Henny Nuraeny
Faculty of Law, Suryakancana University [email protected]
ABSTRACT
Currently crime of child rape has been very frequently done in various modes. What is more alarming is that the victims are killed in the end. To stop violence against children, it is time that all parties should respect tolerance, differences, human rights, and understanding of religion, as a legal form of protection. The impact suffered by children after the incident is not only the trauma, but also the long term suffering, which is much worse. Consequently, children who are victims of violence must get legal protection in order to foster a physical and psychological atmosphere that can develop a normal and good character.
Keywords: child, violence, legal protection A. Introduction
The rights of children have been arranged in various legal rules referring to the Islamic law and human rights. Islamic law, which is part of Islam, protects and pays a lot of attention to human rights, including children’s rights. However, the understanding of Islamic law and Western laws (European and American laws) about human rights is different. The Western understanding regards human rights as antropocentric, which means it is central to human beings, whereas Islamic law is teocentric, which means it is central to God or Allah is the centre of everything.1
Islamic law upholds and glorifies human beings as a means to achieve justice. Human rights have been covered in Quran and they consist of the right of life, the right of freedom, the right of equal treatment, the right of thought and expression, the right of protection from atrocities/
violence, the right of profession and work, the right of making a choice, etcetera. This is in line with The Prophet’s Words: Semua manusia adalah sama seperti gigi sisir. Bangsa arab tidak lebih tinggi dibanding bangsa non arab kecuali dalam ketaqwaan.2 (All humans are equal. The Arabs are not better than the Non-Arabs, except in devotion) The acknowledgment of human rights in Islamic law does not discriminate races, tribes, religions, and ages. All human beings have the right to get protection and their rights must be respected, and their children’s rights must, too.
However, in reality, this is far from what is expected. Children still become the object of violence, and this is done by their parents, relatives, the neighborhood community, teachers, and the society does not even care about it.
The current reality is that criminal acts of violence against children are getting more and terrible. Based on the data from International Organization for Migration (IOM), in 2009 the number of people being traded is 3,044 (three thousand and forty four) people. This consists of
1 Mohammad Daud Ali, 2011, Hukum Islam Pengantar Ilmu Hukum dan tata Hukum Islam di Indonesia, RajaGrapindo Persada, Jakarta, hlm. 60.
2 Topo Santoso, 2000, Hukum Pidana Islam Penerapan Syariat Islam Dalam Konteks Modernitas, Asy Syaamil, Bandung, p. 97 – 99.
babies 0.2%, girls 22%, boys 4%, women 67%, and men 6.8%. Generally the victims are involved in slavery, human trafficking, ijon practices, prostitution, pornography, and illegal employment.3 The cases mentioned above are just the cases that are handled legally. In reality, generally some bigger cases are found. This is because human trafficking is the same as any other crimes, and in society there may be more, like an iceberg whose size can be known for sure.
According to the governmental data in 2011, out of 6,500,000 (six million five hundred) cases of violence against children, more than 1,700,000 (one million seven hundred) cases are child exploitation in bad classification, including cases of children who work at nightclubs, domestic assistants, mine workers, and offshore. 4
Furthermore, according to Protection of Witnesses and Victims Unit (Lembaga Perlindungan Saksi dan Korban), sexual violence is the most often criminal act done against children which is reported by the society. The sexual violence is for instance promiscuity, sacrilege, rape, and sexual abuse. According to Protection of Witnesses and Victims Unit, in January to June 2015, there are 37 (thirty seven) reports of criminal acts against children. Out of this number, 24 (twenty four) cases are reports of sexual violence. In 2014 KPAI noted there are 459 (four hundred fifty nine) cases of sexual violence against children which took place in January 2014, in the forms of rape, sodomy, sacrilege and pedophilia. The overall report in 2014 stated that there are 2,750 (two thousand seven hundred fifty) cases of violence and 58% of them are violence against children5 Referring to the data above, the society and government should pay more attention to children and improve the protection over them, especially children who become victims of sexual violence.
