CC BY
19
Section 3. Public law
https://doi.org/10.29013/EJLPS-19-3-14-19
Archita Diaz Anugrianti, Postgraduate Student, Faculty of Law, Hasanuddin University, Indonesia Syamsuddin Muchtar, Lecturer, Faculty of Law, Hasanuddin University, Indonesia
Nur Azisa,
Associate Professor, Faculty of Law, Hasanuddin University, Indonesia E-mail: [email protected]
THE CONCEPT OF IMPOSING CRIMINAL SANCTIONS FOR PERPETRATORS OF CHILD SEXUAL VIOLENCE: THE DETERRENT EFFECT
Abstract. The addition of basic criminal detention periods, criminal acts in the form of chemical castration, installation of electronic detection devices, and additional criminal announcements of the perpetrators' identities, were chosen by the government as a way to deal with child sexual violence with the aim of providing a deterrent effect for the perpetrators. This study aims to determine the concept of imposition of criminal sanctions for child sexual violence perpetrators as a form of deterrent or rehabilitative effect. This type of research used in this study is normative legal research, using primary and secondary legal materials, using the law approach, and analyzed with qualitative techniques. The results of this study indicate, the concept of criminal prosecution for perpetrators of child sexual violence is a deterrent effect as a form of President's political decision to meet the demands of the public who want the government to immediately take serious and decisive steps for perpetrators of sexual violence.
Keywords: child sexual violence, criminal prosecution, deterrent effect.
Introduction a social reality, this problem cannot be avoided and
The crime of child sexual violence committed by indeed always exists, causing anxiety because it is pedophiles is very difficult to be eradicated, sexual considered as a form of disruption to the welfare of violence is a form of crime in a society whose de- the community and its environment [2]. velopment is increasingly diverse both motive, na- The crime of child sexual violence that is cur-ture, shape, intensity and mode of operation [1]. As rently seizing the attention of the community is, Mu-
hammad Aris, a 20-year-old youth, a 9-child rapist suspect in Mojokerto Regency, East Java, sentenced to 12 years in prison, a 100 million fine and an additional sentence in the form of chemical castration by the Mojokerto District Court. The decision was read out on May 2, 2019.
Aris was the first person to be subjected to additional criminal sanctions from chemical castration since Law No. 17 In 2016 it was ratified, suddenly this matter became a discussion among the people there who appreciated the decision but there were also those who regretted it [3]. The Mojokerto District Court Judge passed the ruling based on the Law of the Republic of Indonesia Number 17 of 2016 concerning the Establishment of Government Regulation in Lieu of Law Number 1 of 2016 concerning the Second Amendment to Law Number 23 of 2002 concerning the Protection of Children into Law (Law No 17 of 2016), which regulates the provision of additional criminal sanctions in the form of chemical castration sanctions for perpetrators of sexual violence against children.
UU no. 17 of 2016 was passed by the House of Representatives in 2016, the birth of the law began with the Perppu issued by President Joko Widodo in May 2016, when the news that was raised was filled with full mass media with news about child sexual violence, then pressures for the government Immediately taking serious steps to overcome these problems more intensified, then issued Perppu Number 1 of 2016 concerning the Second Amendment to Law Number 23 of 2002 concerning Child protection (Government Regulation in lieu of Law No. 1 of 2016).
The addition of basic criminal detention periods, criminal acts in the form of chemical castration, installation of electronic detection devices, and additional criminal announcements of the identity of the perpetrators, were chosen by the government as a way to deal with child sexual violence with the aim of providing a deterrent effect for the perpetrators and at the same time to prevent possible acts of crime and violence by other actors.
But this has led to various responses from many parties, both pros and cons. The Executive Board of the Indonesian Doctors Association (IDI) has also issued a letter dated June 9, 2016 requesting that doctors not become executors, the refusal is based on the fatwa of the Medical Ethics and Honorary Council (MKEK) and also based on doctor oaths and the Indonesian Medical Ethics Code (KODEK).
These problems arise because of a reactive government to deal with child sexual violence. In 2014 the government issued Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection, in reaction to cases of sexual violence against children at the Jakarta International School (JIS) in 2014, as well as government regulations in lieu of Law No. 1 of 2016 which was later passed into law as a reaction to a case of sexual violence accompanied by the murder of Yuyun by 14 men in Bengkulu at the end of April 2016, this shows how the government is still reactive in responding to sexual violence against child, and as if the rule is a momentary reaction without an adequate review process.
Sexual violence against children needs to be seen from many perspectives, not only from the perspective of punishment, in-depth research is needed to prove the best treatment for perpetrators and victims and appropriate prevention efforts [4]. for this reason, the authors are interested in reviewing the concept of imposition of criminal sanctions for child sexual violence as a deterrent effect.
