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FACULTY OF LAW
Lund University
Dewi Novirianti
Indonesian Law and Policy on Rape:

Paralegals and Access to Justice for
Rape Victims
Master thesis
30 credits (30 ECTS)
Supervisor: Dr. Christina Johnsson
Master Programme in International Human Rights Law
Fall Semester 2010

Contents
SUMMARY 1
PREFACE 1
ABBREVIATIONS 3
1 INTRODUCTION
1.1 The Cases and the Roles of Paralegals 5
1.2. Objective 10
1.3. Terminology and Delimitation 11
1.4. Methodology: Field Work and Human Rights 14
Indicators
1.5. Outline 17
2 INTERNATIONAL HUMAN RIGHTS STANDARDS AND BEST

PRACTICES IN THE AREA OF RAPE
2.1 Introduction 19
2.2. International and Regional Human Rights Standards 21
on Gender-based Violence
2.3. Rape in International Human Rights Law Framework 27
2.4. Best Practices: South Africa, Canada, Spain 29
2.5. Minimum Criteria of Law and Policy in the Area of 37
Rape
3 INDONESIAN LAWS AND POLICIES ON RAPE

3.1. Introduction 40
3.2. Rape and Incest in the Indonesian Penal Code 42
3.3. Sexual Offence under the Indonesian Domestic 46
Violence Law
3.4. Rape in Children Rights Protection Act 47
3.5. Police, Prosecutors, and Court in Indonesia 48
3.6. The Rights of the Victims 51
3.7. National Policies on Services and Mechanism: 54
Assistant to Victims
4 CASE PROFILES
4.1. Introduction 60
4.2. The Cases 61
4.3. Case Handling: Response and Supports of Legal 65
Institutions
4.4. The Intervention: Roles of Intermediaries 7
5 CONCLUSION
5.1. The Legal Framework in the Area of Rape 78
5.2. The Accessibility of Victims' Rights 79
5.3. The Prominent Position of Paralegals 80
BIBLIOGRAPHY 82
Summary
This thesis discusses two cases of rape against adolescent girls that
happened in Cianjur, West Java, and Lombok, West Nusa Tenggara in
Indonesia. First of all, the thesis evaluates the availability of the legal
framework in the area of rape in Indonesia that ensures the victims rights
with regard to rape. It will look at whether Indonesia has ratified relevant
international human rights instrument with regard to rape, whether the legal
framework in the area of rape has adhered to the international human rights
standard, and if there is the possibility to submit complaint and get it
examined. Secondly, the thesis examines if the victim rights of rape are
accessible and whether the relevant services and mechanisms are secured for
the rape victims without any kind of discrimination. It will investigate if
non-discriminatory access to judicial mechanisms and services are secured,
whether physical, economic, and social obstacles are being eliminated, and
if the access to information and education is available. The thesis
demonstrates that the accessibility of the rights of victims rape were due to
the fruitful combinations of the effective supports of legal officers and
judiciary, the provisions of children rights protection law, and the support of
intermediary or paralegal during the case handling.
1
Preface
In writing this thesis, there were a number of persons who have provided
invaluable supports.
First of all, I would like to thank DR Christina Johnsson for the inspiring
human rights indicators within the wonderfully written ‘Gender Justice Best
Practices’ Report and for the support during the supervision of this thesis. I
am also really grateful for the role of DR Ida Elizabeth Koch, the reader and
examiner of my thesis.
Secondly, I want to thank Anders Trojer who gave me supports and

encouragement to finish this thesis, and also to DR Nina-Louisa Arold for
the supports during my study in RWI.
Last but not least, I am very much grateful for the invaluable supports of my
colleagues in Van Vollenhoven (VVI), University of Leiden: DR Adriaan
Bedner and DR Ward Berenschot during the thesis writing.
There are too many names of friends and family that I cannot mention here.
I always remember their love and encouragement during my difficult time
when I was in Lund.
Jakarta, End of August 2010.
Dewi Novirianti
2
Abbreviations
IAHR The Inter-America system of Human Rights
IACHR Inter-American Commission of Human Rights
CAT Convention against Torture and Other Forms of Cruel,
Inhuman or Degrading Treatment or Punishment
CEDAW International Convention on the Elimination of All Forms of
Discrimination against Women
CRPA Children Rights Protection Act
ECHR European Convention of Human Rights
ECtHR European Court of Human Rights
CESCR The monitoring body of CESCR
Committee
CRC The monitoring body of Children Rights Convention
Committee
FhH Female-headed Household
GR General Recommendation
GBP Gender Justice Best Practices Report
HIV Human Immunodeficiency Virus
HRC Human Rights Committee or the monitoring body of the
ICCPR
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural
Rights
ICERD International Convention on the Elimination of All Forms of
Racial Discrimination
ICLP Indonesian Criminal Law Procedure
ICMW International Convention on the Rights of Migrant Workers
and Members of their Families
ICRPD International Convention on the Rights of Persons with
Disabilities
IDV Indonesian Domestic Law
IPC Indonesian Penal Code
KDP Kecamatan Development Program
LPA Lembaga Perlindungan Anak or Children Rights Protection
Organization
LPSK Lembaga Perlindungan Saksi dan Koran or Victims and
Witness Protection Institution
NGO Non Governmental Organization
PEKKA Perempuan Kepala Keluarga or Female-headed Household
Organization
RPK Ruang Pelayanan Khusus of Women’s Police Desk
SOP Standard Operating Procedure
SUSENAS Sensus Ekonomi Nasional or The National Economics
Census Data of Indonesia
UN The United Nation
UNDP United Nation Development Program
3
WCC Women’s Crisis Centre
WLE Women’s Legal Empowerment
Women’s The monitoring body of CEDAW
Committee
4
1. Introduction
1.1. The Cases and the Paralegals

This thesis discusses two cases of gender-based violence that were gathered
from a field study during the summer time in 2008. The gender-based
violence against two girls happened in two households in Sukatani village,
Cianjur, and North Kuripan village, West Nusa Tenggara. The victims were
Weni (15 years) and Sita (15 years) who live in Sukatani and North Kuripan
respectively. Both girls were scared and confused after a serial of unwanted
sexual contacts occurred to them. Weni’s step-mom and a female-neighbour
whom Weni told her story did not immediately take Weni’s incident
seriously. Meanwhile, Sita’s pregnancy that changed her body shape merely
led her relatives inquired who caused her pregnancy. Not too many villagers
believed the fathers of two girls were the perpetrators of the sexual coercion.
When Weni and Sita were questioned by the neighbours and family
members concerning their dreadful experience of rape, both girls could only
cry. At that moment, no one intended to offer help for Weni and Sita, and
worse, both girls must face the discouraging reactions from most villagers.
Most villagers considered Weni and Sita experience were a taboo for their
villages. Thus, villagers did not only blame the perpetrators, but they also
accused that the girls had instigated the serial of rapes. “Both the father and
the daughter are insane!” said some villagers in North Kuripan.
This thesis examines the extent to which paralegals, children
organization, social workers, and female police officer played roles in order
to make the judicial process more accessible for both victims of violence.
By discussing the two cases of rape, this thesis looks at the implementation
of international women’s rights norms in the grassroots level or villages.
The works of Sally E Merry assists this thesis to analyze the roles of
intermediaries to translate human rights norms to local context between the
different sets of cultural understanding of gender, violence, and justice1.
1
Sally Engle Merry, Human Rights & Gender Violence: Translating International Law into
Local Justice (The University of Chicago Press, Chicago and London, 2006a), Sally Engle
Merry, ‘New legal Realism and the Ethnography of Transnational Law’, 31:4, Law &
Social Inquiry (Fall 2006b), pp. 975-995, Sally Engle Merry, ‘Transnational Human Rights
5
The social context within which the two rape cases occurred such as
cultural norms surrounding the gender roles, parent-child relationship, the
economic conditions of the families in villages have influenced the rapes to
happen. Likewise, the experience of the countries of South Africa and
Namibia demonstrate that girls are rendered vulnerable to sexual abuse
because of the dominant patriarchal ideology or the high status of men, with
respect to girl children, that reduced girls’ ability to refuse sexual advances2.
In the same vein, both communities in Sukatani and North Kuripan seemed
reluctant to provide supports for Weni and Sita. The stories of rape that
were eventually disclosed and became the daily topic in Sukatani had
provoked some infuriated youth villagers to beat up Weni’s father, the
perpetrator. While in North Kuripan some angry male villagers looted the
house of Sita and the father. By the helps of female paralegal in Sukatani
and a children organization at Mataram, the capital city of West Nusa
Tenggara, both Weni and Sita were able to face the situation.
Field study identified some reasons that impeded both girls’ victims
to access justice in cases of rape, both at the stage of cases reporting to state
justice system and in the case handling process. First and foremost, villagers
in Sukatani and North Kuripan have mostly considered incest – rape
perpetrated by fathers to daughters, as documented in the cases is taboo to
be raised in public. This hindered the reporting process to the police, since
most of villagers and the family of the perpetrators disagreed with idea to
report their own family members to the police. When the cases were
reported to the police, community were mostly blaming the victims, even
though the perpetrator submitted incriminating admission to the police.
These occurred in the two rape cases documented, and it will be discussed
further below. Secondly, the legal knowledge and capacity of the victims,
Weni and Sita, women’s villagers and villagers are weak. In the two cases,
Weni and Sita understand that injustices have occurred to them, yet, they do
and Local Activism: Mapping the Middle’, in Caroline M Sage and Michael Woolcock
(eds.), The World Bank Legal Review: Law, Equity, and Development Volume 2 (The
World Bank, Washington DC, 2006c), pp. 185-214.
2
R. Jawkes, L. Penn-Kekana, and H. Rose-Junius, ‘”If they rape me, I can’t blame them”:
Reflections on gender and in the social context of child rape in South Africa and Namibia’,
61, Social Science and Medicine (2005), pp.1809-1820.
6
not know what to do. This reality is in line with a recent survey highlighted
that even though the women’s legal knowledge in villages are sufficient,
their capacity to access justice is inadequate3. Finally, law and policy that
relates to rape cases in Indonesia is generally ineffective let alone able to
deliver justice for women’s victims of violence. Rape case handling in state
justice system is problematic and critical mainly at the reporting stage.
However, the law on children rights protection provides more opportunity
for girls victims of violence to access justice.
Therefore, the interventions and supports from various
intermediaries in the two cases became an option to help encourage these
girls’ victims to report the case. Some villagers and relatives in the two
cases accompany girls’ victims of violence to report the cases as well. As
the cases have captured, the intermediaries including the paralegal helped
girls’ victims of violence to access justice by referring the case to the third
party such as hamlet and village heads or accompany them to the police
stations. The services of paralegal and local organization to assist girls’
rights enforcement in local setting are one of the approaches to translate
human rights concerning violence against women4. By following the
framework of Felstiner on the emergence and transformation of disputes, the
thesis captures the story of Weni and Sita when they were naming, blaming,
and claiming throughout the case handling process5. The two cases indicate
that the works of intermediaries are critical in supporting the girls’ victims
to convey their grievances mainly in the early stage of the cases. As both
cases indicate, the early stages of naming, blaming, and claiming are
significant due to the high risk of attrition they demonstrate and the range of
behaviour they encompass that is greater than in the later stage of dispute6.
Gender-based violence, indeed, became one of the most socially
tolerable human rights violations. The 2009 report of Indonesian National
Commission against Women or Komisi Anti Kekerasan terhadap
3
Please see in Women’s Legal Empowerment Baseline Survey in
http://www.justiceforthepoor.or.id both in English and Indonesian versions.
4
Merry, supra note 1, p. 138.
5
William LF Felstiner, R.L. Abel, and A. Sarat, ‘The Emergence and Transformation of
Disputes: Naming, Blaming, Claiming…’, 15:3/4, Law and Society Review, pp. 631-654.
6
Ibid., p. 636.
7
Perempuan (thereafter Komnas Perempuan) highlights the increasing
numbers of girls’ victims of sexual abuse each year7. Worldwide, it has been
estimated that one of five women will be a victim of rape or attempted
rape8; one in three women will have been beaten, coerced into sex or
otherwise abused usually by a family member or an acquaintance9. Younger
women and adolescent girls are particularly vulnerable to gender-based
violence. Almost 50 percent of sexual assault worldwide are against girls 15
years or younger10.
Violence against women clearly constitutes human rights violation.
Despite substantial evidence and reports of gender-based violence however
international law system and the United Nation (UN) have been reluctant to
acknowledge it as official issues11. The eight core human rights treaties do
not explicitly prohibit violence against women, and in particular, no binding
international treaty address specifically on the issue12. This has created grey
area of women’s rights protection that left some of it unregulated13. For this
omission, the UN body in this case human rights treaties bodies or
7
Please see the complete report of 2009 Annual Report of Komnas Perempuan at
http://www.komnasperempuan.or.id/2010/03/catatan-ktp-tahun-2009/ accessed by 25 April
2010.
8
UN Millenium Project, Investing in Development Goals: A Practical Plan to Achieve the
Millenium Development Goals: Overview, Report to the Secretary General (Earthscan,
Virginia, 2005).
9
The World Bank, Engendering Development: Through Gender Equality and Rights,
Resources, and Voices (Oxford University Press, New York and Washington DC, 2001),
pp. 33, 35, 74, and 99.
10
‘A Role for Men in Gender Equality Fight’, 11(165): 6, IPS UN Journal (13 September
2004).
11
Please see the analysis of an article by Alice Edwards, Violence against Women as Sex
Discrimination: Evaluating the Policy and Practice of the UN Human Rights Treaty Bodies
(2008).
12
The core human rights treaties are the International Covenant on Civil and Political Rights
(ICCPR) 1966, the International Covenant on Economic, Social and Cultural Rights
(ICESCR) 1966, the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) 1965, the International Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) 1979, the Convention against Torture
and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984,
the Convention on the Rights of the Child (CRC) 1989, the International Convention on the
Rights of Migrant Workers and Members of their Families (ICMW) 1990, and the
International Convention on the Rights of Persons with Disabilities (ICRPD) 2006. Most of
these treaties do deal with particular forms of violence that may be perpetrated against
women or girls.
13
International Legal Assistance Consortium (ILAC) and Raoul Wallenberg Institute
(RWI), Gender Justice Best Practices Haiti 10-11 September 2007, Report Commissioned
by the International Legal Assistance Consortium upon Request by the Haitian Ministry of
Women’s Affairs and Women’s Rights, presented at a seminar in Haiti (RWI, Lund
University, 2007) p. 13.
8
committees that are in charge in monitoring treaty implementation of states
parties have been integrating gender-based violence by making gendered
interpretation towards the existing provisions. These treaty bodies have
authority to issue guidelines either as General Comments or General
Recommendations. They highlighted the connections between violence
against women and fulfilment of another rights and freedom prominently on
equality and discrimination14. The CEDAW Committee nevertheless
produced the most comprehensive guidelines on the issue concerned15. The
tasks of special rapporteur on violence against women, its cases and
consequences have also contributed relevant guidelines and
recommendation to prevent and combat violence against women in the area
of rape16.
Indonesia has ratified the International Convention of the
Elimination of All Forms of Discrimination against Women or CEDAW and
the International Convention of the Rights of the Child by 13 September
1984 and 5 September 1990 respectively. Since then, only a few of national
bylaws that related to gender-based violence including sexual violence
against girls were enacted. Generally, access to justice system in Indonesia
focused to protect the defendant’s rights, and in violence against women
cases, the system tends to focus on perpetrator’s rights protection. The rights
of women’s victims of rape are silent in the Indonesia Penal Code17 (IPC)
and Indonesia Criminal Law Procedure18 (ICLP). The main provisions on
rape are included in the Indonesian Penal Code (IPC) or Kitab Undang-
undang Hukum Pidana (KUHP). Yet, the rape against girl child is outlined
under the Indonesian Children Rights Protection Act (CRPA) or Undang-
undang No.23/2002. Some policies concerning services for women and
14
Ibid., p.24.
15
CEDAW, General Recommendation No.19, Violence against women, 11th session (1992),
A/47/38 at 1(1993), Reprinted in Compilation of General Comments and general
Recommendations Adopted by Human Rights Treaty Bodies, U.N Doc.HRI/GEN/1/Rev.6
at 243(2003).
16
Please see various reports that were drafted, proposed, and submitted by Radhika
Coomaraswamy and Yakin Erturk the first and second Special Rapporteur on Violence
against Women (SRVAW).
17
Law No.1 Year 1946 on The Indonesia Penal Code, for English version please see
http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=IDN&p_classi
fication=01.04&p_origin=SUBJECT
18
Law No.8 Year 1981 on Indonesia Criminal Law Procedure (ICLP).
9
children’s victims of violence were established under the police institutions
and in many relevant government institutions.
1.2. Objective
The thesis intends to evaluate the capacity of Weni and Sita, both victims of
violence in dealing with legal problems they faced. Likewise, the thesis
identifies the obstacles that Weni and Sita experienced in the legal context
when they were seeking remedy. The thesis will examine the roles of the
intermediaries in this case female paralegal, a children organization, social
worker, and female police officer to assist the girls’ victims of violence in
dealing with obstacles they faced throughout the judicial process. The thesis
will outline the relevant international woman’s rights norms, binding and
non-binding instruments, on the issues of gender-based violence by
referring to the report of Gender Justice Best Practices (thereafter GBP
report)19. The good practices of the countries of Canada, South Africa, and
Spain in the field of rape have been considered by the GBP report. The
thesis will discuss further the experience of the three countries and the
indicators of human rights that were developed by GBP report.
The availability of the Indonesian legal framework in the field of
gender-based violence and girl child sexual abused and some policies
concerning victims of violence services and mechanism that adhere to
GBP’s human rights indicators will be surveyed and discussed in this thesis.
Using the two cases of rape against adolescent girls in Sukatani and North
Kuripan, the thesis examines the relevant laws including services and
mechanisms are accessible for women and children victims of violence.
Most importantly, the thesis discusses the extent to which the intermediaries
ensured that both Weni and Sita were able to access relevant services and
mechanisms without any kinds of discrimination.
19
ILAC and RWI, supra note 13.
10
1.3. Terminology and Delimitation
1.3.1. Terminology
1.3.1.1. Gender-based Violence and Rape
Gender gender-based violence is violence that directed against a woman
because she is a woman or that affects women disproportionately. It
includes acts that inflict physical, mental or sexual harm or suffering, threats
of such acts, coercion and other deprivations of liberty. Gender-based
violence may breach specific provisions of the convention, regardless of
whether those provisions expressly mention violence20.
Rape is recognized as one of violence against women that happened
in public sphere or general community as mentioned in article 2 of
Declaration on the Elimination of Violence against Women:
Violence against women shall be understood to encompass, but not
be limited to, the following: …
(b) Physical, sexual and psychological violence occurring within the
general community, including rape, sexual abuse, sexual harassment
and intimidation at work, in educational institutions and elsewhere,
trafficking in women and forced prostitution21.
Radhika Coomaraswamy, the first special rapporteur on violence against

women, defined rape as an intrusion into the most private and intimate parts
of a woman’s body, as well as an assault on the core of her self22.
1.3.1.2. Defining Access to Justice
The United Nation Development Program (UNDP) defined access to justice
as:
“Access by people, in particular from poor and disadvantaged groups to
fair, effective and accountable mechanisms for the protection of rights,
control abuse of power and resolution of conflicts. This includes the
ability of people to seek and obtain a remedy through formal and
informal justice systems, and the ability to seek and exercise influence
of law-making and law-implementing processes and institutions.”23
This definition is comprehensive, covering law, policy and implementation.

