1. SEXUAL HARASSMENT AS GENDER VIOLENCE:
ANTICIPATION OF CRIMINAL LAW
This study aims to examine the regulation of acts as a criminal act
of sexual harassment in criminal law, and to describe the enforcement of
criminal law in the criminal justice mechanism for dealing with sexual
harassment behavior. By using the juridical-normative research method,
as well as complemented by an in-depth approach to criminal law policy.
It was concluded that the criminal law regulation (KUHP) regarding
sexual harassment is included as a crime of decency in general. Because
the age of the Criminal Code causes a philosophical discrepancy and the
values it contains with current developments. Enforcement of criminal law
against sexual harassment in the process of the criminal justice system
involves the police, prosecutors and judges. In its implementation, it still
faces technical-juridical problems, especially the problem of proof, besides
that what underlies the thinking of law enforcement officials is still
normative/dogmatic juridical (juridical method in the narrow sense).
Keywords : Sexual Harassment , Criminal Policy,
1. Background Problem
In this era, there have been efforts to equalize the position of men
and women. The role of the individual in society has changed as a result of
the development of human social life. Women no longer only play a role
in the domestic sphere but penetrate the public sphere. However, there is
potential for male dominance over women. Included in meeting the needs
of sex. The facts show that coercion still occurs , from the lightest to the
heaviest level of sexual acts such as rape which is an act of sexual
Sexual harassment against women, especially rape, is no longer only
seen as a problem between individuals, but rather as a social problem
2. related to human rights issues, especially those relating to protection from
all forms of torture, violence, cruelty and disregard for human dignity
(Nursyahbani Katjasungana, 1995: 18). This protection can be sought by
using criminal law, given the existence of general and special functions of
criminal law (Sudarto, 1990: 12). The general function of criminal law is
to organize arrangements to create public order and security. Meanwhile,
its special function is to protect legal interests against actions that are
harmful with criminal sanctions which are expected to generate preventive
power not to commit crimes (sexual harassment).
One of the fundamental rights recognized by the international
community is the right of everyone to enjoy the highest standard of health,
including reproductive health. The ICPD in Cairo 1994 recognized that
meeting the reproductive health needs of women and men is a key
requirement in developing human resources and social development.
Reproductive health does not only mean freedom from illness and disease,
but also includes the ability for everyone to have and enjoy safe sexual
relations, to have children, to have safe pregnancies and deliveries, to
regulate fertility without compromising their own health, and to carry out
pregnancies in a safe manner. the result of giving birth to healthy babies
and safe mothers (Abdullah Cholil, 1996: 6). Providing legal (criminal)
protection for women from sexual harassment behavior is important,
because this behavior attacks fundamental rights related to reproductive
health and can cause disturbances in the sense of security in sexual
The juridical handling of cases of sexual harassment has encountered
obstacles regarding the formulation of criminal acts/delicts in articles that
are not yet clear, evidence in the procedural law, and the nature of some of
them as complaint offenses. The main reason is related to the regulation of
the Criminal Code (KUHP), which is a legal product inherited from the
Dutch Colonial Government, so that it is no longer relevant to changes and
developments in society, especially when connected with efforts to
empower women. Besides that, victimologically, our criminal law has not
adequately accommodated the protection of victims, so that in cases of
sexual harassment the victims tend to be women.
3. In connection with this description, the focus of this research
(1) What is the regulation of criminal law regarding sexual harassment
behavior as a crime prevention policy?
(2) How is the enforcement of criminal law regarding sexual harassment
2. Research Objectives and Benefits
This study aims to: 1) Know the arrangements regarding acts that
are criminal acts of sexual harassment and the need to be regulated in
criminal law, the types/forms, and the appropriate sanctions imposed on
the perpetrator, 2) Describe the enforcement of criminal law regarding
sexual harassment based on regulations legislation.
3. Literature review
From the various definitions of sexual harassment, at least it can be
noted that there are elements of: 1) an act committed in relation to sex, 2)
generally the perpetrator is male and the victim is female, 3) the form of
the act: physical or non-physical, 4) not there is volunteerism.