Research Method
This type of research used in this study is normative legal research, using the law approach (statue approach) and conceptual approach. The main types of data used by the author are secondary data Soekanto & Mamudji [5] with document study collection techniques, analyzed descriptively.
Result and Discussion
Based on the mapping of children's problems, violence against children ranks first, it can even be said that Indonesia is currently in an emergency
position of violence against children, especially sexual violence.
Data shows that since 2014 and 2015 sexual violence against children reached 50% of all cases of violence. In 2014, 52% of 4,638 cases were sexual violence against children. In 2015 as many as 58% of cases of sexual violence against children from 6,726 cases ofviolence. Furthermore, based on preliminary data in January 2016 there were 339 reports and there were 48% of cases of sexual violence against children. Where 16% of sexual violence in 2016 was carried out by children under 17 years of age and in general sexual violence committed during the last few years was rape followed by mistreatment, sodomy, incest, even murder [6].
In 2015 there was a case of child sexual abuse with a murder in West Jakarta. Non-formal education for 9-year-old girl was found dead in a cardboard box with the condition bound in a bent body position, legs and hands were also bound, while the victim's mouth was taped [7]. Then there was a case of violence where the culprit was only 1 person, but the number of victims reached 58 child victims namely the SS alias Koko case in Kediri in 2015 [8].
Cases of child abuse also occurred to 2.5-year-olds with the initials LN in 2016 in Pabuaran Tong-goh village, Bogor Regency, where the perpetrator was a neighbor of the victim, and the victim was raped in the bathroom until death, after death raped again wrapped around using a blanket then hidden in the closet. clothes and thrown behind the house. Then in 2016 a case of sexual violence that caught people's attention and was widely discussed on the media was the YY case of14 years old, a resident of Kasie Kasubun Village, Padang Ulak Tanding District, Rejang Lebong Regency, Bengkulu [9].
A series of events above shows how the abomination and cruelty of perpetrators of sexual violence are a threat to children, so that the community encourages the government to establish sexual violence against children as a serious crime and need to take firm policies to the perpetrators. The social minister
at that time Khofifah Indar Parawansyah felt the need to take legal steps, in the form of castration for the perpetrators.
To address the phenomenon of sexual violence against children, provide a deterrent effect on perpetrators and prevent sexual violence against children, and taking into account that the state guarantees children's rights to survival, growth and development, and protection from violence and discrimination as stated in the Basic Law The Republic of Indonesia in 1945, and that sexual violence against children from year to year is increasing and threatening the future of the nation and the state, so it is necessary to increase criminal sanctions and provide action against perpetrators of sexual violence against children. The President shall stipulate Government Regulation in Lieu of Law Number 1 of 2016 which has been ratified to become Law Number 17 of 2016 based on Article 22 Paragraph (2) of the 1945 Constitution of the Republic of Indonesia.
Criminal damages in question are, the addition of basic criminal sanctions, the provision of actions in the form of chemical castration accompanied by rehabilitation, installation of electronic detection devices, and announcement of the identity of the perpetrators, and the main focus in providing severe penalties for child sexual violence offenders is through castration for the perpetrators.
But it is not appropriate if the government takes steps to issue regulations because of emotional situations, because it could be that the laws passed seem very hasty, not comprehensive, and not go through deeper studies.
Until now, the Implementing Regulations (PP) related to the technical implementation of chemical castration sanctions are still under discussion. Due to the absence of PPs, the criminal prosecution regulated in Law No. 17 of 2016, has caused uncertainty to be applied, such as the number of injections the perpetrators will receive, what substances will be used and who will be the executors, which will eventually lead to conflict.
Law No. 17 of 2016 only mentions castration actions imposed for a maximum period of 2 (two) years and carried out after the convicted underwent a basic crime, under periodic supervision by the ministry that carries out government affairs in the field of law, social and health, and their implementation is accompanied by rehabilitation.
In making laws and regulations must be based on the principle of formation of legislation, one of the principles of which is the principle can be implemented [10]. Azisa [11] said that the principle can be implemented (het beginzel uitvoerbaarheid) is more directed to the readiness of the government in anticipating legislative products that will be enacted. All must be prepared and arranged in advance so that when the law is enforced does not have obstacles in terms of law enforcement both the readiness of the resources of its apparatus, facilities and infrastructure and adequate allocation of funds for its operations need to be budgeted in the government budget and sought a solution [12].
