Article 75(2) of this law prohibits abortion except for the case of medical emergency or rape.
Pasal 75(2) dari peraturan ini melarang aborsi kecuali berdasarkan indikasi kedaruratan medis atau perkosaan.
Women and Justice: Jurisdiction
Legislation
Undang-Undang No. 36 Tahun 2009 Tentang Kesehatan (Law No. 36 of 2009 on Health) (2009)
Woman and Child Service Units (UPPA) handle all cases of violence against women, including human trafficking, domestic violence, sexual violence, and other related crimes. UPPA’s units range from district police levels and up.
Unit Pelayanan Perempuan dan Anak (UPPA) menangani seluruh kasus kekerasan terhadap perempuan, termasuk perdagangan orang, kekerasan dalam rumah tangga, kekerasan seksual, dan kejahatan terkait lainnya. Jangkauan unit UPPA adalah dari tingkat kabupaten hingga di atasnya.
This law criminalizes the act of human trafficking and sets out minimum and maximum sentencing standards (up to 15 years) for its various permutations, such as in assisting or abetting such a crime. It also states that Indonesia will cooperate with regional and international authorities in order to thwart any actions relating to human trafficking and sexual exploitation.
Peraturan ini mengkriminalisasikan tindak pidana perdagangan orang dan menetapkan standar hukuman minimum dan maksimum (maksimal 15 tahun) untuk berbagai bentuknya, seperti dalam membantu dan bersengkongkol tindak pidana tersebut. Peraturan juga menyatakan bahwa Indonesia akan bekerja sama dengan otoritas regional dan internasional untuk menggagalkan setiap tindakan yang berkaitan dengan perdagangan manusia dan eksploitasi seksual.
The law on elimination domestic violence defines “domestic violence” in Indonesia. Specifically, it includes sexual and physical abuse as well as negligence of the household. The law sets out the rights of the victims to seek protection, the burden on the government and the public to stop actions of domestic violence and provide the required protection and assistance to recovery. The law also sets out the criminal penalty for acts of domestic violence.
Undang-undang mengenai penghapusan kekerasan dalam rumah tangga memberikan definisi “kekerasan dalam rumah tangga” di Indonesia. Secara khusus, definisi tersebut termasuk kekerasan fisik dan seksual dan juga penelantaran rumah tangga. Undang-undang ini mengatur hak dari korban untuk mendapatkan perlindungan, beban pemerintah dan masyarakat untuk menghentikan tindakan kekerasan dalam rumah tangga dan menyediakan perlindungan dan pertolongan yang diperlukan untuk pemulihan. Undang-undang ini juga mengatur hukuman pidana untuk perbuatan kekerasan dalam rumah tangga.
The prevailing Indonesian labor laws reflect anti-discrimination principles. Each employee shall have equal opportunity without discrimination to obtain work and shall be entitled to equal treatment from the employer without discrimination (Articles 5 and 6 of the Labor Law). The Labor Law stipulates that termination of an employment relationship shall not be permitted if it is based on the ideology, religion, political inclination, ethnic group, race, social group, gender, physical condition or marital status of the employee (Article 153 (i) of the Labor Law).
Law No. 26 of 2000 - Establishing the Ad Hoc Human Rights Court (2000)
Article 9 defines crimes against humanity to include violent acts such as rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or other forms of sexual violence.
Penal Code of Indonesia (1999)
Article 260 punishes spouses who conceal from their spouse a legal barrier to marriage with a maximum sentence of five years imprisonment. Article 284 punishes adulterous spouses and their partners, regardless of their marital status. The penal code only criminalizes acts of rape outside marriage unless the wife is underage and incurs injuries as a result. Articles 285 prohibits forcing or threatening force a woman to have sexual intercourse outside of marriage and punishes violators with a maximum penalty of 12 years. Article 286 punishes sexual intercourse with an unconscious or helpless woman with a maximum of nine years imprisonment. If there is a complaint, Article 287 imposes a maximum sentence of nine years imprisonment for “carnal knowledge” of a girl outside of marriage when the man knows or reasonably should presume that she is less than 15 years of age. Prosecutions are triggered automatically when the girl is less than 12 years of age. Article 288 punishes husbands that have “carnal knowledge” of their wives who “are not yet marriageable” if it results in injury (four years imprisonment), serious injury (eight years), or death (12 years). Article 292 punishes adults that have carnal knowledge of those they know to be or reasonably should know to be minors of the same sex with a maximum of five years imprisonment. Article 293 punishes sexual abuse of a minor with a maximum of five years imprisonment. Incest is punishable by a maximum of seven years imprisonment pursuant to Article 294. Article 297 prohibits trafficking in woman and boys, which carries a maximum sentence of six years imprisonment. Article 299 imposes a four-year maximum sentence for abortion and provides for a one-third increase in sentencing for professionals (e.g., doctor, midwife) who perform abortions.
