« A multitude of sins: the revised criminal code » by Naila Rizqi Zakiah, 30/01/2018, Indonesia at Melbourne
Over the last two weeks, the bitter debate over whether lesbian, gay, bisexual and transgender (LGBT) Indonesians should be criminalised has reached new heights of acrimony. The never-ending argument about LGBT rights was revived following the decision of the Constitutional Court to reject the Family Love Alliance (AILA) petition that sought to extend the scope of articles in the Criminal Code (KUHP) on same sex relations and sex outside marriage.
The speaker of the Constitutional People’s Assembly (MPR), Zulkifli Hasan, added fuel to the fire when he made unsubstantiated claims that the People’s Representative Council (DPR) was discussing a bill on LGBT and same-sex marriage and five political parties were attempting to legalise LGBT behaviour. In reaction, politicians are now expediting efforts to pass long discussed reforms to the KUHP, including provisions that would criminalise same sex relations.
But while the media and the public have focused on the criminalisation of homosexuality, the proposed revisions to the KUHP are much broader, and seek to criminalise all extramarital sex, regardless of gender. The anti-LGBT propaganda has obscured the threat the revisions pose to the privacy and human rights of all Indonesians. There is a real danger that society will support increasing criminalisation based on moral and religious arguments without knowing or thinking about the consequences.
As is stands, the KUHP already criminalises adultery (zina). But the provision on adultery applies to sex between a married person and a person who is not their spouse, and is a complaint offence (delik aduan). This means it is only considered a crime if a party who feels they have suffered from the act reports it to the police. Article 484 of the revised criminal code, however, converts zina where one of the parties is married into a ‘normal offence’ (not based on a complaint or report), meaning that anyone can report cases to police.
Most concerning is that Article 484 extends the definition of zina to all extramarital sex. If a man and woman who are not bound by a “legitimate marriage” have sexual intercourse, they could face up to five years in prison. Article 484(2) explains that this type of adultery between two unmarried people based on complaints of spouses, or any concerned third party. The article doesn’t contain a clear definition of third party, which could be interpreted loosely. Can society claim to be a third party? A neighbour? Or the police? The revised code could pave the way for anyone in society to interfere in their fellow citizens’ affairs, essentially providing the legal basis for the persecution of people who engage in extramarital sex.