Sexual Violence Crime Bill passed into law. What's next?
Written by Olivia Nabila | Read in Indonesian
12 April 2022 is the day the Sexual Violence Crime Bill (RUU TPKS) is passed into law (UU TPKS) by the House of Representatives of the Republic of Indonesia (DPR RI). The TPKS Law was ratified in the 19th Plenary Meeting of the DPR RI Session IV-Session Year 2021-2022.
10 years have passed and a lot has happened – starting from the buzz about the inclusion of the TPKS Bill in the list of the National Legislation Program (Prolegnas) of the House in 2016 to its exclusion from the same program in 2020 due to challenges in its deliberation.
The bill’s original name, the Elimination of Sexual Violence Bill (RUU PKS) was changed to the TPKS Bill in 2021. When ratified, 85 articles were taken out.
The ratification of the law is the first step, and we need to continue monitoring its implementation.
The initial idea for the TPKS Bill was started in 2010, which is reflected in the Annual Reports of the National Commission on Violence against Women (Komnas Perempuan) throughout 2000-2010 which recorded 15 types of sexual violence. The types of sexual voilence continued to be expanded, from 10 types to 11 types, and, eventually, 14 types.
This idea was later developed and compiled into the TPKS Bill in 2014 with the aim of providing proper protection and recovery for victims of sexual violence, including rehabilitating the perpetrators. Below are the interesting points in the law.
Breakthrough in TPKS Law
The TPKS Law creates the following breakthroughs:
In addition to defining criminal acts of sexual violence (TPKS) in this law, there are also other criminal acts that are classified as TPKS as regulated in other laws.
Comprehensive legal arrangements, starting from investigation to prosecution and trial that uphold the principle of non-intimidation. The Law also stipulates that investigators, public prosecutors and judges in examining witnesses/victims/suspects/defendants are not allowed to victimise their way of life and morality, including sexual experience with questions that are tricky or traumatising for victims or questions that has not relation to TPKS.
Victims' rights are the breakthrough that receives the most attention in the law. The rights of victims include victims' rights to treatment, protection and recovery since the occurrence of sexual violence. In addition to the victims’ right to recovery, the law also brings the concept of restitution as a form of concern about the suffering of the victims’ which is given in the form of material compensation.
Victims can be accompanied by a companion who has competence and has been addressed in the law. The companion is also entitled to legal protection.
The law explicitly stipulates that TPKS cases cannot be solved outside the court, except for child perpetrators.
Rehabilitation for perpetrators is given in the form of medical and social rehabilitation.
Scope of TPKS
The TPKS Law describes TPKS as all acts that meet the elements of a criminal act as regulated in the Law. The TPKS Law also begins to distinguish physical and non-physical sexual violence. There are 9 types of TPKS, namely:
Physical harassment
Non-physical harassment
Forced contraception
Forced sterilisation
Forced marriage
Sexual torture
Sexual exploitation
Sexual slavery
Electronic-based sexual violence
The TPKS Law also acknowledges other forms of TPKS, namely:
Rape
Obscene acts
Sexual intercourse with children
Fornication and/or exploitation of children
The act of decency violation that is against the will of the victim
Pornography involving children/pornography that explicitly contains violence and sexual exploitation, and forced prostitution
Human trafficking for sexual exploitation
Domestic sexual violence
Money laundering crime which basis is TPKS
Other TPKS mentioned in statutory provisions
Alat bukti dalam TPKS
Evidence recognised in the law include:
Evidence regulated in the Criminal Procedure Law (witness testimony, expert testimony, letters, clues and testimony of the defendant).
Other evidence in the form of information and electronic documents.
Evidence used to commit TPKS, TPKS results, or objects/goods (tangible things) related to TPKS.
In addition, documents in the form of psychologist/psychiatrist notes, medical records, forensic examination results and bank accounts can be used as evidence.
Citing HukumOnline, electronic information is data in various forms, while electronic documents are the containers or "wrappers". For example, music in the form of mp3. All information in the music is electronic information, while mp3 is the electronic document.
In order for an electronic information and document to be valid, it is necessary to fulfil formal requirements in the form of required non-documents in written form and obtained in a legal way (Article 5 paragraph (4) of the ITE Law). The material requirements are authentic, intact and available. Therefore, e-mail, chat screenshots and other evidence can be used.
Restitution for victims
Restitution for the victim is given within a maximum of 30 days after the copy of the verdict is received. Restitution can be given in the form of:
Compensation for loss of wealth/income
Compensation for suffering
Reimbursement of medical/psychological treatment
Compensation for other things suffered by the victim
Victims’ rights
Right to treatment
Some of the interesting points of this right are the right to remove content against sexual violence on social media, the right to psychological services and the right to medical treatment.
Right to protection
Providing protection in the form of (but not limited to) identity confidentiality, protection from the attitude and behaviour of law enforcers who demean victims and protection from threats of violence by perpetrators. This right also provides temporary protection for the victim, 1x24 hours after the report is made, which can take various forms, one of which is keeping the victim away from the perpetrator.
Right to recovery
Providing complex protection from before and during the trial process to post-trial, through material support, psychological strengthening, or religious support.
Formulation of articles that need to be strengthened in TPKS Law
Although the TPKS Law is a stepping stone in handling sexual violence in Indonesia, there are several articles that still need to be strengthened.
Researcher from the Institute for Criminal Justice Reform (ICJR) Maidina Rahmawati explained that there are several articles that still need to be strengthened, including:
The formulation of the rape article through the RKUHP
Although the formulation of rape is included in the TPKS Law, its qualifications are included in other TPKS that need to be strengthened through the Criminal Code Bill (RKUHP). This must be done with a guarantee that the formulation of rape in the RKHUP overcomes the problem of the formulation of rape in the Criminal Code, i.e. gender neutral, the element of coercion reaching out to power relations/psychic violence, not only penile-vaginal penetration and can occur not only outside the marriage.
Forced abortion as a form of sexual violence
Forced abortion is regulated in the Criminal Code (KUHP) and the RKUHP (Article 469 paragraph (2)). Therefore, in the RKUHP, it is necessary to emphasise that forced abortion is a form of sexual violence as mandated in Article 2 letter j of the TPKS Law.
Synchronisation of revisions to the ITE Law
With the classification of electronic-based sexual violence as a form of TPKS in the TPKS Law, a synchronisation in the revision to the ITE Law is needed. Article 27 paragraph (1) of the ITE Law which is focused on the dissemination of personal content as pornographic content and disregards the consent of the parties involved must be abolished. The dissemination of private content must be done with consent, if one of the parties does not agree then they are a victim.
Guaranteed implementation of service to all victims
The TPKS Law states that victims are people who experience physical suffering, mental suffering, economic losses, and/or social losses due to TPKS. Therefore, services must be expanded because the victims are not only women and children, but also men and gender minority groups or other groups without discrimination.
Guarantee of victims' rights in RKHUP
Because victims' rights to treatment, protection and recovery extend to the stage of restitution, compensation and victim aid funds, the RKUHP must be able to accommodate their procedural arrangement.