In a public hearing, Mudjahid [13], asked the Indonesian Child Protection Commission (KPAI) whether there was data showing that the perpetrators of child sexual violence were motivated by deviations from the perpetrators' sexual desires and regretted that so far there had never been a comprehensive explanation of the main causes someone committing child sexual abuse. What is stated by KPAI is that it has not been able to provide comprehensive survey or research results related to the background of the perpetrators of child sexual violence.
Based on the above statement, we can conclude that up to now there has not been an in-depth study regarding the dominant causes of the perpetrators of child sexual violence, whether dominant psychic, physical dominant, not yet known, even though to give the right punishment and deterrent effect must be based on the results ofstudies that have been done.
Some countries have implemented castration punishment, but not all have succeeded in proving that castration can provide a deterrent effect for perpetra-
tors of child sexual violence, because sexual disorders are caused more by psychological problems and environmental influences than hormone problems [14].
The Indonesian Doctors Association (IDI) also states that on the basis of scientific and scientific evidence, chemical castration does not guarantee the loss or diminished desire and potential for sexual violence behavior of perpetrators. IDI also requested that the government find another solution to the use of chemical castration which was once again considered ineffective in cases of sexual violence (KPAI, 2016). In this case, IDI also refuses to be the executor of granting chemical castration actions based on the Fatwa of the Honorary Council and the Medical Ethics Code (MKEK) and also on the oath of doctors and the Indonesian Medical Ethics Code (KODEKI).
Chemical castration is also considered by some as not yet resolving the problem of sexual violence because it does not provide a deterrent effect because the punishment given should be equivalent to criminal punishment for crimes against humanity. Chemical castration in Law No.17 of 2016 is a form of punishment. Actions (maatregel) are sanctions that are not retaliatory, but are solely aimed at special preventions, so the purpose of protecting concerns certain people, namely dangerous people who can harm public order. So, if the definition ofaction is related to the chemical castration action set in Law No. 17 of 2016, it is not to hurt the perpetrators of child sexual crimes [15]. Whereas to cause a deterrent effect for someone who has committed a crime usually by giving punishment in the form of giving pain so that someone no longer wants to do the same thing, and there are other benefits that result from preventing crime because the sentence makes them afraid to commit a crime. The determination of chemical castration as an action or a criminal certainly has different consequences. Ifpo-sitioned as a criminal, chemical castration is a form of suffering as well as a statement of reproach for the perpetrators. This is as explained by Alf Ross that the conception of a criminal departs from 2 (two) conditions or objectives, namely the criminal is aimed at the
imposition of suffering against the person concerned, and the crime is a statement of denunciation of the perpetrators' actions [16].
Along with the development of the theory of punishment, punishment no longer aims to have a deterrent effect, motivated by revenge for the actions of the criminal, but the punishment is held to improve the conduct of the criminal maker, then the institutionalization of the criminal is also eliminated the conditions that allow "labelization" of him [17].
The aim to provide a deterrent effect for perpetrators and prevent the possibility of crime and violence by other perpetrators is actually not appropriate if it is associated with imprisonment because in Indonesia the concept of imprisonment has changed to correctional facilities.
Law No. 12 of 1995 concerning our Penitentiary today, adheres to the theory of rehabilitative punishment, resocialization, and reintegration, which means that the Penal Act regulates the philosophy of punishment is no longer retributive or deterrence doctrine (revenge).
With the use of the prison concept, the orientation of imprisonment should not have a deterrent effect but rather as a special intervention aimed at improving the perpetrators to return to normal life in society. Thus, the threat of imprisonment for any period and formulated with a specific minimum criminal threat pattern, the concept remains not as a deterrent but as guidance to re-populate prisoners.
The theory of punishment used in basic criminal charges is an interactive theory according to Wibowo [18] that is, even though it considers retributive as the main principle and that the severity of a crime must not go beyond a fair retaliation, it is held that the criminal has various influences including prevention, deterrence, and repair something that is broken in the community [12]. The use of theory is relatively visible from the weighting of imprisonment for certain types of sexual violence, such as inclusion, repetition, and carried out by people close to the victim, so that the training of perpetrators in Peniten-
tiaries is longer so that they are better prepared for re-socialization. While the use of retributive theory can be seen from the accommodation of capital punishment as a criminal burden on the perpetrators of sexual violence that has a serious impact on the victim [18].
Finally, this study revealed that the concept of criminal prosecution for child sexual violence perpetrators is a deterrent effect as a form of political decision of the President to meet the demands of the public who want the government to immediately take serious and decisive steps for perpetrators of sexual violence.