In every sexual harassment behavior there is always a meaning that
is considered negative (because it invites reactions and sanctions), that sex
can be interpreted as a means of satisfying lust and the opposite sex can be
interpreted as an instrumental object to satisfy sexual desire. Seeing the
biological tendency, the man behaves as an active-offensive sex actor (in
his reproductive function to seek and fertilize through an activity that is
relatively short-lived) and the woman as a passive-defensive sex actor (in
her reproductive function to wait, and then grow and develop new life in
the womb and in her lap through a long-term activity and process), so in
cases of sexual harassment it may be assumed that it is the man who is more
likely to be the perpetrator of the crime while it is the woman who is more
likely to be positioned as the victim (Soetandyo Wignjosoebroto, 1995:
4. Sexual harassment is included as an act of violence against women
as something that needs to be sued because it is a manifestation of injustice
in relation to gender roles and differences, in addition to other
manifestations such as marginalization, sub-ordination,
negative/stereotyping labeling of women (Mansour Fakih, 1996: 13- 15).
Sexual harassment is not merely an individual problem, but furthermore is
a crime problem that is rooted in cultural, social, economic and political
values in that society (Adrina, 1995: 38). This act of violence is termed
gender violence against women or gender-related violence , in this case
the United Nations categorized it as Gender-based abuse.
(dalam Abdullah Cholil, 1996: 1) adalah …any act of gender-based
violence that results, in physical, sexual, or pyschological harm or
suffering to women including threats of such acts, coercion, or arbitrary
deprivation of liberty, whether occuring in public or private life.
In the view of the United Nations, it is also stated that acts of
violence against women must be interpreted as covering physical, sexual
or psychological violence that occurs: in the family including beatings,
sexual abuse of girls in the household, rape in marriage, harmful traditional
practices . , sexual exploitation; in society including rape, intimidation in
the workplace, educational settings and other places, trafficking in women,
coercion into prostitution committed or permitted by the state wherever it
occurs. Forms of gender violence against women according to Mansour
Fakih (1997:8), include sexual harassment and other forms, such as
personal violence, domestic violence, public/state violence.
UU no. 23 of 2004 concerning the Elimination of Domestic Violence
(UU PKDRT) defines domestic violence as any act against a person,
especially women, which results in physical, sexual, psychological misery
or suffering, and/or neglect of the household including threats to commit
suicide. acts, coercion, or unlawful deprivation of liberty within the
household sphere (Article 1 point 1). This definition is broader than sexual
harassment, only one aspect of sexual violence (one way) is domestic
violence. As stipulated in Article 5 of the PKDRT Law, it is prohibited to
commit domestic violence against people within the scope of the household
by means of: a) physical violence, b) psychological violence, c) sexual
violence, or d) household neglect. Meanwhile, what is meant by sexual
5. violence (Article 8) includes: a) forced sexual intercourse perpetrated
against a person who lives in the household, b) forced sexual intercourse
against one person within the scope of the household with another person
for commercial purposes and/or specific purpose.
Criminal law sanctions have the characteristics of strict sanctions,
suffering in the form of misery, therefore criminal law is a system of
negative sanctions. Sanctions aim to prevent people from committing
criminal acts (in this case sexual harassment) as prevention both general in
nature (aimed at all members of society so they don't violate order), and
specifically (for a perpetrator not to repeat a crime again). Criminal law
according to Sudarto (1981: 158) contains two things, namely: the
conditions to enable the imposition of a sentence and provisions regarding
punishment. If the first is further specified, it can be said that criminal law
has three main issues ; 1) prohibited acts, 2) people, and 3) criminal.
This means functioning criminal law to deal with crime (sexual
harassment) in the context of anticipating criminal law, as a criminal law
policy, namely a science as well as an art which ultimately has a practical
objective to enable positive law regulations to be better formulated and to
provide guidelines to legislators. -law, and to courts that apply laws and to
administrators or executors of court decisions.
Criminal law policy is a process consisting of three stages, namely:
the formulation or legislative stage, the application or judicial stage, and
the implementation or executive/administrative stage. At the formulation
stage, it is necessary to pay attention to the existence of a central problem
concerning the determination of: 1) what actions should be made a crime,
and 2) what sanctions should be used or imposed on the violator.
