Should Unmarried Sexual Intercourse be Really Banned in Indonesia?

Sexual intercourse between men and women out of marital relationship indicates the current crisis of morality among people.

More than this, the sexual intercourse among youths seems to be increasing as the increase of the cases of sexual transmitted diseases (STD).

Considering this, the effort to overcome such deviation through criminalization policy cannot be delayed any longer, for the purpose of overcoming any possible negative impacts and deteriorate of people’s behavior.

In this explanation, people who are not husband and wife in the case are as follows.

  1. Men who are in marital relations have intercourse with a woman who is not his wife.
  2. Women who are in marital relations have intercourse with men who are not their husbands.
  3. Men who are not in a marriage bond have intercourse with a woman, even though it is known that the woman is in a marriage bond.
  4. Women who are not in a marriage bond have intercourse with a man, even though it is known that men are in a marriage bond.
  5. Men and women who are not bonded in marriage each have intercourse.

The only positive legal provision governing adultery is Article 284 of the Criminal Code (KUHP). Article 284 paragraph (1) of the Criminal Code determines the threat of a maximum of 9 months imprisonment against a married man who commits adultery, even though it is known that Article 27 BW applies to him; a married woman who commits adultery even though it is known that Article 27 BW applies to her; a man who participated in the act, even though he learned that the guilty was married; a married woman who participated in the act, even though it was known to him that the person who was guilty had married and Article 27 BW applies to him.

From these provisions, the act that can be categorized as adultery is sexual relations (intercourse) committed by a partner instead husband and wife, where one party or both parties are still bound in a marriage bond with another person.

Therefore, if a man and woman who are both unmarried and have sex outside the ties of a legal marriage, they cannot be categorized as adultery and cannot be ensnared by law. In other words, the provisions of Article 284 of the Criminal Code, both directly and indirectly, provide opportunities for extramarital intercourse between men and women, each of which is not bound by marriage to another person.

These provisions are considered by some to be in conflict with religious values, customs and decency. In contrast to the formulation of Article 284 of the Criminal Code, the Government revised the Draft Criminal Code concerning adultery, namely in Article 484 of the Draft Criminal Code.

The revision regarding adultery is as follows: first, the revision of the sanction of imprisonment, which was originally a maximum of 9 (nine) months to a maximum of 5 (five) years. Second, the revision of the perpetrators of adultery, which were initially perpetrators of adultery are only married men and married women who have sex not with their wives or husbands, in the Draft Penal Code also includes men and women who are not each bound in a legal marriage with other people.

The revision of the adultery article, especially regarding perpetrators of adultery or in other words the criminalization of sexual activities (sexual relations) committed by men and women who are not each bound in a legal marriage with another person, are subject to debate between the parties involved pros and cons.

Those who contravene the revision of the adultery article consider that the revision of the adulterer is too intrusive and confusing for one’s personal life. In this case the state has intervened in the lives of its citizens’ private territories. The revision of the adultery article is considered as a provision that violates human rights, and therefore threatens democracy. In addition, those who are against the revision of Article 284 of the Criminal Code are of the view that the Draft Penal Code should prioritize the principle of unification.

The draft Criminal Code is a legal codification that must be accepted by all elements of society. If there are articles that cannot be implemented in one area, but implemented in another area, it will create legal uncertainty.

Whereas those who are pro to the revision of the adultery article consider that the problem of adultery arises from public demand not personal or family, because of public demand, then it is regulated in the Act. In many liberal countries, there are common laws governing private activities.

In sexual activity, residents may not engage in incest, people may not collect photos that fall into the category of ” child pornography ”, residents are not permitted to engage in polygamy, or if they use more extreme examples: residents may not do suicide and citizens should not be addicted to narcotics, although both activities can be seen as “conscious activities carried out by adults with consequences that must be borne by the adults themselves”.

Thus, state intervention on private territory is never forbidden, even in the liberal society the key is reason. A personal activity that is believed to have the potential to have a negative effect or be seen as an immoral act, is commonly declared prohibited. Even though adultery appears to be a very personal activity, basically adultery is a private activity that has a broad social dimension.

Therefore, state intervention has a solid foundation, among others, that one of the main causes of the spread of HIV and AIDS is extramarital sex. Sexual relations outside of marriage has the potential to cause teenage pregnancy, pregnancy outside marriage, abortion, divorce, which is also related to the growth of family patterns with a single parent (single parenthood). The revision of the adultery article in the Draft Penal Code still causes debate between the pros and cons of the revision.

The problem of criminalization of an act must be in accordance with the criminal politics adopted by the Indonesian people, namely the extent to which the act contradicts or does not conflict with the fundamental values ​​prevailing in society and is deemed appropriate by the community or not worthy of punishment in the context of organizing community welfare. In this case, the revision of the provisions regarding adultery must be reviewed with the principle of prudence.

What is the consequence if an action is made as a criminal act (criminal act) while the community evaluates the act as an act that is proper or not blameless. Based on this background, this research is focused on the issue of whether the revision of the adultery article, namely the criminalization of sexual activities (sexual relations) conducted by men and women, each of which is not bound in a legal marriage with another person meets the criteria (justification basis ) in criminalizing an act.

Thus to find out whether the act of conjugal relations carried out by men and women who are both unmarried should be used as criminal acts, four criteria must be considered in the criminalization policy as follows:

  1. Acts that will be criminalized are acts that violate the values ​​that live in the community (customs, decency and religion).

Regarding the assessment of the actions carried out by unmarried men and women who have sexual relations so that it is considered appropriate or improperly convicted.

  1. Acts to be criminalized are anti-social because they are detrimental to the community or cause damage to the community.

That acts committed by bachelors who engage in marital relations are acts which are detrimental to the community or customary environment. If not given sanctions, the offender will not be deterred. Positive lawmust be built from the norms or commitments of indigenous peoples, therefore the arrangements must pay attention to the adat community. If criminal prosecution is only intended for married offenders, it is not in line with customary law. During this time in the Minang Adat law, couples who are not married and have marital relations will be imposed with traditional sanctions in the form of exclusion / expulsion.

  1. The criminalization policy must pay attention to the work capacity or capacity of law enforcement agencies.

In law enforcement efforts not only involve the role of police officers, but also prosecutors, courts, legal advisors, and correctional institutions. The role of law enforcement officers is related to their duties and authorities which include reporting or complaint activities, investigations, investigations, prosecution, verification, sentencing and sanctions, and efforts to correct prisoners again. The duties and authority of law enforcement officers are regulated in the Criminal Procedure Code (KUHAP) and other relevant laws and regulations.

In its implementation, to guarantee and ensure the enforcement of the law, if necessary, law enforcement officials are permitted to use forceful measures. Regarding the work capacity or capacity of law enforcement officers, it can be improved through education, training, seminars, workshops, and so on. In addition, public demands to realize supremacy in the field of law, both through the 1945 Constitution of the Republic of Indonesia and the laws and regulations below it have mandated the establishment of an external oversight body for law enforcement agencies. Currently there is a Judicial Commission, Prosecutors Commission, Police Commission, and so on. The existence of these commissions is expected to improve the quality of performance and at the same time improve the justice system.

  1. Criminalization policy must pay attention to the function and purpose of criminal law to deal with crime.

Apart from the law, human life in society is guided by human morality itself, religion, moral principles, politeness, customs and other social rules. Between the law and other social principles, there is a close intertwined relationship. Sometimes the law is incompatible or compatible with these other social norms.

But in one respect, the law differs from other social norms, namely that compliance with its provisions can be imposed in an orderly manner.

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
en_USEnglish