Indonesia's New Law: Banning Sex Outside of Marriage

Indonesian people protest against the Criminal Code (Source: www.tempo.co)

On Tuesday (6/10), Indonesia was shocked by the news of the ratification of the Draft Criminal Code (RKUHP). The reason is that for years Indonesia has used the Criminal Code which originated from Dutch law. And not only that, Indonesia, even to the international world, was also shocked by some of the articles listed in it.

Among the criminal law articles, the most controversial are those that carry a sentence of up to one year in prison for extramarital sex, unmarried couples living together, insulting the president, and also expressing views contrary to the nationalist ideology of Pancasila.

Accessed on the page peraturan.go.id/site/ruu-kuhp.html, the revision of the RKUHP text as of November 30, 2022, is listed in articles 411 and 412.

The following article 411 which regulates sex outside of marriage, reads:
"Every person who has sexual intercourse with a person who is not his/her husband or wife, shall be punished for adultery, with imprisonment of not more than 1 (one) year or a maximum fine of category II (paragraph (1)).

Then, "No prosecution shall be conducted against the criminal offense as referred to in paragraph (1) except upon the complaint of: a. husband or wife for persons who are bound by marriage. b. parents or children for persons who are not bound by marriage (paragraph (2)). Parents or children for persons who are not bound by marriage (paragraph (2))."

Third paragraph: "The provisions referred to in Article 25, Article 26, and Article 30 shall not apply to the complaint as referred to in paragraph (2)."

Finally, the fourth paragraph: "The complaint may be withdrawn as long as the examination at the court session has not yet begun."

The punishment is imprisonment for a maximum of one year or a maximum fine of IDR 10 million.

And finally, article 412 which regulates unmarried couples living together, reads:
"Every person who cohabits as husband and wife outside of marriage shall be punished with a maximum imprisonment of 6 (six) months or a maximum fine of category II (paragraph (1)).

Paragraph 2: "No prosecution shall be brought against the criminal offense as referred to in paragraph (1) except upon the complaint of: a. husband or wife for a person bound by marriage; or b. parents or children for a person not bound by marriage. Parents or children for persons who are not bound by marriage."

Paragraph 3: "The provisions of Article 25, Article 26, and Article 30 shall not apply to the complaint as referred to in paragraph (2).

Paragraph 4: "The complaint may be withdrawn as long as the examination in court has not yet commenced."

The punishment is imprisonment for a maximum of 6 months or a maximum fine of Rp 10 million.

Some articles on extramarital sex and unmarried cohabitation state that these penalties can only be reported if there is a complaint from a close relative, such as a spouse, parent or child. So, if there is no report, there will be no criminal action.

While those who are convicted of insulting the president will be imprisoned, only the president can file a complaint.

Critics underline that this criminal law will bring "disaster" to human rights and reduce the growth potential for business and investment.

Responses

Regarding this, it has given various reactions from various Indonesian communities and even abroad. There are those who agree with this, and also those who disagree with this law.

For example, legal experts and civil society organizations disagree with this criminal law.

One of them, constitutional law expert from the Indonesian Jentera College of Law (STH), Bivitri Susanti, said, "This Criminal Code is a big setback for Indonesia," "The state cannot regulate morality," she continued. "The government's job is not to referee between conservative and liberal Indonesia."

"There are several articles that we think should still be straightened out and tidied up first, especially articles related to living law that are not appropriate, if it is categorized into the realm of criminal law," he said.

This Criminal Code Law is considered to cause a lot of criminalization. He also said that the ratification of the RKUHP would greatly affect freedom of expression and human rights.

Many people disagree with this, because the government is considered to be interfering in the personal affairs of its citizens, thinking too much about moral matters rather than more dangerous things, should take care of more important issues, can trap others or be misused, and also too restrictive on things that are not important. Finally, because the previous Criminal Code was a Dutch legacy, and the current one is considered more appropriate.

Opponents of the new penal code also argue that it threatens the global reputation of Indonesia, which has long been considered the most populous Muslim country in the world and has built itself as a tolerant and secular country.

However, there are also people who agree with this law, because it is considered to have moral value, marriage relationships will not be disrupted, avoid disease, and there are also those who agree because they are considered in accordance with religious values.

