Criminal Code and Women

The development of law can never catch up with the rapid development of society.

Legal reform in the issuance of new laws, amendments or abolition of obsolete laws that are no longer accommodative to people's sense of justice, deserves to be accepted. However, the newly ratified Criminal Code (KUHP) has drawn controversial responses from the public not only at home but also international communities.

The Criminal Code serves a wide range of penal codes, but what has become the main public scrutiny are the regulating provisions on the realm of private relations between men and women, including adultery (Article 411), cohabitation (Article 412) and their relation to the application of the "the living law" as carried in Article 2.

The development of law can never catch up with the rapid development of society.

In legal theory seen from women's perspective, these articles cannot be read in a neutral manner, because their interpretation and application are prone to placing women as the most vulnerable group to being constructed as a "source of sin," thus deserving to be punished more.

The legal formulation, be it written or unwritten, tends to take a woman's body as a tool of socio-cultural identity politics. This has been going on throughout human history.

The motive is to legally construe women as a “liyan” (other) group, especially those from minority groups in terms of race, ethnicity, religion, financial wellbeing and law literacy. Thus, legal theory on feminism recommends that the aspiration to bring a more just society be pursued through law. Can the Criminal Code achieve this aspiration?

Why controversial?

This article seeks to see the emergence of controversial responses to the Criminal Code from interdisciplinary legal perspectives. First, regulating personal life in human relations should philosophically be in the realm of ethics, not law. Hal Hart, a legal philosopher and advocate of legal positivism, argues that moral ethics and law both originate from the tradition of morality.

Even so, ethics and law cannot be mixed because they potentially spoil each other. The purpose of demarcating them is that the two can function to correct each other. It means not all moral principles must be incorporated into written law. Even though it is not written, thus carrying non-punitive consequences, ethical codes have a higher position than law, being passed on from generation to generation in households through education, practiced in daily relations between members of the community. The violators are subject to social sanctions in the form of humiliation or alienation, which are by no means lighter than criminal imprisonment.

Also read:

> Politicization of Women’s Bodies

> ‘Living Law’ in the Draft Criminal Code

Second, from the socio-legal perspective, holism must be taken into account in legal formulation, application and implication given the fact that the articles, including those that draw controversies, are the result of compromises from various concerned groups in society. There are social members who are conservative, progressive and others with particular interests. Debates over contentious articles will drag on, even after they have been passed into law.

Law should not simply be perceived as normative but also cognitive conception. As a normative conception, law regulates what is allowed and what is not, which may fall into the domain of state law, international law, customary law, religious law and social customs.

However, the law must also be seen anthropologically as a cognitive conception. What norms or actions are socially permitted and prohibited are closely related to socio-cultural cognition. Here applies cultural relativism, in which the cognition of a society cannot be judged as better than the other.

Therefore, articles related to the female body in the most private relations between human beings should be removed altogether because it is in the realm of ethics. It is necessary for the state to show trust and leave aspects of dignified and civilized living to the morality of the self or community.

There’s no need for state intervention. The old Criminal Code did regulate it, but was it not built on colonial perspective and interests? Is legal reform not supposed to be able to abolish laws that are no longer in line with contemporary societal development?

Moreover, crimes against women's sexuality (their body) have been regulated in many other laws, such as those regarding the elimination of domestic violence, protection of children and crimes against sexual violence (TPKS). It is worth noting the TPKS law has lost core articles on crimes of sexual violence, namely rape and under-age sexual abuse, because they have been incorporated into the Criminal Code. In this case, the law implementation will potentially confuse law enforcement officials.

Also read:

> Sexual Violence, Minus Rape

> RKUHP and the Balance of Democracy

Third, why has the international community reacted? Today's globalization is not only in the economic and socio-cultural fields, but also in law.

The globalization of law becomes inexorable when international conventions, especially in the field of human rights, have been ratified and adopted into the national law of each country. International humanitarian law has been inspired by countries through delegations at the United Nations to become an international convention.

They have raised the degrading human tragedies on earth, especially those victimizing women, children and indigenous people. They have voiced concerns about victims of conflict and war crimes, victims of twisted policies regarding racial and religious identity politics in many parts of the world. The globalization of law has brought a collective awareness about human rights.

Fourth, society is strongly influenced by the development of digital science and technology. Many scientific products are beneficial to the public and individuals in a wide range of areas of life. Certain products can be used with just the touch of a finger. Who is behind it all? They are scientists or researchers, especially in developed countries, who work hard not only in universities but also in the industry and receive almost unlimited funding support from the government.

Thus, workers at the centers of large industries such as in automotive, digital, food and pharmaceutical-health are scientists. The professional requirements for being accepted in large industries are indeed a doctoral degree plus several years of postdoc. Meanwhile, national, ethnic and religious backgrounds are ignored. The global industry is a gathering place of the best scientists of various nationalities. Today's globalization is also marked by the phenomenon of the migration of scientists and professionals.

The impact is the establishment of a scientifically minded international community, who discourages anti-scientific ideas and policies.

The "highest law" that is believed to ensure the sustainability of community relations is respect for human rights.

It seems that the global civilization no longer cares whether someone comes from a culture that obliges marriage or a society that is permissive toward living together for reasons, among others, of practicality, high taxes or the worldview of mutual beneficial cooperation in the face of an increasingly challenging world.

Also read:

> A New Era of Criminal Law

> Measurable Guidelines Needed for Criminal Law

Fifth, what do the Indonesian people need? It is important to respect the nobility of customary law (Article 2), but romanticizing it as always being good for all can be misleading. What is needed most is legislation, law enforcement, including judges' decisions, so that it can provide justice for female victims of sexual violence in the country of which there has been an escalation in the number of cases.

The victims include children. Some women who are victims of rape end up in a forced marriage with their rapist in the name of traditionally imposed obedience.

Those cases are rife in many areas, especially those with marginal social structure. Even though it is normatively defined as an evil punitive act, rape can not be taken cognitively to define adultery for fear of the impacts on women and children.

Epilogue

Indonesia is home to a pluralistic society and today it cannot be isolated from the life of the international community. The globalization of law has led to the emergence of a collective awareness about democratic values ​​and universal human (and women) rights.

Behind the progress of science and (digital) technology that drives rapid changes in society is the collaboration of scientists across the world. Their presence has led to the development of a science-oriented global society.

Legal norms that are seen as intervening in the private sphere in any country will draw spontaneous reactions.

KOMPAS/RADITYA HELABUMI

Sulistyowati Irianto

Sulistyowati Irianto,

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

This article was translated by Musthofid.