©Arjun/Bal
In 2014, the National Commission on the Elimination of Violence against Women (Komnas Perempuan) and the Service Provider Forum (Forum Pengada Layanan) took the initiative to formulate an Academic Paper on the Sexual Violence Eradication Bill (RUU PKS). The background of the formulation of RUU PKS was the increase of sexual violence. Based on the 2018 Komnas Perempuan Annual Notes (CATAHU), the number of reported sexual violence cases in 2017 increased by 74% from 2016. Like the iceberg phenomenon, this report’s numbers and percentages do not show the cases wholly. With RUU PKS, victims of sexual violence can get protection from the state, including recovery from the violence they have experienced. This is the fulfillment of state obligations and guarantees that society is free from all forms of sexual violence.
The formulation of the Academic Paper on the RUU PKS involved several academics, activists, and criminal law experts. One of them is Sri Wiyanti Eddyono S.H., LL.M.(HR), Ph.D., who is a lecturer at the Faculty of Law (FH) UGM. On November 26, 2018, at the Faculty of Law UGM Lecturer Room, BALAIRUNG had the opportunity to chat with this Criminal Law Department lecturer. Iyik, as she is familiarly called, gave an explanation regarding the urgency of RUU PKS formulation. Also, she also gave her views on law enforcement that still does not side with victims in resolving sexual violence cases.
What does RUU PKS mean?
As the name implies, RUU PKS is an Eradication of Sexual Violence Bill. This bill was drafted by a group of civil society who took the initiative with Forum Pengada Layanan. The forum consists of 128 organizations that have been working on sexual harassment cases. These organizations are Rifka Annisa, several legal aid agencies active in Jakarta, and others who work together with Komnas Perempuan.
This bill was designed because of the rampant cases of sexual violence. Many cases are reported to service agencies but are not legally processed due to several factors. One of the factors is the limitations of the Criminal Code (KUHP) and the Criminal Procedure Code (KUHAP) in regulating sexual violence. Indeed, it regulates rape, sexual immorality, forced abortion, and child trafficking. However, the definition of each rule is very limited.
Why is RUU PKS important?
Firstly, the RUU PKS talks about the prevention of sexual violence cases. Cases of sexual violence continue to be difficult to handle and handling is a waste of time and energy. What should be most important is to stop the violence. Prevention covers various sectors, and education is the main one.
Secondly, the RUU PKS provides a perspective for victim protection because current criminal law does not have a victim perspective. What is always questioned in criminal law is the suspect’s rights, not the victim’s. So, in the RUU PKS, the perspective of handling and restoring victims is the main one. Thirdly, the recovery issue is not limited to the time the sexual violence case is brought to court and decided. Recovery should have been done since the case happened.
Fourthly, related to making a more humane punishment. Every perpetrator of sexual violence does not always have to get a prison sentence because it is a very classic punishment and leads to more revenge. The punishments given should be educational, humane, and can make perpetrators of sexual violence more cognizant. This includes for example rehabilitation and social work. Such punishment is very likely to be applied with this bill. Finally, the RUU PKS emphasizes that efforts to tackle sexual violence are a shared responsibility, especially of the state.
How is the process of drafting the RUU PKS?
The RUU PKS begins with the DPD RI and then it is submitted to the DPR. Then, the DPR saw the bill as an initiative. The bill is then synchronized by the DPR Legislative Body and then submitted to Commission VIII DPR. Now, at this stage, the bill starts to become problematic because this commission regulates norms so that it also affects the handling of cases of sexual violence.
Simultaneously, the government made a counterpart based on the Inventory of Problems List (Daftar Inventarisasi Masalah) which actually eliminated important articles such as prevention and remedy of sexual violence. In fact, in my opinion, the element of prevention should be strengthened because cases of violence are also strong. Currently, what exists is limited to handling cases that keep happening. These forms do not change the perspective, mindset, and make a system in society.
Initially, there were seven areas that we considered important to be regulated in the RUU PKS: namely education, infrastructure, public services, and spatial planning, governance and institutional governance, economy, social, and culture. That was all thrown away by the government. From there, DPR held a hearing which then directed the issue to the issue of morality. Maybe it’s because Commission VIII covers religion and social issues. As a result of being directed at moral issues, there are allegations that the bill also intends to legalize LGBT and adultery, when in fact from the outset it is intended to view sexual violence as a criminal issue. Please, do read the academic manuscript. It is accessible for everyone.
In your opinion, what is the cause of the government’s slow response to RUU PKS?
The government does not deem the bill as important. The transactional political perspective in the policy formulation process is still very strong. The process of formulating laws related to gender issues is never separated from the political process. There are always counter-actors or parties who disagree with the idea. It is always a possibility and happens in every policymaking. In Indonesia, the government will only move if there is pressure from the masses. However, strong insistence often clashes with government interests. Therefore, the movement that carries out policies must be strong, organized, and always urgent.
