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Under Indonesia's new criminal code, rights groups fear more women will be forced to marry their rapists to escape prosecution

ABC News - December 23, 2022

Anne Barker, Jakarta – Multiple women's rights groups say Indonesia's controversial new criminal code will make it even easier and more common for sexual assault victims to be forced into marrying their own rapists.

The country's existing penal code – introduced more than a century ago during the Dutch colonial era – punishes adultery committed by married couples.

But proposed changes to the legal system – due to come into force in three years – will criminalise sex outside marriage by anyone, married or not.

In Indonesia, there is a cultural stigma around survivors of sexual violence, particularly when they report their case to authorities.

Women's rights groups say it's not uncommon for victims of sexual assault in Indonesia to be pushed into marrying their attackers.

Sometimes it is parents of a sexual assault victim who pressure a woman or girl into a union with their rapist, to avoid the shame of a daughter who has had sex outside of marriage, especially when a perpetrator argues it was consensual.

"A lot of parents think it is actually shameful to have their daughters or children raped. That's why they can force their children to marry their rapists or basically threaten them [with] jail," says Anindya Vivi, director of Jakarta Feminist.

At other times it is the perpetrator's family who applies pressure, so the case or charges are withdrawn.

Jakarta Feminist, a non-governmental organisation that promotes women's rights, argues that Indonesia's new criminal code – ratified by the national parliament this month – will only worsen the problem.

"It could be the rapist himself who could threaten [the victim] in terms [of] like, 'if you report the case, then it means that I can argue it was consensual sex, so both of us can go to jail," Ms Vivi said.

Several other women's groups share these concerns, including the Indonesian Women's Association for Justice (LBH APIK) and the Centre for Child Protection and Wellbeing.

But some legal experts say rape is covered by a separate provision in the new criminal code, and the passage of Anti-Sexual Violence laws earlier this year should give sexual assault victims protection.

"That article on adultery, that's what the government and parliament want [to expand in the new criminal code]. But the clause is only for consensual relationships and must be between a woman and a man," says Anugerah Rizki Akbari, a law lecturer at the University of Indonesia.

"Rape is not stipulated by that article because rape is committed with violence."

In a bid to curtail this practice, Indonesia passed a landmark bill earlier this year that for the first time recognised forced marriage and sexual harassment in the law.

Indonesians face prison terms of up to 12 years for crimes of physical sexual abuse, both in marriage and outside, 15 years for sexual exploitation, nine years for forced marriage, which includes child marriage, and four years for circulating non-consensual sexual content.

A provision on rape was removed before the law was passed because it was already covered under Indonesia's Criminal Code. But forced marriage is still a major issue in Indonesia.

"Even without the new criminal code we've seen many victims of sexual violence being forced to marry their rapists, the [defence argued] it was consensual sex," Ms Vivi said.

The Indonesian Women's Association for Justice says many women who can't prove that they are victims of sexual violence will become even more reluctant to report rape for fear that the law against unmarried sex will be used against them.

"They're scared that people will think they had consensual sex and they will face an even harsher stigma from society," says Khotimun Sutanti, the organisation's coordinator.

The Centre for Child Protection and Wellbeing (PUSKAPA) says this will increase the likelihood of child marriage, for underage victims.

'Forced to marry four times before 30'

Survivors of child marriages in Indonesia speak out to end the practice, but activists say there is more to be done.

While the legal age to marry in Indonesia has been raised to 19, Indonesia still has one of the highest rates of child marriages in the world.

"This [new code] will be very detrimental to victims who often have lower power relations than their perpetrators, both in terms of social status and economic status," says Muhammad Bill Robby, Puskapa's Research Officer.

"Provisions that threaten criminal acts outside of marriage, such as the Article on Adultery, will increase the risk of child marriage."

An increase in child marriage would inevitably mean more unwanted pregnancies and a loss of education for underage girls.

At the same time, tougher penalties on abortion and the promotion of contraception would curtail the ability of girls or women to protect their health and make informed choices about their bodies and having children.

When asked about the concerns raised by women's groups, Indonesian government spokesman Albert Aries referred the ABC to a 1974 law which regulates that "marriage must be approved by both parties who carry out the marriage, without any force from any party".

"Moreover the parties who might force the marriage (parents or children) are not obliged to exercise their right to complain [about sex outside of marriage], and also cannot separate prosecutions only against wrongdoing, only one offender," Mr Aries said.

The criminal code also contains controversial new provisions that recognise and legitimise local traditional laws or customs across the country.