The UNDP definition assists this thesis to identify five key components for
the victims, Weni and Sita, to reach the objective of access to justice that
consist of (1) the relevant normative legal framework (rules, procedures,
20
CEDAW, General Recommendation No.19, A/47/38, para.6.
21
General Assembly, A/RES/48, 104, 23 February 1994.
22
Para 19, E/CN.4/1997/47.
23
The World Bank, A Framework for Strengthening Access to Justice in Indonesia (the
World Bank, Jakarta, 2007) pp. 1-2.
11
actors and institutions) in the area of rape to promote both victims access to
justice; (2) legal awareness of the victims concerning the law, rights,
obligations and how to access channels to resolve grievances; (3) access of
both victims to appropriate forums in order that the disadvantaged can
translate their legal awareness into action; (4) effective administration of
justice through formal institutions and informal mechanisms in the area of
rape; (5) monitoring and oversight to promote transparency and
accountability within the previous four areas24.
The meaning of access to justice and injustice is interpretative and
contextual. Social scientists identified that each form of trouble, problem,
personal and social dislocation can be interpreted differently. Therefore,
issues that may seem unfair for Weni and Sita, it may be unharmed from
most of villagers’ perspective25. This thesis will utilize the definition of
access to justice to map out how the rights of Weni and Sita were fulfilled
when both girls went through access to justice path.
1.3.1.3. The Definition of Intermediary and Paralegal
Sally Engle Merry defined intermediary as the middle-persons or actors who
translate global idea such as international women’s rights norms into local
situations and retranslate local ideas into global frameworks. According to
Merry, intermediaries are national political elites, human rights lawyers,
feminist activists and movement leaders, social workers, and other social
service providers. In this thesis, intermediaries include community-based
paralegals who were recruited by a Jakarta-based women’s organization, a
children organization, social worker, female police officers. These
intermediaries played roles as accompaniers for both victims during the case
reporting to the police, negotiators to the prosecutors and the judiciaries.
Literally, in law and legal term, a paralegal defines as someone
without a law license who performs routine tasks requiring some knowledge
24
Please see Bappenas, PSPK-UGM, UNDP, Justice for All? An Assessment of Access to
Justice in Five Provinces of Indonesia, (UNDP Jakarta, January 2007) p. 42 and Tim
Koopmans, Court and Political Institutions, Comparative View (Cambridge University
Press, Cambridge, 2003) pp. 233-239.
25
Felstiner, supra note 5, pp. 633-634.
12
of the law and procedures26. In a more simple term, paralegals that provide
justice services are laypeople with basic training in law and formal
government who assist poor and otherwise disempowered communities to
remedy breaches of fundamental rights and freedoms27. However, women’s
paralegals in this thesis defines as female villagers who are selected and
recruited by women’s organization, particularly under PEKKA organization,
and do not have legal education and background but receive serial of
trainings relevant to the activities to increase women’s villagers access to
justice. The trainings aim to provide women’s paralegals with knowledge to
deliver community legal education and assistant to women’s villagers with
the cases. These paralegals received funding from these women’s
organizations for paying transportations and necessary cost for the purpose
of community and women’s villagers rights awareness and case handling.
In the documented cases of rape, female paralegal mostly referred
villagers to urgently deliver assistant from the legal institutions. Their
contribution to the case handling are varied, but mainly they accompany
victims to contact third parties such as hamlet or village head and local
religious leader or directly report violence against women cases to the
nearest police station. If the case is reported to the police, paralegals keep
monitor the case handling in the prosecutors office as well as accompany
women’s victims of violence in court hearings. In most cases, women’s
paralegals also take care of miscellaneous cost arise from the case handling.
In many cases, paralegals have been actively conducting rights awareness in
order to increase villagers’ consciousness of human rights values.
The more prominent the paralegal position in the village, the more
people requested helps and supports from them. Of the cases documented,
most women paralegals already hold previous distinguished position in their
village such as midwives, primary school teachers, and village-head wives.
They work to serve the community thoughtfully, therefore positive
feedbacks and responses from the villagers and the victims of violence are
26
US Legal Definition in http://definitions.uslegal.com/p/paralegal/ accessed on 22
November 2008.
27
Vivek Maru, ”Between Law and Society: Paralegals and the Provision of Justice Services
in Sierra Leone and Worldwide”, 31 The Yale Journal of International Law (2006) p. 429.
13
attributed to them. Weni affirmed that “…. It was lucky that Ibu28 Nining
(female paralegal in Sukatani) accompanied me during the case reporting,
since no relatives were with me during the investigation in the police station
in that evening.”
1.3.2. Delimitation
The focus of this thesis is the experience of two adolescent girls in Cianjur
and West Nusa Tenggara in seeking remedies at local level namely since
the cases occurred in the villages of Sukatani and North Kuripan up until the
case was brought to the court at district level. It will solely focus on the case
handling through formal justice system on rape cases that were reported to
the police. Yet, in Indonesian villages, normally cases either civil or crime
are referred to local leaders before they proceed with formal justice
mechanism29, but it will not be analyzed in detail in this thesis. Apart from
analyzing the cases, this thesis will seize some relevant points of law, policy
and implementation in the area of rape. The various roles of intermediaries
along the case handling process happen to be the realm of this thesis.
1.4. Methodology: Field Study and Human Rights Indicators

1.4.1. Field Study
In order to understand the works of legal officers (police officers and
prosecutors) and judiciary (judges) as well as paralegals in the villages in
case handling of gender-based violence, I have done case study in two areas
in Cianjur district, West java province and West Lombok district, West
Nusa Tenggara province in Indonesia. During the field works, I gathered
two cases of rape occurred in Sukatani village in Canjur, and in north
Kuripan village in West Nusa Tenggara.
To understand the situation in the villages and for the purpose of
case study, I interviewed villagers and the local leaders in Sukatani and
north Kuripan, the paralegals, and local activists in both villages. I
particularly met, visited and interviewed the two survivors, Weni and Sita,
28
It is an Indonesian word means mother.
29
Please see, inter alia, the World Bank, Village Justice in Indonesia: Case Studies on
Access to Justice, Village Democracy and Governance (the World Bank Office, Jakarta,
2004) and the World Bank, Forging the Middle Ground (the World Bank Office, Jakarta,
May 2008).
14
and the two perpetrators, Asep and Mudi, a couple of times and in different
places to collect direct quotes and stories from the first hands. I interviewed
Weni and Sita’s family members and relatives, the police officers,
prosecutors, and judges who handled the cases. The accompaniers of both
cases such as children organization in Lombok and women’s organization in
Cianjur were interviewed as well.
1.4.2. Human Rights Indicators
To evaluate legal framework and legal institutions in the cases of rape this
thesis utilizes the human rights indicators stemmed from GBP report30 as the
methodology. The GBP report utilizes international human rights standards
in the arena of gender justice to define best practices. GBP report defined
best practices as a practice that represents significant steps toward the
realization of the rights in question and that demonstrates the state’s
willingness and commitment to the full implementation of international
human rights standards31. The best practices depend on the law (legislations)
and policy, and the context in which they operate.
To establish best practices in the area of gender justice, GBP report
developed a set of human rights indicator as a tool for measuring the degree
of implementation of human rights in a particular country. GBP report
gathered the international human rights standards on rape such as treaties,
and other binding instruments as well as CEDAW reports and concluding
comments. In this case, human rights indicators were developed to survey
the laws and relevant policies as well as measures of implementation for the
full realization of human rights in the field of rape. The thesis utilizes the
human rights indicators to locate good examples of laws and practices
regarding gender best practices in the area of rape in Indonesia. In other
words, human rights indicators are particularly suited to identify remaining
gaps between human rights obligations and reality in the area of rape32.
The GBP report makes use of four principal indicators relate to how
available, accessible, acceptable, and adaptable a human right is for
30
The report was commissioned by International Legal Assistance Consortium (ILAC) and
Raoul Wallenberg Institute (RWI) both are organizations based Sweden, upon a request by
the Haitian Ministry of Women’s Affairs and Women’s Rights.
31
ILAC and RWI, supra note 13, p.14.
32
Ibid., pp. 14-15.
15
individuals in a state33. The indicators below are applied to survey the best
practices in countries of Canada, South Africa and Spain for rape34:
35
Human Rights Indicators and Sub-indicators of Rape
Available Ratification of international and regional human rights

Does the Indonesian Legal instruments
Framework ensure the
availability of the rights of Legal framework in line with international standard
victims of rape?
Possibility to lodge complaints and have them examined
Accessible Non-discriminatory access to judicial mechanisms and

Are the rights of victims services
of rape accessible? Are
the relevant services and Physical, economic, social and other barriers are removed
mechanisms secured for
both victims of rape
without discrimination of Access to information and education
any kind?
Acceptable Quality of judicial mechanisms

Is the quality of
implementation, including
relevant services and
Cultural acceptability
mechanism in the area of
rape in Indonesia,
ensured?
Adaptable A comprehensive national strategy on violence against

Is there a broader women and rape that is subject to regular evaluation
perspective on the
realization of the rights of No contradiction between rights and other legislation
victims of rape in
Indonesia, i.e. are they
coupled with ongoing
policy-making, Continuous education of affected actors on current rights and
integration, evaluation and standards
education?
Given the scope of the sources gathered during the field works, this thesis is
only using the first two indicators namely the availability and the
accessibility of legal framework and legal institutions in relation to rape
33
These four A’s were initially developed by Katarina Tomasevski, the former UN Special
Rapporteur on the rights to education. Please see Katarina Tomasevski, ‘Indicator’ in
Asbjorn Eide, Catarina Krause and Allan Rosas (eds.), Economic, Social and Cultural
Rights: Textbook Second Revised Edition (Kluwer Law International, The Hague, 2001) pp.
531-544.
34
ILAC and RWI, supra note 13, pp. 61-69.
35
The table is taken from GBP report at ILAC and RWI, supra note 13, p. 15.
16
cases in Indonesia. These two indicators will be used by this thesis to look at
the enforcement of the rights of victims of rape in both cases.
As well as the four principal human rights indicators above, GBP
report also developed sub-indicators in the areas of rape. The more detailed
sub-indicators will be discussed in the second chapter of this thesis.
1.5. Outline
Chapter One. This part is to introduce the cases of rape and briefly narrates
how the intermediaries or paralegals intervened the cases and assisted girls’
victims of violence in case handling. Relevant definitions in the
international human rights norms and national legal standards, in a nutshell,
are described in this chapter. The usage of terminologies and the
delimitation of cases, theories and concepts of access to justice are part of
this chapter as well. On top of that, the description of methodology that
stemmed from the Gender Best Practice (GBP) report is the main part of the
first chapter.
Chapter Two. This chapter aims to explain the international and regional
human rights standards on gender-based violence. It will discuss the
minimum criteria of rape in international human rights framework. This part
also discusses the good example from the countries of South Africa,
Canada, and Spain in the area of rape that are taken, partly, from the GBP
report. Finally, this part will discuss best practices and human rights
indicators that is particularly proposed by the GBP report and utilized by
this thesis as a method to assist the analysis.
Chapter Three. This chapter will discuss the availability of national laws
and policies in relation to rape cases and service providers for victims of
rape in Indonesia. The main component of this chapter is the roles of legal
institutions and the legal implication of the rape elements under the
Indonesian Penal Code in the case handling. It will indicate the strong and
weak points of both legal institutions and the national bylaws in the area of
rape. It will begin by the discussion of the elements of rape under the
Indonesian Penal Law, the Indonesian Domestic Violence Law and the
Children Rights Protection Law. The chapter will also discuss the roles of
17
legal institutions and their initiative in dealing with cases of rape and
gender-based violence in general. The rights of victims and service
providers included in various laws and policies in Indonesia are also
examined in this chapter.
Chapter Four. This chapter will illustrate, in the more detailed manner, the
two cases of rape that were gathered in villages in West Java and West Nusa
Tenggara. It will examine the capacity of the two victims of rape to access
justice. The roles and responses of legal institutions and the roles of
intermediaries in assisting girls victims of violence in the overall case
handling will be the main part of this chapter. This part will also provide the
picture of how legal framework and services are accessible for victims of
rape and whether the relevant services and mechanisms are secured for both
victims of rape in this thesis without discrimination of any kinds.
Chapter Five. This chapter contains the conclusion of the overall discussion
in the thesis. This chapter will put forward the evaluation of the Indonesia
legal framework in the area of rape. It will underline the strength and the
weaknesses of Indonesian legal framework in rape including the availability
of services and mechanism. Finally, it will put forward the accessibility of
victims rights and what makes it possible.
18
2. International Human Rights Standards and
Best Practices in the Area of Rape
2.1. Introduction
Worldwide statistics of violence against women and girls36 have yet to
encourage the UN and the nation states to develop and agree on an
international treaty that particularly addresses gender-based violence.
Therefore, in vindicating the rights of women’s and girls’ victims of rape,
international community makes use of various sources of international
binding and non-binding instruments that unsystematically indicate rights in
the areas of rape. Some international human rights treaties that invite
feminist critiques37 have laid down gender-neutral provisions that can be
used for numerous women’s rights advocacy in the issue of rape. General
recommendations and concluding observations produced by the monitoring
bodies such as the CEDAW or Women’s committee, the Committee Against
Torture (CAT), and the committee on Economic, Social, and Cultural rights
(CESCR Committee) emphasized the linkage between rape and the
fulfilment of another rights, among others, the provisions of equality,
torture, and health38. Besides, the Women’s committee emphasized that the
integrity and dignity of women’s victims of rape should be respected39.
Many reports and scholars, however, acknowledged that the CEDAW
committee has developed the most elaborated guidelines on gender-based
36
Official crimes statistics documented that in India 6,882 women were killed in 2002 as a
result of violence related to demands of dowry –the payment of cash or goods by the
bride’s family to the groom’s family. The UN Population Fund (UNFPA) has estimated
5,000 women are murdered by their family members each year worldwide in ‘honour
killing’ –crimes against women in the name of safeguarding ‘honour’ within the family or
the community. In 2000, around 520,000 people were killed as a result of interpersonal
violence in that including sexual violence36. Available data suggest that in some countries
one in four women report sexual violence by an intimate partner, and up to one-third of
girls report sexual initiation. Hundreds of thousands more are forced into prostitutions or
subjected to violence in other settings, such as schools, workplaces and health-care
institution.
37
Please see Alice Edwards, ‘The ‘Feminizing’ of Torture under International Human
Rights Law’, 19 Leiden Journal of International Law (2006) pp.349-391; Clare McGlynn,
‘Rape as ‘Torture’? Catherine Mackinnon and Questions of Feminist Strategy’, 16 Feminist
Legal Study (2008) pp.71-85.
38
ILAC and RWI, supra note 13, p. 26.
39
CEDAW, General Recommendation no.19, Violence against Women, A/47/38(1992)
Para. 24 (b).
19
violence. Apart from that, the Committee of the Rights of the Child (CRC)
outlined some fundamental principles to protect and provide accessible
judiciary for adolescence girls’ victims of sexual abused40.
To provide international standard in the area of rape, GBP report
helps this thesis to locate the rights in questions. GBP report outlined
relevant rights in the issue of rape such as non-discrimination and equality,
equality before the law, right to the highest attainable standard of physical
and mental health, right to life, right to be free from torture and inhuman or
degrading treatment, right to security and liberty of persons, right to equality
in the family, right to housing and judicial rights41. This chapter, however,
will only focus to discuss some of the most relevant rights in the area of
rape namely non-discrimination and equality, health, and torture. This
discussion leads to the development of minimum criteria for national
legislation on the issues of rape.
Therefore this chapter, in a nutshell, will identify the international
human rights law that have responded to the reality of violence against
women and particularly rape. This chapter will identify numerous General
Comments and Concluding Observation as well as jurisprudences produced
by the monitoring bodies under the CEDAW, the Convention against
Torture (CAT), the Convention of Economic, Social and Cultural Rights,
and the Convention of the Rights of the Child (CRC) in the areas that are
relevant with gender-based violence in particular sexual-abused against
women’s and girls’ victims of violence. This chapter will discuss minimum
criteria for national legislation and some appropriate measures in the field of
rape that adhere to international human rights standards as it was developed
by the GBP report42. These minimum criteria will also be utilized to
investigate national legislation that aimed at identifying best practices in
three countries that were taken into consideration in the GBP report.
Therefore, this thesis will discuss and provide overview of best practices in
the countries of Canada, South Africa, and Spain in the field of rape
40
CRC, General Comment No.4, Adolescent Health and Development in the Context of the
Convention on the Rights of the Child, 33rd session, CRC/GC/2003/4.
41
42
20
particularly on legal definition of rape, the possibilities to report the crime to
the legal institutions, rights of rape victims throughout the judicial
proceeding, and the assistant and support services to female victims of
rape43. A list of criteria to survey law and policy in the field of rape
according to the international human rights standards is presented in the last
part of this chapter that will be utilized by this thesis as a method to assist
the analysis. It will help to examine chapter three on the national laws and
policy in Indonesia concerning rape.
2.2. International and Regional Human Rights Standards on

