‘Inherently Repugnant’?

Indonesia has recently gained the international spotlight for criminalising sex outside marriage in its new Criminal Code (Kitab Undang-Undang Hukum Pidana), which was passed by the parliament (Dewan Perwakilan Rakyat, DPR) on 6 December 2022, with a transition period that will last for three years before the code comes into force. While the new Criminal Code is comprehensive and includes novel provisions that merit academic considerations (such as Article 597 which criminalises acts prohibited by customary law and Articles 598 and 599 which criminalise genocide and crimes against humanity), this post will focus on the criminalisation of sex outside marriage under Article 411 and cohabitation under Article 412. What usually escapes international headlines is that these acts can only be prosecuted if there is an official complaint from the husband/wife for married persons, or from the parents or the child for unmarried persons. This post will explain the background of these provisions, and also analyse what these new provisions imply for Indonesia.

Why a New Criminal Code?

Before explaining the background of the criminalisation of sex outside marriage and cohabitation, it is important to understand why the DPR decided to adopt a new Criminal Code. Indonesia declared its independence on 17 August 1945, and Article II of the Transitional Provisions of the 1945 Constitution stipulates that “[a]ll existing laws and regulations shall remain in effect as long as new laws and regulations have not yet taken effect under this Constitution.” Hence, the Criminal Code from the Dutch era that came into force in 1918, the Wetboek van Strafrecht voor Nederlands-Indië, remained in effect in the territory of the new Republic. This was then confirmed by Law Number 1 Year 1946 on Rules concerning Criminal Law.

Since then, there were various adjustments made to the criminal code, such as in 1965 when President Soekarno introduced provisions criminalising blasphemy. Reliance on colonial-era criminal code was considered problematic. First, there was no official translation enacted by the authorities, and thus judicial practice had to depend on unofficial translations. Second, the criminal code was considered obsolete and too focused on retributive justice. Third, given that it was enacted during the Dutch colonial era, a new criminal code was considered necessary not only for decolonialisation, but also to reflect the moral values and norms of Indonesians today.

However, while the proposal to create a brand new Criminal Code can be traced back to the First National Law Seminar in Semarang in 1963, such efforts were stalled for decades. During President Susilo Bambang Yudhoyono’s tenure in 2004-2014, a draft Criminal Code was submitted to the DPR, but the process was never completed. After President Joko Widodo took office in 2014, the bill was resubmitted by the Justice Minister Yasonna Laoly in 2015, but it was again delayed many times until finally it was passed by the DPR on 6 December 2022.

Criminalisation of Sex Outside Marriage and Cohabitation

The new Criminal Code criminalises sex outside marriage; Article 411(1) prohibits intercourse with someone who is not their husband or wife, which is subject to a maximum one year in prison or a fine of maximum category II (ten million rupiah or around US$640). Article 412(1) prohibits cohabitation by an unmarried opposite-sex couple with the threat of maximum six months imprisonment or a fine of maximum category II.

There is, however, an important detail in these two provisions. Both Articles 411(2) and 412(2) stipulate that sex outside marriage and cohabitation are an Antragsdelikt (delik aduan in Indonesian), which means that no prosecution may be initiated without an official complaint from: a) the husband or the wife for those who are married, or, b) the parents or the child (who has to be at least 16 years old, according to the explanatory note) for those who are unmarried. Furthermore, this official complaint can be revoked anytime before the trial commenced. Consequently, criminalisation of sex outside marriage and cohabitation, in theory, has become largely ‘symbolic’ in the sense that it is very difficult to enforce without the initiative of first-degree family members.

Moreover, if one examines the previous drafts of the Criminal Code, these provisions have been watered down significantly. Articles 420 and 422 of the 2002 draft would have allowed family members (including second- and third-degree relatives), head of a customary law society or head of the village or subdistrict to file a complaint against fornicators and cohabitators. The references to the marital status of the perpetrator also seem to be a recent addition, since the September 2019 draft would have allowed the husband, the wife, the parents or the child to lodge a complaint, regardless of the marital status of the person concerned. Furthermore, the 2018 draft would have imposed imprisonment of maximum five years for those who commit sex outside marriage.

