The Analysis Of Sexual Consent Rules In Article 5 Of Permendikbud Ristek Number 30 Of 2021 Reviewed From The
Perspective Of Islamic Law
Surjanti a,1*,Yudi Setiyono b,2, Widowati a,3, Retno Sari Dewi a,4, David Budi Laksono a,5
a Fakultas Hukum Universitas Tulungagung, b Prodi PPKn STIKIP PGRI Trenggalek
1 surjanti.unita@gmail.com, 2yudisetiyono61@yahoo.com, 3widowati.p4@gmail.com, 4sarie.soegito@gmail.com,
5laksonodavidbudi@gmail.com
* corresponding author
I. Introduction
Crimes frequently happen in today's developments, when social conduct in society is still undergoing enormous positive and negative changes. Sexual assault and harassment are two of them.
Sexual violence happens among or in the higher education environment, in this case, referred to as a campus or university, and is not limited to those with a secondary education level.Professor of the State Islamic University (UIN) SunanGunungJati Bandung who is involved in Islamic and Gender Studies, Nina Nurmila(Rivaldi et al., 2021).
If you look at the data from the National Commission on Violence against women in 2020 there were 299,911 cases of sexual violence(Komnas Perempuan, 2021). According to the statement of Dr.
Susanto, MA, chairman of the Indonesian Child Protection Commission (KPAI) KPAI survey in 2021 found that there were 2,061 cluster complaints of special child protection cases which included, among others, cases of sexual violence against children. In the public domain, a 2019 survey by the Ministry of Education, Culture, Research, and Technology (KemendikbudRistek) found that campuses ranked third as locations for acts of sexual violence (15%), after streets (33%) and public transportation (19%). This data is then supported by the findings of the 2020 Ministry of Education and Culture Research and Technology survey where 77% of lecturers stated that sexual violence had occurred on campus, but 63% of them did not report cases of sexual violence. Based on data obtained by Komnas Perempuan, the educational environment is not a safe place for sexual violence. During 2015-2020, Komnas Perempuan received 51 reports of cases of sexual violence and discrimination from various levels of education. This data also shows that the level of higher education ranks first(Rahmasari, 2022). Seeing many cases of violence and the adverse effects that have been caused as explained
ARTICLE INFO A B S T R A C T
Article history:
Received 31 Ags 2022 Revised 6 Sept 2022 Accepted 13 Okt 2022
Regarding the treatment of sexual violence (PPKS) in tertiary institutions, the government released PERMENDIKBUD RISTEK No. 30 of 2021. However, that does not imply that this ministerial regulation is without flaws or shortcomings. The phrase "Without the assent of the victim" in article 5 seems to legitimize adultery and LGBT behavior based on consent, which is one of the reasons this ministerial decree generates inconsistencies. Therefore, this study was done to examine sexual consent and determine the effects of adultery according to Shafi'i belief system on Islamic lawAccording to the law, it is acceptable to use the phrase without the victim's agreement under article 5 paragraph 2 of Minister of Education, Culture, Research, and Technology Number 30 of 2021. Without the victim's agreement will cause a difficulty and a debate in society if it is interpreted as an Argumentum a contrario. Because it is possible to read the phrase "without the victim's consent" to mean that if both parties agree to engage in sexual activity, there is no issue and the behavior is appropriately referred to as "sexual consent". Therefore, it appears that in this instance, Minister of Education, Culture, Research, and Technology Number 30 has consented to the legalization of adultery in tertiary institutions.
According to Islamic law, adultery and extramarital sex are forbidden acts because they violate Allah's command in Surah Al-verse Isra's 32. The existence of pregnant marriages is one of the effects of adultery..
Copyright © 2022 International Journal of Artificial Intelegence Research.
All rights reserved.
Keywords:
Islam, Adultery, Hudud, Marriage, Sexual Consent, Shafi'i School Of Thought
above, the Minister of Education and Culture and Research and Technology Number 30 of 2021 that has been issued contains rules to protect and prevent cases of sexual violence in tertiary institutions.
