It’s Time for Indonesia's Police to Stop Busting Unmarried Couples for Having Sex

This article originally appeared on VICE Indonesia.

On Valentine’s Day this year, municipal police arrested dozens of unmarried couples at a hotel in Surabaya, Indonesia. Their crime? Getting a room together and owning condoms. Such mass arrests have become a yearly occurrence.

The body largely responsible for these arrests, which occur less intensely throughout the year, is the municipal police. Unlike the Indonesian national police, which enforces constitutional law, municipal police enforce the bylaws of regional governments. It’s a little-known fact that only national police have the authority to legally conduct raids, which explains the lack of scrutiny on raids conducted by the municipal police.

It’s not uncommon for such raids to become public events, with ordinary citizens joining in. To legitimise these operations, municipal police often employ the help of the National Narcotics Agency, the military, and national police, which was exactly the case in Surabaya this Valentine’s Day.

But here’s the catch: extramarital sex, when done in private, is totally legal in Indonesia. Indonesia’s criminal code only prohibits three types of sexual relations: sex between individuals who are already married (but not to each other), sex with underage girls, and sex with women who are unable to consent.

And it wasn’t just Surabaya officials who raised hell this Valentine’s Day. In the city of Mojokerto, municipal police raided private residences, confiscating condoms and aphrodisiacs. In Makassar, municipal police detained a German woman after catching her with a man outside of wedlock. She was let off the hook because the head of Makassar municipal police acknowledged that “her culture is different from ours.”

Busting into private settings to catch people having sex is not only a violation of privacy, it’s also illegal.

Febriadhitya Prajatara, a spokesperson for the Surabaya government, said the unwarranted Valentine’s Day searches were conducted “in anticipation” of immoral activities, which if found to be of criminal nature, would be referred to the national police.

The Indonesian Criminal Code does not define the term “immoral activities,” but recommends a prison sentence of 2 years and 8 months for those who perform them intentionally and in front of others. Sex in public, then, might warrant prosecution, but certainly not sex in private. The Criminal Code also does not view consensual sex in a private setting as adultery, which is a crime.

Since municipal police enforce local bylaws created by regional governments, the city of Surabaya must have some bylaw regulating extramarital sex, right? Wrong.

Even if such bylaws did exist in Surabaya, raids would have to be conducted by national police, and they would still require a search warrant to enter private accommodations, unless they can prove a crime is taking place.

“Municipal police must first file a report to prove they have reasonable cause to search a location to determine if any criminal activity is taking place,” Yuris Rezha Kurniawan, legal expert at Gadjah Mada University, told VICE.

Kurniawan also stressed that municipal police can only conduct raids if accompanied by national police.

The process for obtaining a permit to search a private location is actually more complex than Kurniawan described. The Indonesian Procedural Criminal Code, a handbook containing guidelines for law enforcement, states that two witnesses must be present during the search if national police obtain a warrant. Additionally, police are obligated to produce a report for the tenant whose property they searched.

It’s clear, then. Municipal police cannot legally conduct raids on citizens having consensual sex in private. So, what can Indonesians do if they find themselves the subject of a random raid with no legal basis?

“You can ask the police to show you the relevant documents and permits. If the [victim] is considered to be a suspect, he or she can appeal the search request in court,” Yuris said. “Regardless, he or she is entitled to refuse to be searched without legal council.”

But it seems that lately, the government can only think about getting involved in its citizens’ sex lives. Last year, attempts to criminalise extramartial sex were met with colossal protests. This month, the People’s Representative Council started pushing for legislation that would ban BDSM (bondage, domination, sadism, and masochism) in the bedroom for being “sexually deviant.”

The topic of sex has spiraled into a tug of war between different government bodies. For years, the Ministry of Health has worked alongside the National AIDS Prevention Commission in campaigning to remove the stigma from purchasing condoms. Meanwhile, police are actively attempting to confiscate and prevent the sale of condoms, overturning years of progress.

In Indonesia, rates of HIV and AIDS are highest among housewives, suggesting Indonesian municipal police have ill-informed intentions. Since married couples can also benefit from easy access to contraceptives that can prevent the spread of disease, it’s time for police to stop labelling condoms as symbols of adultery.