Law No. 7 of 1984 on the Elimination of All Forms of Discrimination Against Women (1984)
This law ratifies the UN treaty on the convention on Elimination of All Forms of Discrimination Against Women (adopted by the UN General Assembly on 18 December 1979 (resolution 34/180)) to help prevent any gender-based discrimination against women and ensuring that women will have equal rights and opportunities in all fields of life.
This law sets the legal age of marriage without parental consent at 21 years of age. With parental consent, girls may marry at age 16 and men may marry at age 19. Marriages under the legal age are void and there are penalties for knowingly entering into or authorizing child or early marriage. The law also sets the requirements for polygamy, which include the first wife’s inability to fulfill her spousal duties (e.g., bearing children), the permission of the man’s current wife or wives, permission from the local Court, and proof that the man will treat all of his wives and children fairly and provide for them equally. Women are prohibited from marrying a second husband. The law also provides the conditions for the cancellation (annulments and divorce) of a marriage, the obligations of husbands and wives, property rights of spouses, the obligations of parents to their children, the legitimacy of children, the requirements of guardianship, foreign marriages, and the children of mixed-religion marriages.
Law No. 68 of 1958 (1970)
This law ratifies the UN treaty on the convention on Political Rights of Women (Convention on the Political Rights of Women open for signature on 31 March 1953) recognizing that everyone has a right to take part in the government of their country and recognizing women’s right to vote and participate in the political process of the country. This law gives the same rights to Indonesian women as is provided under the convention and protects those rights under Indonesian Law.
The Indonesia Constitution does not discuss gender or women specifically, but instead guarantees rights to “him/her.” The 1945 Constitution is the basis for the government of Indonesia and it carries the highest legal authority. Article 27 of the 1945 Constitution states that: “(i) all citizens shall have equal status accorded by law and the government, and are obliged to respect the law and government without exception; and (ii) each citizen shall be entitled to work and to have a reasonable standard of living.” Article 28I of the Constitution adopted in 1945, and amended in 2002, includes the following provisions: “The rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances.” Article 28B of the Constitution adopted in 1945, and amended in 2002, includes the following provisions: “Every child shall have the right to live, to grow and to develop, and shall have the right to protection from violence and discrimination.” Article 28G of the Constitution adopted in 1945, and amended in 2002, includes the following provisions: “Every person shall have the right to be free from torture or inhumane and degrading treatment, and shall have the right to obtain political asylum from another country.” (External link includes unofficial English translation.)
Domestic Case Law
Decision No. 265/Pid.Sus/2015/PN Btm District Court of Batam (2015)
The Defendant regularly verbally abused his wife (the victim) shouting at her, insulting and cursing her, demeaning her status and causing her deep embarrassment at in front of other employees. The Defendant also joked that he should just divorce the victim and get a new younger wife instead. These verbal abuses were not isolated incidents. The court viewed them as a form of psychological abuse which resulted in psychological suffering, a deep sense of helplessness, and the victim experiencing fear, losing confidence, and losing the will to act. The court found that the Defendant was guilty of domestic violence under Article 45 of Law No. 23 2004 and sentenced the Defendant to seven months imprisonment.
Decision No. 246/Pid.B/2013/PN.Trt District Court of Tarutung (2013)
The Defendant forced his wife (the victim) to sleep in the cold outside of the bedroom and when the victim tried to enter the bedroom and sleep on the bed, the Defendant proceeded to push her to the floor and beat her, causing bruises and injuries to the victim. The court found the Defendant guilty of an act of domestic violence under Article 44(1) of Law No.23 2004 on Elimination of Domestic Violence. The court sentenced the Defendant to three months imprisonment.
Decision No. 174/pid.Sus/2013/PN.Kpj District Court of Kepanjen (2013)
The Defendant had an argument with his wife (the victim) and proceeded to hit his head against the victim’s head three times causing bruising and swelling to occur on the victim’s head. The court considered this act as an act of domestic violence under Article 5 of Law No. 23/2004 relating to Elimination of Domestic Violence. The court found the Defendant guilty and sentenced him to three months imprisonment.
Decision No.172/Pid.B/2016/PN.Trg District Court of Tenggarong (2016)
The Defendant broke into the victim’s house and forced the victim to have sexual intercourse with the Defendant. The charge is regulated and punishable by Article 285 of the Indonesian Penal Code dated 19 May 1999. The court found the Defendant guilty and sentenced the Defendant to imprisonment for six years and six months.