If the provisions of the Criminal Code are used as the basis for
regulation regarding sexual harassment, there will be juridical problems
regarding systematics, legal construction, and problems of proof. Therefore
reform efforts in the framework of criminal law renewal are needed. Erlyn
Indarti's assessment of this matter is that, in general, criminal law in
Indonesia, apart from being discriminatory, also participates in
standardizing the values that apply in society with regard to the dignity and
6. worth of women. In the eyes of Indonesian criminal law, especially rape
cases, the existence of a woman is reduced to the meaning of a vagina only,
regulated only if her vagina is disturbed (Erlyn Indarti, 1993: 6). The
formulation of the rape article shows the value/moral standard used by
society in treating women, especially wives. A wife in sexual relations does
not have any rights against her husband (Nursyahbani Katjasurkana, 1995:
18). In this regard, not only does Article 285 of the Criminal Code need to
be replaced, but also the socio-cultural values and myths that suggest the
dominance of men over women or their fellow men need to be replaced
(Susanto, 1992: 2).
The criminal law that applies in Indonesia is based on general
provisions and principles in the Criminal Code which historically were a
legacy of the Dutch Colonial Government. Criminal Code, which originally
was still in Dutch, namely Wetboek van Strafrecht (WvS) based on
Staatblad 1915 No. 732 came into effect on January 1, 1918. After
Indonesia's independence, the WvS remained in effect based on the
Transitional Rules of the 1945 Constitution. Subsequent developments, the
term WvS was translated into the Criminal Code based on Law no. 1 of
1946 in conjunction with Law no. 73 of 1958, and enforced throughout the
territory of the Republic of Indonesia with several changes.
Barda Nawawi and Koesparmono Irsan in a seminar on sexual
harassment pointed to the arrangement of criminal law regarding decency
offenses of the Criminal Code as specified in Chapter XIV Book II
concerning Crimes of Decency, and Chapter VI Book III concerning
Violations of Decency (in Marzuki, et.al, 1995: 87-88 , 120). This delict
delict is actually very broad because it does not only involve sexuality, but
also includes abortion (Article 299), drunkenness (Articles 300, 536, 539),
begging (Article 301), animal abuse (Articles 302, 540, 541, 544). ),
gambling (Article 545), and amulets/magic objects (Articles 546, 547).
Criminal law needs to be implemented and enforced by involving the
police, prosecutors and judges who are included in the criminal justice
system (SPP). SPP's understanding is related to the legal system which
includes substantial, structural, and cultural aspects. Substantial aspects
relate to various positive criminal law regulations that apply, structural
7. aspects refer to law enforcement officials and their institutions concerned
with SPP, as well as various views, thoughts and underlying philosophies
as cultural aspects. Regarding this matter, synchronization is needed in its
work, because SPP is an open system , with respect to the influence of the
community environment and areas of human life to achieve its goals (short
term: resocialization), medium term: crime prevention, and long term:
social welfare (Muladi, 1992: 3).
SPP as law enforcement seeks ideas or concepts related to crime
prevention and overcoming, this is contained in both formal and material
criminal regulations that are embodied in the criminal procedural law
process. According to Satjipto Rahardjo, this is because law enforcement
is essentially an enforcement of abstract ideas and concepts. Formulated in
another way law enforcement is an attempt to realize these ideas in reality.
The process of embodiment of these ideas is essentially law enforcement.
If we have talked about the realization of abstract ideas into reality, then in
fact we have entered the field of management (Satjipto Rahardjo, undated:
4. Materials and Methods
The research conducted is descriptive research. Within the
framework of legal research, research tends to be normative legal research
. In this case, the main law is conceptualized as a positive legal norm .
Therefore, the main data source is used as a secondary data source, but for
in-depth study it is also supported by primary data sources. Anticipation of
criminal law is related to criminal law policy which must be based on
factual legal views, so that it uses a policy-oriented approach (Barda
Nawawi Arief, 1996: 8) as a normative juridical approach supported by an
empirical juridical approach. Data collection was carried out through
literature studies and interviews. The sampling technique (snippet) uses
non-probability sampling in the form of purposive sampling . In this case
it was determined: community leaders in the Surakarta Municipality area,
to obtain their views and responses regarding sexual harassment behavior.
In order to obtain data regarding legal regulations and their enforcement,
informants were determined: law enforcement officers (police,
8. prosecutors, judges), as well as members of the Drafting Team for the New
Criminal Code. The collected data is presented and analyzed using
qualitative methods with a juridical-normative analytical descriptive
approach. For in-depth analysis, the description is complemented by the
process of legal inventory, comparison of laws, level of synchronization,
inconcretory legal findings, as well as the formulation of criminal law
policies relating to criminal acts of sexual harassment.