Known as "living laws" these can include anything from Sharia laws in devoutly Muslim provinces such as Aceh in north Sumatra, to unwritten customs that human rights groups say will also discriminate against girls or women.

These could include mandatory hijab dress codes or even the practice of female circumcision.

Many in Indonesia's LGBTIQ community fear these same local traditional laws could be used – or abused – to persecute and discriminate against them.

Gunn Wibisono, an openly gay man living with his Dutch partner in Indonesia, fears these laws could be used against him.

"I really worry that the radical fundamentalists have penetrated our parliament," he said. "We in Indonesia really cherish diversity. Diversity is our strength [but the country is] becoming more uniform. We have to fight it."

Others in the LGBTIQ community fear they will become targets under the ban on sex outside marriage and cohabitation, even though the criminal code makes no mention of homosexuality or the LGBTIQ community.

While Mr Winisobo officially married his partner in the Netherlands in 2014, in Indonesia same-sex marriage is not allowed or recognised.

He says these bans – that carry a possible jail term of 6-12 months – clearly state that they apply to sexual intercourse or cohabitation between a man and a woman, but he acknowledges many others live in fear.

Under the new laws, unmarried couples who live together can only be prosecuted if they're reported by a spouse, parents or their children.

It means foreign visitors to Bali will not be at risk of criminalisation, according to Bali Governor Wayan Koster, since "there will be no checking on marital status upon check-in at any tourism accommodation, such as hotels, villas, apartments, guest houses, lodges and spas".

Tourists and Indonesia's new laws

As Indonesia tries to entice tourists back after the drop in travellers during the COVID-19 pandemic, the country's national tourism board has described the new criminal code as "totally counterproductive".

But Mr Wibisono said that in an increasingly intolerant and conservative country, many in the LGBTIQ community have reason to fear their own parents who they don't support their life choices.

"I know [a lot] of LGBT people whose parents might use this law against their child to prevent the relationship," he said.

"They don't have any empathy towards their children, but instead they feel guilty and afraid of being excluded from society or losing face, or being seen to have LGBTIQ children."

Critics are concerned the new laws can be used to police morality.

"Indonesia [is going] backward... imitating those that practise the radical religious beliefs," Mr Wibinsono said.

"It is similar to honour killing in several countries like Afghanistan. So if children shame their parents, based on their cultural or religious differences, parents feel they have the right to persecute their children. This is very sad."

Opponents and critics of new laws face intimidation

The new penal code introduces sweeping changes and harsher punishment for a vast array of offences, and runs to more than 200 pages, with more than 600 provisions.

They include severe curtailment of freedom of speech, by banning unauthorised protests, expanded laws on blasphemy, and possible jail terms for insulting the president or state institutions.

The legislative overhaul has been decades in the making, and has sparked widespread public criticism and protest in the past.

When the proposed laws were introduced in 2019, tens of thousands of Indonesians rallied in cities across the country against the measures forcing the government to delay its ratification.

Hundreds were injured and several killed in what were the most significant protests seen in Indonesia since the downfall of the Suharto regime in 1998.

Political experts predict the most contentious provisions of the new criminal code will inevitably be challenged in Indonesia's Constitutional Court, which has struck out controversial laws before.

But Professor Tim Lindsey, director of Indonesian law, Islam and society at Melbourne University's Law School, says opponents this time may not succeed because the court itself has faced political intimidation to comply with the parliament.

"If we were talking about a couple of years ago, you would not be surprised to find the Constitutional Court striking down these provisions," he said. "But that might not happen now."

Professor Lindsey pointed to the recent sacking of a Constitutional Court judge on "very dubious legal grounds" as an example of how the environment has changed since 2019.

Deputy Chief Justice Aswanto was supposed to serve until 2029, according to the 2020 amendments to the Law on the Constitutional Court, but was dismissed in October for "failing to defend the interests" of Indonesia's House of Representatives while serving on the Court.

"The president acquiesced in that [sacking], and a new judge has been sworn in to replace him," he said.

"The reason given was that the judge had not supported the legislature's interest, because he'd been striking out laws, which of course is precisely the role of a Constitutional Court judge."

Professor Lindsey thinks this will make the remaining judges much more cautious when it comes to ruling on the new code in future.

"Now, I think that event will be very intimidating for other constitutional court judges to know that if they strike out legislation, they could be seen as an enemy and removed from office."

Source: https://www.abc.net.au/news/2022-12-23/indonesia-parents-to-report-their-adult-children-to-police/10174887