Decision No. 29/Pid/B/2017/PN.Tul Tual District Court (2017)
The Defendant committed the offence of creating and disseminating pornographic material. The Defendant threatened the victim with physical harm and forced the victim to take off her clothes to allow the Defendant to film her. The victim put up verbal resistance that prompted the Defendant to slap her and to forcibly take off the victim’s clothes. The Defendant then proceeded to take pictures of the naked body of the Defendant then forced the victim to perform oral sex on the Defendant. The Supreme Court decided that the Defendant was guilty of creating pornography which explicitly showed nudity and sentenced the Defendant to imprisonment for one year and three months and a fine of Rp. 500,000,000. If the fine is not paid then the Defendant will face further imprisonment for an additional three months. Under Indonesian Law only acts that involve vaginal penetration are defined as rape.
In re M Insa, Decision No. 12/PUU-V/2007 Constitutional Court of Indonesia (2007)
Petitioner, an Indonesian male, challenged the constitutionality of a marriage law requiring monogamy with an exception that allows polygamy only with the consent of the wife and the permission of the court (Law Number 1 Year 1974 regarding Marriage). The law requires the husband to submit an application to the court of his domicile with his wife’s consent in order to engage in polygamy. Petitioner argued that because the law required the husband to obtain consent from his wife and the court before engaging in polygamy, it violated his right to freely exercise his religion because the teachings of Islam allow polygamy. The government argued that Islamic principles encourage monogamy and only allow polygamy when a wife allows her husband to re-marry for the benefit of their marriage. The court held that the practice of polygamy historically had degraded the status of women and the teachings of Islam required the preservation of the dignity of women. In addition, since the purpose of marriage is to “achieve peacefulness (sakinah),” men are required to first obtain their wives’ consent before engaging in polygamy, thus respecting their wives as legally equal partners. Therefore, the Court rejected petitioner’s claims and held the laws constitutional as they guarantee the recognition of women’s rights and allow husbands to exercise polygamy in accordance with the teachings of Islam.
Decision No. 212 K/Pid.Sus/2011/PN.Pso Poso District Court (2011)
The defendant, a physician, agreed to perform an abortion for a woman who was 20-22 weeks pregnant for Rp. 800,000. The defendant performed the abortion in her own home using a ‘Gastrul Pill’ and was criminally charged for intentionally performing an abortion. The defendant confessed to performing the procedure and did not contest the indictment. The court found that the defendant performed an illegal abortion because the woman did not have a prior examination from a counselor and defendant did not have a certificate endorsed by the minister. The court sentenced the defendant to 10 months imprisonment and a fine of Rp. 10,000,000.00.
Decision No. 190 K/PID SUS/2007 Supreme Court of Indonesia (2007)
The defendant offered the victim a job as a nanny in her house but instead took her to a café and forced her to work as a sex worker. The defendant threatened to deprive the victim of food if she refused to work and kept 50% of the victim’s earnings along with a portion to pay for boarding and lodging. Defendant was charged with economic and sexual exploitation of a child for purposes of benefiting oneself. The High Court of Jambi found the defendant guilty and sentenced the defendant to four years imprisonment and a fine of Rp. 500,000. On appeal, the Supreme Court affirmed the decision of the High Court in part, holding that the High Court used an outdated sentencing law and reduced the sentence to three years imprisonment and a fine of Rp. 500,000.
Decision No. 1028 k/PID SUS/2009 Supreme Court of Indonesia (2009)
The defendant paid his friend to bring the victim, a 14-year-old child, to defendant’s café under the pretext of attending a birthday party. After defendant’s friend abandoned the victim at the café, the defendant told the victim to work as a server but also forced her to have sex with the male clients and kept all payments received for the victim’s services. Because the defendant used fraud to bring the victim to the café and exploited the victim by forcing her to act as a sex worker for profit, the Court of First Instance found the defendant guilty of human trafficking under section 2(1) of Law No. 21 of 2007 and sentenced the defendant to 10 years imprisonment with a fine of Rp. 120,000,000. The High Court upheld the lower court’s decision but amended the defendant’s sentence to seven years imprisonment. On appeal, the defendant argued that the High Court’s sentence of seven years was an error since the court did not consider that the victim had stayed with the defendant’s friend before coming to the café and therefore the health and condition of the victim may have worsened before coming to the defendant. The Supreme Court upheld the decision of the High Court and did not rule on the sentencing since it was a “judex facti matter (question of fact of the case)”.