5. Results and Discussion
Characteristics of sexual harassment behavior is stated as a criminal
act, thus containing prohibited actions and there is a threat of criminal
sanctions for the perpetrators. This is generally justified by the views of
society, because the behavior of sexual harassment is an imposition of will
that is demeaning, insulting, belittling (Javanese) women. Sexual
harassment is an evil behavior, because it causes very great suffering for
women who become victims (of rape). For this reason, it is necessary to
provide severe criminal sanctions, with the aim of preventing the
development of sexual harassment behavior by men against women, and
provide appropriate recompense for the actions they have committed so
that they are deterred/don't do it again (kapok - Javanese ) .
Sexual harassment behavior as a disgraceful act is measured by a
violation of norms or principles that are rooted in socio-cultural values as
a system of code of conduct and guidelines for the actions of citizens, which
can involve religious, moral and legal norms. And according to Soerjono
Soekanto (1983: 41), the rule of law is collected in a legal system which is
essentially a concretization of socio-cultural values that are realized and
formed from the culture of a society or the special culture of a part of
In Indonesia, Pancasila is a reflection of social and cultural values
that are reflected in moral and legal rules. Religious aspects are also an
important element in legal life. The substance of law is influenced by the
measure of morality that develops in a society that is imbued with religion
or religion as an element. Similarly, to determine the behavior of sexual
9. harassment as a reprehensible act is determined by a measure based on the
interwoven values of morality, religion, and law.
According to religious views, sexual harassment is reprehensible
because it is forbidden. The fulfillment of sexual needs is only allowed in
a valid marriage bond by a husband and wife to form a happy and
permanent household based on the Oneness of God.
Islam views the fulfillment of sexual desires as a biological,
mechanistic force and a contribution to the achievement of metaphysical
divine achievements. Therefore, the fulfillment of sexual desires from the
very beginning to the product is an integral part of worship (Abdul Munir
Mulkan, 1995: 6). Based on the Christian viewpoint, the understanding of
sex that links feelings of shame and pleasure of the body will encourage a
person to control his sexual behavior. In contrast to animals, humans fulfill
their sexual needs based on love in an atmosphere of brotherhood,
friendship, peace, and can be treated as a gift from God and returned to
Him (A. Nunuk Prasetyo Murniati, 1995: 1617). Hinduism provides
guidance for applying the sexual instinct in real life without violating the
principle of ahimsa ( non-injury /non-violence), by denouncing sexual
harassment as a prohibition, as the act is called: para virgins , namely
having sex with other people's wives, anyolong smara , namely having
intercourse sex with a woman without being wanted by the woman, smara
dudu : having sex voluntarily between parties who are not in a legal
marriage bond (Agus Indra Udayana, 1995: 23-26).
In relation to the law regarding sexual harassment and the work of
law enforcement, there are several things that need to be considered,
namely: 1) Reviewing and updating existing laws and regulations, which
are discriminatory against women, which reduce the freedom of women
victims to report, and which hinder the execution of sentences for
perpetrators of violence (Abdullah Cholil, 1996: 9), 2) Efforts to stop
gender violence (including sexual harassment) need to use a number of
strategies, if the problem lies in the content of legal material, then the right
strategy is advocacy to change the law, accompanied by changing behavior
legal administrators by carrying out campaigns and education for law
enforcers (Mansour Fakih, 1997: 22), 3) To fight crimes of violence against
10. women, not only do new measures and formulations in law are needed, but
also the dissemination of a culture of gender equality , the values of justice,
and human rights (Susanti, 1997: 128), 4) The strategy for overcoming
violence against women includes: increasing the awareness of law
enforcers to act quickly in overcoming it with a global spirit, improving the
criminal justice system, and renewing which is conductive to violence
Sexual harassment behavior is shown in the provisions in the
Criminal Code regarding criminal acts of decency. In fact, according to
Barda Nawawi Arief, the boundaries of decency are quite broad and vary
according to the views and values prevailing in society. What's more,
basically every offense or crime contains a violation of moral values, it is
even said that the law itself is essentially a minimum of moral values,
known as the expression das recht ist das ethische minimum (Barda
Nawawi Arief, 1996 : 291). Criminal acts of decency can be divided into
two types (Wirjono Prodjodikoro, 1986: 110-111):
(1) Those that violate decency ( zeden ), which generally involve good
customs in social relations among members of the public, such as
crimes in Articles 300 to 303, and violations in Articles 536 to 547.