Besides that occurrence, why do so many people reject RUU PKS?
The RUU PKS, for me, might threaten the status quo and the position of certain parties. In fact, sexual violence is mostly committed by men and it is not uncommon for them to be in high positions. They do not want to expose sexual violence cases because their friends could be the perpetrators of the violence. In addition, there are also those who think that sexual violence is a private matter so that it does not need to be reported. Some fear that the bill might threaten themselves, and members of the DPR may have such thoughts. So the causes for the rejection may be very personal. However, their position as DPR members gave them influence in the formulation of the RUU PKS.
So, it is uncertain that many will probably agree with RUU PKS, mainly because they do not know the true meaning and purpose of this bill. They are still wary and full of suspicion. Because of this, RUU PKS should be bridged by increasing dialogue.
One of the things regulated in the PKS Bill is the term rape because previously the meaning of rape was limited to copulation. In your opinion, what should rape be defined as?
In RUU PKS, there is actually a definition of rape. I am currently also referring to it. In my opinion, the most ideal definition of rape is much broader, not just limited to sexual intercourse. The definition also includes inserting objects into the vagina, as well as other openings. In addition, rape was also not limited to men to women. It can be a woman to woman, man to man, or to anyone with coercion involved.
You had a chance to fill out an Opinion rubric in Harian Kompas (21-11) about sexual violence on campus. In it, you mentioned the term sexual assault as an attack on the honor of decency and an attack on the body’s integrity. Can you explain the difference?
If the attack is against the body’s integrity, the thing that is judged is the perpetrator’s actions. Whereas indecency, people can get caught up in the assumption of immorality or immorality between two people who are always assumed to be consensual. Decency is also based on appropriate and inappropriateness. The question is, according to whom? It is surely based on norms and values. Meanwhile, norms and values are relative. Moreover, in a patriarchal society, norms and values are highly subjective. Appropriate and inappropriateness are seen not only from the action but also from those who act upon it.
What are the implications of the rape that depends on decency?
The implication is that sexual violence cases are not a legal or criminal issue, but a moral issue. That way, the questions that will arise are related to what clothes they wore, how the two parties behave, why women go out at night, and so on.
So, what is the mechanism for the trial of victims of sexual violence that has been carried out in Indonesia?
In the context of sexual violence, the process starts from the KUHP to the KUHAP. When in KUHAP, the reference is criminal law in court. This means it has to go through processes of case reporting, the police, and investigators. In Indonesia, if it is not a petitioned offense and only in the form of a minor crime with a sentence of less than a year, then the crime can be resolved by mediation. If not, there will only be one process, namely through the police. The problem is that our police have very high gender stereotypes so that the handling of cases of sexual violence has strong moral nuances. Surely the victim will be asked, “How did that happen?” “Did you enjoy it?”
Does that mean you haven’t considered the sexual violence court in Indonesia appropriate?
All mechanisms, for me, are not on the side of the victim. From the early start, it was very biased. Starting from proving intent, handling cases, to interrogating cases. Especially when the case was handled by the police and the victim and perpetrator were brought together. It’s messed up. Fortunately, the Women and Children Service Unit (PPA) and the Integrated Service Center for the Empowerment of Women and Children (P2TP2A) have been formed in the police. However, in my opinion, it is just a mechanism that helps the victim to prepare a little for when she enters the “tiger den.” This means that victims are just prepared to face rigid and unpredictable trials.
If the victim gets a good trial, they are very lucky. Each court depends very much on who is tried so it is very subjective. With such a situation, the legal process becomes riskier for the victim. It is conflicted and resulted in the victim doing something sacrificial. On the one hand, we encourage victims to report their cases. However, on the other hand, the available legal system does not even support the victims when the victims speak up. In the end, the victim was instead revictimized.
In your opinion piece in Harian Kompas, you also mentioned that law enforcers in Indonesia tend to be gender-biased and very patriarchal. What does this mean?
The control of law enforcers in Indonesia is dominated by men’s experiences, ways of thinking, and of course sexual fantasies. Including the lawmakers who joined Commission VIII, they were also influenced by male sexual fantasies so that they could be considered very sexist. The emergence of statements such as “cat and salted fish” is an example of reflections on the nature of thinking that is very old and rooted.
The interests of the legal apparatus also vary, such as the institution’s interests, the people, and so forth. For example, crimes that are handled and seen as economically detrimental will receive a slow response. That is the interest of legal institutions. The capacity of the apparatus also matters. For example, they only know a few laws that they always used as a reference.