Gender-based Violence
2.2.1. International Standards on Gender-based Violence
2.2.1.1. Gender-based Violence and the Issue of Equality
The principle of non-discrimination or equality became the robust
foundation in developing definition of gender-based violence under the
international human rights framework. In the unavailability of international
treaty on gender-based violence, women’s committee helped to develop a
quite comprehensive standard through its prominent General
Recommendation (GR) No.19 on Violence against Women that says:
The definition of discrimination includes gender-based violence that
is directed against a woman because she is woman or that affects
women disproportionately. It includes acts of physical, mental or
sexual harm or suffering, threats of such acts, coercion and other
deprivations of liberty.44
This GR No.19 outlines a quite comprehensive guideline on gender-based

violence. It clearly defined that gender-based violence is a form of
discrimination that seriously inhibits women’s ability to enjoy rights and
freedoms on a basis of equality with men. The Women’s Committee
emphasized the close connection between discrimination against women,
gender-based violence, and violation of human rights and fundamental
freedoms that filling the major gaps of gender-based violence issues in the
43
44
CEDAW, General Recommendation no.19, Violence against Women, A/47/38(1992).
21
convention45. Furthermore, the General Recommendation No.19 has really
altered the Women’s convention from a treaty of anti discrimination against
women to a gender-based violence treaty46.
Some other human rights monitoring bodies such as the Committee
on Economic, Social, Cultural Rights (CESCR) and Human Rights
Committee (HRC) have been using similar approach to define the linkage
between sex discrimination and gender-based violence. The two monitoring
bodies acknowledged the linkage between gender-based violence and non-
discrimination principle. For example, the CESCR defined:
Gender-based violence is a form of discrimination that inhibits the
ability to enjoy rights and freedoms, including economic, social, and
cultural rights, on a basis of equality. State parties must take
appropriate measures to eliminate violence against men and women
and act with due diligence to prevent, investigate, mediate, punish
and redress acts of violence against them by private actors47.
The HRC obliged state party to pay attention to women’s victims of rape in
that legal rights and protection of women’s victims should not be
determined by her sexual life48. The approach of these human rights
monitoring bodies in making connection between equality and gender-based
violence have created obligation to state party of the convention to prevent
and eliminate gender-based violence to occur in their country.
2.2.1.2. Gender-based Violence and the Prohibition of Torture
Initially, the issue of torture in the context of international human rights law
received many critical comments from the feminists. This is because torture
traditionally is accepted as prohibited under the international law that
involves male perpetrator and victim49. But the feminist critiques on the
issues of torture did not consider the evolving interpretation of many
relevant rights in the area of gender-based violence adopted by various
international and regional human rights bodies. As can be seen, the key
45
Please see CEDAW, General Recommendation No.19, A/47/38, and 15 years p.1 and
Edwards, supra note 11, pp. 27 and 28.
46
Please see Edwards, supra note 11.
47
ICESCR, General Comment No.16 (2004), article 3: the Equal Right of Men and Women
to the Enjoyment of All Economic, Social and Cultural Rights, UN Doc. E/C.12/2005/3,
para.27.
48
Please see CCPR, General Comment No.28: Article 3 (The Equality of Rights Between
Men and Women), CCPR/C/21/Rev.1/Add.10, para. 21.
49
Edwards, supra note 11.
22
feminist critiques in the 1980s and 1990s are currently reflected in
commentary and jurisprudence of many international and regional human
rights bodies50.
The prominent example of this commentary is the interpretation of
article 7 of the International Convention on Civil and Political Rights
(ICCPR) regarding the traditional construction of torture. In the context of
article 7 of ICCPR, the HRC has criticized high incidence of violence
against women including domestic violence and rape51. The Human Rights
Committee also mentioned the need for states to adopt legislation for
criminalizing marital rape and provide assistance for victims of sexual
violence. To reach this purpose, under article 7 of the ICCPR the HRC
released comments and concluding observations that obliged state party to
ensure justice system that incorporate support for women’s victims of
violence such as shelters and offer material and psychological relief for the
victims52. In the General Comment No.28 on the equality rights between
women and men, the HRC incorporated article 7 although superficially in
that the General Comment indicates the breaches of article 7 include
domestic violence and rape53.
Through the concluding observation and recommendation of the
country of Togo and Guatemala, the Convention against Torture showed
their concerns concerning extensive acts of sexual violence against women
including while in the detention and during the investigation and judicial
processes54. On the issue of torture, the CEDAW committee considered the
issue falls under the meaning of gender-based violence in the article 1 of the
CEDAW55. Unfortunately, it does not relate directly to both notions of
torture under article 7 ICCPR and the meaning of torture under the CAT. It
seems the Children Rights Convention is the only human rights treaty
outside the CAT that mentioned the prohibition of torture and its relation
50
Edwards, supra note 11.
51
Please HRC Report, UN Doc. A/59/40 (2004) (Vol. I) for example: Sri Lanka, para. 20;
Colombia, para. 14; Germany, para. 14; Lithuania, para. 9.
52
Please HRC Report, UN Doc. A/59/40 (2004) (Vol. I) for example: Hungary, para. 10.
53
HRC, supra note 12.
54
55
Please see CEDAW, General Recommendation No.19, A/47/38, para. 7.
23
with sexual abused that the children might experience from their parents and
the legal guardian. In the General Recommendation No.8, the CRC
Committee mentioned the relation of article 9 and 37 of the CRC. Article
37 of the CRC states that “no child shall be subjected to torture or other
cruel, inhuman or degrading treatment or punishment”. The CRC committee
contended that this article 37 of the CRC has extended and complemented
by article 19 (1) of the CRC that says:
States Parties shall take all appropriate legislative, administrative,
social and educational measures to protect the child from all forms of
physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including sexual abuse,
while in the care of parent(s), legal guardian(s) or any other person
who has the care of the child.
Furthermore, the CRC committee highlighted these two articles in the

General Recommendation No.8 by saying that there is no ambiguity that
“all forms of physical or mental violence” does not leave room for any level
legalized violence against children56.
2.1.3. Gender-based Violence and the Right to Health
Apart from torture, the issue of health has mostly discussed in the context of
gender-based violence. The issue of health is often related to the service
providers for women and girls’ victims of violence. The three human rights
monitoring bodies namely the CEDAW Committee, the CESCR Committee,
and the CRC Committee have been making the clear link between the rights
to health and the issues of sexual violence. The women’s committee has
included: “the right to the highest standard attainable of physical and mental
health” as one of the rights that are ensured under the meaning of article 1 of
the CEDAW. Furthermore, the women’s committee underlined that gender-
based violence will put women’s health at risks57.
The CESCR Committee seemed providing the most comprehensive
protection of the rights to health through article 12 of the convention58. The
CESCR General Comment No. 14 ensured that the right to health contains
56
Please see the CRC, General Comment No.8, CRC/C/GC/8 (2006), para. 18.
57
Please see CEDAW, General Recommendation No.19, A/47/38, para. 19.
58
Article 12 (1) CESCR states that ”The state parties to the present covenant recognize the
enjoyment of the highest attainable standard of physical and mental health”.
24
both freedoms and entitlements including the right to be free from torture59.
The CESCR through this General Comment imposed the obligation of the
states in the context of right to health that consisting of obligations to
prevent violence, to protect women against violence and to prosecute the
perpetrators60. These monitoring bodies highlighted that the healthcare
service provider should be trained in order to get familiar with gender-based
violence issue61. On the health issue, the CRC committee specifically
addresses the adolescence health. The CRC committee imposes state party
to pay particular attention to their adolescence so that they are protected
from all forms of violence, abuse, neglect, violence and exploitation that
affect their age of group62. On top of that, the CRC committee ensured the
availability of public health facilities and the accessibility of these facilities
without any discrimination for the adolescence63.
2.2.2. Regional Human Rights Standards on Gender-based Violence
Under the European Court system, the case law has emphasized the
obligation of the states to respond to sexual crimes64. Through some cases,
the ECtHR confirmed that sexual crimes and abuses have been determined
to fall within the scope of torture and inhuman and degrading treatment65.
In the case of M.C. v. Bulgaria, the European Court of Human
Rights determined that the lack of consent and not the use of violence or
force are the elements of the crime of rape66. Within the same case, the
requirement of evidence of physical resistance of the victims would not be
accepted by the ECtHR. The state in this case law is required to investigate
59
Please see the ECSCR, General Comment No.4, E/C.12/2000/4 (11 August 2000), para.
8.
60
61
Please see CEDAW, General Recommendation No. 24, Women and Health, 20th session
(1999), paras. 12, 15, 18 and 31; the CESCR, General Comment No. 14, The Right to the
Highest Attainable Standard of Health, E/C.12/2000/4, paras. 3, 21, 35, 36 and 51.
62
Please see CRC, General Comment No. 4, Adolescence health and development in the
context of the Convention on the Rights of the Child, CRC/GC/2003/4 (2003), para. 2, 6,
and 12.
63
Ibid., para. 41.
64
Please see cases that are referred by the GBP report such as of X and Y v. the
Netherlands (1985); E and others v. the United Kingdom (2002): M.C. v. Bulgaria (2004).
65
Please see Aydin v. Turkey (1997), paras. 83 and 86, E and others v. the United
Kingdom (2002); M.C. v. Bulgaria (2004).
66
Please see the case of M.C. v. Bulgaria (2004) Judgment of European Court of Human
Rights, 4 December 2004, para 163.
25
rape allegations in order to meet the ‘due diligence’ standard67. Furthermore,
the right to privacy under the ECHR imposes positive obligation of state
parties to protect a person’s physical and moral integrity including her or his
sexual life68.
The Inter-American system of Human Rights (IAHR) has similar
good practice with the European counterpart in the areas of gender-based
violence including rape. The Inter-American System Commission of Human
Rights (IACHR) has obviously ruled that sexual abuse constitutes a
violation of article 5 of the IAHR69. In some cases, the Inter-American
Court of Human Rights ruled rape and sexual abuse violate the right to
humane treatment, personal liberty, privacy, fair trial, judicial protection and
the rights of the child70. On the issue of torture, even though the American
Convention on Human Rights does not create a definition of torture for the
purpose of article 5, the commission stated that the definition has been
elaborated in the Inter-American Convention and Punish Torture 198571. In
case law of Raquel Marti de Majia v. Peru, the commission stated both the
physical and mental suffering caused by the act of rape against the
applicant. The commission stated that rape causes a woman to suffer ‘public
punishment’:
The fact of being made the subject of abuse of this nature (rape) also
causes a psychological trauma that results, on the one hand, from
having been humiliated and victimized, on the other hand, from
suffering the condemnation of the members of their community if
they report what has been done to them72.
67
Ibid, para. 166.
68
Please see the case of X and Y v. the Netherlands (1985), para. 22-23 as it was referred
by the GBP report.
69
Article 5 (2) of the American Convention of Human Rights states that ”no one shall be
subjected to torture or to cruel, inhuman or degrading punishment or treatment. All persons
deprived of liberty shall be treated with respect for the inherent dignity of the human
persons.
70
71
Please see Edwards, supra note 11, p. 383 and see also OAS Treaty Series No. 67, Doc.
OEA/Ser.L.V/II. 82 doc. 6 rev. I, at 83 (1992).
72
Raquel Marti de Meija v. Peru, Case 10. 970, Report No. 5/96, IACHR,
OEA/Ser.L/V./II. 91 Doc. 7, at 157 (1996).
26
2.3. Rape in International Human Rights Law Framework
2.3.1. Legislation on Gender-based Violence
The general recommendation or comments and concluding observations that
have produced by the UN Human Rights monitoring bodies discussed above
helped this thesis to outline minimum criteria of national legislation that
adhere to the international human rights standard in the area of rape73. The
GBP report developed a list of minimum criteria for the national legislation
in the field of rape that came out of the discussion above:
• The definition of rape is based on the lack of consent and not the use of
violence or force or coercion
In the concluding observation of Czech Republic74 and Estonia75, the
CEDAW committee urged “the state party should define the crime of
rape as sexual intercourse without consent.” Meanwhile, in the element
of rape that was developed by the ECHR, rape is based on the lack of
consent and not the use of violence or force or coercion76.
• Rape within marriage is criminalized
In the interpretation of article 7 of ICCPR, the Human Rights
Committee imposed state party to adopt legislation for criminalizing
marital rape. Likewise, the HRC recommends Azerbaijan to take
effective measure to combat violence against women including marital
rape77. While in the concluding observation of Malaysia the CEDAW
committee concerned with the reluctant of the government to criminalize
marital rape78.
• Incest is defined as specific crime
CEDAW committee in the concluding observation of Japan concerned
that the issue of “incest is not defined explicitly as a crime under the
73
74
Please see CEDAW, Concluding Observations, Czech Republic, A/57/38, part III (2002),
paras. 95-96.
75
Please see CEDAW, Concluding Observations, Estonia, A/57/38, part I (2002), para. 98.
76
Please see M.C. v. Bulgaria as it was also referred by the GBP report.
77
Please see CCPR, Concluding Observations, Azerbaijan, A/57/40 vol. I (2002), para. 17.
78
Please see CEDAW, Concluding Comments, Malaysia, CEDAW/C/MYS/CO/2 (2006),
para. 21.
27
Penal Code but is dealt with indirectly under a number of different penal
provisions.”79
• The law treats sexually exploited persons as victims and not as offenders
The CRC committee obliges state party to ensure that they treated the
adolescence that has been sexually exploited, in order to be treated as
victims and not as offenders80.
• Sentences are not too lenient.
In several concluding recommendations, the CEDAW committee
expressed their concerns that some states such as Iceland, Czech
Republic, Japan that the sentences for the perpetrator of sexual violence
including rape in the current Penal code is too lenient81.
• No discriminatory mitigating circumstances, such as defence of honour
or reduced sentences if the rapist marries the raped women.
The CEDAW mentioned that state party should have “measure that are
necessary to overcome family violence that should include legislation to
remove the defence or honour in regard to the assault or murder of a
female family member.”82
• Sexual crimes and offences are defined as crimes of violence against
persons and not as crimes against morality.
In the concluding observation for Belgium, the CEDAW committee
“expressed their concern that Belgium’s law does not define sexual
crime as a human rights violation and classifies sexual abuse as a crime
of morality rather than as a violent crime.”83
• The investigation of gender-based crimes should be mandatory i.e. these
crimes should constitute public offences.
79
Please see CEDAW, Concluding Observation, Japan, CEDAW/C/JPN/CO/6, para 33.
80
Please see CRC, General Comments, CRC/GC/2003/4 (1 July 2003), para. 37.
81
Please see CEDAW, Concluding Observations, Czech Republic, A/57/38, part III (2002),
para. 95; CEDAW, Concluding Observations, Iceland, A/57/38, part I (2002), paras. 245-
246; CEDAW, Concluding Observations, Japan, A/58/38, part II (2003), para. 361 as it was
referred also by the GBP report.
82
CEDAW, General Recommendation No.19, A/47/38, para. 24 (r) (ii).
83
Please see CEDAW, Concluding Observations, Belgium, A/57/38, part II (2002), para.
151.
28
A good example of this point is that the 1998 revision of the Penal Code
of Portugal that made violence against women a public offence, and this
is rendered police investigation of these kinds offences mandatory84.
2.3.2. Other Measures
The legislative measures discussed above are deemed insufficient to help
realize the rights of women and girls’ victims of rape. Therefore, in order
for women’s and girls’ victims of rape to be able to access justice and get
the remedy, the General Comments and the Concluding Observation
provide guideline on another appropriate measures that should be taken by
states. These measures include85:
• Public awareness raising including gender sensitive training of all public
officials.
• Support services mechanism for victims both psychological and medical
assistance, effective complaint mechanisms (state and non-state), and
civil remedy.
• Attitude and discriminative treatments towards women’s victims of
violence that impeded women’s equality such as prejudices, practices,
and stereotypes should be removed.
• Judicial mechanism and procedure should be gender and child sensitive.
• Evidence and the evaluation of evidence.
2.4. Best Practices: South Africa, Canada, and Spain