The new law is seen as a response to rising religious conservatism in Muslim-majority Indonesia in recent years, with strict Islamic rules being enforced in some parts of the country. In Bali, Hindus are the majority and tend to have a more liberal social environment that attracts Western tourists.

This Criminal Code Law was also responded to by the famous lawyer, Hotman Paris. He strongly rejected the contents of the Criminal Code on adultery and the prohibition of sex outside marriage. Because this law only applies if the immoral act is reported and known by the community. If no one reports and knows about it, the perpetrator will not get the sanctions listed in the law.

(Source: Youtube, uploaded by tvOneNews)

The essence of this article mentioned by Hotman Paris is that it applies if someone reports. If this regulation is made to regulate morals, then the contents of the Criminal Code are damaging the morals of Indonesian society. Because the perpetrator can freely have sex if it is not reported. This response was delivered by Hotman Paris when he was a guest star on a television program.

The Impacts

The passing of this criminal law is considered to have an impact on tourism and hospitality in Indonesia.

It can be said that way, because hotels never question the personal affairs or marriage affairs of visitors who will stay overnight, but this criminal law is considered to take care of people's personal affairs too much. So because of this, it will affect hospitality throughout Indonesia.

Although this law is a complaint offense, hotels applying the principle of comfort services will be able to disturb the comfort of hotel guests. Because it is considered to ask the guest visitor's marital status.

This article also has the potential to worsen or reduce investment in Indonesia. This is because this law, if implemented, will make tourists, especially from Western countries, ranging from Europe, the United States, Australia, will feel disturbed by this article, even to the point of making western tourists not come to Indonesia, because the regulations are too concerned with one's personal affairs.

In fact, as a result of this law, many international media have provided travel warnings for their citizens who want or will go to Indonesia. One of them is Australia.  

Australian travelers are concerned that there is a ban on sex outside of marriage and unmarried couples living in the same house.

As a result, Australians are warned to be careful in Indonesia as the new law banning extramarital sex threatens to throw tourists who do not comply with the rules into prison.

On the other hand, Maulana Yusran, who is the Secretary General of the Indonesian Hotel and Restaurant Association (PHRI), said that he was resigned to the decision of the DPR and the Government.

"There is nothing we can do anymore, it has been passed. We have submitted input before it was passed, how the domestic industry is currently still struggling to restore the market. And, it will be affected by this regulation," said Maulana. "We will see how it is implemented, what is clear is that it cannot only be in one region or certain conditions, it will definitely be evenly distributed. This is the law," he added.

Entrepreneurs are currently waiting for the government to release official information regarding articles in the new Criminal Code that are considered problematic to avoid long-term losses for the tourism industry.

The Penal Code was enacted to monitor the morals of the people in Indonesia, which is a Muslim-majority country. In addition, it aims to reduce the adverse effects of free sex, such as sexual diseases that are very dangerous to the body.

(Source: https://malang.imigrasi.go.id/)

When the Criminal Code Law was made, it was responded to by the Minister of Law and Human Rights of Indonesia, Yasonna Laoly. Yasonna H. Laoly, Minister of Law and Human Rights, said that the Criminal Code Bill that has just been passed has gone through transparent, thorough, and participatory discussions. The government and the House of Representatives have accommodated various inputs, ideas, and ideas from the entire community. In addition, he also responded that it is not easy as a multicultural and multiethnic country to make regulations like this.

"The Draft Criminal Code has been socialized to all stakeholders throughout Indonesia. On behalf of the Government of the Republic of Indonesia and my colleagues in the House of Representatives, I would like to take this opportunity to thank the entire community for their participation and support in this historic moment," said Minister Yasonna.

However, Yasonna admitted that the drafting of the Criminal Procedure Code has not gone smoothly. Both the government and the House of Representatives have been confronted with news that are considered controversial, including articles on the criminalization of kebo law, insulting the president, the dissemination of prohibited communist doctrines, and others. However, Yasonna assured the public that these articles were the subject of repeated and thorough studies.

In addition, Yasonna requested that parties who disagree with any part of the contents of the new Criminal Code, can submit it through the process of filing a petition to the Constitutional Court (MK) along with reasonable reasons.