Andre Prakoso1*, Adianto Mardijono2
1*,2University 17 August 1945 Surabaya, Indonesia
E-mail: 1*[email protected], 2[email protected]
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Keywords: |
ABSTRACT |
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sexual violence, children perpetrators, diversion |
This paper aims to explain diversion efforts in sexual violence
crimes committed by children. Knowing the weaknesses of diversion efforts if
these efforts are applied in sexual violence crimes committed by children.
This paper uses a normative juridical method with a statutory approach as
well as a conceptual approach with two legal materials, namely the law on
criminal acts of sexual violence, the law on child protection and the law on
the juvenile justice system. The result of this study is that the crime of
sexual violence is a crime against the sexuality and dignity of another
person's body. The perpetrators of this crime are not only adults but also
children who will later be referred to as children in conflict with the law.
The perpetrator's child has a different justice system as stated in the spa
law with its specialty, namely diversion efforts. However, this does not
support the goal of diversion itself which prioritizes the interests of the
victim and provides a deterrent effect on children as perpetrators. It is
said that diversion efforts will be enforced if the sentence is under 7
years, whereas there are articles that provide sentences under 7 years. The
conclusion of this study is that the diversion effort does not fulfill the
objective value of the diversion itself and can result in a loss of deterrent
effect on the perpetrator so that the interests of the victim are not
prioritized. |
INTRODUCTION
A
criminal act is an activity carried out by one or more people which is contrary
to the law or is also called an act against the law. If this act is carried out
to the detriment of other people then the perpetrator will receive a fine or
imprisonment according to the severity of the unlawful act. the perpetrator
did. Meanwhile, the content of the legal regulations themselves is a set or
series of rules in a good and correct society in which good moral actions are enforced
by the existence of these legal regulations.
This
can be interpreted as meaning that everyone should obey the laws and
regulations established and ratified by the government for the continuity of state
life. Legislation plays a role in various areas of human life
Sexual harassment includes verbal and non-verbal (physical),
sexual harassment is usually coercion of sexual activity, degrading sexuality
or sexual orientation, asking to do sexual things that the perpetrator likes,
words or behavior with sexual connotations are all included in acts of sexual
harassment. Criminal acts of sexual violence are not only committed by adults,
errors in the growth and formation of children's characteristics can also
impact children who commit criminal acts. An act that is classified as a
juvenile crime is any act, whether a violation or crime, of the law regulated
by statutory regulations.
UUSPPA focuses on a restorative justice approach. Article 1
number 3 UUSPPA states that children who have conflicts with the law are 12
years old but not yet 18 years old. The main punishments that should be focused
on children are warning punishment, conditional punishment for receiving
guidance, job training, guidance in institutions, and finally prison.
Prison
can be placed as the last option because prison is the last solution that can
be chosen to be able to deal with children who are in conflict with the law,
apart from being said to be an additional punishment, it can be in the form of
confiscation of a benefit that the child obtains by committing a criminal act
or carrying out customary obligations. . Article 5 paragraph (3) UUSPPA for
children can be said to be a process for resolving an incident that occurred in
a child crime and resolving the case using efforts known as diversion.
Diversion
is an action that can refer to diversion or a solution to a case committed by a
child outside juvenile justice. UUSPPA regulates diversion in articles 6 to 15
and provides the understanding that diversion exists when the threat of
punishment is imprisonment for less than 7 years and not recidivism. Basically,
if there is an act of violating the law with a serious level of threat
contained in the Criminal Code, then if the subject of the law violation is a
child, then the threat of the criminal act is punishable by, for example, the
threat above seven years, and if the violation is a form of repeat or subject
crime The child has committed a similar crime and has been punished, so the
resolution of the criminal case committed by the child cannot be done by means
of diversion.
These
provisions will raise questions regarding the certainty that the child as the
perpetrator will not repeat his actions, the certainty that mental healing for
the victim will be met, and the fairness of the punishment received by the
perpetrator with the physical and mental injuries received by the victim. From
the statement above, a problem formulation emerges, namely whether the
application of diversion efforts in juvenile justice as perpetrators of
criminal acts of sexual violence is in accordance with the objectives of
Article 7 of Law no. 11 of 2012?