By using the human rights indicator as the method, the GBP report has
surveyed best practices of law and institutions in the area of sexual violence
in three countries namely Canada, South Africa, and Spain86. The three
countries demonstrated good examples in combating sexual violence albeit
they have different background of social and economic situation as well as
religion and legal culture. This part will identify good examples of legal
statutes and institutions in the three countries in the area of rape.
84
Please see CEDAW, Concluding Observations, Portugal, A/57/38, part I (2002), para.
320.
85
86
29
2.4.1. The Legal Definition and Elements of Rape
Defining rape and establish the element of rape are important from the
perspective of the victims, since it will provide the extent to which the
protection for the victims are provided. The elements that constitute rape
covers the rules of consent, the age of the victims, the resistance of the
victims, whether rape includes marital rape, the degree of violence, and
evidence87. This section will present good examples of these elements of
rape that exist in Canada, South Africa, and Spain. Due to the problem of
language, this thesis will mainly look at best practices in Canada and South
Africa.
In the three countries, rape and another sexual violence are
considered as public offences. The terms of legal definition of rape is gender
neutral. Therefore, the provision of rape in the three countries is applied for
men and women equally. South Africa uses the legal term of rape and not
‘sexual assault’ or ‘sexual aggression’ as other countries use. South Africa
defined Rape as:
A person who unlawfully and intentionally commits an act which
causes penetration to any extent whatsoever by the genital organs of
that person into or beyond the anus or genital organs of another
person, or any act which causes penetration to any extent whatsoever
by the genital organs of another person into or beyond the anus or
genital organs of the person committing the act, is guilty of the
offence of rape88.
‘Lack of consent’ is the main element of rape definition whether it

expresses directly or indirectly. Criminal law in Canada defines ‘consent’ as
“the voluntary agreement of the complainant to engage in the sexual activity
in question.”89 The element of ‘lack of consent’, however, does not appear
or is mentioned clearly in each definition of rape. In South Africa, the lack
of consent implies in the terms of ‘coercive circumstances’ such as ‘use of
force’, ‘abuse of power’, and ‘threat of harm’90. In some countries, the
article of rape provides list of a number of condition in which a victim is
‘legally incapable to provide consent’ due to, mainly, age, mentally
87
88
Article 2 South Africa Sexual Offence Bill.
89
Article 278 and 279 on Sexual Assault in Canada.
90
Article 2 (3) South Africa Sexual Bill.
30
impaired person, under the influence of any medicine, drug or alcohol91.
Furthermore, ‘the lack of resistance’ sometimes implies to replace ‘the lack
of consent’ in many rape cases. In some rape cases in Canada, the
prosecutor was tasked to proof that the accused was careless as to the
victim’s lack of consent92.
The degree of violence within the rape definition in the observed
countries affects the classification of the offence and the sentencing.
Criminal law in Canada determined imprisonment for the sexual offence
between 10 and 14 years or for life. This sentencing indicates the gravity of
the offence for example “everyone who commits a sexual assault is guilty of
an indictable offence and is liable to imprisonment for a term not less than
ten years” or; “if a restricted firearm or prohibited firearm is used in the
commission of the offence” is liable to imprisonment for a term not
exceeding 14 years and minimum punishment of imprisonment for a term of
the case of a first offence, five years.”93
In the three countries, sexual offence against a person under a certain
age or children is deemed a crime regardless of the consent of the person.
The age limits are varied, for example South Africa has determined a person
below 12 years age is considered incapable to appreciate a nature of a
sexual act. However, not every country defined kinds of sexual acts. Legal
cases in Canada stated that “circumstances of a sexual nature, such that
sexual integrity of the victim is violated.”94 In addition, marital rape is
obviously a crime in all country observed. Therefore, marriage or other
sentimental relationship cannot be used as the defence of the accused of
rape.
In the evaluation of evidence, Canadian Criminal Law highlighted
that corroboration or reputation are not admissible to prove a sexual
violation to happen. Meanwhile, the Sexual Offence Bill in South Africa
91
Please see for example Article 2(5) Sexual Bill in South Africa.
92
Canada: see Supreme Court judgements, R v. M. (1994), 89 C.C.C. (3d) 96 (S.C.C.), and
R. v. Ewanchuk (1999), 131 C.C.C. (3d) 481, para. 31. Canada: R. v. Ewanchuk (1999),
131 C.C.C. (3d) 48 (S.C.C.), para. 42 as it was referred by ILAC and RWI, supra note 13,
p. 62.
93
Please see Article 272 on Sexual Assault in Canada.
94
Please see Canada: Supreme Court, R. v. Chase, [1987] 2 S.C.R. 293, para. 302 as it was
quoted by the GBP report.
31
mention “a court must not call for corroboration evidence solely on account
of the fact that the witness is the complainant of a sexual offence.”95
Therefore, the unavailability of a witness to the sexual offence not impedes
a convicting judgment96. Spain makes possible of civil responsibility of
sexual offence that comprises of restitution, reparation for material damages
and compensation for mental and physical injuries97.
2.4.2. Institutions and Procedures
Police, prosecutors, and courts have critical position in providing justice for
the victims of rape. A special unit for sexual offence and guideline to handle
rape cases under the police and prosecutors are the methods to increase the
effectiveness of their services for each victim of rape. National database
under the police will also support the prevention effort for future sexual
violence to repeat by the same sexual offenders. The gender sensitivity and
sufficient knowledge of judges are particularly important to determine the
fair judgment of a rape case.
In most rape and sexual violence cases police has a critical roles to
define whether a victim would decide to submit her or his complaints and
report their experience. Therefore, the treatment of a police officer towards
a victim of rape will influence whether the victim wants to cooperate to
reveal the story of sexual offence. To reach this end, some countries, inter
alia, Canada and Spain created a special unit to deal with sexual offence
cases such police aggression unit or sexual crime unit98. In addition to these
special units and to enhance the professionalism of police officer South
Africa police force has developed a special guideline in the handling of
sexual offences99. For the victims’ interests, an accessible information
guideline for victims of sexual assault should be available at the police
station. The guidelines should contain sufficient information of the victims’
rights and the possibility for the victims to have an accompaniment when
giving statements in the language that the victims understand. For example
the Solicitor General in Canada published ’Information Guide for Victims
95
Please see Article 18 Sexual Offence Bill in South Africa.
96
97
Article 109-126 Penal Code Spain.
98
99
32
of Sexual Assault’100. To avoid the repeating sexual offences by same
offenders, a national database that is maintained under the police station
should be established such as the one that was established under the ‘Sex
Offender Information Registration Act’ in Canada101.
In the same vein, prosecutor office should create a sexual offence
unit under the national prosecuting authority. In South Africa, the mandate
of this kind of unit includes coordinating policy in handling sexual offence
cases, capacity building, and gender training for the prosecutor. During the
case handling, prosecutor should discuss with the victims on the judicial
hearing preparation, and explain the situation that might happen during the
trial. The guideline also provides directive on how the prosecutors should
treat the victims in order to avoid further trauma.
The sufficient knowledge and understanding about a sexual offence
of the judge panel might be the most critical part of a rape trial. Another
strategy is the specialized court and specialized judges on the issues of
sexual violence such as South Africa. This may provide opportunity for
court to allow victims of rape to testify in the friendly environment. For this
purpose, court can collaborate with the one-stop crisis centre.
2.4.3. The Rights of Rape Victims
For a victim of rape, a trial may become a dreadful experience for her or
him since they should retell their painful stories before the court. Therefore,
the protection of the victims’ rights in this context is essential to make the
victims feel more comfortable in facing the trial. Canada and South Africa
have created strategy to reduce the intimidation and secondary victimization
to happen during the judicial hearings. Criminal legal system in Canada and
South Africa make a victim possible to testify outside of a courtroom102. In
South Africa in particular, a vulnerable victim even may testify through a
third person to avoid intimidating questions. Even though trials generally
are being held in public, judges may exclude the public to view the
proceeding including prohibit the media to publish the identity of the
100
Please see https://www.solgps.alberta.ca/Pages/default.aspx
101
Please see http://www.parl.gc.ca/37/3/parlbus/chambus/house/bills/summaries/c16-e.pdf
102
Please see Canada Criminal Code (486.2) and at Article 15(4) South Africa Sexual
Offence Bill.
33
victims. Because of certain factors such as the under-aged victims, the
disability of the victims either mentally or physically the law is able to
demand Judges to provide a certain protection for the witnesses103.
For the protection of victims’ rights, Canada in particular has
amended their Criminal law in order to promote respect of the constitutional
rights of the victims of sexual offence. Under the ‘rape shield’ provisions
the sexual history of the victims is not allowed to being contested as
evidence if it will influence the judges and jurors views towards the victims
credibility. Therefore, these provisions will protect personal records of the
victims of rape from the defence of the accused. Through the Victims Bill of
Rights, Canada established a formal mechanism against the justice system.
This is only possible for the most serious crimes including sexual assault
with the use of weapon an aggravated sexual assault.
2.4.4. Support Services and Mechanisms
In the case of sexual violence, the roles and the accessibility of service
providers for the victims are important for the recovery of the victims.
These type of services are usually provided by the state or non-state
institutions such as women’s independent organization. GBP report identify
several mechanisms to support persons subjected to rape or sexual offence
that are mostly provided for domestic violence victims but also relevant for
rape victims. It covers:
• Multidisciplinary support centres
It is a service centre whereas several services such as psychological,
legal, and another supports are provided under a one-roof system. In
many countries, it is common now that state provides a one-roof service
providers system. A joint initiative of governmental departments in
South Africa has formed a care centre model called Thuthuzela that
means to care or comfort. This centre is operating in the hospital
environment that provides several services such as health-care, police
services, and counselling under one-roof system. This centre has close
cooperation with the court and prosecution authority in rape and sexual
offence cases. The Thuthuzela model has successfully reduced the
103
Ibid.
34
investigation time, increased the conviction rates, and reduced the
secondary victimization of rape victims104.
Likewise, Canada created a multidisciplinary community-based
sexual assault support centres. Most of these centres are non-
governmental institutions initiatives although some of them are funded
by the state. This centre provides, among others, drop-in or phone
counselling; support and information for the survivor’s partners, friends
and family; workshops; referral resources; advocacy for the victims of
sexual assault105.
• Health care
In the context of rape cases a health care centre is needed to prevent
pregnancy, sexually transmitted diseases, and HIV occur to the victims.
Therefore, a special section for sexual assault victims should be created
under the public health care system to provide services for the victims of
rape. This special health care section can be staffed with physicians,
nurses and psychologists to meet the necessity of the victims. Sexual
assault section under the health care provider aims to support the victims
of violence in the reporting of the case, to secure the evidence, and to
avoid the victims to get the secondary victimization during the case
investigation.
For example, in Canada the staffs of this kind of healthcare provider
can accompany the victims in giving testimony at the police station or
arrange the police to visit the healthcare provider to receive the report
from the victims106. A sexual assault evidence kit should be available in
the health care centre. The kit aims to secure the evidence in case the
victims are reluctant to report the sexual offence to the police. To
support the services, South Africa developed a healthcare protocol for
the public healthcare provider for victims of sexual abused, domestic
violence, and gender-based violence. This provider manage several
issues concerning victims or rape such as the health care should be
equipped by female and male staffs so that a female victims of rape
104
Please see www.unicef.org/southafrica/hiv_aids_998.html.
105
Please see http://www.casac.ca/english/home.htm .
106
Please see http://www.uofaweb.ualberta.ca/SAC/pdfs/Reporting.PDF.
35
would examine female victims who were raped or abused, the clinics
should maintain close relationship with the police station, clinic’s staff
treat a rape victims confidentially, and provide some information that
are needed by the victims.
Governments should ensure that the victims of rape are able to
access health services. To do this, the scheme of public healthcare
insurance could cover this kind of services such as those happen in
Canada: Criminal Injuries Compensation Board 107.
• Legal assistance
Free legal assistance ensures the rights of the rape victims to have equal
access to the criminal justice system. The victims of rape are in need of
legal advice and representation before, during, and after the judicial
hearings of her or his case. Some countries provide direct or indirect free
and state-funded legal aid. In Canada, the legal aid program attached to
the court, and it aims at enhancing the understanding and participation
of the victims and the witnesses in the trial108.
• Access to information
Canada has good practices in disseminating information regarding
various services available for the victims of sexual violence. NGOs in
collaboration with the government of Canada conduct information
dissemination and consider a specific need of the population. For
example special information program was developed for persons with
disability, and the information was given in languages other than
English or French109.
• Financial assistance
Both countries of Spain and Canada created accessible scheme for
victims of sexual violence for any financial expenses caused after the
crime. This scheme was created at the central or regional level of the
state so that the schemes are accessible for the victims. The scheme
covers lost income, transportation cost, vocational training and physical
107
Please see http://www.cicb.gov.on.ca/en/index.htm.
108
Please see supra note 13, p. 68.
109
Ibid.
36
injury. The dependants of the victims are eligible for the supports as
well.
2.5. Minimum Criteria of Law and Policy in the Area of Rape

The discussion of the international standards of human rights and best
practices in some countries on the issue of rape have provided this thesis
with a list of minimum criteria110. These minimum criteria can be used to
examine whether a particular country has law and policy on rape that
complied with international standard of human rights. This thesis would like
to utilize this list of recommendation to examine whether the law and policy
on rape in Indonesia meets these criteria through the lenses of two rape
cases discussed in this thesis.
• Legal definition and Criminalization
1. Legal definitions of rape and other sexual offences are gender
neutral.
2. Sexual offences are treated equally whether occurring within or
outside a sentimental relationship.
3. Rape and other sexual offences are public offences.
4. The definition of sexual offences is, directly or indirectly, based on
the lack of consent.
5. The sexual act is defined broadly and penetration is prerequisite.
6. Consent is not implied by lack of resistance.
7. Corroborating evidence is not required for conviction.
8. Specific age limits, under which consent is presumed to be lacking,
protect young persons.
9. There is a possibility to obtain financial compensation within the
criminal trial.
• Institutions (Police, prosecutor, judges) and Procedures
1. Specialized police units, with female and male police officers,
handle cases of sexual offences.
2. National police guidelines detail how receiving police officers shall
proceed in sexual offence cases.
110
Please see supra note 13, pp. 89-90.
37
3. Survivors are able to report a sexual offence in their own language.
4. It is possible to file an anonymous complaint for the police records.
5. A national database of sex offenders is established.
6. Sexual offences units are established within the national prosecuting
authority.
7. All judges are trained on the nature and implications of sexual
offences.
8. Specialized court sessions are created to deal adequately with sexual
offences.
• Rights of Complainant in Court Proceeding
1. Evidentiary rules generally bar evidence on the survivor’s sexual
history and reputation.
2. Protective measures, such as the use of screens and hearings behind
closed doors, ensure that the survivor is protected against secondary
victimization during trial.
• Assistant to Persons Subjected to Rape and Sexual Offence
1. Multi-disciplinary support centres facilitate access to all relevant
services.
2. Specialized sections dealing with sexual offences are established
within the national healthcare system.
3. Survivors of sexual abuse are always examined by healthcare staff of
their own sex.
4. All rape survivors offered emergency free emergency contraception,
antiretroviral treatment and antibiotics against sexually transmitted
disease.
5. National healthcare protocols make special provision on how to treat
survivors of sexual abuse, including for example the collection of
evidence and psychological treatment.
6. A sexual assault evidence kit is available to survivors of sexual
offences.
7. Free legal assistance is available in various languages.
8. Financial cost arising out of the crime are reimbursed by the state.
38
9. Information to rape survivors is easily available in various
languages.
10. Awareness-raising campaigns area launched in various media
formats and languages.
• Policy Framework
1. National action plans and policies dealing with violence against
women and/or crime prevention addresses rape and other sexual
offences.
39
3. Indonesian Laws and Policies on Rape
3.1. Introduction
This chapter will discuss the Indonesian laws and policies in the areas of
rape. Using the list of standards and best practices that were developed by
the GBP report and were discussed in chapter two of this thesis, this chapter
will examine whether the Indonesian legal framework ensure the availability
of the rights of the rape victims and complied with the international human
rights standards in the field of rape. This chapter does not aim to measure
the implementation of human rights on the area of rape in Indonesia.
Instead, it will review the extent to which the laws and policies in the field
of rape has complied with the international human rights standards.
Most provisions of rape and sexual violence in Indonesia are mostly
included in the Indonesian Penal Code (IPC)111, yet it does not cover rape
against adolescence girls. Rape against adolescence girl is incorporated in
the Law No.23/2002 on Children Rights Protection. Since 2004, marital
rape and another types of sexual offence within a household context are
regulated in the Indonesian domestic violence law112. On the procedures of
women’s victims of rape protection in the judicial process, the law of
victims and witness protection stipulates certain procedure to protect
women’s victims of sexual violence within and outside of court113.
Meanwhile, the Indonesian Human Rights Court Law contains articles that
cover criminal procedure for the legal institutions and judiciary in dealing
with gross violation of human rights cases that encompasses rape114.
With regards to gender-based violence, through numerous national
campaign women’s organizations demand for the better services for the
victims of sexual assault. In fact, it has encouraged legal institutions and
many government institutions at national and local level to create various
service providers across the country. Yet, the Indonesian Police Force seems
111
Rape is included under Chapter IV on ‘Crimes against Decency’ in the Indonesian Penal
Code.
112
Article 8 of the Indonesian Domestic Violence Law No.23 Year 2004.
113
Law No.13 Year 2006 on the Victim and Witness Protection.
114
Article 9(g) of the Human Rights Court Law No. 26 Year 2000.
40
the only legal institutions that quite progressively provide services for
women’s and children’s (including girls) victims for any sexual offence
occur within and outside of household. The police institution enacted legal
basis and produced guidelines of services for women’s and children victims
of sexual violence.
Indonesian Laws in relation to Rape and Sexual Violence

(Under the Indonesian Constitution)
The Indonesian Penal Code

The Indonesian Human Rights Law (2000)
The Children Rights Protection Law (2002)
The Indonesian Domestic Violence Law (2004)
A National Commission on Violence against Women or Komnas

