By: Andi Nur Faizah

 “There was a case that we assisted, where a woman was forced to marry at the age of 17 years, then she did not want to have sexual relations. Then her husband asked for help from others to stretch his wife’s arms and legs. Then her husband had sexual intercourse without feeling guilty. “

 

The quote above is an experience of assisting cases of sexual violence conveyed by women ulema in Rahima’s video commemorating 16 Days of Activism against Gender-based Violence. Nurul Sugiati, as a companion to the case, said that such situations are still very common and reporting husbands is considered a disgrace. In addition, not all women are aware that the cases of violence they experience must be reported immediately. The narrative above is just one of the many tragic experiences of women victims of sexual violence that have not been revealed.

National Commision on Violence Against Women’s Annual Record (Catahu) 2020 reports, there are 4,898 people who have experienced sexual violence. Some of the victims were forced to live in safe houses. Some still live under pressure and threats and are stigmatized, even discriminated. The cases of sexual violence have increased during the Covid-19 pandemic. Based on the complaints submitted to Indonesian National Commission and Violence Against Woman in 2020, there were 1,458 cases of gender-based violence and 61% of them were cases of sexual violence. Meanwhile, in complaints of cyber gender-based violence during the pandemic, 659 cases were reported where cybercrime was dominated by sexual violence. The increasing number of cases of sexual violence shows that Indonesia is truly an emergency of sexual violence.

As stated in the Draft Law on the Elimination of Sexual Violence (Pungkas Bill), sexual violence refers to any act of degrading, attacking or harassing the body and / or reproductive function that is carried out by force or the victim is unable to give consent freely due to imbalance in power relations (dpr.go.id, accessed January 13, 2021). Sexual violence can result in misery or suffering physically, psychologically, sexually, economically, socially, culturally, and / or politically.

Based on the results of monitoring and the Annual Notes of National Commision on Violence Against Women, the types of sexual violence itself consist of 15 aspects. The forms of sexual violence are then summarized into nine types in the Pungkas Bill. The nine types of sexual violence are sexual harassment, sexual exploitation, forced contraception, forced abortion, rape, forced marriage, forced prostitution, sexual slavery, and sexual torture.

However, these forms of sexual violence do not yet have a clear legal protection. So far, there are four laws that are used in cases of sexual violence. First, the Indonesian Criminal Code (KUHP) which only regulates sexual violence in a limited context, namely rape (in the narrow sense) and fornication. KUHP has a narrow scope regarding the criminal act of rape and is limited to penetration. The provisions regarding rape are difficult to apply if the case is not carried out through the penis (male) to the vagina (female). In fact, many cases of rape are not only through penetration of the penis into the vagina, such as using sharp instruments that hurt the victim. Second, Law Number 23 of 2004 concerning the Elimination of Domestic Violence which only applies to sexual violence in the household sphere. Third, Law Number 35 of 2014 concerning Child Protection that only applies if the victim is a child. Fourth, Law Number 21 of 2007 concerning the Eradication of the Crime of Trafficking in Persons which only regulates the crime of trafficking in persons, one of which is for sexual purposes (National Commision on Violence Against Women, 2021). Through the four laws above, it was found that there is an identity that has not been legally protected if a person experiences sexual violence. The four laws also have not been able to cover forms of sexual violence that occur in society.

 


Constraints for Victims of Sexual Violence in Accessing Justice

It is still clear in our memory about the Baiq Nuril case in 2018. Nuril was convicted for recording the conversation of the principal who verbally abused her. But unfortunately, the principal actually reported Nuril to the police on the suspicion of spreading immoral content. In the experience of being harassed and the law that does not side with the victim, Nuril experiences a difficult economic burden (has no income) because she was expelled from the school where she worked (Mata Najwa, 2018). Nuril was finally found guilty even by the cassation court for violating the Law of Information and Electronic Transactions (ITE).

Nuril is one of the many victims of sexual violence with such a complicated case handling process. Not infrequently cases end with family settlement or even convictions of victims such as the Nuril case. Data shows that between 2016 and 2019, there were at least 21,605 victims of sexual violence. However, only 29% of cases were processed by the police and only 22% of cases were later decided by the court (Siti Aminah Tardi, 2020). This situation makes victims of sexual violence reluctant to report their cases. Siti Mazuma, Director of LBH APIK (Legal Aid Institute for the Indonesian Women’s Association for Justice) explained that the victim’s reluctance to report was caused by the legal system that had not taken sides with the victim. Not to mention that victims of sexual violence are also charged with evidence, while cases of sexual violence are in a private area so not many witnesses know about it (Kompas.com, 2020).


In addition, there are still several other obstacles in handling cases of sexual violence. First, the Criminal Procedure Code stipulates only five pieces of evidence (witness statements, expert statements, letters, instructions, statements from the defendant) that make it difficult for the victim to fulfill the requirements of evidence. Second, victims are often blamed and stigmatized by Law Enforcement Officials (APH) for their cases. Third, the long and tiring legal process in obtaining legal justice makes victims reluctant to continue with their cases. Fourth, victims are often reported back as perpetrators. Fifth, there is still lack of protection for victims and witnesses, so that victims sometimes get pressure from third parties, make victims afraid and withdraw their reports. Sixth, victims often experience repeated trauma when facing judicial processes. Seventh, there was an effort to persuade the victim to peace with a family settlement, so that the victim withdrew the report and even this was facilitated by APH (Siti Aminah Tardi, 2020; Siti Husna, 2020).

Victims of sexual violence also experience multiple barriers. Some of these include (1) threats to be reported back by the perpetrator; (2) fear and shame because the perpetrator is someone who has influence in the environment; (3) stigmatization in society; (4) there is no support from the family / neighborhood / community; (5) the perception of society that still cornered the victim; (6) the target of criminalization through regulations (Siti Husna, 2020). This condition exacerbates the victim’s psychological situation. The victim feels a very serious and traumatic impact for life. In fact, in many cases, victims decide to end their life (National Commision on Violence Against Women, 6 Advantages of the Draft Bill on the Elimination of Sexual Violence).

This situation clearly shows that sexual violence is a serious problem. Victims of sexual violence face social, cultural and legal barriers to accessing justice. There is still a legal vacuum so that the fulfillment of the rights of victims of sexual violence cannot be ascertained. Not to mention that the existing laws or regulations prioritize the punishment of perpetrators and do not regulate guarantees of protection for victims of sexual violence (Siti Husna, 2020). Therefore, victims of sexual violence need a clear legal protection, as stated in the Pungkas Bill.

Part 2

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