However, for cases of sexual violence, it is the patriarchal culture that is very dominant that has the most influence on the institutions so that the institutional culture becomes very masculine. Also, the culture of the judges was very militaristic. What the coordinate said would definitely be obeyed by the subordinates. Unfortunately, that culture reaches the courts.
Apart from gender bias and patriarchal values, are there other factors that influence law enforcement officials in the court process that are burdensome to the victims?
Law enforcement officials always assume that sexual crimes are due to stimulation on the women’s part. Women are considered to be triggers in the case, thus directing the case to always be deemed consensual. Many officials are also very sexist. And sexism is gender bias at a much deeper level. Women are considered seductive, sexually arousing, and should be passive. If she was active, like going out at night, it would immediately be considered bad. Often there are also articles of sharia law that control women’s behavior. For example, in Banten, there was a ban on going outside after 9 PM for women.
In addition, women are also considered weak and emotional, thus they cannot be trusted. Women’s views and experiences are invalid because in a patriarchal society, women are not considered the objects of storytellers. Again, sexual violence is only seen from their behavior, not from what they experience.
There is a strong general perception in our society that when a woman is silent, she’s agreeing. This false interpretation is a masculine interpretation because it is a man who interprets whether she agrees or not. In Indonesia, a silent woman can be interpreted as a condition of being stuck in fear, confusion, passivity, and then concluding in agreeing.
“Why are you silent?” “Why don’t you scream?” “Why not fight back?” Such questions arise from the realm of male consciousness. This control over interpretation is the problem. When law enforcement officials also interpret from this consciousness, it will directly corner women and systematize it to a legal system, for example, the KUHP.
Is this what makes many victims reluctant to bring their cases to court?
Yes, they don’t want to bring their cases to the realm of law because there are still stereotypes. The saying is, the victim will instead become a prisoner. They are exposed to systemic and deep intimidation.
In the science of law itself, there is the study of victims, namely victimology. How does victimology play a role in the trial of cases of sexual violence?
Initially, victimology was a science that wanted to see if there was a relationship between the perpetrator and the victim’s crime. He tries to see the context on whether there is a victim’s contribution to the perpetrator’s behavior. There are eight variants of victimology, but referring to Lorraine Wolhuter et al., I simplify it into three, namely positivist, radical, and critical victimology.
Positivist victimology sees the victim’s contribution as providing opportunities in crime. Furthermore, in this development, there are radical victimology and critical victimology. Radical victimology begins to uncover if the victim is seen through his contribution, it will become a re-victimization. Victims are no longer seen from their contribution, but by the impact they receive. Then, critical victimology follows up on handling cases of sexual violence that are limited to victim services and the rights of victims. The rights of victims in Indonesia’s justice system can be seen in Law Number 31 of 2014 (UU No. 31 tahun 2014)
In your opinion piece in Harian Kompas, most law enforcers in Indonesia still use positivist victimology. Why?
Perhaps because they do not know and do not realize that they are using positivist victimology. This can be seen from the reference books used because almost all victimology writers are still closer to a positivist approach. Even criminal law people don’t necessarily know. Also, victimology is a relatively recently developed science. In fact, in Indonesia, victimology was only discussed in the 1990s. Now, people have started to realize that criminal law is unequal if it doesn’t talk about the victims’ interests. I do think the main problem lies in the laziness of people when it comes to looking for new references.
Then, what kind of victimology is needed on the basis of Indonesian law?
When we refer to the rights of victims, the appropriate victimology is critical victimology and radical victimology. The discussion about the contribution of victims to sexual violence is no longer relevant. Whatever happens, victims of sexual violence must be protected. Unfortunately, critical and radical victimology is not popular in Indonesia because the criminal law system itself still has a deeply rooted doctrine of causality.
So, in your opinion, what are the legal conditions at UGM related to sexual violence?
Too slow. There are no procedures, no mechanisms. Nothing is clear.
If this bill is passed later, what will its implementation look like on campus?
Campus can’t wait! The campus must have the initiative first and must be able to make a policy of zero tolerance towards sexual violence. The campus must arrange a mechanism so that violence does not occur. If we wait for the RUU PKS to be passed, it will still be for a long time. It is not certain that the bill will be finished two years from now because the debate is still very long. Even if it is passed, which version will be used? Government version or DPR version?
So, rules related to the handling of sexual violence on campus, UGM in particular, should not be linked to the presence or absence of a bill. UGM must improve. There must be an institutional policy regarding the prevention, handling, and recovery of cases of sexual violence. Make clear rules, then socialize them. There must be three parties to consider: the victim, the perpetrator, and the public because their rights must still be fulfilled.
Writer: Harits Arrazie
Editor: Oktaria Asmarani
Translator: Alysia Noorma Dani