Perempuan was established as a government responds towards the high
incidents of sexual violence happened during the May riot in 1998115. In
2002, the President of Indonesia has released an instruction for government
and legal institution to strengthen the enforcement of women’s rights in
many development sectors116. As a result, among others, the centre of
gender and women’s studies were formed under public university in many
provinces in Indonesia and women’s empowerment units were created under
each local government authority at provincial and district level. The
amended Indonesian constitution generally is silent on the subject of
women’s right. The wording in its section on human rights is gender neutral
including the wording of the guarantee of ‘equality before the law’ and
‘prohibition of torture’. The only law that is guiding the non-discrimination
principle is the law that authorized the ratification of CEDAW by the
government of Indonesia117.
This chapter will discuss the provisions of rape under the IPC and
Children Rights Protection act as the source of legal documents concerning
rape in Indonesia. In the next section, this chapter will discuss the legal
institutions namely the police force and the national prosecuting authority in
115
Komnas Perempuan was established by Presidential Decree No.181 Year 1998 and
renewed by the Presidential Regulation No.65 Year 2005.
116
The Indonesian Presidential Instruction No.9 Year 2002 on Gender Mainstreaming.
117
Law No.7 Year 1984 on the CEDAW ratification.
41
dealing rape and sexual violence. This will look at what kind of policies that
are available under these two institutions in the area of rape and sexual
violence. The roles of the judiciary (court) in the hearings of rape cases will
also be discussed in this chapter. In addition to these topics of discussion,
the rights of victims of rape under the law and policies in relation to rape
will be explored further. Last but not least is the service provider and
mechanism to protect women’s victims of violence will be the final part to
be analyzed. In certain points, when discussing the issues of rape especially
in relation to policies to enhance the protection of victims of rape, one
cannot separate it with the issue of domestic violence. This situation cannot
be avoided since many government and non-government funded service
providers prioritize to serve domestic violence victims and their family.
3.2. Rape and Incest in the Indonesian Penal Code
118
CHAPTER IV
Crimes against Decency
…
Article 285
Any person who by using force or threat of forces a woman to have sexual intercourse with
him out of marriage, shall, being guilty of rape, be punished by a maximum imprisonment
of twelve years.
Article 286
Any person who out of marriage has carnal knowledge of a woman whom he knows that
she is unconscious or helpless, shall be punished by a maximum imprisonment of nine
years.
Article 287
(1) Any person who out of marriage has carnal knowledge of a woman whom he knows or
reasonably should presume that she has not yet reached the age of fifteen years or, if it
is not obvious from her age, that she is not yet marriageable, shall be punished by a
maximum imprisonment of nine years.
(2) A prosecution shall be instituted only by complaint, unless the woman has not yet
reached the age of twelve years or one of the cases of articles 291 and 294 is present.
…
Article 290
By a maximum imprisonment of seven years shall be punished:
(1) Any person who commits obscene acts with someone who he knows that she is
unconscious or helpless.
(2) Any person who commits obscene acts with someone who he knows or reasonably
should presume that he has not yet reached the age of fifteen years or, if it is not
118
This is the official English version of Indonesian Penal Code (IPC) that is authorized
and edited by the Directorate General of Law and Legislation the Indonesian Ministry of
Justice.
42
obvious from her age, not yet marriageable.
Article 291
(1) If one of the crimes described in article 286,287,289 and 290 results in a serious
physical injury, a maximum imprisonment of twelve years shall be imposed.
(2) If one of the crimes described in article 285, 286, 287, 289 and 290 results in death, a
maximum imprisonment of fifteen years shall be imposed.
…
Article 294
(1) Any person who commits any obscene act with his under age child, step-child or
foster-child, his pupil, a minor entrusted to his care, education or vigilance or his under
age servant or subordinate, shall be punished by a maximum imprisonment of seven
years.
(2) By the same punishment will be punished:
1st, the official who….. its any obscene act with a person who is officially ….
Him or has been entrusted or recommended to his….
2nd-ly, the executive, physician, teacher, official, overseer or attendant at a prison,
labour institution of the country, educational institution, orphanage, hospital,
lunatic asylum or charity institution, who commits any obscene act with a person
admitted thereto.
3.2.1. The Definition of Rape

The provision and definition of rape in the IPC is placed under the chapter
of ‘crimes against decency’ together with another regulations concerning
morality aspects such as the prohibition of the transaction and traffics of
pornographic materials, the disseminating or offering appliances for
abortion and to prevent pregnancy, and adultery or extra-marital sexual
relation. The articles of sexual offence and rape should be placed under the
‘crimes against persons’ and not under the chapter against the decency. If
the rape article is being placed under the chapter against the decency, it will
mainly address the ‘morality’ of the women’s victim of rape. The courts
often found it important to establish the moral ‘purity’ or ‘impurity’ of a
woman who was the victim of rape, rather than whether a rape had actually
taken place119.
The IPC clearly mentioned that the definition of rape solely
addresses the rape occurs to women and committed by men outside a
marriage relationship, thus the definition is not gender neutral. This rape
definition has invited critique, inter alia, from R. Soesilo that said “the
creator of this definition did not consider female perpetrator that might
119
Nursyahbani Katjasungkana, ‘Gender and Law Reform in Indonesia: Overcoming
Entrenched Barriers’, in Tim Lindsey (ed.), Indonesia: Law and Society (The Federation
Press, NSW, 2008) p. 485.
43
coerce the opposite sex to have unwanted sexual contact with her”. It
apparently was not aiming to protect male victims of rape, but the notion of
this criticism is to avoid women from getting pregnant due to this rape
experience120.
Another element of this rape definition is that in order to be qualified
as rape, the definition requires a ‘carnal knowledge’ or penetration as the
valid evidence. One of the most critical issues under this definition, rape
under the IPC is generally having an ‘adult female-face’ since it solely
addresses adult woman and ignore the male and the children under the age
of 12 as the victims of rape. Meanwhile, the girls’ victims of rape under the
age of 15 should submit a formal complaint to get their cases prosecuted.
‘Consent’, as the most important element within the definition of
rape is not mentioned directly throughout the section of rape within the IPC.
‘Consent’ implies when rape perpetrator is using force or threat of force or
if rape was committed against unconscious or helpless women. In most
cases, these threats or force are required to occur in establishing rape and if
these preconditions are unavailable it cannot be qualified as rape and the
crime will be considered as adultery in which the sentencing is shallow. In
addition and as it is included in the article 287(1) a statutory rape121 is
considered as part of the rape definitions but a formal complaint is
necessary.
3.2.2. Rape within Marriage
The definition of rape does not include rape in the marriage or marital rape.
Until the Indonesian Domestic Violence was enacted, for some decades
women’s activists in Indonesia have done numerous advocacies on the idea
of marital rape. In most of these women’s group campaigns, they made
connection between the gender biased of the Indonesian marriage law and
the marital rape in a marriage.
The Indonesian marriage law has created the unequal position
between wives and husbands in which it determines “husbands are the head
120
R. Soesilo, Kitab Undang-undang Hukum Pidana (KUHP) Serta Komentar-
Komentarnya Lengkap Pasal Demi Pasal (Politea, Bogor, 1996) pp. 210-211.
121
Statutory rape is illegal sexual activity between two people when it would otherwise be
legal if not for their age. Please see http://www.sexlaws.org/what_is_statutory_rape
accessed 12 May 2010.
44
of household”122. Given the unequal power and position between men and
women within the marriage institutions, women’s organizations and
women’s activists in Indonesia considered marital rape would have
happened in this situation. Women’s groups seek the way to include
marital rape through the recently enacted domestic violence law in
Indonesia. Marital rape is not qualified as rape in the IPC. Although the
Indonesian Domestic Violence (IDV) Law defined it as sexual violence in
household context, a wife rarely reported the husband because of sexual
violence123.
3.2.3. Incest under the IPC
The rape definition under the IPC does not include incest as a category of
rape. ‘Incest’ is generally defined as the crime of sexual contact with a
blood relative usually including a parent, child, sibling, grandparent or
grandchild124. As mentioned, rape under the IPC does not include rape
against children or adolescence girls under 12 years old. The IPC’s article
294 on incest or sexual violence against children in which the perpetrator is
her parent or guardian only qualifies this crime as obscenity. The perpetrator
of this crime as mentioned under the IPC article 294 includes father and
male teachers. Before the law of children rights protection was enacted,
these IPC incest articles became a ‘trash bin’ for any kind of sexual coercion
committed by the fathers to the children. Once after the children rights
protection act was enacted in 2002, rape against children has been
considered as an element of crime. Children protection law that will be
discussed further below has added up and broadened rape definition under
the IPC.
122
Please see article 31(3) the Indonesian Marriage Law No.1 Year 1974.
123
These are the interviews with the police officers in Brebes, Central Java province and in
Lombok, West Nusa Tenggara Province.
124
Please see http://www.duhaime.org/LegalDictionary/I/Incest.aspx is visited 13 May
2010. The Punishment of Incest Act in England defined ‘incest’ as “any male person who
has a carnal knowledge with a female person, who is to his knowledge is grand-daughter,
daughter, sister or mother”.
45
3.3. Sexual Offence under the Indonesian Domestic Violence Law
By September 2004, the Indonesian Domestic Violence (IDV) Law was
enacted. Through this law, the articles of domestic violence under the
Indonesian Penal Code have been elaborated further. Domestic violence
defined as violence against persons, especially women that caused physical,
sexual, psychological misery, and suffering as well as negligence of
households including threat of coercion and deprivation of somebody’s
freedom against the law in the household context125. By this law, violence
occurred to wives, husbands, children, women, men, boys and girls in the
private spheres shall be qualified as domestic violence.
The IDV defined marital rape as sexual violence in a household
context, but rarely a marital rape is reported to the police. Therefore, one
would not be surprised if until now no court proceedings happened on
marital rape cases. The Indonesian Domestic Violence law does not,
however, consider the domestic relations of those in cohabitation. In reality,
the police who received complaints from the victims of domestic violence
often requested the victims to show their marriage certificate in order the
reported cases are being considered as domestic violence126. Indeed, police
considered that only couples within the context of marriage could report
domestic violence to the state justice system.
The main problem of the IDV law is that this law using the
terminology of ‘household’ instead of ‘domestic violence’ throughout the
provisions. This misconception has created problems in case handling. For
example, in a case study whereas the victim of domestic violence was a
maid in a household and the perpetrator was the employer, the police officer
and prosecutor kept questioning if the maid constantly lived within this
household, otherwise it could not be qualified as domestic violence127.
125
Art. 1(1) Law No.23 Year 2004 on Domestic Violence.
126
The data stemmed from the domestic violence cases occurred in Brebes, Central Java
province and Lombok, West Nusa Tenggara Province in Indonesia.
127
The case occurred in Lombok, West Nusa Tenggara Province.
46
3.4. Rape in Children Rights Protection Act
A decade after Indonesia ratified the International Convention on the
Children Rights in the 1990 the government of Indonesia passed a law on
children rights protection128. The Children Rights Protection Act clearly
ensures the principles of non-discrimination and best interests of the child.
The law covers the rights of children in the areas of civil and political and in
the areas of economic, social, and cultural. In the context of civil and
political, the law guaranteed that the children are free from any kinds of ill
treatment, torture, and inhuman punishments129. The law guarantees every
child should be free from any kinds of sexual violence.
Overall, the law has strengthened the prohibition of sexual violence
against children that are previously ruled by the Indonesian Penal Code. The
IPC, as discussed, does not rule and made prohibition of sexual violence in
the households or incest. The law of children rights protection clearly
prohibits any kinds of sexual contact against children including rape. Article
81 of the law states, “Anybody who intentionally did violence or threat
against children for rape will be punished by maximum 15 years and
minimum 13 years of imprisonment and should pay maximum USD 30,000
and minimum USD 6,000 of fine”.
Many children organizations conveyed their appreciation towards
this law and deemed that this children protection law is a breakthrough of
cases of sexual offence against girls and children generally. It is true that
without this law, a sexual offence or rape against girls that was committed
by their fathers would merely be considered as obscenity. The two cases that
are discussing in this thesis also were successfully handled by using the
articles of prohibition of sexual offence within the law of children rights
protection. This law also provides mechanism to enhance the rights of
children in Indonesia through the establishment of the Indonesian
Commission on Children Rights Protection.
128
Please see http://treaties.un.org/ .
129
Please see Article 16, Law No.23 Year 2002 on the Children Rights Protection.
47
3.5. Police, Prosecutors, and Court in Indonesia
3.5.1. Police
The Victim Unit for Women and Children were developed in the police
station all over Indonesia. It aims at providing services for women and
children protection on cases of, inter alia, human trafficking, people
smuggling, domestic violence, sexual violence including rape and sexual
harassment130. This unit resides at the level of districts and cities across the
country131. The mandate and task of this unit covers providing services and
legal protection, conduct crime investigation, and networking and
coordinating with relevant institutions. However, a national police guideline
in sexual violence case handling that can support services provided under
these women and children’s unit is not yet enacted. Therefore, this unit
might not be really responsive towards the victims of sexual violence. For
example, the current policy on the victim unit does not mention that it must
provide rape kit.
On top of that, there is no possibility that the victims of violence
reported their complaint to the police with their own languages. Using local
language in reporting sexual violence cases would be accepted if only the
police officers understand the language well. Women’s victims of violence
are also not possible to report the complaint unanimously to the police. No
legal basis that is available for these issues of language and unanimously
reporting. A national database of crime incidents and rate is established
according to the law, but no database of sexual violence and sexual
offenders is maintained under this database system.
3.5.2. Prosecutors
Differ from the police force, the national prosecuting office in Indonesia
does not have a comprehensive notion and policy to serve and treat the
victims of rape. On rape cases and sexual violence the policy of national
prosecutor office focuses to increase the gender perspective and sensitivity
of the prosecutors across Indonesia. Addressing personal ability of
130
Please see Article 6(3) of the Regulation of Indonesia Police Chief No.10 Year 2007 on
the organization and structure of Services Unit for Women and Children under the
Indonesian Police organization structure.
131
This is obliged by the Indonesian Domestic Violence Law No.23 Year 2004.
48
prosecutor to handle gender-based violence does not affect the prosecuting
authority institutionally. Because the effective prosecution of gender-based
violence is based on the gender sensitivity of the prosecutors themselves.
To increase the knowledge of prosecutors, the prosecutor office in
collaboration with the Gender Study Centre under the University of
Indonesia inserted the topics of gender issues in the prosecutors’ training
curricula. On top of that, some women’s organizations including the
National Commission on Violence against Women held gender trainings for
prosecutors at national and at local level. Apart from increasing the gender
knowledge of prosecutors, the national prosecutor office intends to focus on
rape cases that occurred together with other crimes. In 1996 the national
prosecutor office in Indonesia released a letter for the prosecutors across
Indonesia in order to pay attention on rape cases and suggested the
prosecutors to aggravate the punishment of the rape perpetrators132. A
decade afterwards the national prosecuting authority released another decree
to establish a gender focal point at national level and its network in the
regions133. In relation to other serious crimes and trans-national crimes,
between 1994 and 2007 the national prosecutor office released numerous
decrees and letters that encouraged and invited all prosecutors and the
district prosecutors’ office to pay attention on violence against women and
trafficking in women and children134.
Albeit various initiatives and policies on gender focal points these
initiatives however are insufficient due to for example it does not touch
upon the direct interest and needs of the rape victims of proper services
during the trial. Besides, no monitoring system is available and developed
by the prosecutor authority towards the treatment and attitudes of
prosecutors when treating women and girls victims of rape. During the trial
or the judicial hearings, the women and girls’ victims of rape are actually
132
In 1996, B-409/ES/8/1996 the chief of National Prosecutors Office in Indonesia
encouraged all prosecutors across archipelago to pay attention to rape cases.
133
Through both decrees: Kep-099/A/JA/09/2008 and Kep-100/A/JA/09/2008, the chief of
National Prosecutors Office in Indonesia is supporting and facilitating the work of gender
focal points under the prosecutor office in the capital city of Jakarta level and at the district
level all over Indonesia.
134
Please see http://focalpointgender.kejaksaan.go.id/profil.aspx visited 15 May 2010.
49
under the ‘responsibility’ of prosecutor office. The prosecutor office
therefore should ensure that the victims of rape are able to provide the
testimony freely and without any feelings of threat. A unit to serve women
and girls’ victims of violence under the prosecutor office in each district is a
must to ensure the victims of violence to make sure they will give testimony
in court. Women’s organizations that provide legal aid for women’s victims
of rape are usually in need of prosecutors’ supports for the women victims
of rape because judges do not always allow these organizations to
accompany women victims of rape during the court hearings.
3.5.3. Courts
Apparently, there are many quite good decisions towards rape cases against
girls. For example severe punishments were given for perpetrators of rape
against girls by the courts. Of many interviews done to these judges, they
acknowledged that their knowledge on gender issues and sensitivity as well
as the issues of rape were received from gender trainings organized by
women’s organizations135. From the perspective of women’s victims, the
handling of rape cases in courts are progressing, but institutional changes
and reforms occurred very slowly. For example, no special court for sexual
offences cases and special mechanism in dealing with women’s victims of
rape during the trial.
Currently, a special court mechanism for children is provided by
law, but it is solely to facilitate children as perpetrator and not as the
victims136. Therefore, when it comes to children as victims of violence, the
court and Judges are rather awkward in dealing with them. Judges,
prosecutors and police officers acknowledged that they received training
from women’s non-government organizations and women’s legal aid
randomly. A Judge in Weni case has also acknowledged the benefits of his
knowledge from attending a gender training provided by a women’s
organization some years back.
135
Some Judges in Cianjur District in Jawa Barat Province and Brebes District in Jawa
Tengah Province who were interviewed during the field study acknowledged that they
received training from women’s NGOs.
136
Law No. 3 Year 1997 on Children Trial.
50
The formal efforts to reduce secondary victimization of the sexual
violence victims in courts are not yet effectively done. This might happen
since, for example, no special procedure to protect the victims in court when
they should submit their direct testimonies. In the situation by which no
special procedure for victims of sexual assault, the accompaniments of
social workers and paralegals for victims of rape became the only method to
assist rape victims during the case handling process.
As a police officer and a judge in Cianjur District have admitted,
they do need additional training to improve their skills to generally increase
their capacity to handle victims and cases of sexual violence. This is
particularly useful when there is no assistant from female police officers
from the nearest women’s police desk for women and girls victims of sexual
violence. The cases studied actually revealed that judges, prosecutors, and
police officers who received gender training treated the victims better137.
3.6. The Rights of the Victims

