Regulations that cover sexual violence - Part 4

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Sexual violence are currently addressed in several laws and regulations that focus on each form of violence.

Criminal Code

Generally, sexual violence is covered in the Criminal Code, a law governing only general matters (lex generalis) in the Indonesian legal system. The Criminal Code uses the term ‘obscene acts’ instead of ‘sexual violence.’

R. Soesilo stated that obscene acts are acts that go against morality or ethics or other vile acts in the environment of sexual lust, such as making out and groping private parts and breasts. Obscene acts are covered in Article 281-Article 303 of the Criminal Code. In general, obscene acts in the Criminal Code are:

• Crimes against decency (Article 281, 283, 283 bis);

• Adultery (Article 284);

• Rape (Article 285, 286 and 287); and

• Obscene acts (Article 289, 290,292, 293 (1), 294, 295 (1)).

False accusation, or calumnious insinuation, related to sexual violence accusation against an individual is covered in Article 318 of the Criminal Code. The elements that need to be fulfilled under Article 318 are:

• A person must cause another person to be falsely accused of engaging in a criminal act; and

• This defamation needs to be addressed to an individual.

Anti-Domestic Violence Law

Law Number 23 Year 2004 on the Elimination of Domestic Violence focuses on the protection of women and children from domestic violence.

The law is aimed at eliminating all forms of violence occurring in the family, including sexual violence. In addition to the wife and children, the law also protects the husband and anyone who live in the same household, whether or not they are related by blood.

The term ‘sexual violence’ was first introduced in the Anti-Domestic Violence Law. It is defined as:

• forcing sexual intercourse carried out against an individual living within the scope of the household;

• forcing sexual intercourse against one of the individuals within the scope of the household for commercial purpose and/or a certain purpose.

Sexual Violence Bill

The Sexual Violence Bill is an ius constituendum or an aspired law. Therefore, the bill will only come to have legal force after it is passed into law.

In the Sexual Violence Bill, sexual violence is defined as any act of degrading, insulting, attacking, and/or other acts against one's body, sexual desire, and/or reproductive function. 

The important key phrase that we need to remember in learning about sexual violence is that the act is done forcibly, contrary to someone’s will, which causes that person to be unable to give consent in a free state, due to imbalance in power relations and/or gender relations.

Sexual violence results in or can result in suffering or suffering physically, psychologically, sexually, economic, social, cultural and/or political losses.  

The Sexual Violence Bill describes nine forms of sexual violence:

• Sexual harassment;

• Sexual exploitation;

• Forced contraception;

• Forced abortion;

• Rape;

• Forced marriage;

• Forced prostitution;

• Sexual slavery; and/or

• Sexual torture.

Sexual harassment is a form of sexual violence. Sexual harassment is defined as physical or non-physical action against another, of whose part(s) of the body attract(s) sexual desire, to whom causes intimidation, denigration, disparagement, or humiliation.

In the bill’s explanation, "physical action" is defined as touching, poking, assaulting or other forms of contact with the genital area, or body parts that are related to a person's sexuality, including the chest, breasts, buttocks and hair.

Meanwhile, non-physical actions include, but are not limited to:

• whistling, winking;

• gestures or signals or body language that shows or touches or plays with the genitals;

• comments with sexual overtones or personal invitations or comments that suggest sexual invitations;

• displaying pornographic materials; and

• taking pictures secretly and/or peeking at another person. Threats can be made verbally and non-verbally, directly or indirectly, or through certain signals.

Anti-Pornography Law

One form of sexual harassment in cyberspace is sending unsolicited picture of the genitals. Images of genitals are pornographic content.

Article 1 Number 1 of Law Number 44 Year 2008 concerning Pornography (Anti-Pornography Law) defines pornography as a picture, sketch, illustration, photo, writing, sound, voice, moving picture, animation, cartoon, conversation, gesture, or other form of message through various forms of communication media and/or public shows/exhibits/performances containing obscene acts or sexual exploitation that violates moral norms in society.

Article 4 of the Anti-Pornography Law clearly stated that every person is forbidden to manufacture, fabricate, duplicate, reduplicate, spread/distribute, broadcast, import, export, make for sale, trade, lease/rent, prepare/make available or store/lay-away pornography which has the following traits:

• coital acts, foreplay, and sexual diversions pertaining to intercourse;

• sexual violence;

• masturbation;

• nudity or illusions/allusions to nudity;

• genitalia;

• child pornography.

Article 29 of the Anti-Pornography Law states that any person who violates Article 4 shall be sentenced to imprisonment of a maximum of 6 (six) months and a maximum of 12 (twelve) years and/or a fine of at least Rp250,000,000.00 (two hundred and fifty million rupiah) and a maximum of Rp6,000,000,000.00 (six billion rupiah).

Electronic information and transactions Law (ITE Law)

The government basically created the ITE Law to give a sense of security and legal certainty for all people in utilising information technology. The ITE Law covers a wide range of fields, including pornography as one of the forms of cybercrime

Pornography as a form of cybercrime is regulated in Article 27 (1) of the ITE Law: Any person who knowingly and without authority distributes and/or transmits and/or makes accessible Electronic Information and/or Electronic Documents with content against propriety is considered to have committed a crime and criminal sanctions shall be imposed on the person.

However, in terms of unsolicited images of genitals, the culprits are charged under the Anti-Pornography Law instead of ITE Law. That is because Anti-Pornography Law is a law governing a specific subject matter (lex specialis), hence overriding the ITE Law which is a lex generalis.