Critical Notes on the Sexual Violence Bill

Heryunanto

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The draft bill on eradicating sexual violence, or RUU TPKS, which was initiated by the House of Representatives (DPR), has finally been approved.

Several notes need to be made now so the RUU TPKS can later become a law that is capable of responding to and is applicable to real challenges in society.

Mainstreaming the victims of crime is a fundamental challenge because it constitutes the “soul” of a judicial process that pays greater attention to victims. It should be manifest in every phase of judicature.

Non-criminalization of victims

Mainstreaming victims can be realized if the officials in charge have knowledge and competence regarding the perspective of victims, including the rights of victims as regulated by law. One right of victims of sexual violence is the right to not be subject to civil and criminal lawsuits for their testimonies and/or reports, unless their testimonies or reports are made in bad faith.

If lawsuits are filed against victims for their testimonies and/or reports, the litigation should be delayed until a court with permanent legal force has issued a decision on the reported cases or testimonies given.

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This is regulated in Article 10 of Law No. 31/2014 on the Amendment to Law No. 13/2006 on Witness and Victim Protection, which guarantees a smooth legal process regarding the criminal act that has given rise to victims.

Based on the experience of the Witness and Victim Protection Agency (LPSK), a lawsuit targeting a victim is a form of counterattack for the purpose of weakening the victim’s position in their pursuit of justice.

If there is an authority relationship between the victim and the perpetrator, this counterattack can involve transferring the victim to a different workplace, threatening the victim with failing a school or university exam, threatening to report the victim for alleged defamation and so forth. The case of Baiq Nuril is an example of counterattack through a lawsuit against the victim, who was charged with violating the Electronic Information and Transactions (ITE) Law.

In 2021, the LPSK provided protection for more than 500 victims of sexual violence, many of whom had been counterattacked by their perpetrators. The LPSK provided legal support to protect the victims. The RUU TPKS needs to affirm victims’ rights so they are not criminalized.

This can be done by incorporating non-criminalization of victims as a regulatory principle (Article 2 in the draft RUU), among other measures. The principle of non-criminalization of victims applies in cases of human trafficking as stipulated in Article 18 of Law No. 21/2007 and the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (2015).

Victims’ right to privacy

Victims have the right to keep their identities private. This is regulated in Article 5 of Law No. 31/2014 on Witness and Victim Protection and Article 17 of Law No. 23/2002 on Child Protection, as well as other laws. Article 7 Paragraph (2) of Law No. 40/1999 on the Press in conjunction with Article 5 of the Code of Journalistic Ethics also stipulates that journalists shall not mention or circulate the personal identities of victims of crime against decency or the personal identities of a child perpetrator.

Guaranteeing victims’ right to protect their personal identity is indeed important to avoid revictimization, inconvenience and personal threats as regulated in the Basic Principle of Justice for Victims of Crime and Abuse of Power (1985). If the victim is a child, revealing their identity will disrupt the furtherance of their education, and could even cause them to drop out of school due to shame and embarrassment.

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Child victims of sexual violence whose identities are revealed end up feeling embarrassed to continue their studies at the same school and want to transfer to another school. They are also ashamed of interacting with their peers. Of the more than 500 sexual violence victims that the LPSK protected in 2021, at least 75 children joined the LPSK’s victim protection program for psychosocial rehabilitation, which included facilitating their continued education.

The RUU TPKS should emphasize the existing principle of protecting the victim’s privacy. This can be done by incorporating the principle as an integral part of the victim’s best interests in the elucidation for Article 2 in the draft RUU or by mentioning it explicitly in the norm of Article 17 in the draft RUU. The principle of protecting the victim’s privacy needs legal iteration, because it remains open to many violations.

SUPRIYANTO

Supriyanto

Restitution to victims

The right to seek restitution or recompense of sexual violence victims is specified in Articles 23-25 of the draft RUU. They stipulate that a victim can seek restitution before or after the defendant is found guilty in the verdict of a court that has permanent legal force. The process for victims to seek restitution after the defendant is found guilty in a verdict carrying permanent legal force should be regulated in further detail, including the technical aspects of reviewing requests for restitution.

A detailed regulation is urgently required and needs to be included in the draft RUU TPKS because the Supreme Court Regulation (Perma) as mandated by Article 31 of Government Regulation (PP) No. 7/2018 is still not ready. The Perma will regulate the technical implementation of reviews of requests for restitution submitted after a defendant is found guilty in a court verdict with permanent legal force. The absence of a more detailed rule in the draft RUU TPKS could potentially diminish protection of a victim’s right to restitution.

In the LPSK’s experience, success should be continuously strived for in requests for restitution that are made after a defendant is found guilty in a court verdict with permanent legal force. In 2021, the LPSK facilitated requests for restitution made by hundreds of victims of crime.

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The draft RUU TPKS authorizes a court to instruct public prosecutors to confiscate a convict’s property and auction it to pay restitution to victims (Article 23, Paragraph 10). This concept replicates Article 50 Paragraph (3) of Law No. 21/2007 on the Eradication of the Crime of Human Trafficking (TPPO). As the LPSK has experienced in protecting victims of human trafficking, Article 50, Paragraph 3 of Law No. 21/2007 cannot yet be implemented.

In order to enable the implementation of the stipulation on confiscation and auction of convicts’ property for paying restitution to victims of sexual violence, Article 23 of the draft RUU TPKS should mandate the formulation of implementing regulations like a PP, an LPSK regulation, or a Supreme Court regulation. A deadline should also be stipulated for formulating the implementing regulation so as to accelerate the fulfillment of the victim’s right to seek restitution.

The other aspect that needs affirmation is the fate of restitutions as regards further legal action, like appeals, cassation and judicial reviews (PK). In the criminal court system (SPP), such legal actions by defendants/convicts and public prosecutors are normal.

If an appeal is filed against a district court’s sentence for a defendant to do prison time and pay restitution to the victim, will the restitution be subjected to the appellate process? What is the review mechanism if restitution is also subjected to the appellate process? Based on the LPSK’s experience, legal actions against a court verdict indeed reduce the amount of restitution that victims receive.

SONYA HELLEN SINOMBOR

Antonius PS Wibowo.

The draft RUU TPKS needs to regulate the criteria and mechanism for verifying that a perpetrator/convict is unable to pay restitution. For instance, it stipulates that the criteria are at the discretion of regional officials while the mechanism is determined by the demand of the public prosecutor or the LPSK, or it simply mandates the formulation of an implementing regulation.

There is still time to improve the draft RUU TPKS so it responds to the real challenges that exist while endeavoring to make the resulting law applicable.

Antonius P.S. Wibowo, Deputy Chairman, Witness and Victim Protection Agency (LPSK)

This article was translated by Aris Prawira.