1. Problem Identification:
1. How does the law view children who become victims of sexual violence?
2. What is the impact of sexual violence on the children’s future?
2. Research methods:
The research uses the normative juridical method with the qualitative approach. The data collection uses the library research method, with the additional field data as supporting data so that the accuracy and validity of data are reliable. Data analysis is done by ordering the data in the pattern, categories, and basic outline so as to find out the theme which can formulate the working hypothesis suggested by the data.6 This process of analysis is done through three levels:
data reduction, data presentation, and conclusion with the verification. The three components are
B. Discussion
1. The View of the Law of Child Rape Victims
a. Criminal Acts of Child Rape from the Perspective of Criminal Law and Human Rights
Currently children’s rights in Indonesia are legally arranged in various rules such as Legislation No.4 year 1979 about Child Welfare; Legislation No.11 year 2012 about Criminal Justice System for Children; Legislation No. 35 year 2014 about Child Protection and Presidential Regulation No. 18 year 2014 about The Protection And Empowerment Of Women and Children in Social Conflicts. There are still many rules for criminal acts of sexual violence against children, such as Legislation No. 23 year 2004 about Abolition of Domestic Violence; Legislation No. 21 year 2007 about Eradication of Human Trafficking Criminal Acts.
In Kamus Besar Bahasa Indonesia, rape is defined as “menundukkan dengan kekerasan, memaksa dengan kekerasan, menggagahi....”8 (subdued by force, forced by violence). The criminal act of rape in KUHP is found in Article 285 up to Article 288 KUHP, although the word “perkosaan”
will only be found in Article 285 KUHP, while the other articles use the term “bersetubuh”.
The sanction to the rape criminal acts is very heavy. Article 285 states that the sanction is 9 (nine) years. The sanction to child rape is arranged in Article 287. Article 287 differentiates the victims’ ages: in paragraph (1) it is stated that the sanction is 9 (nine) years maximum if the victim is below 15 (fifteen) years old and this is a crime by accusation, while in paragraph (2) it is stated that it is not a crime by accusation if the victim is not 12 (twelve) years old. Legislation No. 23 year 2003 states that a rape takes place in the scope of a house hold or having family relationships.
The offender gets a criminal sanction as well as a fine sanction. Legislation No. 21 Year 2007 about TPPO also states that it has to have the criteria of trafficking and exploitation.
Rape criminal acts are conventional criminal acts which have been taking place more frequently lately but which are difficult to be made on trial. One of the factors is the victim’s reluctance to report it. Up to now, there are still pros and cons about the concepts and understanding of rape criminal acts and how to overcome them. Nevertheless, rape criminal acts, jurisdically and sociologically speaking, are very humiliating and disadvantageous for the victims.9 Protection and prevention from sexual violence against children have become an agenda in law enforcement and has become the international center of attention because the impact can disturb the social welfare. This not only breaks the law, but also robs the children’s rights and future.
Human rights are the rights given directly by God the Creator (the natural rights) In Undang- Undang Dasar 1945, in the second Amendment, Article 28 A – J there is a guarantee of human rights, which are then emphasized in Legislation No. 39 Year 1999 about Human Rights. In this legislation human rights do not discriminate gender, groups, status and profession, and ages, so that every human being has the right to get protection.
The expectation of children as the next generation of the nation is high; consequently, it is worthwhile if the rights of life owned by a child to grow and develop in accordance with their natural rights should be guaranteed.
8 Anton Moeliono (Ed), 1994 Kamus Besar Bahasa Indonesia, Departemen Pendidikan Dan Kebudayaan, Jakarta, hlm. 766.
9 Rahman Amin, 2015, Kebijakan tindak Pidana Perkosaan Di Indonesia, rahmanamin 1984.blogspot.co.id.
The guarantee of the children’s rights as individuals must be done because a child is God’s creation who must be protected and whose honor, dignity, and pride must be kept so that the child must be protected from all kinds of discriminative acts, violent acts, and exploitation which can influence his growth physically, spiritually, and socially.