(2) Those that violate decency ( zedelijkheid ) are also related to good
customs, but specifically those that more or less concern a person's sex,
such as: crimes in Articles 281 to 299, and violations in Articles 532
Thus, it can be linked to sexual harassment behavior which are acts
that are prohibited in accordance with the provisions of the Criminal Code
as criminal acts of decency (Articles 281 to 299), and violations of decency
(Articles 532 to 535).
By looking at the provisions of Article 284, it is not a crime (Barda
Nawawi Arief, 1996: 300) the following matters:
(1) Two unmarried people who have intercourse even though:
a.the act is contrary to or disturbing the moral feelings of society,
11. b.the woman wants to have intercourse because of a trick or a promise
to marry but is denied,
c.the result is that the woman is pregnant and the man is not willing
marry her or there are obstacles to marriage according to law,
(2) A man's wife has impregnated a girl (meaning he has committed
adultery), but his wife has not filed a complaint to sue.
(3) Someone lives together with other people as husband and wife outside
of marriage, even though this act is disgraceful and contradicts or
disturbs the feelings of decency/morality in the local community.
Adultery is also known in customary criminal law, in Lombok it is
called bekekaruh . Meanwhile according to Balinese custom (Made
1992: 8) there is an act like that, but it is limited between the parties who
are bound by marriage, exactly the same as the provisions of Article 284,
so it is an act of adultery committed with another person's wife/husband,
called drati krama . In addition there is what is called mamitra ngalang
(savings). In Article 285 it is stated that the crime of rape ( verkrachting )
with violence or threats of violence to force someone to have sex outside
of a legal marriage, is the heaviest sexual harassment that can be qualified
as a crime. Customary law in Lombok has a crime called re-creating dait
nyematek , which is the act of raping a girl/woman and then killing her
afterwards. In the Criminal Code, this case can be compared to Article 285
in conjunction with Article 340.
Article 285 can be equated with Article 289 which determines the
act of attacking the honor of decency regarding obscene acts. Article 289
is broader because what is forced is obscenity, while Article 285 is more
specific about coercion to have intercourse. Coercion to have intercourse
can only be done by a man against a woman and can only be done outside
of marriage so it is not a crime if a husband rapes his wife to have sex.
Meanwhile, coercion for obscenity can be carried out by a woman against
a man, and this act can also be carried out within a marriage so that it is a
crime if a husband forces his wife to be obscene or vice versa.
12. Some forms of sexual harassment are still difficult to find
arrangements for in criminal law based on the Criminal Code, such as:
domestic rape or a husband raping his wife which is called marital rape , a
man breaking his promises to a woman after having sexual intercourse, a
husband secretly remain silent about marrying or taking another wife.
The term Marital rape had developed in society along with efforts
to eliminate acts of violence against women, especially regarding sexual
harassment including wife abuse (acts of violence perpetrated by husbands
against their wives in the family). Related to the nature of society, this case
is difficult to uncover because the issue of sexual relations between
husband and wife is taboo when it is publicly known, and it is difficult for
the law to reach it, so that the wife is not protected if she is raped by her
husband. In the Criminal Code there is no provision prohibiting the rape of
a wife by her husband. In relation to this, Nursyahbani Katjasungkana
argued that the Criminal Code Article only punishes anyone who, by force
or threat of violence, forces them to have intercourse with a woman who is
not his wife, who is threatened with rape. This article clearly only protects
some women, namely women who are not the wife of the perpetrator. In
other words, this article discriminates against other women's groups and
denies rape committed by husbands against their wives (Nursyahbani
Katjasurkana, 1997: 175).
In the UUPKDRT it can be pointed out that there was a crime of
sexual harassment which the scope of the act was directed at members of
the same family in a household. This is specified only in Article 46, Article
47 and Article 48 which relate to sexual violence. Criminal acts in the
PKDRT Law do not only concern
sexual violence, as in Article 44, Article 45, Article 49, and Article
50. The PKDRT Law that regulates crimes related to sexual violence are:
a.Article 46: acts of sexual violence in the form of coercion of sexual
intercourse committed against people who live within the scope of the
13. b.Article 47: acts of sexual violence in the form of forcing sexual relations
with another person within the scope of the household for commercial
purposes and/or specific purposes.