Crime prevention policies or efforts are essentially an integral part of efforts to protect society (social defense) and efforts to achieve social welfare. (Jaya Hairi, 2015)
This rule concerns consent since every instance of sexual abuse involves the perpetrator forcing themselves upon the victim. Because victims have control over their bodies, incorporating the consent norms is supposed to safeguard victims/women as an expression of human rights. And to discern between individuals who are actual victims of sexual assault and those who are not. Nevertheless, this does not mean that this ministerial decree is without flaws or shortcomings. After it was adopted, this ministerial rule specifically received support and opposition from numerous parties.
The emergence of Permendikbudristek Number 30 of 2021 and the RUU on the Elimination of Sexual Violence has received mixed reactions in society caused by the use of the paradigm of sexual consent or sexual consent in several articles within the regulation. Among the attitudes of rejection were triggered by fears that the use of the paradigm of sexual consent would legalize free sex and adultery and be considered contrary to Pancasila and the 1945 Constitution. (Zulfiko, 2022).
Sexuality is not related to morality let alone religion. The core value of a truth that they hold is only limited to things that are observable, pragmatic, and liberal. They see that my body is mine and sexual activity as RIGHTS and not as OBLIGATIONS (Islamic household perspective). The sexual purpose is Pleasure/Recreation, not WORSHIP. Therefore, it is not surprising that sexual activity can be carried out based on free consent between the perpetrators. (Ela, 2021).
One of the reasons this ministerial regulation reaps contraries is the sentence in article 5 namely
"Without the consent of the victim" this sentence raises various interpretations. And it even seems to legalize adultery and LGBT based on mutual agreement from both parties. On the one hand, this ministerial regulation protects victims of sexual violence, but on the other hand, it provides legitimacy for sexual relations outside of marriage based on consensual reasons (Muhammadiyah Surabaya, 2021). Some parties who reject the phrase without the victim's consent or sexual consent include the Indonesian Family Love Alliance (AILA Indonesia), family activists, the Indonesian Family Development National Coalition, the PKS faction, Muhammadiyah, and the Indonesian Muslim Scholars Association (ICMI). Because the phrase without the victim's consent or sexual consent is a manipulative thing and is influenced by Feminism and western ideas such as Liberalism and Secularism which are certainly not by the Indonesian national spirit. So the phrase without the consent of the victim or sexual consent is very much contrary to the values of norms, values of morality, and eastern cultural religions, and of course, this kind of thing is also contrary to Pancasila which is the source of all sources of law in Indonesia. Even though there are currently many cases of sexual violence that are certainly detrimental to many parties, especially women, on the one hand, there are also many cases of free sex only based on an agreement between the two parties or the basis of consensual reasons. The reason why the researchers took this topic was to find out how Islamic law reviews Ministerial Regulation Number 30 of 2021. And the researchers think that the sentence
"Without the consent of the victim" is one of the triggers for the emergence of free sex and LGBT, which is something like this that is not by the religion, norms, or culture adopted by the people in Indonesia and is not by Pancasila as the source of all sources of the law in Indonesia..
II. Methods
The study was conducted using normative legal research, which is the act of looking for a law, legal principles, or legal doctrines to address current legal issues through the study of secondary sources or literature (Muhaimin, 2020). The study materials were used to gather secondary data for this normative legal research, which was used to examine the secondary data in a descriptive- analytical manner to address the issues at hand. The Al-Qur'an, Hadith, Permendikbud 30/2021, rules and regulations, essays, scientific papers, and other sources that are pertinent to this study are among these legal documents.
III. Result and Discussion
Islamic Law Review of Sexual Consent Rules in Article 5 of the Minister of Education and Culture and Research and Technology number 30/2021:
To understand the phrase "without the victim's consent" we need to understand sexual violence first. This is necessary because the two are related. There will be no attempt to confirm the victim's consent without prior circumstances that fulfill the intent of sexual violence.[1]
Sexual violence, more commonly known as sexual harassment, according to Mc Logan is "a form of unwanted verbal, non-verbal or physical conduct of a sexual nature that occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment". Mc Logan understands that sexual harassment is not limited to physical sexual behavior but also verbal. The emergence of such sexual behavior is not wanted by both parties and has the aim of causing a violation of a person's dignity, in particular, creating an intimidating atmosphere, inviting hostility, and humiliating and embarrassing a person.