METHOD
This research uses a normative juridical
research method which is carried out by researching the literature to obtain
legal material to be analyzed. The approach in this research uses a statutory
approach and a concept approach
RESULTS
AND DISCUSSION
Crime of Sexual Violence
Luhulima
provides an understanding of sexual violence, namely crimes that are related to
the genitals or sexuality, especially the sexuality of women and men.
Sexual
violence is mandated by the TPKS Law which states that things that fulfill the
elements of this law constitute the definition of the criminal act of sexual
violence itself. The TPKS Law states at least 9 forms of criminal acts of
sexual violence, namely sexual exploitation; forced contraception; physical and
non-physical sexual harassment; sterilization and marriage; sexual slavery; as
well as sexual violence whose basis is electronic.
The
TPKS Law provides specific regulations regardless of the gender of the victim,
the age of the victim or the health condition of the victim (victims with
disabilities). However, in more depth the special protection for children as
victims of criminal acts of sexual violence is discussed in the UUPA.
Various
types of sexual violence committed by each person are given prison sentences as
stated in the TPKS Law, namely:
1. Non-physical sexual acts are punishable by a maximum fine of 10 million rupiah and/or imprisonment
of a maximum of 9 months (article 5)
2. Physical sexual acts are punishable by a maximum fine of 50 million rupiah and/or imprisonment
of a maximum of 4 years (Article 6 letter a)
3. Physical sexual acts using one's power
are punishable by a maximum fine of 300 million rupiah and/or imprisonment
of a maximum of 12 years (article 6 letter b)
4. Coercion of contraception which causes temporary loss of reproductive function is punishable
by a maximum fine of 50 million rupiah and/or imprisonment of a maximum of 5 years (article 8)
5. Coercion of contraceptives that causes permanent loss of reproductive function is punishable
by a maximum fine of 200 million rupiah and/or imprisonment of a maximum of 9 years (article 9)
6. Criminals for electronic-based
sexual violence are subject
to a maximum fine of 200 million
rupiah and/or maximum imprisonment of 4 years (article 14 point 1)
These
articles at least provide criminal penalties for perpetrators. The TPKS Law
also provides criminal provisions in articles 5, article 6, article 8 and
article 14 plus 1/3 if committed against children. Criminal sanctions are given to perpetrators to provide a deterrent effect. This is
expected to be able to tackle sexual violence.
Sexual crime/violence can happen to anyone and anyone can be the perpetrator. Both men and women,
in any profession, in any age range.
Adults can be perpetrators,
but so can children.
The Justice System in Crimes of Sexual Violence
On
December 23 2002, the first law on child protection in Indonesia was passed
with UU 23/2002 . However, the law underwent several changes, where Law 35/2014
changed Law 23/2002 to Law no. 17 of 2016 and underwent a second amendment by replacing
Law no. 1 of 2016. One example is Law Number 35 of 2014 which aims to increase
sanctions and fines for crimes against children. The aim is to prevent crime
and prioritize effective actions to assist the physical, psychological and
social recovery of child crime victims. Apart from that, the government has
also passed Law 1 of 2016, which was later changed to Law 17 of 2016, with the
aim of not only increasing penalties but also preventing violence against
children.
Even though Law 35/2014 is intended to regulate
criminal penalties for perpetrators of sexual crimes against children, its
implementation has not significantly reduced the incidence of sexual crimes
against children. Therefore, the government introduced the death penalty, life
imprisonment and disclosure of the perpetrator's identity under Law 17/2016. In
addition, the government also implemented regulations on chemical castration,
installed detection equipment, and rehabilitated those responsible for sexual
crimes against children.
Obscene acts occur when a child is forced or involved
in obscene acts and is exposed to or engaged in obscene activities with the aim
of obscene exploitation through pornography, obscene images, gestures, films or
other means. Children who violate the law, children who violate the law and children
who are victims of crime have the right to receive special protection in
accordance with Law 23/2002, by understanding:
1.
