Sexual Violence, Minus Rape

The legal formulation of the Sexual Violence Bill (RUU TPKS) demonstrated how legal politics is practiced in Indonesia.

It showed the conflicts of interest that exist between groups that claim religious interpretations or legal doctrines on the one hand and those that have humanitarian concerns about the victims of sexual violence on the other.

The ratification of the Sexual Violence Law (UU TPKS) is a milestone of legal reform for the victims, providers of counseling services, and society in general. Its provisional substance includes the formulation of measures for prevention, treatment and rehabilitation, as well as the mandate of responsibility for local administrations.

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The Sexual Violence Bill

However, the law contains a loophole because it excludes the article on rape, which is the crux of sexual violence. It is ironic, given that the idea for the law originated out of concerns over the rampant cases of rape and sexual abuse against women and children, with the victims struggling desperately to heal from their ordeals due to legal, social, and cultural constraints.

Evidence-based data

It is rare that a law relies on such strong evidence-based data like the Sexual Violence Law does. Data is available at outreach groups, rumah aman (centers that provide shelter and rehabilitation services for victims of sexual violence), and legal aid organizations from Sabang to Merauke, including those in remote areas. They work independently and hardly receive publicity or support from (regional) administrations. Communities generally do not show care for victims and instead, tend to blame the victims because of their ingrained patriarchal culture and misogynistic views, and lack of knowledge about human rights, which should in fact be respected as the mandatory principle that unites civilized societies around the world.

The National Commission on Violence Against Women (Komnas Perempuan) has gathered and publicized data from across the regions and carried out advocacy activities. Komnas Perempuan received as many as 3,484 reports on sexual violence between 2020 and 2021 (Komnas Perempuan, 2022). It believes many cases are unreported. It is not surprising that the women's movement has been able to formulate comprehensive definitions of sexual violence, even to the lowest degree of a sexual felony, thanks to evidence-based data.

The data Komnas Perempuan has compiled include details on acts of sexual violence from hundreds of thousands of cases in the communities where they work.

However, the initial draft of the proposed definitions and types of sexual violence became politicized, which resulted in its rejection by individual politicians and factions to result in the bill being frozen for 10 years at the House of Representatives (DPR).

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Alarm of Sexual Violence Emergency

The politicization of the concept of sexual violence revolves around two elements of sexual violence on which literature and evidence-based data exist. They are the lack of consent on the part of the victim,

and the abuse of power on the part of the perpetrator. Without these two elements, sexual violence is deemed to have not occurred. Lack of consent means forced sexual intercourse, which is therefore a punishable crime.

In cases of sexual violence, lack of consent from the victim may occur in a situation in which the perpetrator is in a position of power over the victim. That is why, in the issue of “lack of consent” cannot be overlooked if the victim is a minor, disabled, sick, physically incapacitated, or unconscious. In such situations, if the victim does not give any response to the sexual violence being perpetrated against them, sexual violence must be deemed to have taken place.

This is indeed the reality of Indonesia’s legal politics, in which religious interpretations are used as rationale for opposition.

Due to the disagreement over these two elements in the definition of sexual violence, adjustments were made in the final draft of the Sexual Violence Bill. Strong contention was also evident in the discussions on other provisions that prompted either their omission or adjustment, such as the types of sexual violence and victim restoration. This is indeed the reality of Indonesia’s legal politics, in which religious interpretations are used as rationale for opposition.

Disappearance of article on rape

Very few of the many cases of rape in a number of areas have reached the courts because of tricky provisions on producing evidence in the Criminal Code Procedures (KUHAP). No evidence means there is no case. Rape is viewed as the same level of offense as other ordinary crimes, such as theft. In fact, the unequal power between the offender and the victim is a factor that deters the latter from resisting and filing a complaint, let alone seek to provide medical proof of the incident.

Most offenders of sexual violence are known to their victims, such as sexual violence that occurs in the household, at school and universities, and even at places of worship. The geographical remoteness of where the sexual violence took place has also caused such cases to be unreported and unknown, such as the case of the two siblings aged 7 and 5 who were allegedly raped by their father in a remote and backward village on Buru Island. One victim died and the other was hospitalized. There is only a small hospital in that area, while outreach groups and rehabilitation centers are not available. Legal aid and counseling support were provided remotely by a nongovernmental organization (NGO) and activists in Ambon.

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Protection against Sexual Violence

The absence of an article that defines “rape” and regulates the issue beyond simply mentioning it, as in Article 4 Paragraph 2 of the Sexual Violence Law, was a consensus based on reasons of legal doctrine. They viewed that the issue of rape was regulated in the draft revision of the KUHAP.

This raises questions. First, should the reform of legal norms that aims for greater guarantee of protection for victims and the betterment of society be governed in just one general law?

Second, if it is regulated in the Criminal Code (KUHP), does the procedural law necessarily bow down to the KUHAP? In fact, from Indonesian independence until today, rape victims’ efforts to gain justice have been constrained by the KUHAP, which imposes the burden of proof on the victims.

Third, can't we use the doctrine of lex specialis derogat lex generalis, which means that a specific law overrides a general law? What is wrong about the Sexual Violence Law containing an article on rape? Sexual violence is a crime against humanity, rather than an infringement of decency, because the victim can lose their life, be physically impaired, and be traumatized for life. With the Sexual Violence Law not

regulating rape, there will be no regulatory change over the crime of rape, while concerns about rape were the initial trigger that led to the drafting of the sexual violence bill.

Deserves celebration

In any case, the ratification of the Sexual Violence Law still deserves to be celebrated. Behind the scenes of the formulation of this law were women from Sabang to Merauke who have dedicated themselves to defending victims of sexual violence.

They shed light on the forms and types of sexual violence, the kinds of perpetrators, and the crime’s impacts on the victim.

When the draft bill was removed from the 2020 National Legislation Program (Prolegnas), these women held a street rally that over four days and four nights. Women's organizations from Aceh to Papua talked about sexual violence in their communities. They shed light on the forms and types of sexual violence, the kinds of perpetrators, and the crime’s impacts on the victim.

These women's groups also closely monitored the law’s development in the House as the "balcony faction" and "long-distance faction". This phenomenon shows that legal reform that involves broad public participation is a must for a more just future for Indonesia. The collaboration between the government, the House working committee, and the women's groups nationwide should be appreciated.

KOMPAS/RADITYA HELABUMI

Sulistyowati Irianto

Sulistyowati Irianto,Professor of Legal Anthropology, School of Law, University of Indonesia

(This article was translated by Musthofid).