Generally, access to justice system in Indonesia focuses to protect the
defendants’ rights, and in violence against women cases, the system tends to
focus on the perpetrator’s rights protection. The rights of women’s victims
of rape and domestic violence are silent in the Indonesian Penal Code138
(IPC) and the Indonesian Criminal Law Procedure139 (ICLP). The IPC is an
inheritance from the colonial and the ICP was drafted under the Soeharto
era, the authoritarian government that was toppled in 1998 after 30 years
ruling in Indonesia. Thus, when the criminal procedure was enacted, it was
praised as the breakthrough140 to protect defendants’ rights under the old
regime. It is only in the year of 2004, when the Indonesian Domestic
Violence (IDV) law was passed, women’s victims’ rights are being
considered significant.
137
Weni’s rape case, generally, provide these views.
138
Law No.1 Year 1946 on The Indonesia Penal Code, for English version please see
http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=IDN&p_classi
fication=01.04&p_origin=SUBJECT
139
Law No.8 Year 1981 on Indonesia Criminal Procedure (ICP).
140
Please see http://www.hukumonline.com/detail.asp?id=15621&cl=Kolom, this article is
in Indonesian.
51
3.6.1. Victims’ Rights Protection under the Indonesian Domestic Violence
Law
The Indonesia Domestic Violence Law is the first law that outlines the
domestic violence victims’ rights and supports the legal accompaniment of
victims of sexual violence in courts and during the investigations. It is
widely acknowledged as a breakthrough for the rights protection towards
women’s victims of sexual violence. For the first time, victims’ rights are
considered in a written legislation, since the law included temporary
protection for victims of domestic violence. Also, the most distinctive
provisions in IDV compared to the IPC have been laid down in the evidence
and witness provisions141. The IDV provides a quite comprehensive list of
victims’ rights protection and kinds of assistance for victims in cases of
domestic violence. Article 10 of the Indonesian Domestic Violence Law
provides:
The victim shall be entitled to get:
a. protection of the family, police, district attorney office, a court,
advocate, social institution, or another party either temporary or
based on the ruling on protection instruction of a court;
b. health service in accordance with medical need;
c. special handling related to confidentiality of the victim;
d. counter parting by a social worker and a legal aid worker at each
examination process level in accordance with the stipulations of laws
and regulations; and
e. spiritual guidance service.
The evidentiary rules in the IPC are silent about whether the victims’
sexual history and reputation should be considered. Most of the time,
however, the investigators (police), prosecutors, and even the Judges
considered these both evidences in many rape cases mainly rape cases
happened to (adult) women. Worse, the evidentiary rules under the
Indonesia Criminal Procedure outlined that single evidence cannot be
qualified as acceptable evidence, in other words, valid evidence should
comprise of at least by two evidences142. The single evidence caused many
rape cases occurred to women victims of rape were difficult to proceed to
the court hearings. The outcome of physical examination of women victims
of rape was often difficult to be accepted by the police and prosecutors.
141
It is stated, particularly, in art. 16 of the Indonesia Domestic Violence Law.
142
Please see article 183 on the Indonesia Criminal Law Procedure or UU No.81 Year
1981.
52
In many cases, sexual history of female adult victims was mostly
taken into account in rape cases. The sexual history of female adult victims
of rape generally is being used to qualify if a woman victim is categorized
as victim and whether the case can proceed to court. The prosecutors whose
task it is to evaluate the crime evidence and should continue the case to
court has to return the case files to the investigators (police) if the evidence
is unacceptable. The prosecutor demanded the police to collect evidence in
order to reach the threshold of rape provision in IPC. As a result, many rape
cases were terminated at the level of investigation at the police station. In
contrary, evidence of girls victims of sexual violence are more acceptable
and in many cases the perpetrator received high sentences. Two cases of
rape that are discussed in this thesis confirmed this situation. The girls’
victims who have no previous sexual records and were considered
trustworthy made the legal officers were compassionate in dealing with
these cases.
In the two cases that are documented and discussed in this thesis, the
judges expressed their difficulty to deal with women’s victims of sexual
violence, especially if the victims are minor and children with disability. In
a rape case in which the victim is a girl with disability, the Judge frankly
admitted that they have difficulty to communicate and questioning the
victim. “Disabled victims gave unclear answers when we asked question,”
said a judge. However, roles of women’s paralegals from the local women’s
organization that accompany the victims and their family throughout the
case handling, helped bridging the communication between Judges and
victim as well as with another witnesses. The roles of women’s paralegals
are significant in the court hearings since they speak local language, while
Judges are usually originally from another part of province and do not have
ability to speak local language. Women’s paralegals are usually the victim’s
neighbour, thus, the victims would feel comfortable and not reluctant when
they have to answer questions in court.
In the same vein, Judges also complained on the unavailability of
counsellors and legal aid for women’s complainants and defendants. The
lack of special courtroom and facilities for minor victims of violence
53
became the obstacles of the court sessions, and delayed the court proceeding
as well. In cases documented, victims and perpetrators, whose some of them
are the victims’ fathers and employer, were sitting and placed at the same
courtroom. Consequently, Judges were in difficulty to excavate the
information from the victims.
3.7. National Policies on Services and Mechanism: Assistant to

Victims
Currently, the Indonesian Domestic Violence Law outlines the most
comprehensive services that should be available for the victims of domestic
violence. According to the IDV, the national and local levels of the
government of Indonesia should make these services available for all
domestic violence victims. Although the rights and protection in the IDV
are basically provided for the victims of domestic violence, the services
however are accessible for any women and children’s victims of crimes
including rape. The IDV has obviously strengthened service providers that
were established to serve women and children victims of violence.
Women’s organizations at national and local level developed the initiatives
to create service providers either independently or by the support of relevant
government ministries.
Article 13
To organize service for the victim, the government and the regional government in
accordance with their respective functions and duties may make these efforts:
a. provision of special service room at a police station;
b. provision of officials, health personnel, social workers, and spiritual mentors;
c. preparation and development of service program cooperation system and mechanism
involving a party that is easily accessible to the victim; and
d. provision of protection for counterpart, witness, family, and friend of the victim.
Starting more than a decade ago, service providers for women’s
victims of violence were established by women’s organization in many big
cities in Indonesia including in the capital city of Jakarta. Indeed, most of
these initiatives came from the civil society sides both independent
organizations that work on advocacy on gender-based violence issues or
legal aid and religious-based women’s organization such as from Moslems,
Christians, and Buddhist community. Anyhow, these initiatives had inspired
legal institutions mainly the Indonesian police force to develop a women’s
54
police desk within the police station across the country. Similar kind of
services under the hospitals was formed that provide multidisciplinary
services consisting of psychological, medical, and legal services under one-
roof services.
Social and legal assistance as documented in the cases are mostly
initiated by an independent women’s organisation directly or indirectly,
women’s paralegal and local activist such as midwives who are stationed in
villages. Women’s organizations, for example, provide legal and social
assistance by providing shelter and recruiting women’s villagers as
women’s paralegals to provide direct services in the grass root. Provided the
funding for this activity is from international donor organizations143, their
roles are not sustainable. The government should be able to provide more
sustainable funding and supports for this kind of services.
3.7.1. Women’s Police Desk
The creation of Women’s Police Desk or Ruang Pelayanan Khusus (RPK)
in the year of 1999 under the police station across the country was the first
legal institution-type of service provider for gender-based violence. The
RPK was apparently established after serial of rapes occurred in May’s riot
1998 in Jakarta. The strong demands from civil society organizations,
women’s organizations, and community leaders to the government of
Indonesia to respond the riots has led to the development of a pilot RPK
service in Jakarta. The 2007 National Police Chief decree does not say very
clear on type of services that a PPA unit should provide. It generally says
the RPK functions to provide legal protection, conduct the case
investigation, and do the coordination and networking with relevant
government institution.
In relation to its function, the RPK mandates cover the protection of
women and children victims of numerous crimes such as human trafficking,
people smuggling, domestic violence, sexual offence (rape, sexual
harassment, obscenity), and victim and witness protection in relation to
these crimes. In executing their tasks, the RPK is mostly networking with
143
Most of women’s organizations in Indonesia get their activities funded by international
organizations such as USAID (United State Aid Agency), AUSAID (Australia Aid
Agency), and CIDA (Canada Aid Agency) as well as Scandinavian Countries agencies.
55
another women’s legal aid and service providers that belong to government
or non-government institutions. In most cases, RPKs have close connection
with hospital to make the medical examination for the victims to be done
timely. For example in giving temporary protection for women’s victims of
domestic violence, RPK referred the victims to shelters that were managed
by social ministry of local government at provincial or district level. In
some cases and if it is needed at all, RPK collaborates with psychologists in
psychiatric hospitals to provide psychological advice for the victims before
the victims go through or during the case handling process at the judiciary.
Considering no particular budgets are allocated for the RPK, the
facility that is available under the RPK is varied and it depends on the
discretion of the chief of the police stations. In some RPKs in big cities,
facilities that are relevant with the victims needs such as a comfortable room
complete with the bed and toilet for women’s victims and their children are
available to enable the victims to report the incidents. A children
playground is also available for example in some RPK in Jakarta, Banda
Aceh, and Surabaya, the big cities in Indonesia. In smaller cities and the
more remote areas, the RPKs provide only a special desk to receive reports
from women complainants.
The roles of RPK in proving supports and special treatment for
women’s victims of violence has been widely recognized by women’s
organizations, another government institutions, and community generally.
The only criticism is that albeit the standards which RPKs should comply
with, not all facilities are provided by each RPK and many police officers
residing in RPKs have adequate knowledge and gender sensitivity to deal
with the issues of gender-based violence reported by women’s victims of
violence. Also, RPK does not have facility and equipment to assist women’s
victim of rape.
3.7.2. Integrated Women’s Crisis Centre
Following the creation of RPK, a joint government institutions initiative
established multi-disciplinary support centre for women and girls’ victims
of violence. In 2002, the Ministry of Women’s Empowerment, the Health
Ministry, the Social Ministry, and the Indonesia Police Force agreed to
56
develop an integrated services for women’s victims of violence under the
public and the police hospital across the country144. The aim of this
integrated services is to deliver services for women’s victims of violence
that is accessible, comfortable, and safe; effective and efficient for victims’
services and; ensure fair access and legal certainty145. The common
agreement mandates the public hospitals and police hospitals at provincial
and district level to provide a temporary and special room for the women’s
victims of violence including sexual violence to receive medical and
psychological treatments146. In relation to these services social workers,
lawyers, and police officer shall work together to assist the victims during
the investigation process147.
The joint agreement on the integrated Women’s Crisis Centre
(WCC) determined the division of tasks among the four institutions (‘joint
agreement’). The ministry of women’s empowerment focuses on the
dissemination information of these integrated services and make sure that
the establishment of shelters for women’s victims of violence are available
and collaborate with the hospitals. The ministry of health is in charge of the
recruitment of a number of staffs in the hospitals to serve women’s victims
of violence. Ministry of health’s task is also to develop guideline and
standard operating procedure for services that can be referred by the
integrated services staffs. The supports of women’s organizations and non-
government organizations for these multidisciplinary services will be
maintained by the social ministry. The police force should prepare the staffs
for the services under the police hospitals and prepare women’s police
officers under the RPK to accompany women’s victims until the judicial
process.
A pilot of these services was launched under the national public
hospital in Jakarta and some police hospitals inside and outside of Jakarta. It
144
The Common Agreement on 23 October 2002 between the Ministry of Women’s
Empowerment (14/MenPP/Dep.V/X/ 2002), the Ministry of Health
(1329/MENKES/SKB/x/2002), the Ministry of Social (75/HUK/2002), and the National
Police Force (B/3048/X/2002).
145
Article 2 of the Common Agreement.
146
Article 3 and 4 of the Common Agreement.
147
Article 7 and 8 of the Common Agreement.
57
provides psychologist, lawyer, police officers, and social workers under
one-roof system within the hospital management. A number of independent
evaluations towards these integrated services were done by women’s
organizations. The criticism of women’s organizations was mainly due to
the quality of these services for women victims. Even though these services
generally are quite effective in giving services for the domestic violence, it
should improve their services for rape victims.
Yet, the integration WCC is not under the national health care
system. Thus there is no national healthcare protocol and no sexual assault
evidence kit. Consequently, this integrated system cannot be accessed in
each public hospital in each province let alone at the district level. The cost
arising from the case is not reimbursed by the state148. Free legal aid and
financial assistance were mostly provided by the women’s NGOs.
Information and awareness raising campaigns were actively conducted by
the Ministry Women of Empowerment and women’s organizations.
3.7.3. Interim Protection under the IDV
On the protective measures, the IDV already provides mechanism to protect
women’s and children victims of domestic violence for the first 24 hours
and the next seven days. But the law should detail it in a Standard Operating
Procedure (SOP) which is unavailable until now. The unavailability of this
SOP may cause that no protective measures are filed to court. The Unit of
Women and Children under the police force claimed they already provide
protective measures by collaborating with women’s organization and local
government agencies that have shelters to accommodate the victims and
their family temporarily. The law says when giving the first 24 hours
interim protection, the police should report to the court in order to get the
court ruling. However, some District Courts such as in Cianjur and Brebes
confirmed that they have never been receiving requests of temporary
protection order either from the police station or from the victims of
domestic violence. Thus, it is a little bit difficult to confirm whether the
temporary order under the IDV law is effective let alone giving an
evaluation on it.
148
Case studies taken from the field indicated this fact.
58
3.7.4. Victim and Witness Protection
To support the criminal trial, the Law No.13/2006 on Victims and Witness
Protection provides a comprehensive protection for witness and victims of
crimes in the overall stages of judicial hearings. Although historically this
law emerged from the idea to provide protection for women’s victims of
violence the law indicates the protection is provided for every victim and
witness who needs special protection since they have to submit their
witnesses or oral evidence regarding the case. The law argues that since
article 50 until 68 of the Indonesian Criminal Procedure (ICP) only rules the
protection of the defendants during the trial the law to protect victims and
witnesses is needed.
The Law No.13/2006 provides quite comprehensive entitlements of
the victims and witnesses during the trial such as the right to get proper
information and to obtain translator, to obtain legal advice, and to get living
expenses during trial and up to the protection is terminated. To access these
rights, the Witness and Victims Protection Agency or Lembaga
Perlindungan Saksi dan Koran (LPSK) should make decision on which
types of protection should be prepared for the applicants. If the witnesses
and or victims are in serious threat they can give testimony without being
present in the court upon the judge’s approvals or give testimony in writing
that is presented before an authorized official.
LPSK is currently seeking the right method to handle women’s
victims of violence who are in need of special protection from LPSK. In 23
May 2010, LPSK and Komnas Perempuan signed a Memorandum of
Understanding (MoU) to develop an appropriate system to handle women’s
victims of violence. Komnas Perempuan confirmed that no women’s
victims or witnesses of gender-based violence cases are handled by LPSK
until now. Therefore, it is difficult to evaluate if the system to protect
victims and witnesses of LPSK is really effective and fruitful for women’s
victims and witnesses.
59
4. Case Profiles
4.1. Introduction
Weni (15 years) and Sita (15 years) are adolescence girls who live with their
poor family in villages in West Java and West Nusa Tenggara Province.
Both girls lived with their fathers and other family members. Weni’s mom
died some years back, and she lived with her step-mom and her father who
earned the living as a tailor in the village. The step-mom who worked as the
domestic helper in another household quite far from her village was rarely at
home. Instead of taking care of the children, the father raped Weni a couple
of times and threatened her if she dared to tell to others. Similar situation
happened to Sita who lived only with the father and a younger sister. Sita’s
mom passed away and her elder brother and sister migrated to Bali to earn a
better living. Similar with Weni’s experience, Sita’s father raped her a
couple of time, and worse it caused Sita pregnant.
For both girls who graduated from elementary schools, they do not
know how to deal with their experience. They had no ideas how to seek
assistance. The neighbours and friends whom the girls told the stories
merely repeating the girls dreadful stories to another neighbours that
eventually created social turmoil in their villages. Most villagers in both
villages considered the girls experience as ‘taboos’ and blamed the victims
and the perpetrators. In Weni’s village, most youth villagers intended to use
their ‘own law’ by trying to beat her father. While in village where Sita
lived, villagers tried to loot her house and yelling at Sita and the father that
both of them are crazy.
The chaotic situations in both villages had caused local village
leaders to take initiatives to comfort villagers. Sita’s and Weni’s fathers
were taken to village head house and were being interrogated about the
sexual assaults. Each girl was taken care of differently. Weni might have
been luckier since a female paralegal was actively working in her village.
The paralegal in collaboration with village police, village midwife, and
village head arranged to send the perpetrator to the nearest police station and
transferred Weni to a local hospital to get the medical evidence taken.
60
Without having a paralegal available, Sita was taken to government-owned
safe house at the district level and her father was sent to the police station
for further investigation. A local children organization supported Sita and
provided services that Sita needed. Paralegal and local activists served as
intermediaries between different sets of cultural understandings of gender,
violence, and justice149.
The two cases discussed in this thesis will provide a quite complete
picture of responses from villagers at the grassroots and the legal institutions
and judiciaries towards the victims and the perpetrators of sexual violence
against girls. This chapter will begin by examining the capacity of Sita and
Weni in facing the cases. It will discuss the responses of villagers when the
cases were finally disclosed and how the intermediaries served to help Weni
and Sita to access justice in villages and when the cases were heard in
courts. Secondly, this chapter will examine whether the rights of the
victims’ rape are accessible and whether the relevant services and
mechanisms are secured for both victims of rape without discrimination.
4.2. The Cases
Survivors Perpetrators Indictment Verdict Accompaniment
Weni (15 Asep (37 years) 14 years 10 years Accessible at

years) Weni’s father village and case
Cianjur, reporting at the
West Java police station.
Inaccessible in
court hearings
and post verdict.
Sita (15 Mudi (60 years) 8 years 5 years Inaccessible at