c.Article 48: provisions regarding weighting of criminal acts Article 46
and Article 47, namely if the victim:
- got a wound that gave no hope of healing at all,
- experiencing mental or psychiatric disorders for at least 4 (four) weeks
continuously or 1 (one year) non-consecutive year,
- fall or death of the fetus in the womb, or - result in dysfunction of the
Thus, the PKDRT Law already regulates the crime of rape/sexual
violence in the household which is termed marital rape which is not
recognized in the Criminal Code. When compared with the Criminal Code,
the provisions of several criminal acts in the Criminal Code regarding
sexual harassment (including as criminal acts of decency in the Criminal
Code) are actually the same as the provisions in the PKDRT Law, except
that the scope is not specifically determined in the household. This is as
contained in Article 285 (rape), Articles 286, 287, 288 (having intercourse
outside of marriage with a woman who is unconscious/helpless, not old
enough), Article 289 (obscene acts), Article 292 (coitus with same sex sex),
and Article 296 (prostitution). Actions that are prohibited in these articles
if committed against people who are in the same family/in their own
household can be equated with the provisions of criminal acts in the
PKDRT Law. In addition, the Criminal Code also contains provisions that
designate criminal acts within the scope of the household, such as Article
294, Article 295 (obscene acts with their children, step-children, adopted
children, children under their supervision, or actions that facilitate/cause
the ), and Article 295 paragraph 2 (making prostitution of their children,
step-children, adopted children, etc.).
A man who has had sex with a woman who is both unmarried and
done voluntarily, but previously was persuaded by a promise to marry but
then the man reneged on it, according to most of the respondents this act
14. was a form of sexual harassment against women in the meaning of
belittling and demeaning women. This is not a prohibited act in the
Criminal Code, because it is not adultery (Article 284), and not rape
(Article 285), even if a pregnancy occurs. In contrast to customary law in
the event of pregnancy, in certain communities, traditional leaders may
force them to marry as a cover for shame. In Bali there is a prohibition
called lokika sanggraha , namely the act of consensual sex as a form of
love between a man and a woman, because of a promise the man will marry
the woman, but after becoming pregnant the man reneges on his promise
and breaks off the relationship between them .
The crime related to sexual harassment is considered a crime that is
not serious in terms of disturbing security and order, so that the punishment
is not serious. The threat of serious punishment does not necessarily
completely eradicate the crime, but this can be related to the weight of the
reproach of an act based on the views of society. Likewise if it is connected
with the purpose of punishment, which is general prevention. If the
punishment is light, it will not cause fear not to commit sexual harassment.
If people are not afraid, these actions will continue to grow, so that society
is not protected. Community solidarity that has been manifested to
denounce sexual harassment behavior is no longer maintained, with the
existence of criminal sanctions that are applied not in proportion to the loss
or suffering of the victim as a result of the crime.
In customary law, it is known that there are several customary
reactions to a violation, which aim to pay attention to and alleviate the
suffering of individual victims and the losses that befall the community.
This can be related to the crime related to sexual harassment. The
customary reaction functions as a sanction, in the form of: 1) compensation
for immaterial losses, for example: coercion to marry a girl who has been
slandered, 2) payment of customary money to the victim, 3) salvation for
the cleanliness of society from stains (unseen), 4) covering shame or
Criminal acts related to sexual harassment also contain issues
regarding their nature as complaint offenses or not. It is said to be a
complaint offense ( klachtdelict ), namely an offense whose prosecution or
15. prosecution will be carried out if there is a complaint from the affected
party, and is distinguished between relative complaint offenses and
absolute complaint offenses. Complaint offenses are relatively in nature
similar to offenses in general, but there is a special relationship between
the perpetrator and the affected/victim, while absolute complaint offenses
can only be prosecuted if there is a complaint.
In the Criminal Code, most of the crimes related to sexual
harassment are not referred to as complaint offenses, which include
complaint offenses that can be mentioned, such as: adultery (Article 284),
intercourse and obscene acts with promises or abusing authority against
minors (Article 287, 293), insult (Article 310). Likewise, the provisions in
the PKDRT Law stipulate that criminal acts of sexual violence committed
by husbands against wives or vice versa are criminal offenses (Article 53).
Guidance and renewal of law, including by procuring codification
efforts. These efforts include the reform of criminal law. The intention to
reform the criminal law had existed since 1963, namely the First National
Law Seminar in 1963 which recommended that the draft codification of the
national criminal law be completed immediately. Then a draft of the New
Criminal Code was formed, the first being the 1964 draft, successively
discussed and revised into the 1968 draft, the 1971/1972 draft, the
1982/1983 draft, the 1987/1988 draft, the 1991/1992 draft, and towards the
end of the position of Development Cabinet V ( 1993) The drafting team
submitted the Draft Criminal Code to the government.