Sexual intercourse itself, in the opinion of Miller and Dollar, is behavior based on sexual impulses through various sex organs with various kinds of behavior such as kissing, holding hands, hugging, and having sex. (Niswati, 2011). According to Faqihuddin Abdul Kodir, a feminist figure, the concept of sexual consent must be directed in the context of relationships for those who are married[9]. In Indonesia, the concept of sexual consent itself still sounds foreign because there is still a lack of information or literacy that explains the concept of sexual consent. In addition, the concept of sexual consent arises from the notions of feminism and liberalism which are not following the concept of national life in Indonesia. However, because there are so many cases of sexual violence that occur in Indonesia, most of the cases that occur are considered to be due to coercion from the man on the woman or his wife to have sexual intercourse. The same thing also happens in the scope of education, especially within the campus or college environment.
That's why the minister of Education, Culture, Research and Technology, NadiemMakarim issued the Minister of Education and Culture for Research and Technology Number 30 of 2021 concerning the prevention and handling of sexual violence (PPKS) in tertiary institutions. In the Minister of Education and Culture, there is a phrase regarding the consent of the victim or sexual consent to protect those who are considered vulnerable to becoming victims of sexual violence. This is because there is an assumption that everyone has the right to their own body so that they are free to do whatever they want, including engaging in sexual activity, whether they want to accept or refuse it.
The rules regarding sexual consent or the victim's consent phrase are contained in article 5 paragraph (2) contained in letters b, f, g, h, l, m. which reads as follows:
1. In letter b, it is explained that "intentionally showing his genitals without the consent of the victim"
2. In point f, it is explained that "taking, recording, and/or distributing photos and/or audio and/or visual recordings of victims with sexual nuances without the victim's consent."
3. In letter g, it is explained that "uploading photos of the victim's body and/or personal information with sexual nuances without the victim's consent"
4. In letter h, it is explained that "spreading information related to the victim's body and/or personality with sexual nuances without the victim's consent"
5. In letter l, it is explained that "touching, rubbing, touching, holding, hugging, kissing and/or rubbing body parts on the victim's body without the victim's consent"
6. In letter m, it is explained that "undressing the victim without the victim's consent."
Apart from the six (6) provisions described above, there are two (2) more provisions that have almost the same content, namely that they will not violate the law as long as they are approved or given permission from the victim, namely those contained in letters e and j as following :
1. In Article 5 paragraph (2) letter e, it states that "sending messages, jokes, pictures, photos, audio and/or videos with sexual nuances to the victim even though the victim has been prohibited."
2. In Article 5 paragraph (2) letter j, it states that "persuade, promise, offer something, or threaten the victim to carry out sexual transactions or activities that the victim does not agree with."
From the provisions mentioned above, not everyone can approve, or allow these actions to the perpetrators. Article 5 paragraph (3) it is also explained what matters make the agreement contained
in letters b, f, g, h, l, and m of Article 5 paragraph (2) as mentioned above considered invalid, including as follows:
1. Has a minor age under statutory provisions
2. Experiencing a situation where the perpetrator threatens, coerces, and/or abuses his position 3. Experiencing conditions under the influence of drugs, alcohol, and/or narcotics
4. Experiencing pain, unconscious, and asleep
5. Have a vulnerable physical and/or psychological condition 6. Experiencing temporary paralysis (tonic immobility) and/or 7. Experiencing a state of shock
If referring to the notion of sexual consent itself, two opinions will appear on this matter, the first is that sexual consent is allowed in sexual relations, and is even considered a necessity as stated by a feminist figure, namely, Faqihuddin Abdul Kodir[9]as described in the previous chapter. And secondly, there is no need for sexual consent, because the prophet Muhammad himself has said that if a wife refuses her husband's invitation, and makes her husband angry, then the wife will be cursed by angels until morning, the editorial of which is as follows.
