An opinion piece by Ruth Panjaitan, ICJ Legal Adviser for Indonesia and Caleen Chanyungco Obias, ICJ National Legal Consultant for the Philippines
The women of Indonesia, the third-largest democracy in the world, are facing grave threats to their democracy and civil liberties. In clear contravention of Indonesia’s obligations under international human rights law and the country’s own Constitution, the Indonesian Parliament has recently adopted a new penal code that criminalizes “moral offenses”.
Article 411 (1) of the new Penal Code expands the existing crime of adultery (perzinaan) and criminally proscribes pre- or extra-marital sexual intercourse between two consenting adults, regardless of marital status. This is a significant expansion of the old Penal Code, which limited the “crime” of adultery to consensual sexual relations between two individuals where one of the parties was legally married to a different individual – on its own already a violation of Indonesia’s obligations under international human rights law.
Under the new Penal Code, upon conviction, the sentence for adultery has been increased to a maximum of 12 months of imprisonment (under the old Penal Code the maximum was set at nine months of imprisonment), or a fine of up to a maximum of 10 million Rupiahs (approximately USD 640).
The new Penal code has also introduced the “crime” of kohabitasi or cohabitation outside the confines of a legal marriage, and has made it punishable upon conviction with a fine or imprisonment of up to six months.
Pursuant to the old Penal Code only legally married individuals could be charged with adultery based on complaints filed before the police by an “aggrieved spouse”. In the new Penal Code, prosecution of both adultery and cohabitation may be initiated by the purportedly “offended spouse”, or the parents and children of either “offending party” through the filing of a police complaint.
Regrettably, Indonesia has missed the opportunity to bring its domestic criminal law into compliance with its international human rights law obligations, including those under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which the country has enacted in its domestic legal order through Law No. 7 of 1984, and the International Covenant on Civil and Political Rights (ICCPR), which, in turn, Indonesia has domesticated through Law No. 12 of 2005.
Harkristuti Harkisnowo, Senior Professor of Criminal Law at the University of Indonesia and one of the drafters of the new Penal Code, has commented that the legislation reflects the country’s national identity – as the largest Muslim-majority nation in the world.
However, “moral policing” is not the role of the State. Indonesia should abide by the rule of law, including the country’s international human rights law obligations and its own Constitution. The continued criminalization of adultery and its concomitant expansion under the new Penal Code, and the added criminalization of cohabitation signal a further and alarming movement towards “moral policing” in a country once known for its secular model and freedom of religion or belief.
The criminalization of adultery and cohabitation violates numerous women’s human rights; it restricts personal autonomy and intimate expression, and violates sexual and reproductive health rights, among others. It reinforces patriarchal attitudes and is discriminatory; thus, it may justify violence against women, and other violations of women’s human rights, such as privacy and dignity.
The Committee on the Elimination of Discrimination against Women (the CEDAW Committee) and the UN Working Group on discrimination against women and girls have consistently called for the repeal of laws criminalizing adultery. With respect to adultery, the Working Group, “recognises that in accordance with some traditions, customs or civil law systems, adultery may constitute a matrimonial offence bearing legal consequences in divorce cases, the custody of children or the denial of alimony amongst others. However, it should not be a criminal offence and must not be punishable by fine, imprisonment or death.”
The prosecution of individuals for their private sexual behavior raises questions about the boundaries between public and private lives, and whether the State has the right to interfere in people’s personal affairs. Criminally prosecuting individuals for committing adultery or cohabitation is a disproportionate response to the supposed goal of preserving marriage and family. Moreover, it perpetuates Indonesia’s patriarchal beliefs. Putting on public trial the private affairs of a woman, whether married or not, likewise violates her right to privacy in clear contravention of Article 17 of the ICCPR guaranteeing that: “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home”, and Article 28G (1) of the Indonesian Constitution, as well as Article 4 of Indonesia’s Law on Human Rights, Law No.39 of Year 1999.
Furthermore, “moral laws” are disproportionately harsher on women, and fail to take into account the social, political, and economic realities of women. For example, the “crime” of cohabitation may be used to target women in Indonesia who choose to remain unbound by traditional marriages, or women in remote areas who can only afford to have a religious or customary (‘adat’) marriage, as well as members of the indigenous community (‘masyarakat adat‘) whose marriage rites are not legally recognized by the authorities.
The restriction on consensual sex and cohabitation will likely detrimentally impact on lesbian, bisexual and transgender women (LBT), as Indonesia does not recognize same-sex marriages. Despite the welcome omission of a provision criminalizing consensual same-sex intercourse, which had previously been included in older drafts, the new Penal Code in its final iteration is still susceptible to being used against same-sex couples.
Further, the new Penal Code’s incorporation of customary and ‘living laws’ (adat) as a basis for charging an offense that is not regulated by existing laws is also a potential tool for abuse of power and further repression of LBT people. Adat law may be utilized to penalize same-sex activities for being against religious, customary or ‘living law’ (adat). The CEDAW Committee in its Concluding Observations on the Eighth Period Report of Indonesia had already warned against the absence of safeguards and mechanisms to prevent the arbitrary use of adat law against LBT individuals.
The potential for further criminal charges against women and girls who have endured gender-based violence is also a serious concern. Indonesia’s National Commission on Violence Against Women (Komnas Perempuan) underscored that the new Penal Code may result in over-criminalizing women. Victims of assault may be accused of committing adultery if they speak out against non-consensual sex acts, potentially preventing victims of rape and other forms of sexual assault from reporting crimes. Maintaining – let alone expanding – the criminalization of adultery in the country is at odds with the spirit of the recently passed Law No 12 of year 2022 on Sexual Violence Crime, which seeks to combat sex crimes and provides a legal framework for the protection of victims of sexual violence.
The Indonesian Courts, through their judicial review powers, may and should review both the expanded criminalization of adultery and the criminal proscription of cohabitation brought in by the new Penal Code. The Judiciary plays a crucial role in ensuring that individuals’ autonomy be respected, in line with fundamental principles of human rights. The decriminalization of adultery and consensual sexual acts outside of marriage is necessary to uphold human rights and individual freedoms. When the executive and legislative branches fail, the judiciary becomes the last bastion to protect human rights.
Published in the Jakarta Post here
Ruth Panjaitan, ICJ Legal Adviser for Indonesia, e: email@example.com m: +6287881511639
Caleen Chanyungco Obias, ICJ National Legal Consultant – Philippines, e: firstname.lastname@example.org