years) Sita’s father village and case
Lombok, reporting at the
West Nusa police station.
Tenggara Yet, it was
accessible at the
court hearings
and post court
decision.
149
Merry, supra note 1, p. 2.
61
4.2.1. Rape against Weni
It was 14 February evening 2006. Weni was feeling strange when her father
prepared a bowl of noodle soup for her. Without any suspicion, Weni sipped
the noodle soup instantly although deep in her heart she wondered why the
soup tasted a little bit bitter. Right after the bowl is empty, she felt pretty
much sleepy and she went to bed. In the middle of that night she knew that
her father entered her room and raped her. The father forced her to shut up,
and he went back to his room. The next morning, Weni just thought she
could not believe that she was being coerced sexually by her own father.
She just hoped it would not happen again, and decided to lock her bedroom
in the evenings. Unfortunately, at 27 March 2006 Weni forgot to lock the
bedroom. Again, the father forced her sexually and threatened to beat her
with a broomstick if she refused. Same thing happened by 11 April 2006,
and again Weni did not brave enough to fight against the father150.
The third experience of sexual violence has made Weni to break her
silence. Weni started to repeat her experience to her closest female
neighbour, Iyet. Yet, what she got was one-sided of hope since her father
denied the allegation. It caused Weni to keep herself in her room and cried
for days until she did not get her monthly period for some times. Her
worried has generated more attentions from the neighbourhood. Her best
friend and another female villagers tried to seek help from the vicinity head
and local religious leaders for Weni. As a result, the youth villagers tended
to deal with this problem with ‘their own way’. Some angry youth villagers
who just finished Friday prayer decided to question Weni’s father directly.
It is not uncommon in Indonesia villages that villagers took their own way
to punish the perpetrator like Asep, Weni’s father. Usually villagers beat the
perpetrator badly, some of them even died. Similar thing would occur to
Weni’s father. This time he was lucky. When Asep eventually confessed to
some youth villagers that he raped Weni and showed where he perpetrated
the sexual violence, Asep was then taken to the village head house.
A brief meeting between local community heads and a police officer
held at village head house while the angry villagers were waiting outside.
150
Interview with Weni during the field work in summer time 2008.
62
Village policeman took and brought Asep to the police station at Cimacan,
the nearest sub-district. Meanwhile, a villager reported the case to a village
paralegal, bu Nining. She immediately took and accompanied Weni to
hospital to undertake medical evidence for the purpose of case investigation.
By the accompaniment of bu Nining, Weni submitted her testimony about
her rape case to the police in that evening. During the case investigation, bu
Nining did not only help Weni but she also facilitated another witnesses in
the village to visit the police station.
Bu Nining with another local activist contacted the local prosecuting
office in order to get information and to monitor how police station and
prosecuting office in Cianjur district worked together to proceed Weni’s
case to the court hearings. Outside the court hearings, bu Nining assisted
Weni and her family who received threat from Asep or Weni’s father’s
family. Asep’s family did not believe that he raped Weni. One of Asep’s
relative was quite confident that money would help Asep to stay away from
the ‘legal trap’. “The money will determine whether Asep shall be in jail for
this case,” said Asep’s relative. At the same time, a rumour developed in the
village in that Weni is not a ‘good girl’. Strangely, a local youth villager
was forced to marry Weni and was accused that this guy was the perpetrator
and not Asep. This guy and his family visited and seek bu Nining’s help to
mitigate the problem. “Our family is very much confused with the rumour,
and Asep’s family came to us and offered some money to force him to
marry Weni,” said the guy’s parents.
In short, the court hearings were finally held in a quite lengthy
process. One of the judges admitted that the perpetrator has denied the
allegation in court. However, “he cannot deny the evidence and the witness
of the victim,” explained a Judge. Asep was accused to conduct sexual
violence against his own child and was sentenced for ten years in jail. In the
middle of the court hearings, Weni left her village and worked as domestic
worker in Jakarta. She was pleased and seemed satisfied when noticed that
her father would be in jail for ten years. Weni said, “I want to go back to my
village and learn to be a tailor.”
63
4.2.2. Rape against Sita
Sita lived in Kuripan village with a younger half sister and with her father,
Mudi, in a pretty much simple house. The first sexual violence occurred in
one Friday in 2005 after the moslem Friday praying. Mudi threatened Sita
that he would not give her food and money and even to kill her if she told
other people on what the father did. Afterwards, the sexual violence
occurred to Sita almost every Friday until her father found out that Sita was
pregnant. Mudi tried very hard to abort Sita’s pregnancy by encourage her
to drink soda mixed with local alcohol drink that ones believed would avoid
pregnancy to continue. But it did not happen. Sita’s belly was getting bigger
and worrying Mudi. He asked Sita to move to another family’s house in the
east of the island, but Sita refused the suggestion. In the meantime, the news
of Sita’s pregnancy because of the father was spreading over the village.
Having seen Sita’s belly, her female relatives were curious to ask
who caused Sita’s pregnancy. Sita refused some names mentioned by her
relatives. Only when her relative accused her father, Sita could only cry.
Sita kept staying at home since Mudi did not allow her to communicate with
the neighbours and the relatives. A relative of Sita interrogated and asked
who had made her pregnant. Sita kept denying that she pregnant let alone
acknowledged that the father caused it. Sita always remembered her father’s
threats, and it made her refuse her relative’s accusation that her father forced
her sexually and caused the pregnancy.
Now most of relatives who lived close to Sita’s house knew what
actually happened with Sita and also knew the perpetrator. They decided to
bring the case to the local religious leader and another local leader in the
village. These leaders summoned Mudi and brought him to the police
station. Meanwhile, youth and angry villagers were getting uncontrolled.
They yelled at Mudi and Sita in front of the house of Mudi. Villagers
thought that what happened between Mudi and Sita were a taboo. It is not
only taboo for both victim and perpetrator. But most villagers considered it
is taboo for everyone in the village. Villagers also blamed Sita and
wondered why Sita did not fight against the father when he forced her
sexually. Villagers concluded the sexual violence was not a kind of rape, but
64
it was a consented sexual relation. Villagers want Mudi and Sita to leave
their village forever.
When the case was processed and Mudi was detained, two social
workers from local government office visited Sita and took her to the
shelter. Mudi was tried efficiently in a very short time. He was accused to
rape his daughter and got five years imprisonment. The judge panel
considered Mudi is already in old age and during the trial Mudi showed his
cooperation to make the hearing more efficient.
4.3. Case Handling: Response and Supports of Legal Institutions

4.3.1. The Police
In the case of Sita and Weni, the police officers generally worked well. The
police stations in Cianjur and in Lombok (NTB) received and processed
both cases effectively. Even though no special facility for women and
children is available under the two police stations, yet the police officers
served the victims well. They received the medical examination test as the
medical evidence of Sita’s and Weni’s case. Both perpetrators conveyed
their confessions quickly. Initially Asep, Weni’s father, kept denying what
he did in the police station however finally he submitted his confession.
Both cases were processed under the duration allowed by the criminal
procedure. The police also collaborated with the local prosecuting office in
determining the indictment of the case. Some accompaniers were allowed to
be in the police stations with the victims during the investigation.
According to the law, each police station should have a special room
and services for women and children victims of violence151. The police
station in Cimacan district, Cianjur, does not have victims unit and they
even do not have a woman’s police officer stationed at the office at all.
Therefore, only male police officer received report from Weni and took
Weni’s statement for the purpose of case investigation. When Weni
officially reported the case to the police, she was accompanied by Nining
the paralegal. Beforehand, Weni was taken to hospital to conduct medical
examination for the purpose of medical evidence. The police officer
151
Please see The Indonesian Domestic Violence Law and Police Force Circulation Letter.
65
accepted the report of Weni in that evening. A male police officer took
Weni’s statement while the paralegal accompany Weni. The report taking
process happened quite some time in the police station. When the overall
process finished that night Weni went to one of her relatives considering no
shelter and safe house under police station in Cimacan, Weni went to her
relative’s house. This is to avoid the threat from her father family who were
unhappy with legal process of the case.
In fact, dealing with Asep the perpetrator of Weni’s case was not
easy at all. The police acknowledged that they need some days to encourage
Asep to provide the confession. Several male police officers who have
particular skills to gather confessions from a rape perpetrator was in charged
to face Asep. A police officer acknowledged that they worked pretty hard
for some days to get Asep’s confession. This case finally was ready and the
case file was sent to the prosecuting office timely. Since Weni is an under-
aged girl, the police applied article 81 of the Indonesia Children Protection
Law on sexual violence against children and article 290 of the Indonesian
Penal Code considering the perpetrator is the father of the victim.
The case was handled by the police station in Cimacan quite
effectively although they have limited facilities. The unavailability of
victims unit under the police station was substituted by the roles of paralegal
who already has good relation with the police in Cimacan. A male police
officer who has been actively monitoring the village neighbourhood in
Weni’s village has good relation with the local leaders in the village. This
led to an effective collaboration between the police institutions and village
leaders when Weni’s case happened. The police received effective supports
from local leaders and villagers in handling the perpetrator. For example
even though the local leaders mediated the victim and the perpetrator
families, the local leaders supported the police to take the perpetrator to the
police and the case was handled by the state mechanism.
The police station in Lombok Barat in Sita’s case also does not have
a victim unit and women’s police officers as well. But Sita was lucky since
in Mataram, the capital city of West Nusa Tenggara Barat, an integrated
services for victims of violence has already been established under the
66
social and welfare local government unit (the dinas). As discussed in
chapter three, this kind of services involved the police victims unit,
psychologist, medical workers (doctor), and religious leaders. Therefore,
when a local children organization noticed that Sita had a case, this
organization sent its worker to get the police victim’s unit involved in the
case. The head of the police station referred Sita to the hospital to get a
medical examination for the purpose investigation. Sita was accompanied
by the social worker from the dinas during the investigation in the police
station. While Sita was in the shelter, she received supports and services
from psychologist and social accompanier. Psychologist often visited Sita to
check her condition and to empower her in order to face the situation.
Indeed, the collaboration between the social workers and the police
officers helped the case to be filed to the prosecuting office on time. Sita
cannot access the police victim’s unit under the integrated services because
this service is being placed at the provincial level. The police station at the
district of Lombok Barat located not really far from the integrated services.
Nevertheless, the bureaucracy impeded Sita’s rights to access this victims’
unit under the police station. Sita’s case was handled by three assigned male
police officers at Lombok Barat police station. Police victims’ unit can only
be accessed during the court hearing. Woman’s police officer works under
the integrated services accompanied Sita during the trial. It will be discussed
later.
4.3.2. The Prosecuting Agency
Similar with the police, the Prosecuting Agency performed well in the case
of Sita and Weni. The prosecuting agency applied the law on children
protection, rape, and incest under the Indonesian Penal Code in both cases.
In Cianjur and in Lombok Barat, the prosecuting agency coordinated well
with the police in conducting investigation and collecting evidence. They
indicted the defendants with high imprisonment and sufficient evidence.
This is due to the internal policy in the prosecuting agency that obliges the
prosecutors to aggravate the punishment of the rape perpetrator. Yet, the
high indictments for the perpetrators are not in line with the response and
services of the prosecuting agencies for the victims of violence such as
67
Weni and Sita. The prosecutors who were involved in the cases indicated
their concerns for the cases but no concrete supports were provided for the
victims of gender-based violence.
A female prosecutor was assigned to handle Weni case in Cianjur.
As said, she proposed a high sentence for Asep, the perpetrator in Weni
case. This prosecutor was really pleased when her proposal to sentence Asep
with high imprisonment was accepted by the Prosecuting agency at the
provincial level152. The paralegal in Cianjur also acknowledged the positive
response of the prosecutors. Paralegal and local activist could discuss the
situation of the victims with the prosecutor. Unfortunately no victims of
sexual violence unit was established under the prosecuting agency. Thus,
the individual concerns of the prosecutor do not really contribute to the
recovery process of Weni. The prosecutor indicted Asep with the article 81
of sexual violence against children under the law No.23/2002 on Children
Rights Protection. Because of the status of Asep is the father of Weni,
article 290 of incest under the Indonesian Penal Code was applied under the
indictment. In the indictment document, the prosecutor proposed Asep to
receive 14 years imprisonment.
By similar proposal, the prosecutor in Sita case in Lombok Barat
indicted Mudi with eight years imprisonment. The prosecutor in Lombok
Barat also applied the article 81 of Children protection law on sexual
violence against children. Interestingly, prosecutor indicted Mudi with
article 285 on rape although Sita was under-aged girl. As discussed in
previous chapter, according to Indonesian Penal Code the using of force and
threat are required in order to be qualified as rape. In many cases, it takes a
lot of efforts to collect the evidence of a rape case. At least two evidences
should be submitted to court according to the Indonesian Criminal Law
procedure. Prosecutor proposed 8 years of imprisonment for Mudi in Sita
case.
152
Under the Indonesia legal system, in preparing an indictment a prosecutor at the district
level should propose an indictment plan to the prosecuting agency at the provincial level. In
many places in Indonesia, the prosecutors usually proposed a high punishment in the
indictment for cases of rape against girls.
68
In an interview, prosecutors in Sita and Weni case had indicated
their seriousness and their deep concerned to the victims. “May be because I
have a daughter then I always indict the perpetrator of rape against girls
with high imprisonment,” said the prosecutor in Weni case. Both
prosecutors were also committed to propose a high imprisonment for the
defendants. From the perspective of the victims, the concerns of prosecutors
were not properly indicated without any special treatment and services for
the victims.
4.3.3. Court Hearing
The panel judges in Weni case acknowledged that they worked quite hard to
get the confession of Asep. Therefore the court hearings of Weni case
occurred in seventeen sessions. In Sita case, her father requested a clemency
from the judges and the hearing only happened in three sessions. Asep and
Mudi finally received ten and five years of imprisonment respectively.
Asep kept changing his statements and deny the crimes he
committed during the court hearing. Consequently, the judges often should
recess and postponed the hearings. The judges did allow the accompaniers
or paralegals to join Weni in court. Nining, the paralegal, said that no legal
basis for the paralegal to be in court with the victims of violence. In reality
it cannot be denied that Weni needs the accompaniment of paralegal
because many times Asep threatened her in Court. Although the Judges
warned Asep not threatened Weni in courtroom, yet outside the courtroom
Asep’s families scolded her.
Weni acknowledged that the Judges helped her by asking questions
that Weni was familiar with. Judges asked Weni with uncomplicated or
legal-termed questions. Most of Judges’ questions focused on the
chronology of the case. None of Judges questions made Weni
uncomfortable as Weni acknowledged. The Judges attitudes have truly
helped Weni who did not have paralegal or accompanier close to her. Ten
years imprisonment was given to Asep. It is four years lower than the
indictment submitted by the prosecutor. For Weni who left her village and
worked as domestic helper in a household in Jakarta, it made her quite
69
relieved. She only smiled when she learned that her father would be at least
ten years in jail.
Another story in court appeared differently in Sita case. Although
the court hearings only happened three times, yet it was enough to provide
another torture for Sita. Nothing particular happened in the first hearing due
to Mudi gave the confession and even asked for a clemency. However,
Mudi family such as Mudi’s younger brother who witnessed the hearing
abused Sita verbally. He scolded her and blamed Sita as the source of the
problem. “You are whore! Because of you my brother would be in jail,” said
Mudi’s relative using the local language.
Apparently, a social worker from the Dinas in court but he was not
allowed to enter the courtroom by the Judges. Therefore, Sita should face an
intimidating situation. A female police officer who was assigned under the
integrated services tried to negotiate with the Judges in order to get access to
be in court. The fruitful negotiation between the court registrar and the
female police officer had allowed an accompanier to be in court for Sita.
The accompanier that is the female police officer herself proposed to Judge
to place Mudi outside the courtroom when Sita gave her testimony for the
case. The collaboration work between the social worker and the female
police officer had made Sita felt comfortable to sit and talk during the trial.
The sentence released for Mudi was much less than the indictment.
He was only sentenced for 5 years since the court considered that Mudi was
already old. He was sixty years old when he appeared in court. Also, Mudi
gave a direct confession and made the hearing less complicated.
Interestingly, one of Judges considerations was that Mudi was too poor to
afford to marry another wife. Thus he could not channel his sexual
desires153.
153
The considerations of the panel judges in the court verdict and the interview of a female
police officer in Mataram, West Nusa Tenggara.
70
4.4. The Intervention: Roles of Intermediaries
4.4.1. PEKKA: Female-headed Household Empowerment Programme
The name of PEKKA organization was actually emerged from a programme
that was initiated by the World Bank in Indonesia. The World Bank and the
Government of Indonesia considered that there is a segment of government
aid target under one of the World Bank programme that is not yet included.
Kecamatan154 Development Programme (KDP)155 is a nationwide
government programme that reached the lowest governmental structures.
KDP was not covering the widow groups as their targets, and Indonesia has
many post-conflict areas in which the number of widows is significantly
high. Emerged from this notion, in the year of 2000, Komnas Perempuan
and the current director of PEKKA organization created a programme that
aimed to empower female-headed household and not necessarily widows.
The National Economics Census Data of Indonesia (SUSENAS)
2007 indicated that the number of households that are headed by female
reached 13.60 per cent or approximately six million households that
comprised more than 30 million citizens. Each year, and in particular
compared to the year 2001 data when this PEKKA organization commenced
its activities the percentage of FhH in Indonesia is increasing 0.1 per cent in
average. FhH are generally poor and in fact they are the poorest of the poor
in the segment of society in Indonesia. Most of PEKKA members are the
survivors of violence, mostly are domestic violence survivors. The groups
of Female-headed Household (FhH) are established in villages in eight
provinces across the country. FhH or PEKKA membership consisting of
those poor FhH who have responsibilities as breadwinner, household
manager, and decision maker. The PEKKA members usually divorced
women, widows, single or unmarried women, housewives whose husbands
are permanently ill or having disabilities, married women that were left by
their husbands with no clear legal status. Its members indicated that the aged
group of PEKKA members is between 20 and 60 years old, more than 38.8
% are illiterate and do not go to school. They must take care of up to 6
154
Kecamatan is an Indonesian word for ‘sub-district’.
155
Please see www.ppk.or.id and www.worldbank.org/id/kdp both were accessed 25
November 2009.
71
dependents and mostly work as farm-labourer or another informal sectors
including small traders in that their daily income reached less than USD two
per day156.
This PEKKA programme aimed to strengthen female-headed
household, and it is to improve FhH welfare, to facilitate FhH to access
justice and various local sources, to increase the participation of FhH in
local development, and to raise their rights and legal awareness as well as to
empower them in order to have control of their life and able to involve in
the decision making process either in family or in their own community. To
reach this end, PEKKA organization recruited and installed community
organizers who sit, mostly, at district level. They recruit PEKKA members,
created FhH groups at village level, networking with local government
apparatus, facilitating various empowerment training, and another grass root
activity. The core activity of PEKKA groups, however, mostly on economic
empowerment and small-scale credit facility that managed by the members
themselves.
4.4.2. Women’s Legal Empowerment and the Roles of Paralegal in the
Village
The case chronology above indicated that the challenge of the case handling
were not only from the legal institutions and the bylaws but also from the
community or villagers and the victims themselves. The response of
villagers in both villages where Sita and Weni lived was quite similar.
Villagers tended to blame Sita and Weni in that both of them contributed to
the rape occurred to them. Yet, in Weni case the response of villagers was
slightly different. At the moment the Sita case was disclosed a women’s
legal empowerment was conducted by PEKKA organization and a paralegal
was employed at Sita’s village. Therefore, in the middle of village chaos
due to some youth villagers who tried to loot Asep’s house. Other villagers
referred Sita to bu Nining, the paralegal at the village, in order to get
assistance. Meanwhile, Sita received assistant from social workers of the
local dinas when the case was already reported to the police.
156
Please see http://www.pekka.or.id/8/index.php?option=com_content&view=category
&layout=blog &id=52&Itemid=91&lang=en accessed 26 November 2009.
72
Women’s Legal Empowerment (WLE) is a program implemented by
PEKKA, a Jakarta-based women’s organization in Indonesian villages
including in Cianjur157. This WLE aimed at increasing women’s access to
justice in Indonesian villages. It provides women and villagers with legal
information through informal group discussion or conversations between the
paralegal and local leaders in the village. This legal empowerment activity
has generally increased villagers’ knowledge and made the villagers more
familiar with human rights norms including domestic violence issues. The
roles of local intermediary or paralegal that provided and facilitated village
discussion on women’s legal issues in this context are important for
villagers. Thus, when villagers have questions or need assistants in many
women’s legal cases villagers are able to ask paralegal.
For the purpose of the WLE program, a paralegal was recruited and
served villagers in Cianjur. Bu Nining, the paralegal, was a prominent
female villager. She was the head of a village women’s organization, she
was also the cadre of an integrated services post for mother and children at
village level, and informal female village leader as well. Bu Nining was
really well known in the village, and villagers noticed her position as ‘legal
cadre’ or paralegal. Her prominent position made it easy for Nining to get
support from the community when she would like to hold a village informal
discussion on women’s rights issues. Since she was actively involved in
village meetings she has more chances to disseminate ideas on women’s
rights among the villager leaders. Bu Nining has a good and effective
relationship with another community focal points in the village such as
village-head, hamlet-heads, and vicinity-heads. Bu Nining also has good
networks with the police officers, and midwives as well as health officers in
the sub-district community health centre.
These networks helped bu Nining when she should accompany Weni
to report the case to the police. As discussed above, bu Nining accompanied
Weni during the police investigation and the court hearings. Bu Nining took
and accompanied Weni to hospital for the medical examination and to do
the reporting in the police station. Weni acknowledged that bu Nining was
157
See www.pekka.or.id
73
really helpful since none of Weni’s families accompanied her during the
case reporting. “I was lucky that bu Nining accompanied me at all time
during the case reporting,” said Weni who should stay in the police station
until four o’clock in the morning. In the unavailability of women’s victims
unit under the police station in Cianjur, bu Nining played roles as ‘female
police officer’. She took care of Weni and facilitated villagers to submit
their witnesses in the police station.
A completely different situation and treatment occurred to Sita in her
village in Lombok. At the village level no local activist was available for
Sita. Only a couple of Sita’s relatives were with Sita but they did not
understand what to do with the case. Meanwhile, the villagers became
savage. In one night when most villagers knew the case, villagers started to
shout angrily to Weni and Sita. They blamed both Sita and Mudi, “the father
and the daughter are insane!” shout some youth villagers. Some youth
villagers who were starting very angry tried to loot Mudi and Sita’s house.
In this critical situation, Mudi was taken to the village head house. To avoid
further violent, Mudi was transferred to the nearest police station for
investigation. While Mudi was detained, Sita stayed in a relative house
temporarily. Sita only received the accompaniment and social services when
the case was reported to the police station.
4.4.3. Victims Accompaniment in Case Handling
The support for Sita was begun when the hamlet head reported the
case to the sub-district head. The wife of the sub-district head knows quite
well the director of Children Rights Protection organization or Lembaga
Perlindungan Anak (LPA) that is based at the provincial capital. She
informed the LPA director about the case. In the next day, two social
workers of LPA visited Sita to get first-hands information. In the second
visit, three social workers from a social welfare unit or dinas sosial (dinas)
at the local government paid a visit to Sita and her aunt. This time, the social
workers took Sita to the dinas’ shelter in Mataram, the capital city of West
Nusa Tenggara province.
Initially LPA would like to accommodate Sita in its shelter.
Considering Sita’s pregnancy, she cannot stay in LPA shelter because no
74
one would be able to take care of her. She was then being referred to the
dinas. Yet the problem does not come to an end. Indeed, dinas in theory has
an integrated service provider yet this service does not have a shelter for
women’s victims of violence. This caused the dinas to accommodate Sita in
the elderly house belonging to the dinas. Sita was really depressed in this
shelter. In the first month, Sita could only cry and kept herself in the
bedroom. Anytime she went back to the shelter from police investigation,
she pulled her blanket and covered her overall body. Only the friendship and
the patience of the elderly women changed her attitude. Thus she started to
talk to the psychologist and the social workers that visited her.
The judicial hearings in Sita case actually occurred quite shortly.
Yet, it was a truly dreadful experience for Sita. No one accompany Sita in
the first trial. Another witnesses appeared in court were merely the family of
Mudi. Most of Mudi’s family did not want the case was brought in court.
Therefore, it was not surprising that if they scolded Sita and some of them
yelled at Sita. “Because of you whore! My brother would be in jail!” yelled
Mudi’s brother to Sita. At that moment, a social worker was actually in
court but he was not allowed to enter the courtroom. Without an
accompanier, Sita faced intimidation from Mudi’s relatives alone. Learning
from this experience, in the second hearing a social worker and a female
police officer negotiated with the judge in order to get access to the
courtroom. The situation was much better when Sita was with the social
worker and police officer. They suggested to the judge panel to order Mudi
stay out of the courtroom when Sita gave her testimony. The accompaniers
tried to make Sita more comfortable to give the testimony. This kind of
feminist social services158 had truly contributed to the more effective case
handling in court.
Weni had different experience in court, yet she received effective
supports in reporting stage in the police. No paralegals or accompaniers
were in court with Weni. In the beginning of the trial, bu Nining and another
paralegal from PEKKA organization requested the judges panel to have
158
Sally Engle Merry, ‘New legal Realism and the Ethnography of Transnational Law’,
31:4, Law & Social Inquiry (Fall 2006b), p. 984.
75
permission to accompany Weni. The chief of judge’s panel refused the
paralegal demands. The judge said, “I do not see legal reason to allow the
accompaniers to be in court with the victim.” Bu Nining argued that the
newly enacted Indonesian domestic violence law provides legal basis that
allows an accompanier to be in courtroom, yet the judges insisted in
contrary. However, the judges acknowledged that they provided more
protection for Weni in court. Such as Judges protected Weni from Asep and
Asep’s family anger. Judges tried to gather testimony with the way that
comforted Weni. Since the paralegal was also busy with another community
empowerment activity they did not really have time to observe the court.
Thus, until the end of the trial both paralegals only appeared a couple of
time in court.
4.4.4. Post cases
In post cases or after the court verdict is being released often became the
critical situation for victims of violence including in the case of Weni and
Sita. In post case, Weni had almost been forgotten. She stayed with another
relative in the same village during the trial. Before the verdict was released
Sita went to Jakarta and worked as a domestic helper in a relatively poor
area very close to Jakarta bay. She looked unhappy with the work since she
did not receive salaries during the six months she stayed in the employer
household. Weni should take care of three little children at a quite small
house. When she was told that her father received ten years in prison Weni
looked very happy. She was keen to get back to the village and learned how
to be a tailor like her father. Yet, she did not know who was going to take
care of her. Her nice aunty left for Saudi Arabia already and worked as a
domestic worker like herself.
Sita might be luckier than Weni. During the trial, Sita stayed in the
dinas or government shelter. Therefore, she could stay in the shelter for the
longer period by which the social workers under the dinas or under the LPA
could provide services for Sita. Sita gave birth a month before the verdict
released. Sita did not want to see the baby let alone breastfeed the boy
infant. “I do not want to see him, and I do not want to breastfeed him,”
refused Sita when the firs time she was offered to touch her boy. To avoid
76
Sita from doing things violently to the boy, Sita was transferred back to the
shelter. While her baby stayed one week more in hospital.
Finally a couple adopted Sita’s baby compensated Sita properly. The
head of LPA, ibu Muji decided to take care of Sita herself. Sita was sent to
the tailor training centre in Mataram. Sita Was very happy with this support,
and she said she did not want to back to her village. “I want to move to Java
or stay here in Mataram,” said Sita firmly.
77
5. Conclusion
This thesis looks at how two girl victims of violence were seeking justice
and how the paralegal and intermediaries assisted Weni and Sita. By using
the human rights indicators that were developed by the GBP report, this
thesis revisited the best practices of Canada, South Africa, and Spain that
were included by the GBP report in developing the minimum criteria.
Chapter three examined the availability of the Indonesian legal framework
and legal institution in the area of rape. Chapter four investigates whether
the relevant mechanism and services for the victims of rape are accessible
without any kinds of discrimination. This part indicates the conclusions
established from previous chapters. It will conclude how the legal
framework and legal institutions in Indonesia are accessible for victim of
rape and to what extent the intermediaries assisted the victims to make it
accessible.
5.1. The Legal Framework in the Area of Rape