ََحِبصُتىَّتَحُةَكِئلآَملَااَهتَنَعَلَهيَلَعَناَبضَغتَبَاَفِهِشا َرِفىَلإُهَتَأ َرمِ ُلُُج َّرلااَعَداَذإ
“If the husband takes the wife to bed and the wife refuses, then the husband is angry with his wife, then the angels will curse him until morning (HR. MuttafaqAlaih).”
But what needs to be known is that in this hadith the context is sexual relations or within the household. Discussing sexuality in the Qur'an must be done carefully considering this issue is a very essential issue. The Qur'an does not explicitly explain sexuality. But don't avoid this discussion either.
Discussing sexuality in the Qur'an is more inclined to sexual relations as a couple more than sex as a general individual freedom.[10]. Meanwhile, the phrase without the victim's consent or sexual consent rules contained in the Minister of Education and Culture and Research and Technology Number 30 is to regulate campus/college life. Which, as is known in universities in Indonesia, most of their students are not married. Therefore, if the phrase without the consent of the victim is interpreted using the Argumentum a Contrario principle, it can lead to adultery, LGBT, and other sexual violations in tertiary institutions under the pretext of consent to engage in sexual activity or sexual consent.
In this case, adultery that arises from the interpretation of the use of the phrase "without the victim's consent" in Permendikbud 30/2021 has various meanings from the point of view of the 4 major schools of thought. First, according to the Maliki school of thought, adultery is the act of having sex with Adam's child, which is not his or her right, unanimously and intentionally. Second, the Hanafi school of thought defines adultery as the act of a man having intercourse with a woman without any bond of belonging to each other. Third, is inserting the penis into the haraam genitalia without any doubt and instinctively inviting lust. Fourth, the Hanafi madzab is an abomination to the forebrain or rectum.
Meanwhile, Zahiriyah Ulama defines adultery as having intercourse with someone who is not lawful to see, even though that person knows that the act of intercourse is unlawful.
Adultery itself in Islam is divided into several types, namely eye adultery, ear adultery, oral adultery, hand adultery, foot adultery, heart adultery, and all of that will then be realized or not by the genitals. This is based on the hadith of the Prophet which was narrated by a Muslim priest whose editorials are as follows:
َِز َوَ ُرَظَّنلاَِنْيَنْيَعْلاَاَن ِزَفَةَلاَحَمَ َلََ َكِلَذَ َك َرْدَأَاَن ِ زلاَ ْنِمَُهَّظَحََمَدآَِنْباَىَلَعَ َبَتَكََ َّاللَََّّنِإ
ََيِهَتْشَت َوَىَّنَمَتَ ُسْفَّنلا َوَُقْطُّنلاَِناَسِ للاَاَن
ََو
َ ْوَأَ َكِلََذَُقِ دَصُيَُج ْرَفْلا
َُهُبِ ذَكُي
"Indeed, Allah 'AzzawaJalla has decreed for each of Adam's children and grandchildren from adultery that is certain to occur and cannot be avoided. So the adultery of the eye is seeing, the adultery of the tongue is speech, while the lust is desiring and dreaming, and the private parts are justified or not.”
But in this case, what will be discussed or studied is adultery in the sense of bodily relations between men and women who are not legally bound by marriage or same-sex relationships.In Islam,
sexual intercourse is forbidden unless there is a valid marriage bond in it. So that every sexual relationship if there is no marriage bond, this is called adultery.
Adultery itself is something that is disgraceful and is something whose sin is so great that even Imam Ahmad stated that the level "I do not know the biggest sin after killing a human being is adultery."(Yazid, 2020) The first aqabah, one of the Prophet's orders, is to stay away from adultery.
