Update: The Jambi High Court overturned this ruling on Monday, 27 Aug. 2018, releasing the teenaged girl from prison after one month behind bars. Read our story here.
A 15-year-old girl who was raped by her older brother was jailed in Indonesia after terminating her pregnancy with the help of her mother. The courts in Jambi, a province in Sumatra, sentenced the teenaged girl to six months in prison for violating Indonesia's child protections law, a law that, in most instances, is used to protect children, but here is being used to put abused child behind bars on charges that she failed to protect the life of her own unborn child.
Abortion is illegal in Indonesia, outside select circumstances, such as when a pregnancy is a threat to a mother's life or when it's the result of a sex crime and a cause of psychological trauma for the mother. But that law, the one that allows the victims of rape to get an abortion, is only valid up to 40 days from conception. The girl, who is now behind bars, terminated her pregnancy with her mother's help at 26 weeks.
Her mother told the local press that her daughter was too confused and terrified to get an abortion before the 40 day deadline. She was, according to police, repeatedly raped by her 18-year-old brother, a man who would threaten her with physical violence if she told anyone. Her mother only found out after she fell pregnant, and she then helped her daughter terminate the pregnancy.
Her brother was sentenced to jail as well, receiving 24 months behind bars—a mere 18 more than his sister, the girl he raped.
Legal reform experts are now trying to get the girl's sentenced reversed on an appeal, arguing that the girl, herself a child, never should have stood trial in an adult court in the first place.
"The other day I spoke with the prosecutor of the case and I told him that she's only a child," said Maidina Rahmawati, a researcher at the Institute Criminal Justice Reform (ICJR), told VICE. "She's not supposed to be in a formal trial, or detained, and she's supposed to have assistance. And even if she was detained, she was supposed to go to a temporary children's detention center.
"I asked the prosecutor, 'why was she detained?' He told me it was because she faced up to seven years in jail [which allowed prosecutors to try her as an adult]. So they detained her and then, because she was detained, she was processed like an adult."
The girl's case played out like so many others in Indonesia—a country where the laws are often incredibly vague and prone to abuse and misuse. The limitations put in place by this child protection law ignore the fact that, for many women, 40 days is way too short a period of time to tell if someone's pregnant or not. Over-the-counter pregnancy tests aren't even accurate until ten days after the first missed period, which is basically means that victims of rape need to find out they're pregnant and then immediately get an abortion.
And this is in a country where rape victims are routinely shamed by their families, their neighbors, and even the police. Last year, Indonesia's most-powerful cop Tito Karnavian told BBC Indonesia that his officers made a habit of asking women who came in to report being raped if they were "comfortable" at all during the sexual assault.
"Questions like these are very important," Tito said in the interview. "If I was raped, how did I feel during the rape? Was I comfortable? If I was comfortable, it's not a rape… such information is valuable to me."
These attitude have a very real effect in Indonesia. One study found that 93 percent of rape victims didn't report the crime to police. In the remaining 7 percent who did, only 1 percent saw their case end in the conviction of their rapist. When asked why they decided against going to the police, most women surveyed said they were afraid the cops wouldn't believe them, or that they would blame them, as if they were somehow the cause of their own sexual assault.
Then there's all the people eager to offer their own opinions on these cases in the media, often forcing the victim to relive the trauma again and again as the nightly news pours over the details of the case. The Indonesian Child Protection Commission (KPAI) has a long history of jumping on these cases and, in some instances, all but trying people in the press long before they see the inside of a court room.
Rita Pranawati, the deputy head of the KPAI, offered her own take on the sentence, telling reporters that, as far as she could tell, the law was the law.
"In the Law on Health, pregnancies from rape can only be aborted before 40 days," Rita said. "And, in this case, her pregnancy was older than 40 days. She aborted her pregnancy when it was already six months old. And her parent knew about it. That is a problem. The parent was complicit."
Maidina, of the ICJR, shook her head at the statement. The KPAI is supposed to protect children. So they why are the commission's prominent members so often at the front of the conversation calling for someone's arrest?
"Why did KPAI make comments like, ‘that’s what’s written in the law,’" Maidina said. "Whatever happened to critical thinking? She’s a rape victim, why can’t they look at this from a perspective that helps protect and free her?"
She added that judges in Indonesia have the discretion to charge, or not charge, people as they see fit. The judges could've seen that the girl was the victim here, and that what she did was a consequence of the actions of her rapist, her own brother. But that's not what happened here.
"It’s so obvious that she had an abortion because she was raped by her own brother,” Maidina said. “The judge should’ve been able to see this and release the child. But he didn’t check his ruling."
Hopefully, she added, this doesn't set a new dangerous precedent in Indonesia.
“I hope it won’t be the new norm that in order to solve a case, somebody has to be punished," she said. "The state tends to respond to sexual assault cases by handing down a tougher punishment. Meanwhile, sexual assault cases are very complex. I mean, what if the perpetrator is a child? What if she gets an abortion? We fail to see the root cause of sexual assaults. It’s a very complex issue.”