The definition of a child who
is in conflict with the law is :
a. Treatment
that respects children's human rights and dignity;
b. Providing
special assistance for children from an early age;
c.
Focusing
on providing appropriate facilities and infrastructure;
d.
Take appropriate sanctions in the best interests
of the child;
e. Continue
to monitor and record the progress of children who violate the law;
f.
Maintaining
children's relationships with parents or
family;
g.
Protecting children from media exposure and stigmatization.
2.
Subject Children as victims
in criminal acts:
a.
recovery
actions, both inside and outside the institution;
b.
preventive
measures against identity disclosure by the media and avoid stereotyping;
c.
rather than ensuring the
safety of victims and expert
witnesses, both physically, mentally and socially; And
d.
provide access to information regarding case progress.
Juvenile
Criminal Justice System Regulation Number 11 of 2012 regulates all matters
related to legal prosecution of
children involved in violations of the law (ABH). In explaining ABH cases, this
rule "became the main focus of the judges". Arrest of children is
only permitted in situations described in Article 32(2) that the juvenile is 14
years old or older; and charges of committing a crime that carries a potential
prison sentence of 7 years. However, this is excluded if the child in question is
not yet 14 years old .
From the summary of this article, it can be understood
that if a child is suspected of committing an act in the form of a criminal act
with serious threats or is categorized as a serious criminal act which can
be punished with imprisonment for more than seven years and has reached the age
of 14 years, he will be subject to criminal penalties. If someone forces a
woman to have sex outside marriage, they will be subject to a maximum sentence
of 12 years according to Section 285 of the Criminal Code which regulates the
crime of rape. If the perpetrator is an adult who commits an immoral act,
especially rape, he will be sentenced to 12 years in prison. However, if the perpetrator is a child, the sentence will be reduced
by half. This is regulated in Article 81(2) of Law no. 11 of 2012, which states
that the maximum sentence for minors is half the maximum sentence for adults.
However, even though this law has been passed, there
are still many judges who decide ABH cases without following the rules of
"UU 11/2012 concerning the Juvenile Justice System". For example, in
Decision Number 27/Pid.sus anak/2016/PN.MTR, the
judge sentenced the perpetrator to only six months. The perpetrator raped
another child, injuring the victim's head and genitals. According to the law,
perpetrators who are minors must undergo training at the "Children's
Special Education Institute (LPKA)" for 6 years.
The juvenile criminal justice system has been redivided under the SPPA which requires diversification.
Diversification itself is the act of handling children's cases that is
different from conventional litigation, which is explained in Article 1
paragraph 7 of this regulation, which defines diversification as moving
children's cases from the litigation process or criminal court to an external
resolution process. Historically, diversification was introduced in the United
States and originated with the chair of the Australian crime commission (chief
crime commission) in 1960, when the juvenile justice agency was established.
Apart from that, the term diversion also became known
with UN resolution 40/33 dated 29 November 1985 or commonly called The Beijing
Rules , which are international standard benchmarks in terms of the justice
system for resolving child disputes. Diversion itself has several objectives as
stated in Article 6 of the SPPA Law, including to bring about peace between
child subjects as victims and child subjects as perpetrators, then diversion is
also expected to be able to resolve problems surrounding children in a way
outside the judicial process through litigation, diversion is also aimed at
preventing children from being deprived of their right to independence by
completing the case process. Apart from that, the aim of diversion also comes
from outside the judicial process, namely to encourage public awareness to
participate and be aware of the law, as well as instilling a sense of
responsibility in a child. Which basically states that punishment in the form
of imprisonment is a form of punishment that is relevant to provide a deterrent
effect for my conscience so as to instill a sense of responsibility in the
future, this is what is formulated in the threat of imprisonment which is
imperative and is a thought from the classical school of criminal law (definite
sentence).