Using the human rights indicators developed by the GBP, chapter two of
this thesis put forward the best practices of law and policy in the area or
rape in country of Canada, South Africa, and Spain. The three countries’
best practices can be seen, among others, from the adopted definition of rape
as public offence, the gender-neutral definition of rape, the requirement of
consent, and the statutory rape. Also, there is a national database of the
perpetrators in place in the three countries, and the state ensured that the
police officers treated the victims of rape well. Albeit the support services
and mechanisms in the three countries mostly provided by the (women’s)
NGOs yet the government provides sustainable support such as in Canada.
Meanwhile, the Indonesian legal framework generally provides law
and policy to handle rape occurred to women and girls adolescence. Chapter
three discussed some negative implication of the rape article towards
women victims of rape. In addition, the rape article under the Indonesian
Penal Code (IPC) does not include rape against children or girls. Before the
law on children rights protection was enacted, if a girl was being raped it
78
would merely be categorized as obscenity. Weni and Sita cases
demonstrated that the children rights protection has encouraged the judiciary
to make the imprisonment for the defendants in both cases quite high. Yet
the question is to what extent the victim rights were really accessible during
the case handling and in post court decision.
5.2. The Accessibility of Victims Rights

As discussed, multidisciplinary supports or services for women and girls
victims of violence established under the national law and policy yet it has
some critical problems. First of all, this multidisciplinary supports or
Integrated Women’s Crisis Centre (integrated WCC) is established mainly
to support women victims of domestic violence. Thus, it does not properly
respond to the victims of rape for example an integrated WCC does not
provide a rape kit for the victim or counselling for rape victim. Secondly,
integrated WCC reside at the provincial capital city. Sita might be luckier
since the police station where she reported the case is situated quite close to
the integrated WCC. Therefore, it can be said its services were quite
accessible for Sita.
Meanwhile, the victims’ unit under the police stations is unavailable
in both places. Even though the Indonesian Domestic Violence obliges each
police station to provide a unit for women’s and children victims of
violence. The small percentage of female police officers across Indonesia do
not make the establishment of women’s victims in all police stations
possible. As discussed above, to get a victim unit established at least a
female police officer should be recruited in each police station. Generally, a
victim unit under a police station cannot serve the rape victims well because
it mainly provides assistant for domestic violence victims. It does not have
counselling and another methods to deal with rape victims.
The prosecuting office and court do not have policy to establish a
victim unit for women and children. Prosecuting office only has a gender
focal point and a circulation letter that encourages prosecutors across the
country to pay attention to rape cases and aggravate the punishment. This
letter implies that no institutional support under the prosecuting agency is in
79
place to serve women and children victims of sexual violence. In Weni case,
the panel judges clearly refused the paralegal to be present in courtroom.
Meanwhile, in Sita case, the panel judges only allowed the social workers to
be in courtroom after a female police officer negotiated with the court
registrar. This created problems when the case was processed under the
prosecuting agency and in trial due to the unavailability of victims unit
under the prosecuting agency and the court. Albeit the national policy
provides multidisciplinary supports for women victims of violence, yet this
supports only available in some provincial capital city in Indonesia.
Multidisciplinary supports should be placed under a hospital and required
institutional support from each legal and non-legal institution that involved.
The two cases discussed in this thesis indicated the law of children
rights protection has increased the sentence and imprisonment of sexual
violence defendants against the children. Albeit this improvement, the girls
victims protection are not yet a priority. Indeed the police, the prosecuting
agency, and the panel Judges demonstrated their ‘concerns’ and ‘sensitivity’
towards Sita and Weni. These kinds of concerns are not enough. To enforce
rape victim rights effectively, there should be a concrete institutional
support under the police, the prosecuting agency, and the court.
5.3. The Prominent Position of Paralegals

The discussion in chapter four shows that the intermediary such as the
women’s paralegal, children organization, and social workers has important
position to increase victim rights enforcement. First of all, the paralegal role
is important to balance the ‘power relation’ between the weak position of
the victims and the community or villagers and the legal institutions. Bu
Nining, the paralegal in Cianjur, assisted Weni to report the case to the
police and facilitated the villagers to submit their witnesses to the police.
Albeit failed, the paralegals negotiated with the court to accompany Weni in
courtroom. Secondly, the paralegals supported girl victims of violence to
access another relevant services and mechanisms for victims of violence.
Apparently Sita and Weni understand the sexual coercion done by
the fathers as injustice. They refused the fathers acts but they did not brave
80
enough to fight since their father threatened them. However, Weni and Sita
do not know how to access justice let alone get the remedy. They were only
seeking helps by telling their experience to the neighbours and relatives.
While both girls thought that they would get supports from villagers yet
what happened was the other way around. They were blamed and humiliated
by the most villagers. The intervention of paralegals had made Sita and
Weni’s access to justice more possible.
As discussed in Sita case, the relevant services and mechanism for
women victims of violence under the multidisciplinary supports are
available. Yet, this integrated WCC cannot be accessible without the
intervention of the intermediary viz. social workers from the LPA. LPA
functioned as an intermediary to encourage the integrated WCC provided
support for Sita during the trial and in post court decision.
To conclude, Weni and Sita faced many obstacles in seeking justice
during the case handling process. This thesis demonstrates that the
accessibility of the victims rights were due to the fruitful combinations of
the effective supports of legal officers and judiciary, the provisions of
children rights protection law, and the support of intermediary or paralegal
during the case handling.
81
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FACULTY OF LAW

Indonesian Law and Policy on Rape:

Supervisor: Dr. Christina Johnsson

Master Programme in International Human Rights Law

Fall Semester 2010

2 INTERNATIONAL HUMAN RIGHTS STANDARDS AND BEST

3 INDONESIAN LAWS AND POLICIES ON RAPE

Secondly, I want to thank Anders Trojer who gave me supports and

Jakarta, End of August 2010.

1.1. The Cases and the Paralegals

Radhika Coomaraswamy, the first special rapporteur on violence against

This definition is comprehensive, covering law, policy and implementation.

1.4. Methodology: Field Study and Human Rights Indicators

Available Ratification of international and regional human rights

Accessible Non-discriminatory access to judicial mechanisms and

Acceptable Quality of judicial mechanisms

Adaptable A comprehensive national strategy on violence against

2.2. International and Regional Human Rights Standards on

This GR No.19 outlines a quite comprehensive guideline on gender-based

Furthermore, the CRC committee highlighted these two articles in the

2.4. Best Practices: South Africa, Canada, and Spain

‘Lack of consent’ is the main element of rape definition whether it

2.5. Minimum Criteria of Law and Policy in the Area of Rape

Indonesian Laws in relation to Rape and Sexual Violence

The Indonesian Penal Code

A National Commission on Violence against Women or Komnas

3.2. Rape and Incest in the Indonesian Penal Code

3.2.1. The Definition of Rape

3.6. The Rights of the Victims

3.7. National Policies on Services and Mechanism: Assistant to

4.2. The Cases

Survivors Perpetrators Indictment Verdict Accompaniment

Weni (15 Asep (37 years) 14 years 10 years Accessible at

Sita (15 Mudi (60 years) 8 years 5 years Inaccessible at

4.3. Case Handling: Response and Supports of Legal Institutions

5.1. The Legal Framework in the Area of Rape

5.2. The Accessibility of Victims Rights

5.3. The Prominent Position of Paralegals

Bappenas, PSPK-UGM, UNDP, January 2007, Justice for All? An

Edwards, Alice, 2006 ‘The ‘Feminizing’ of Torture under International

Edwards, Alice 2008, Violence against Women as Sex Discrimination:

International Legal Assistance Consortium (ILAC) and Raoul Wallenberg

Katjasungkana, Nursyahbani 2008 ‘Gender and Law Reform in Indonesia:

Koopmans, Tim, 2003, Court and Political Institutions, Comparative View,

McGlynn, Clare, 2008, ‘Rape as ‘Torture’? Catherine Mackinnon and

Merry, SE 2006a, Human Rights & Gender Violence: Translating

Merry, SE 2006c, ‘Transnational Human Rights and Local Activism:

Soesilo, R, 1996, Kitab Undang-undang Hukum Pidana (KUHP) Serta

The United National 13 September 2004 ‘A Role for Men in Gender

The World Bank 2001, Engendering Development: Through Gender

The World Bank, 2004, Village Justice in Indonesia: Case Studies on

The World Bank, 2007, A Framework for Strengthening Access to Justice in

Tomasevski, Katarina, 2001 ‘Indicator’ in Asbjorn Eide, Catarina Krause

UN Millenium Project 2005, Investing in Development Goals: A Practical

Indonesian Law and Policy

The Indonesia Penal Code Law No.1 Year 1946.

The Indonesian Marriage Law No.1 Year 1974.

The Indonesia Criminal Law Procedure Law No.8 Year 1981.

CEDAW Ratification Law No.7 Year 1984.