October 27, 2022
JAKARTA – The government has dismissed recent concerns aired by a business organization that a controversial provision on fornication in the Draft Criminal Code Bill (RKUHP) could criminalize unmarried couples staying in the same hotel room while on holiday and so scare off tourists, especially foreign visitors.
The draft bill refers to fornication (perzinaan) as “having [sexual] intercourse with a person who is not their husband or wife”.
At a press conference last week, Indonesian Employers Association (Apindo) chairman Hariyadi Sukamdani said he feared that the provision could disrupt the country’s tourism industry, particularly the hospitality sector.
“It can be understood that the criminal provision on fornication is related to moral behavior, however, that activity belongs in the private sphere and should not be regulated by law or considered a crime,” Hariyadi told the press on Thursday, as quoted by Antaranews.com.
In response, the government said the provision on fornication, as well as a related provision on nonmarital cohabitation, would instead protect people from arbitrary raids, arguing that the legal process could start only if a parent, child or spouse of the individuals engaging in such activities submitted a formal complaint to a law enforcement agency.
“Third parties or people unrelated to the individual allegedly committing the crime of fornication or [nonmarital] cohabitation cannot file a complaint to the authorities, and they cannot resort to vigilante actions,” Albert Aris, a spokesperson for the bill’s drafting team, told The Jakarta Post on Monday.
The latest version of the draft bill, submitted to the House of Representatives in July, maintains articles that carry punishments of one-year imprisonment for fornication and six months for nonmarital cohabitation, disregarding criticism from activists who said that criminalizing the individual acts violated the right to privacy.
Critics have also said the provisions could be used to further discriminate against women.
Neither consensual sex between unmarried people nor nonmarital cohabitation is a crime under the existing Criminal Code (KUHP), although adultery is prohibited.
Executive director Erasmus Napitupulu of the Institute for Criminal Justice Reform (ICJR) said the prevailing KUHP was therefore sufficiently clear, as the provision on adultery was intended to protect the institution of marriage – unlike the draft bill, which went too far into the private lives of citizens.
“I’d say the planned provisions that target unmarried couples should be removed from the draft bill to prevent overcriminalization when it is passed into law and enforced, because the purpose of the punishment is not clear,” he added.
Conservative groups have long pushed to expand the ban on adultery in the KUHP to also include any sex outside marriage – nonmarital, premarital and extramarital – as well as gay sex. In 2017, the Family Love Alliance filed a petition for judicial review with the Constitutional Court toward this end. The court rejected the petition, however, saying that the power to criminalize sex outside marriage rested with the legislature.
Not long after submitting the draft bill to House Commission III, which oversees legal affairs and human rights, the government began what it described as “a series of public discussions” to seek input from certain members of the public, such as students and law experts, regarding the controversial provisions.
The discussions were held at the instruction of President Joko “Jokowi” Widodo, who had responded to the public’s growing opposition to the provisions. But civil society groups insist that the meetings were a “one-way street” and that policymakers were not open to making any real changes to the draft bill.
The RKUHP includes several other articles that critics believe could still infringe on civil liberties, including an article that criminalizes insulting a sitting president.
Hariyadi was not available for comment on Monday, when the Post contacted him over whether Apindo would call for a dialogue with policymakers.
Separately, drafting team spokesperson Albert said he had yet to hear about any requests for a formal meeting from the association.