Ruling in Favor of Criminalizing Sex Would Hurt Child Protection Efforts in Indonesia

Posted Under Access to Justice Akses pada Keadilan

Over these past months, the Constitutional Court of Indonesia (MK) has been hearing a judicial review case to change the definitions of adultery and sodomy in the Criminal Code. The petition, made by a group named AILA, aims to outlaw all consensual sexual activities outside of marriage and all behaviors pertaining to any form of sexuality that they deem “deviant.”

Responding to this, we at PUSKAPA exercised our legal right to file an amicus brief to the Constitutional Court. This document was submitted by PUSKAPA as a non-litigant with a strong interest in the subject matter. Through this brief, we offer arguments, supported by scientific and legalistic evidence, that the Constitutional Court might wish to consider. PUSKAPA's stance is that ruling in favor of this petition would hurt child protection efforts in Indonesia.

First, the petition is class-biased. Over half of married couples in Indonesia do not have a legal proof of their marital status, and most of these unregistered couples are living in poverty, in remote areas, with a disability, or do not belong to the six religions recognized by the government. If the proposed petition were successful, these unregistered couples, already living in the margins of government services, could be tried as criminals. Putting these million of parents in jail would not only violate their civil rights, but would also have a cascading effect on their children.

Second, this petition is gender-biased. It overlooks the fact that sexual activities put females at greater risk than males. Not only do girls risk unwanted and early pregnancy, which can contribute to maternal death, infant death, and a higher risk of stunting, but sexually transmitted infections and the social significance of losing one’s virginity, often also affect females disproportionately. Casting sexually active but legally single females as outlaws would only deprive them of the services and care that they need. Rape survivors who cannnot provide enough evidence to sentence their attackers could end up being charged for reporting that they had sex out of wedlock. In addition, the stigma associated with criminalized extramarital sex—even if it is due to rape—would likely cast girls away from their schools, families, and communities.

Third, this petition is child protection-biased. The state is obligated to protect all children and youth, without discrimination related to gender or sexual identity. As part of this protection, girls and boys have the right to comprehensive sexual and reproductive health information and services. When states violate this right, it becomes more challenging for girls and boys to manage and respond to their sexual interests and desires in safe and respectful ways. Criminalizing extramarital and nonconforming sexual activities would not magically end all such activities around the country. Instead, it would alienate more girls and boys from themselves, their caregivers, and their communities, exposing them to greater harm and contributing to an increasing rate of juvenile detention.

PUSKAPA believes that policies should be set based on evidence not emotions, and that the Constitutional Court is responsible for making a decision that considers the potential impact of laws, not their intentions.