Conclusion
The concept of criminal prosecution for child sexual offenders is a deterrent effect. However, this step is a form of President's political decision to meet the demands of the people who want the government to immediately take serious and decisive steps for perpetrators of sexual violence. The government responds to pressure from the public by providing, additional terms of basic criminal detention, criminal acts in the form of chemical castration, installation of electronic detection devices, and additional criminal announcements of the perpetrators' identity, through their authority to impose government regulations in lieu of law no. 1 of 2016 but the issuance of the regulation was due to an emotional situation, very hurried, not comprehensive, and not through deeper studies. This is evidenced by the absence of Government Regulations governing the technical implementation of the imposition of criminal sanctions for perpetrators so that there is uncertainty in its implementation, there is no resolution of problems related to IDI which explicitly refuses to be the executor of chemical castration actions for perpetrators, the unclear theory of criminalism adopted by also differs from the purpose of our correctional concept at the moment, and it turns out that in-depth studies have not been conducted regarding the dominant causes of perpetrators of child sexual violence.
References:
1. Kappeler V E. and Potter G. W. The mythology of crime and criminal justice. Waveland Press. 2017.
2. Mardiya N. Q. Penerapan Hukuman Kebiri Kimia Bagi Pelaku Kekerasan Seksual, Jurnal Konstitusi, 4(1), 2017.
3. VOA Indonesia. Pemerintah Keluarkan Perpu Hukuman Kekerasan Anak. 2019. Available from: URL:https://www.voaindonesia.com/a/pemerintah-keluarga-perppu-hukuman-kekerasan-seksual-anak-/3346167.html
4. Amanda P. K., Riski P., Sahputra F. and Habib M. N. Mencegah dan Melindungi: Menangani Kekerasan Seksual terhadap Anak dengan Bukti, Jurnal Peradilan Indonesia - Vol. 4. 2016.- Januari - Juli,- P. 49-67.
5. Soekanto S. and Mamudji S. Penelitian Hukum Normatif: Suatu Tinjauan Singkat, Jakarta: Rajagrafindo Persada, 2006.
6. KPAI. Pemerintah Temukan 116 Kasus Kekerasan Seksual Pada Anak. 2017. URL:https://www.kpai. go.id/berita/tahun-2017-kpai-temukan-116-kasus-kekerasan-seksual-terhadap-anak
7. Republika. kronologis Agus Bunuh Bocah Dalam Kardus. 2019. URL:https://nasional.republika.co.id/ berita/nw06o4382/kronologi-agus-bunuh-bocah-dalam-kardus
8. CNN Indonesia. Pemerkosaan 58 Anak di Kediri diduga Terkait Persugihan. 2016. Available from: URL: https://m.cnnindonesia.com/Pemerkosaan-58-Anak-di-Kediri-diduga-terkait-pesugihan
9. Liputan 6. Kronologi Kasus Kematian Yuyun di Tangan 14 ABG Bengkulu. 2016. URL:https://www. liputan6.com/regional/read/2499720/kronologi-kasus-kematian-yuyun-di-tangan-14-abg-bengkulu
10. Waddell S. Shifting Visions of the Social and Legal Order in Indonesia: Implications for Legislative Style and Form. Australian Journal ofAsian Law, 7(1), 43, 2005.
11. Azisa N. and Sofyan A. Hukum Pidana, Pustaka Pena, Makassar. 2016.
12. Azisa N., Nilai keadilan Terhadap Jaminan Kompensasi Bagi Korban Kejahatan, Sebuah Kajian Filosofis-Normatif, Pustaka Pena Press, Makassar. 2016.
13. Mudjahid S. Risalah Rapat Komisi VIII DPR RI, 2016. Available from: URL:http://www.dpr.go.id/ dokakd/dokumen/K8-23-916586b687dfb54502efea8d71f601d2.pdf
14. Winurni S. Efek Jera Kebiri Kimia Bagi Pelaku Kekerasan Seksual Anak Dari Sudut Pandang Psikologi, Pusat Penelitian Badan Keahlian DPR RI,- Vol. XI.- No. 17. 2019.
15. Rahim I. H. S. Sanksi Tindakan Kebiri Bagi Pelaku Kejahatan Seksual Terhadap Anak Ditinjau dari Per-spektif Hak Asasi Manusia, Thesis, Faculty of Law, Hasanuddin University, Makassar. 2017.
16. Muladi and Arief B. N., Teori-Teori dan Kebijakan Pidana, Bandung: PT. Alumni. 1992.
17. Alam A. S. and Ilyas. Kriminologi Suatu Pengantar, Jakarta, Prenamedia Group. 2018.
18. Wibowo A. Kebijakan Pemberatan Pemidanaan pada Pelaku Kekerasan Seksual terhadap Anak dalam Perspektif Tujuan Pemidanaan. Jurnal Yuridis. 2017.- Sep 28; 4(1).- P. 1-4.
