News

Indonesia Could Soon Criminalise Anal Sex and Cohabitation Outside of Marriage

Conservative groups have been trying to police these private matters since 2017 and Indonesia’s House of Representatives is now seriously considering legislation that would make this possible.
JP
translated by Jade Poa
indonesia criminalize oral sex cohabitation
Photo via Pxhere/Public domain

This article originally appeared on VICE Indonesia.

The Indonesian People’s Representatives Council is now seriously considering passing legislation that would further conservative groups’ agenda to criminalise private acts like oral and anal sex and cohabitation before marriage. This is being done through a proposed amendment on the country’s Criminal Code, which legal experts have said is a cause for concern.

Advertisement

Under the proposed amendment, individuals who live together outside of marriage could face up to six months in jail. It also criminalises oral and anal sex outside of marriage, which may be punishable by up to 12 years in prison.

While the article regarding oral and anal sex is meant to punish rape of different forms, some say that the law could be taken out of context and used against consenting unmarried adults, the LGBTQ community, and women.

This is because the proposed amendment considers these acts as "adultery" which is vaguely defined as any sexual relations outside of marriage.

Article 488, line 1, which applies to individuals cohabiting outside of marriage, reads: "Any individual who engages in sexual acts with another individual who is not his or her wife or husband will be charged with adultery and be sentenced to a maximum of 1 (one) year in jail or a Category II fine (up to US$705)."

The existing law defines adultery as vaginal sex between unmarried couples but under the proposed amendment, those who engage in oral and anal sex outside of marriage can also be charged.

The proposed amendment would also like to punish men who pay for the services of sex workers with up to six months of jail time.

The proposed changes are seen by many as a departure from the individualistic colonial era laws enforced by Dutch colonisers. Maydina Rahmawati, a researcher at the Institute for Criminal Justice Reform (ICJR), told VICE that criminalising oral sex, cohabitation, and the hiring of sex workers is rooted in Indonesians’ passion for “good morals.”

Advertisement

She said that the proposed amendments to the Criminal Code is vulnerable to misuse against sexual minorities. “The government should be able to analyse the impact of this bill, not just enforce its morals on everyone, then simply turn the other cheek when we actually see how the law impacts people,” Rahmawati told VICE.

Efforts to criminalise cohabitation and sex between members of the LGBTQ community failed to make it through Indonesia’s Constitutional Court when the issue was pushed in December 2017. As political observers expected, conservative groups are now pushing their agenda through parliament.

While sexual relations between members of the same sex is not currently forbidden by law, the proposed amendment might be used as an additional loophole to legally persecute members of the LGBTQ community for cohabitating and having sex outside of marriage, which many believe to be the true aim of the proposed amendment. Previously, law enforcement have persecuted the LGBTQ community under anti-pornography laws.

The National Commission on Violence Against Women (Komnas Perempuan) has also criticised the proposed changes. According to the organisation, formulating new norms by amending the Criminal Code’s definition of adultery leaves room for the criminalisation of women, including victims of sexual violence, without reason. The Commission suggests that the government exempt consenting adults from the proposed law.

Advertisement

Komnas Perempuan also called on the government to put an end to the stigma experienced by victims by viewing sexual violence as a crime against one’s individual liberty instead of a crime of indecency.

There are a few arguably progressive aspects in the proposed amendment, like the criminalisation of marital rape, which will be punishable by 12 years in prison. But this was not the brainchild of conservative groups. The proposed amendment would also make incest punishable by up to 12 years in prison. Right now, the punishment for incest is simply a nullification of marriages between relatives.

Fahri Hamzah, Deputy Head of the People’s Representative Council, said he is determined to pass the proposed legislation before the end of his term at the end of the year. Despite all the criticism, he is prepared to pass the law by Sept. 24. He invites critics of the bill to request the Constitutional Court to conduct a judicial review.

Apart from laws that invade people’s private lives, the proposed amendment has also been criticised for leaving room for “living laws,” also known as “customary laws” to be enforced on citizens. These laws give regional governments leeway to interpret laws in a local cultural context, subjecting individuals to the decisions of local leaders and punishment outside the national law.

The draft amendment also includes matters beyond sex, going as far as including an article that criminalises “insulting the president.” The proposal, the ICJR said, pushes Indonesia back by a century.

“These laws will take Indonesia back to the colonial era and may potentially be even worse than colonial laws.”