In the 2004 Criminal Code Bill there are new things that do not exist
in the current Criminal Code, such as: the crime of adultery does not only
mean that the parties are bound in marriage, rape including domestic rape
/ marital rape (such as the PKDRT Law) and the expansion of the meaning
of intercourse including the way (oral behavior, anal behavior), living with
a man and a woman without marriage ( cohabitation ). In connection with
the articles related to sexual harassment, it is still included in the category
of Moral Crimes (CHAPTER XVI). Some articles that need attention are
16. Article 484 paragraph (1) of the 2004 Criminal Code Bill determines
that what constitutes adultery is:
a.a man who is in a marriage bond has intercourse with a woman who is
not his wife,
b.a woman who is in a marriage bond has intercourse with a man who is
not her husband,
c.a man who is not in a marriage bond has intercourse with a woman, even
though it is known that the woman is in a marriage bond,
d.a woman who is not in a marriage bond has intercourse with a man, even
though it is known that the man is in a marriage bond.
The criminal act of intercourse with children (Article 485). Whereas
Article 486 defines the criminal act of living together as husband and wife
outside of a valid marriage. Article 487 prohibits loitering or loitering on
the street or in public places with the purpose of prostitution. Prohibition
of intercourse with people who are still related by blood is a criminal act
The criminal act of rape is determined in Article 489, which is an act
a.a man who has sexual intercourse with a woman outside of marriage,
against the will of the woman,
b.a man who has sexual intercourse with a woman outside of marriage,
without the woman's consent,
c.men who have intercourse with women, with the consent of the women,
but this consent is achieved through threats to be killed or injured,
d.a man who has intercourse with a woman, with the woman's consent
because the woman believes that the man is her legal husband,
e.a man who has intercourse with a woman under the age of 14 (fourteen)
years, with his consent,
17. f. a man who has sexual intercourse with a woman, even though it is known
that the woman is unconscious or helpless.
Furthermore, criminal acts regarding fornication (Article 490 –
Article 495), as an intermediary, facilitating, linking obscene
acts/intercourse, as a means of livelihood/ prostitution (Articles 496 –
The law enforcement of sexual harassment is summarized in the SPP
process which consists of investigations and investigations, prosecutions,
and trials in the courts. Investigation is the first phase of the investigation.
Between investigative and investigative activities are actions or functions
that are unanimous into one, each of which is not separate and stands alone.
It can be said that an investigation is a method or method or a sub-
function of an investigation that precedes other actions, such as:
prosecution in the form of arrest, detention, search, confiscation,
examination of letters, summons, inspection actions, and submission of
files to the public prosecutor. The investigation will be carried out first by
the police before an investigation is carried out, the purpose of which is to
collect preliminary evidence or sufficient evidence for further
investigation activities. In the past, there was the term investigation which
was equated with investigation, namely as an effort to find and find traces
in the form of information and evidence of an event that was suspected of
being a crime.
The implementation of the investigative function is the monopoly of
the police, each state police official as an investigator (which is carried out
by the Investigation Unit). While investigators, besides being known as
police investigators, there are also civil servant investigators.
The prosecutor is the only state institution that has the authority to
prosecute all criminal cases. In carrying out the functions and powers of
prosecution, in addition to receiving case files which are the results of
investigative examinations from investigators, the prosecutor also
delegates the case files he receives to the judge for examination in court
proceedings. What is very important in the implementation of this
prosecution is the task of the prosecutor to draw up an indictment, because
18. it is based on the indictment that the judge will examine the case, not based
on the case file from the investigator. However, the investigative
examination will form the basis for making an indictment and will
determine its success.
The act of examining and adjudicating that was carried out by the
judge was nothing but an assessment of the real actions carried out by the
defendant whether they were in accordance with the elements of the crime
being charged, and the perpetrator was declared guilty. All of this must be
based on evidence in court. In connection with this, it is stated by asking
questions regarding decisions that must be taken by judges (Nanda Agung
Dewantara, 1987: 71), namely:
(1) decision regarding the incident, whether the defendant has committed
the act he was charged with,
(2) decision regarding the sentence, whether the act committed by the
defendant constitutes a crime and whether the defendant is guilty and
can be punished,
(3) decision regarding the sentence, if the accused should have been
sentenced to a sentence.