Why Sex Outside Marriage?

The Criminal Code inherited from the Dutch colonial era already criminalised adultery (overspel in Dutch) under Article 284, although this was a delik aduan and thus no prosecution may be initiated without an official complaint from the spouse. Sex between unmarried persons was not criminalised, with the exception of the Province of Aceh which has the autonomy to enact Islamic criminal law. As a result, there were calls by conservative Muslims to expand the scope of the provision to cover zina, a term in the Islamic fiqh referring to ‘unlawful sexual conduct’ including adultery and fornication. Meanwhile, vigilante acts against ‘fornicators’ occurred in conservative area from time to time, such as the infamous assault against an unmarried couple in Cikupa, Banten, in 2017 after they were accused of fornication. A survey by the Pew Research Center in 2014 also found that 97% of Indonesians believe sex between unmarried adults is morally unacceptable.

In this context, proponents of criminalisation of zina claimed that a new Criminal Code must reflect Indonesian moral values, which are often juxtaposed with the so-called ‘liberal West’. For instance, a legal academic at the University of Gadjah Mada, Fajri Matahati Muhammadin, wrote in The Jakarta Post in 2018 that ‘[f]ornication and homosexual conduct, even when consensual, is wrong according to Indonesian values (…) [T]he only wonder is that homosexual conduct and fornication has not been formally criminalized sooner.’

Lobby against zina even reached the courtroom. On 19 April 2016, a family advocacy group consisting of conservative Muslim academics, the ‘Family Love Alliance’, filed a petition to the Constitutional Court asking that the scope of the Criminal Code be expanded to include, inter alia, sex outside marriage and homosexual sex. In December 2017, the Court in a 5-4 decision held that it was not legally competent to expand the scope of the Criminal Code, and thus the majority recommended the petitioners to bring their agenda to the DPR instead.

What is particularly notable from this case is the elaborate dissenting opinion written by the Chief Justice of the Court at that time, Arief Hidayat. The dissenting judges argued that the Indonesian Constitution is a ‘Godly’ Constitution, since Indonesia is based on the five fundamental principles, the Pancasila, whose first principle is ‘belief in One God’. Thus, they argued that norms which ‘reduce, narrow, overstep and/or contradict religious values’ must be declared unconstitutional. With regard to sex between unmarried persons, they held that zina is considered ‘very repugnant’ by all religions in Indonesia. Since the Dutch-era Criminal Code only criminalised adultery, it limited the application of religious values, and thus the dissenting judges claimed that the provision should be declared unconstitutional. As I have argued elsewhere, had this dissenting opinion become the majority, it could have initiated an informal constitutional change in Indonesia, as it would have established a ‘Godly values repugnancy test’ by which all legal norms would be subject to a review based on their compatibility with religious values.

At the same time, civil societies are vigorously pushing back against the conservative lobby. Human rights groups, such as the Institute for Criminal Justice Reform, made submissions before the Constitutional Court to argue against the petition of the Family Love Alliance. In 2019, mass protests led by students erupted, and one of their grievances was the draft Criminal Code that was being discussed in the DPR at the time. With pressure from both sides, it is perhaps not surprising that the provisions ended up being watered down so much in the DPR.

Conclusion

Criminalisation of sex outside marriage and cohabitation constitutes a setback for the right to privacy, which covers consensual sexual activity between adults in private (see Toonen v Australia). Nevertheless, the bigger picture is much more nuanced. The concept of delik aduan has been used to render the criminalisation very difficult to enforce in theory. Furthermore, the new Criminal Code does not only reflect traditional religious values. Article 473(6) criminalises marital rape, much to the chagrin of conservative Islamic groups. It remains to be seen whether these provisions would survive a judicial review at the Constitutional Court, and how they would be enforced in practice.