Activists Fight for Appeal for Girl Raped By Brother Then Jailed for Abortion

Sexual assault experts are afraid that the case will set a dangerous new precedent for rape survivors in Indonesia.
July 26, 2018, 11:14am

A version of this article originally appeared on VICE Indonesia.

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 the western island of Sumatra, sentenced the teenage girl to six months in prison for violating Indonesia's child protections law on the basis 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 therefore a cause of psychological trauma for the mother. But the law that allows rape victims to get an abortion is only applicable if the pregnancy is terminated up to 40 days from the date of 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. According to the police, she was repeatedly raped by her 17-year-old brother, who would threaten her with physical violence if she told anyone. The girl's mother only learned about the rapes after her daughter became pregnant, at which point she helped her terminate the pregnancy.

Her brother was sentenced to 24 months behind bars for sexually assaulting a minor. The sentence is a mere 18 months longer than his sister's.

Legal reform experts in Indonesia are currently trying to get the girl's sentence reversed on an appeal, arguing that the girl, a child herself, shouldn't have stood trial in an adult court to begin with.

"The other day I spoke with the prosecutor of the case and I told him that she's only a child," Maidina Rahmawati, a researcher at the Institute for Criminal Justice Reform (ICJR), told VICE Indonesia. "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 limitations put in place by the Child Protection law ignore the fact that, for many women, 40 days isn't enough time to determine whether or not a woman is pregnant. Over-the-counter pregnancy tests aren't accurate until ten days following the first missed period, which means that rape victims often find out they're pregnant and then need to get an abortion immediately to stay within the window of legality.

The girl's case played out like many others in the country, where rape victims may be shamed by their families, their neighbors, and even the police. In 2017, National Police Chief General Tito Karnavian told BBC Indonesia that his officers ask women who come in to report that they've been raped whether they were "comfortable" at all during the sexual assault.

"Questions like these are very important," Gen. 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 attitudes have a very real effect in Indonesia. A survey from 2016 found that 93 percent of the country's rape victims don't report the crime to the police. Of the remaining seven percent who did report it, only one percent saw their case end with the conviction of their rapist. When asked why they decided against going to the police, the majority of women in the survey said they were afraid the police wouldn't believe them or that they would blame them, as if they were somehow the cause of their own sexual assault.

Rita Pranawati, the deputy head of the Indonesian Child Protection Commission (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 [within the first] 40 days," Pranawati said. "And in this case her pregnancy was older than 40 days. She aborted her pregnancy when [the fetus] was already six months old, and her parent knew about it. That's a problem. The parent was complicit."

Rahmawati, of the ICJR, shook her head at the statement. If the KPAI is supposed to protect children, why are the commission's prominent members frequently at the front of the conversation calling for someone's arrest?

"Why does the 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?"

Rahmawati 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 direct consequence of the actions of the brother that raped her.

"It’s so obvious that she had an abortion because she was raped by her own brother,” Rahmawati 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 dangerous new 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. 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.”