer to Article 7 paragraph (1) of Law No. 16 of 2019 on the Amendment to Law No.1 of 1974 on Marriage, which stresses that the marriageable age for both men and women is 19 years.

Obscene acts against and sexual intercourse with children are regulated in Article 423 KUHP Bill dated September 2019, Beni added, which states that “any person who by gifts or promises of money or goods, abuse of dominance resulting from factual relationship or deceit, intentionally moves a minor of irreproachable conduct, whose minority he knows or reasonably should presume, to commit any obscene act with them or to tolerate such act, shall be punished by a maximum imprisonment of nine years.” This indicates that the legal drafters meant the offenses as regular crimes, not litigated ones.

“The crimes of obscene acts against and sexual intercourse with children are within the public domain, not the private one,” Beni stressed.

It can be seen from Article 76E in conjunction with Article 82 of Law No. 35 of 2014 on Child Protection. Article 76E reads, “Any person is prohibited from using violence or threats of violence, coercing, deceiving, committing a series of lies, or persuading children to commit any obscene act with them or tolerate such act.”

Also read: House: Decency Crimes Against Children to Be Included in Criminal Code Bill

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.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/01/2021 19:23 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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