31 Jan 2018

The revised regulations on crimes prepared by the House of Representatives (DPR) and the government tend to set aside the spirit of the constitution. The final draft of the Bill on the Criminal Code includes descriptions of the crimes of adultery and sexual relations with others of the same sex. Apart from being difficult to apply, the proposed law ignores basic human rights and the right to privacy.

Under the pretext of religion and morality, almost all the political parties in the DPR agreed to a broadening of the description of adultery as set out in Article 484 of the Criminal Code (KUHP) Law. In essence, a sexual relation between a man and a woman may be deemed criminal if they are both unmarried. They could then be sentenced to up to five years imprisonment.

The essence of the description of adultery is totally changed from the current Criminal Code Article 284. The current regulation is mainly directed at preserving the sanctity of marriage from adultery. This article requires there be a complaint from either the husband or wife whose partner has committed adultery. A case may then still be aborted if the complaint is withdrawn.

This Criminal Code Bill is beginning to head into a different direction. The state would not just be preserving the bond of marriage, but is set to play a bigger role: managing the sexual and moral behavior of its citizens. The political parties supporting it cite that sexual relations outside marriage contravenes religion and endangers personal health. This argument assumes all moral and religious matters will come right if they are left to the state to look after.

Imagine how difficult it would be for the police should this new regulation really come into effect. They would have to look after their fellow citizens’ sexual behavior if someone complains about it. The regulation can be easily misused and can encourage the populace to take the law into their own hands. Anyone can accuse someone else of adultery. However, the legal process for such a case will always be controversial because proving this is never easy.

This broadening of the rules on adultery clearly comes with many drawbacks. The new description of the crime could also be misused by someone in power to destroy the reputation of a political opponent. The new regulation also poses a threat to traditional communities and adherents of other beliefs. Even now, many members of such groups live as married couples but have never been legally married.

The regulation on same-sex relations set out in Article 495 of the Criminal Code Bill is no less controversial. The article broadens the definition of obscenity covered under Article 292 of the Criminal Code. Currently, criminality only applies to adults violating children of the same sex. Now a new clause has been slipped in on same-sex relations between adults.

Politicians argue that the new statute would not necessarily be applied to lesbian, gay, bisexual, or transgender groups. Charges will only be laid against those committing sexual acts against others using violence, showing immoral behavior in public, or publishing pornography.

Such a regulation is likely to invite multiple interpretations. Could a gay couple uploading a photo on social media showing them embracing then be charged as criminals? These provisions are also odd as the prohibition of obscene acts without any regard to sexual orientation is already regulated in another article. The new law clearly violates the anti-discrimination principle on any grounds now enshrined in the constitution.

The State should not overly regulate morality and people’s private lives. Even if they are forced upon us, such laws will not create a better society, but will instead reduce our dignity and standing as human beings.

(First published in Tempo –