The difficulties or obstacles experienced by police and prosecutors
are also experienced by judges, especially in evidence, which in court must
reveal facts that must be in accordance with material truth, meanwhile
supporting evidence is not easy to reveal, difficulties - these difficulties,
for example; to prove the existence of intercourse, the presence of
coercion/threats of violence, witnesses who really know what happened.
Procedures for proof and all actions of judges in trying are regulated and
must be in accordance with the procedures specified in the law of criminal
By paying attention to this description, it appears that in handling
sexual harassment cases, judges adjudicate based on logical thinking or
anti-logical, or systematic within the framework of positive legal
regulations. If using the term from Sudarto as a juridical method in a
narrow sense (1981: 13). In connection with the current development of
thinking about the position of women, judges and law enforcers generally
19. need to base their juridical thinking on the social effects of establishing
legal norms. So it is important to pay attention to social background. This
is a juridical method in a broad sense . The path taken is to utilize the
function of the judge in seeking and exploring the law that lives in society
in the entire process of finding law through decisions with
interpretation/interpretation. This legal discovery was made by judges in
applying statutory provisions to concrete cases, where on the one hand the
statutory regulations were not in line with societal developments, including
the development of gender equality.
Law enforcement against cases of sexual harassment is related to law
enforcement in general which is highlighted in its weaknesses. This is as
stated by Bagir Manan, the need for a moral appeal, and also the
elimination of the influence of power in administering justice. This needs
to be pursued by building a political, social and cultural system that upholds
the law, or is forced to respect the law. This kind of thing will not grow in
an authoritarian political system, a cultural system that justifies any means
to achieve goals. The system that is most likely to sustain an independent
justice system is democracy, said Bagir Manan. Crimes related to sexual
harassment as gender violence are attempted to be resolved. This is related
to efforts to develop a society that respects gender equality which is
expected to be created in a democratic society, and this needs to inspire the
practice of law enforcement.
Arrangements regarding sexual harassment behavior as anticipation
of criminal law, which is one of the means in efforts to overcome crime,
with the understanding that: 1) The term sexual harassment is not written
in the Criminal Code, but there are articles that can be applied to sexual
harassment behavior. Therefore, it is more correct to say that the Criminal
Code regulates criminal acts related to sexual harassment , which are
included in decency offenses in general, 2) The definition of sexual
harassment is limited to decency offenses related to sexuality in the
Criminal Code, such as: Articles 281 to 299 as crime, and Articles 532 to
535 as a violation. The provisions that focus more on criminal acts related
20. to sexual harassment are only articles: 284, 285, 286, 287, 289, 290, 293,
294, 295, 296, 297. In addition, there are articles outside of decency, such
as: Article 310, 335 paragraph (1), and 279 (connected with Law No. 1 of
1974 concerning Marriage and implementing regulations PP No. 9 of
1975). Arrangements regarding this matter have undergone
additions/updates in the provisions of Law no. 23 of 2004 (UU PKDRT)
and RUU KUHP 2004. 3) Criminal sanctions in the Criminal Code for
criminal acts related to sexual harassment are formulated in an alternative
and single way from the main types of punishment in the form of
imprisonment, imprisonment, and fines. The heaviest threat was aimed at
the criminal act of rape because it is the heaviest crime, which is a
maximum of 12 months. This punishment system does not pay attention to
the victim, for example compensation for losses. This kind of thing is
known for its regulation, as in Article 14c of the Criminal Code, but it is
associated with a conditional sentence. The Criminal Procedure Code
allows requests for compensation, which procedurally must go through a
combination of cases (civil and criminal). Compensation that is filed as a
civil suit is not an easy procedure. In Indonesia's positive law, the fate of
the victim has not been considered.
Law enforcement of criminal cases related to sexual harassment
faces difficulties: 1) The nature and type of crime related to sexual
harassment involves technical juridical evidence. 2) The work of law
enforcement officials tends to be based on normative juridical thinking
which is logical and systematic (juridical method in the narrow sense), but
has not utilized the juridical method in the broad sense which links social
aspects, especially gender equality, so that cases of sexual harassment are
only seen as violation of personal interests and prosecuted to maintain
order. Therefore, legal findings that are made using
sociological/teleological, or futuristic interpretations should be carried out
in judicial practice, related to the handling of sexual harassment.
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