Women in Criminal Law
1. Women in Criminal Law
1) An overview of women’s experience is important isssue to be a barometer in this study. It will provide understanding and also input, the aim is no other than to protect women from violence. Some issues related to discrimination of women in terms of punishment both in the National Criminal Code (KUHP) and other lex-specialies, where there occurs an increase of criminalization, in about 60% of victims reporting as victims of violence are even criminalized with other crimes, such as defamation, violation of the Law on Elimination of Domestic Violence (UU KDRT), and others. Plus the practice of criminal law itself doesn’t provide protection. It is our proposal that it would minimize the legal practices that make any criminal law unproductive.
2) Some provisions in the Criminal Code, such as insentencing seem to be gender neutral, but in fact, it is discriminating against women. Based on the principle written in CEDAW, there is another concept of injustice, that gender netral can be discriminative against women because substantive justice expects that it is not just fair in the process but it should also be fair in the results. How to find the right form of punishment? Let’s see who is punished? What structural position
a person holds in the community. We can see through anyone being punished. We need to see the position of women in the structure. For example, if someone is placed in a particular environment, we can ascertain of how he/she will behave. Suppose there is a child in
a localized compound and being abused, then anyone being abused a localized compound and being abused, then anyone being abused
3) To give an appropriate punishment, we must note several concepts such as non-victimization; no more victimization on the-already- victims. In some specific criminal act the perpetrator is the victim. Suppose the perpetrator was the victim of social injustice, e.g. poor people who are forced to steal, involved in human trafficking, in persons and children. The main actor will be included in the component of participation, whether the initiator or just participator, or even just a servant. He has no criminal motivation but already committed the crime. Which one should be taken primarily when there are several criminal offenses? For example, should we put in the first place victims of domestic violence, who have become victims for decades, or otherwise put the perpetrator of this domestic violence or the victims of domestic violence who stabbed the perpetrator of that domestic violence? thus, we must pay attention to the rule of law and the compliance of legal norms with one another.
4) Another problem is the legal pluralism in Indonesia, where in some areas of Indonesia women is treated unfairly and discriminatively, the law was not the same between the national and the local. One of them is in Aceh. It is in NKRI ( Negara Kesatuan Republik Indonesia, the integrated Republic of Indonesia), but Aceh has a criminal law of its own, although it isn’t that much different from KUHP ( kitab Undang- Undang Pidana, book of the National Criminal Code), but in some details, it is different.For example, when a criminal offense has been regulated in the Criminal Code, then the non-Muslim citizens can choose where to go, but if it’s already set by Qanun, not regulated in the Criminal Code, then they should follow Qanun. For example, a case of a woman who sells alcohol. The Criminal Code doesn’t set the provision about it, but Qanun has it. If the actions taken by women of different religions, the process and the penalties would be different. The result is there are different punishments for the same act. We 4) Another problem is the legal pluralism in Indonesia, where in some areas of Indonesia women is treated unfairly and discriminatively, the law was not the same between the national and the local. One of them is in Aceh. It is in NKRI ( Negara Kesatuan Republik Indonesia, the integrated Republic of Indonesia), but Aceh has a criminal law of its own, although it isn’t that much different from KUHP ( kitab Undang- Undang Pidana, book of the National Criminal Code), but in some details, it is different.For example, when a criminal offense has been regulated in the Criminal Code, then the non-Muslim citizens can choose where to go, but if it’s already set by Qanun, not regulated in the Criminal Code, then they should follow Qanun. For example, a case of a woman who sells alcohol. The Criminal Code doesn’t set the provision about it, but Qanun has it. If the actions taken by women of different religions, the process and the penalties would be different. The result is there are different punishments for the same act. We
5) If we look at the evolution on the meaning of punishment, in fact it is retribution, as a deterrent, as well as rehabilitation which contains the principle of restorative justice. For that, several recommendations in the discussion of women and criminal law, we hope that norms, customs and practices of the law may become more responsive to women and more pro-victim. We hope not that the present law may actually harm women.
Recommendations:
1. To ensure the role of the state exist to provide certainty and justice for victims by providing counseling and legal education to brighten the community.
2. To merge criminal and civil cases on cases of domestic violence.
3. To provide a special judicial system for the issue of sexual violence.
4. To provide specific rules to delay the prosecution and execution or other legal proceedings against the women and children to scrutinize the situation and the condition of women victims, for example, female as head of household, nursing women, pregnant and ill, a condition that requires treatment.
5. To provide more access to legal counsel.