The Indonesian government pays much attention to the phenomena and reality of child protection, especially criminal acts of violence against children are considered one form of human rights violations. Moreover, the practice of criminal acts of violence against children is usually done with several forms of threats and violence which can cause the victims to feel tormented in the future, let alone the victims generally are helpless physically, psychologically, and financially.
Therefore, in order to stop the violent acts against children, it is high time that everyone should respect tolerance, differences, human rights, and plurality.
b. Criminal Acts of Sexual Violence against Children from the Perspective of Islamic Law In Islamic Law, criminal acts (Jarimah/Jinayat) are understood to be legal prohibitions legal prohibitions given by God, and their violations will bring punishment determined by Him. In other words, a crime is done when there are commisions or omissions of an act that is against syariat.10 The application of legal sanction for sexual criminal acts in Islam is based on the basic principle (ushuliah) of syariat, or centered on Qur’an and Al Hadith. The basic rule in Islamic Law is not retroactive, which is the same as the basic rule of legality in the criminal law in Indonesia. The retroactive basis states:
‘tidak ada hukum untuk perbuatan sebelum adanya suatu nats.’ (’There is no law for an act before there is a rule) To put it briefly, ‘tiada kejahatan dan pidana, kecuali ada hukuman terlebih dahulu.’11 (’there is no crime and criminal act, unless there is a punishment first’)
In Islamic law, the criminal acts of sexual violence belongs to ”adultery” because it involves a sexual intercourse outside a legal marriage. In Islamic law, adultery belongs to Jarimah Hudud, the sanction of which is arranged in Qur’an and Al Hadith. According to Qur’an, the legal sanction for adulterers who are not married (ghoiru muhsan) is arranged in Surah an Nuur: 2, which says:
“Perempuan yang berzina dan laki-laki yang berzina, maka deralah tiap-tiap orang dari mereka seratus kali dera, dan janganlah belas kasihan kepada keduanya mencegah kalian dari menjalankan agama allah, jika kamu beriman kepada allah dan hari ahir, dan hendaklah (pelaksanaan) hukuman mereka disaksikan oleh sekumpulan dan orang-orang yang beriman.”
(”Women and men who commit adultery will be whipped for one hundred times, and do not show mercy to them; or else you are prevented from doing God’s will, if you have faith to Him and The Day of Judgement, and may the punishment is witnessed by a group of faithful people)
satu tahun. Dan orang yang telah kawin berzina didera seratus kali dan dirajam dengan batu.’ ( HR. Muslim dari ‘Ubadah bin Shamit).13
(‘Receive from me! Receive from me! Receive from me! God has given a way to them. Single people who commit adultery with single people will be stoned to death a hundred times and will be exiled for one year. Married people who commit adultery will be wracked a hundred times and stoned.’)
Islamic law applies a different sanction for adultery. For rapists, the sanction is only given to the rapists (by force), namely had, both for men or women.14 The female victims of rape are not given any legal sanction.
Referring to the application of sanction or punishment to the doers of sexual violence and rape, it can be said that the punishment seems to be very heavy and cruel, but actually this is one form of care and protection over the victims, in the form of upholding the law. Islamic law views every human being as equal, without discriminating the gender, ages, nationalities, and races, so that everyone must be protected. This is also the same with children, as the priority is the protection over the victims. The heavy and cruel punishment is in fact in accordance with what has been done, and this serves as a protection over the justice for the victims and their families. This is done for the sake of the two sides: the doer gets the heavy and cruel punishment, while the victim gets justice. This sanction is applied with the aim to make human beings obedient and faithful to God the Creator. This is in line with God’s instructions in Quran.