Meanwhile, the definition of adultery according to the Criminal Code (KUHP) in the elucidation of Article 284 is intercourse committed by a man or a woman, one or both of whom already have a partner or are married/ bound by marriage. Whereas in Syahrur's concept, adultery is defined as sexual intercourse that is carried out openly and requires four witnesses to prove it. Whereas if it is done secretly then it is not adultery. So sexual relations that are carried out voluntarily in a closed place by the husband and wife or do not constitute something lawful, and are not included in adultery. Syahrur's opinion is based on the word of Allah in Surah An-Nur verses 2 and 3[10]Of course the thoughts expressed by Syahrurare thoughts that are not following the Quran, sunnah, and the opinions of the scholars regarding adultery itself.
The legal basis for the prohibition of adultery in Islam is found in the Al-Quran Al-Isra verse 32
ليِبَسَءاَس َوًةَش ِحاَفَناَكُهَّنِإاَن ِ زلااوُب َرْقَتلَ َو
“And do not approach adultery: verily adultery is an abomination. And a bad way.”
Based on Al-Azhar's interpretation of verse 32, adultery is defined as all intercourse that is not legalized by marriage or those who are married but the marriage is not valid. to continue offspring/sexual relations (gharizatunnau), so that when a man and a woman have sexual intercourse it can cause lust to arise in both of them and it is feared that adultery will occur.
Khalwat itself can be interpreted as interactions between men and women which are carried out in quiet places or away from the eyes of other people, Islam itself forbids such khalwat. This is by maslahahtakmiliyyah, namely by ordering and prohibiting things that are obligatory or unlawful in origin, for example, because adultery is forbidden by Allah, everything that can lead a person to adultery is also haraam.
In Islam, adultery does not only ensnare those who are bound by marriage but singles/girls are also ensnared when committing adultery. What distinguishes the hadthat is determined is the difference between being married and not being bound by marriage. The jurists agree that intercourse which is considered adultery and is punishable by hudūd punishment is intercourse (penetration of the male genitalia into the female genital opening for the size of the hasyafah/penile head), which is carried out intentionally between a man and a woman. If intercourse has a different meaning from that, the hudud penalty is dropped, for example, only having intercourse around the neck is not punishable by hudud punishment, but the act is still prohibited by religion and is subject to takzir punishment.[11]
The perpetrators of adultery themselves are divided into two types, namely the perpetrators of adultery muhshan, and the perpetrators of adultery ghairumuhshan. The perpetrators of muhshan adultery are those who have been married before. The conditions for a person to be said to be muhshan are four things, namely being mature, intelligent, independent, and having had intercourse in a legal marriage. Meanwhile, the perpetrators of adultery GhairuMuhshan are those who have never been married before. Of the two types of adulterers, the punishments imposed on muhshan and ghairumuhshan are also different. For adultery muhshan, the punishment for him is stoning.
ََعُهَّللاىَّلَصِهَّلل ُلَوُس َرَلاَق
ََّثلا َوٍةَنَسُيْفَن َوٍةَئاِمُدْلَج ِرْكِبْلاِب ُرْكِبْلا ًلُيِبَسَّنُهَلُهَّلل َلَُعَجْدَقيِ نَعاوُذُخيِ نَعاوُذُخَمَّلَس َوِهْيَل
َُمْج َّرلا َوٍةَئاِمُدْلَجِبِ يَّثلاِبُبِ ي
"The Prophet said, "Follow all my teachings, and follow all my teachings. Indeed, Allah has ordained the punishment for them (women), the punishment for a virgin and a virgin is a hundred lashes and exile for a year, while men and women who are married are a hundred lashes and stoning."
In addition to this hadith, the basis for the stoning punishment for adultery GhairuMuhshan is also found in the hadith narrated by Bukhari (6467) and the hadith of Muslim history (1697), the translation of Muslim hadith number 1697 is as follows, "A man from the village came to the Messenger of Allah while said, "O Messenger of Allah, I beg you to swear by the name of Allah, that you will not punish
me except according to the kitabullah." The male interlocutor spoke up -and he was smarter than the first man-, "Yes right, decide our case according to the book of Allah, and let me speak first."