Basically, diversion is mandatory to be pursued in a
series of criminal proceedings, including investigations, prosecutions, and
even examinations which were originally carried out in the district court, are
attempted to be resolved outside of court, which is so that children do not go
through the criminal procedural process like legally competent adults who are
going through series of criminal proceedings. This is intended for cases where
the criminal act committed by a child is a criminal act which carries a threat
of imprisonment not exceeding 7 (seven) years or a criminal offense of 7
(seven) years or less, and the criminal act committed does not constitute a
crime. punishment in the form of repetition. This is exactly as explained in
Article 7 of the SPPA Law. Furthermore, the diversion process carried out is in
the form of deliberation, namely a resolution outside of litigation involving
various elements, namely the child as the perpetrator, the parent or guardian,
and the victim. Apart from these elements, professional workers in the social
sector were also present to act as mediators in the case resolution process.
And this process is carried out using a deliberative approach aimed at
restorative justice.
As explained in Article 8 paragraph (3), the diversion
process generally must pay attention to several aspects, including aspects of
the child's welfare and responsibility, and the interests of the victim, to
avoid revenge or retaliation in the future, social harmony, distancing from
other things. things that have a negative stigma, and consider propriety and
public order. Diversion cannot be carried out according to the series of
procedures listed, but must also take into account several aspects, namely as
explained in Article 9 paragraph (2) of the SPPA Law regarding the existence of
an element of agreement or agreement on the part of the child as a victim,
namely, it could be the child's parent or guardian. However There are also
exceptions to this, namely if a criminal offense is threatened for the behavior
committed in the form of a violation, a criminal act that has a loss value for
the victim that is at least the minimum wage value of the local province or
lower than that.
In fact, the provisions in the SPPA Law cover the
entire series of resolutions of children's cases regarding criminal acts which
focus on the principles of restorative justice with the diversion process, as
well as considerations regarding the decision to carry out diversion which are
focused on many aspects, including the child's age, child propriety and growth
and development. children to turn the problems faced by children into teachings
for those children. However, by looking at the act of sexual harassment which,
if committed by a child, is the subject of the threat contained in the
instrument of positive legal regulations which specifically explains criminal
acts regarding sexual violence behavior as described above, then by looking at
the consideration of diversion efforts for resolving children's cases. which
considers several categories, including the category of criminal threats under
7 (seven) years as explained in Article 7 of the SPPA Law and also
considerations in Article 9 paragraph (1).
If you pay close attention, it suggests that criminal
acts in the form of sexual abuse committed by children can be carried out with
diversion efforts, but this will conflict with the aim of diversion itself, namely regarding instilling a sense of responsibility in children as stated in Article 6 of the SPPA Law, which
is considered to be irrelevant if diversion
efforts are made. carried out in the criminal act of sexual harassment which was of course
carried out intentionally and was not an element
of negligence. On the other hand,
consideration of the victim factor must also be taken into
account.
CONCLUSION
Sexual violence has
at least been regulated in the TPKS Law as a special regulation and UUPA to protect children's rights. Sexual violence is a crime
against the sexuality of other people, both adults
and children. The provision of criminal sanctions for perpetrators mentioned in the TPKS Law is not
only limited to legal subjects with age
categories, so that both adults and children are also included in the legal subjects referred to in the regulation. Meanwhile, if the
perpetrator in question is a child, then
it refers to the SPPA Law, which
is referred to as a child in conflict with the law.
Children who are in conflict with the
law have special features in the criminal justice system, namely the existence of efforts in the form of diversion in terms of resolving a case suspected of being a criminal act committed by
a child legal subject with all the
considerations contained in
Articles 7 to Article 9 of the regulation, then correlated with criminal threats regarding the issue
of criminal acts of sexual violence
as stated in the new legal instrument, namely the TPKS Law. Sexual harassment is threatened
by the regulations
regarding sexual violence with a threat of less than 7 years
as outlined in the SPPA Law, so that with
legal certainty the child is the
perpetrator of the crime, the case is resolved through a diversion process. This solution can actually be considered inconsistent and even contrary to the aim of diversion itself as explained in Article 6 of the SPPA Law, namely regarding
instilling a sense of responsibility in children, which should have
a deterrent effect.
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