2. The Impact of Sexual Violence on Children
A child is regarded as a gift form God the Almighty, and inside a child there is dignity and pride as a whole human being. A child has the potential to improve and develop the ideals of the nation;
furthermore, they also become the guarantor of the existence of the nation in the future because of the uniqueness and the strategic roles owned by the children. A child has a big responsibility and role in the future. As a result, a child needs to get an opportunity to grow and develop optimally, in their physical, mental, and social conditions, as well as having dignified morals, particularly the understanding of the religious values. To manifest this, a child must get protection and guarantee to the realization of his rights, and having the child welfare, and also equal treatment without discrimination. Therefore, it is necessary that the government and legislation should support this.
The number of cases of child rape has been increasing in the last few years so that all people should care about it. The government must also make a breakthrough in order that cases of child rape will not happen anymore.
Sexual violence against children is in various forms, but generally children become the satisfaction objects for the sexual needs of the doer. It can be in the forms of threats, bribery, deception, pressure, and many are even exploited. Child commercialism means “a child is not only a sex object, but also a commodity.”15 Eksploitasi Seksual Komersial Anak (ESKA) is “a basic
13 Ibid, p. 24.
14 Safwat, Safia M, Crime and Punishment under Various School of Shariah : a Comparative Overview’ in Tahir Mahmood (Ed), 1996, Criminal Law in Islam and the Muslim World : a comparative Pesrpective, Institute of Objective Studies, Delhi, p. 67, in Topo Santoso, Membumikan Hukum Pidana Islam Penegakan Syariat Dalam Wacana Dan agenda, Gema Insani, Jakarta, p. 25.
15 Azmiati Zuliah (Emi), 2015,PUSAT DATA DAN INFORMASI EKSPLOITASI SEKSUAL KOMERSIAL ANAK (PUSDATIN ESKA) ,www.eska.or.id, retrieved 11 Nopember 2015.
violation of a child’s rights.” The violation consists of sexual violence in which a child is treated as a sex object and a commercial object.
The international End Child Prostitution Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT), divides the sexual and commercial exploitation of children into five types:
1. Child prostitution; when somebody takes advantage from a commercial transaction in which a child is provided for sexual intention.
2. Child pornography; any display with any means involving a child in the real and explicit sexual activity or showing parts of a child’s body for sexual goals.
3. Child trafficking; locating a child in violent situations or exploitation like prostitution by force.
4. Child sex tourism; done by people who are on tour from one place to another place, where they do sex on children.
5. Child marriage; marriages involving children and teenagers below the age of 18 years old.
Early marriages can be considered a form of exploitation if a child is treated and made use of sexual ends to get things or reward in the form of money or service. In these cases, usually the parents or family marry the child to get advantage or to finance the family. 16 There are many reasons for the vulnerability of children becoming the victims of sexual exploitation and violence. Some of them are the shortage of understanding of religion and moral values of the doer, the bad reception of the society, tradition and custom, discrimination, the irresponsible sexual behavior and myth, poverty, domestic violence, emergency situation or disaster, conflicts, living and working on the streets, HIV/aIDS, consumerism, adoption, unworthy law and corruption, and information technology and communication.
Considering these, there should be a legal countermeasure of the violent criminal acts against children which refers to the perspective of criminal law, human rights, and cultural and religious (Islamic) values. This can be done in the following ways:
1) Spiritual awareness, about how important it is to be a character that is spiritful and insightful to be the basis for improving the personal and family life.
2) Motivation Building, to build self confidence and the spirit to learn to increase the personal value that can be useful for himself and his family.
3) Distribution of information about sex education, the danger of free sex, the danger of HIV/
aIDS, and some information of sexual impacts on children.
4) Legal Assistance/Help through social institutions in creating a healthy and constructive
C. Conclusion
Criminal acts of violence, especially the sexual violence against children, are not right, seen through the perspective of law, human rights, and religion. This is because a child has an equal role and chance to get the rights and protection. Children having sexual violence will get physical and psychological impact, and they will get traumatic for the rest of their life.
As a result, the doer and the doer-to-be of sexual violence must get severe punishment so that this can give him a deterrent effect. This can also give protection and justice for the victim and family.
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