Invest in protection, not in imprisonment
What is defined in the Penal Code (KUHP) as crimes affect the well-being of all of us regardless of age, gender, ability, religion, ethnicity, and social-cultural identities. Indonesia’s current KUHP is in the process of revision and deliberation in the parliament. The bill (RKUHP) has made some progress, but still carries a lot of problems.
RKUHP as it stands today reflect the crudest form of exclusion through criminalization. It discriminates against children, women, the poor, and marginalized groups. It criminalizes sexual behaviors out of wedlock, putting tens of millions young people and adults at risk of losing access to safe and appropriate reproductive health services. It criminalizes couples without legal marriage despite that over half of the couples in poorer households do not own a marriage certificate. It ups incentives for child marriage as a rational option to avoid jail. It will throw girls out of school and kill those who have no option but to take care of their unwanted pregnancy on their own.
First, RKUHP undermines evidence that needs to be considered if we want to protect the most vulnerable.
RKUHP will criminalize couples that are considered having sexual relationships outside of wedlock. This will put millions of vulnerable and marginalized groups in danger. Over half of couples in the poorer households do not have a marriage certificate. Moreover, there are around 40 to 50 million individuals belong to indigenous communities, which include those whose faith is not recognized by the state. These millions face structural barriers in obtaining their proof of marriage. Also, people with special needs cannot easily access marriage registration. These couples and their children will all be put at risk when they are unable to corroborate their relationship. RKUHP also sanctions adulterous acts that can be reported by any “third parties who feel violated.” This will justify persecution and violation of privacies.
RKUHP will harm girls more than boys. Criminalization of extramarital sexual behaviors will offer child marriage as a rational option to avoid jail for teenagers in their puberty or who start experiencing sexual curiosities. Today, already 25% of Indonesian girls are married before they turn 18. RKUHP will increase this number as parents will have more incentive to marry their children. Girls with an unintended pregnancy or who are in need of curative and rehabilitative reproductive health services are prone to a criminal sentence. RKUHP also stipulates special protection for child victims of sexual violence under as long as they are “in good behavior” and “unmarried.” This clearly disregards the fact that some children are already married and that children are all individuals under the age of 18, regardless of their marital status and behavior.
RKUHP demonstrates short-term subjective sentiments toward sexual behaviors. Sexual orientation aside, sexual activity between consenting adults with no violence or coercion is not to be managed by law enforcement, but by public health. Evidence suggests that risky sexual behavior, including among young people, can be managed more effectively through open and appropriate sex education and access to safe and comprehensive reproductive health services.
Secondly, RKUHP undermines government priorities to achieve justice reform, health, education, and welfare goals.
Indonesia’s law enforcement today still faces budgetary constrains. The police, prosecutors, and the courts lack resources. At the same time, our prisons and detention centers are overcrowded. RKUHP shows over criminalization and the cost of law enforcement will double. The government has to allocate a lot of resources for the implementation of RKUHP while taking those resources away from other sectors.
Girls who are married will leave education as 85% of married girls dropped out of school, harming the national compulsory education program. Health targets around reducing maternal and infant mortality will be stifled as girls will marry and get pregnant early. RKUHP limits the category of people who are authorized to spread family planning information. It will even be more difficult to prevent and respond to HIV/AIDS and to increase contraceptive use. Last but not least, RKUHP will separate millions of children from their convicted parents and break families, producing the cycle of poverty.
Thirdly, RKUHP harms child protection as it conflicts with the Child Protection Law and the Juvenile Justice System Law.
Law enforcers still face difficulties in implementing effective diversion for children who come into contact with the law. With RKUHP, it will be almost impossible to apply diversion practices. The requirements for diversion as set by the Juvenile Justice System Law are unattainable because RKUHP increases criminal sanctions and lowers the loss value eligible for small claim court processes. The current Law on Drugs already criminalize children, and RKUHP imposes harsher criminal sanctions for drugs-related cases, which can implicate children even more. RKUHP also allows the violation of “living law” to be processed in the criminal justice. Lack of technical clarity on what is considered living law will make the bill opens to misinterpretation and ill practice towards children.
We, therefore, call upon all stakeholders to revisit RKUHP, review it using data, and rethink of its long-term social and economy consequences. Policies are effective when it considers their impact, not their subjective intention.