So Rasulullah said, "Say." He spoke, "My son worked as an employee of this person, then he accused my son of committing adultery with his wife. Indeed, I knew that my son should be stoned, so I ransomed him with a hundred goats and a slave girl, then I asked the pious clerics, and they said that my son should be punished with a hundred lashes and exiled for a year, while the woman should be punished with stoning."
So The Messenger of Allah said, "By the One in whose hands my soul is, I will sentence you both according to the Kitab of Allah, the servant, and the goat will be returned, while your child must be beaten a hundred times and then exiled for one year. O Unais, tomorrow morning go to this man's wife and see if he committed adultery, if he confesses to adultery, then stone him." Abu Hurairah said,
"Unais checked the woman in the morning, and it turned out that she confessed that she had committed adultery, so the Messenger of Allah ordered her to be stoned, in the end, she was stoned too." (Al- Bugha, 2021: 443)
Meanwhile, the punishment for the perpetrators of adultery, GhairuMuhshan, is 100 lashes and exile for one year. This is based on the word of Allah in the letter An-Nur verse 2, as follows:
َُتْنُكْنِإِهَّللاِنيِديِفٌةَفْأ َراَمِهِبْمُكْذُخْأَتلَ َوٍةَدْلَجَةَئاِماَمُهْنِمٍد ِحا َوَّلُكاوُدِلْجاَفيِنا َّزلا َوُةَيِنا َّزلا
ََنِمٌةَفِئاَطاَمُهَباَذَعْدَهْشَيْل َو ِر ِخلآاِم ْوَيْلا َوِهَّللاِبَنوُنِم ْؤُتْم
ََنيِنِم ْؤُمْلا
“Women who commit adultery and men who commit adultery, then lash each one of them a hundred times, and let no compassion for them prevent you from (carrying out) Allah's religion, if you believe in Allah and the Hereafter, and let (the implementation of) ) their punishment was witnessed by a group of believers.”
Based on the hadith narrated by Muslim number 1690 above, it can be seen that the adulterer GhairuMuhshan must be exiled for one year as well. The distance of seclusion is the distance in which it is permissible to perform qashar prayers, in this case, there is no difference between men and women, and it’s just that women must be accompanied by their mahram because women cannot travel without being accompanied by their mahram.
For muhshan adulterers, there is no stipulation that they must be in a marriage bond, even if in a divorced state the perpetrator is still considered a muhshan. So the punishment imposed was stoning.
However, if one of the four conditions for a person to be called muhshan is not fulfilled, then the adulterer is not considered muhshan and stoning is not applied to him. However, he is whipped like a virgin if he is mature and wise, but if he is not yet mature and has no sense then he is educated to avoid adultery.
Whereas for liwath perpetrators (people who have intercourse with men through their anus or who have intercourse with women through their anus) the law is enforced as punishment for adulterers if he is muhshan he is stoned and if ghairumuhshan is whipped and beaten. Meanwhile, the person who becomes the object is subject to absolute ghairumuhshan punishment, whether married or unmarried.The basis for the prohibition of liwath behavior or same-sex relationships has been explained in the Al-Quran Al-A'raf verses 80-84 as follows:
ََأِهِم ْوَقِلَلاَقْذِإاًطوُل َو
َ َ َنيِمَلاَعْلاَنِمٍدَحَأْنِماَهِبْمُكَقَبَساَمَةَش ِحاَفْلاَنوُتْأَت (80) ََ ََنوُف ِرْسُمٌم ْوَقْمُتْنَ ْلَْبِءاَسِ نلاِنوُدْنِمًة َوْهَشَلاَج ِ رلاَنوُتْأَتَلْمُكَّنِإ (81) ََ ََنو ُر ََّهَطَتَيٌساَنُأْمُهَّنِإْمُكِتَي ْرَقْنِمْمُهوُج ِرْخَأاوُلاَقْنَألَِإِهِم ْوَقَبا َوَجَناَكاَم َو (82) َ ََ َني ِرِباَغْلاَنِمْتَناَكُهَتَأ َرْمالَِإُهَلْهَأ َوُهاَنْيَجْنَأَف (83)
ََنيِم ِرْجُمْلاُةَبِقاَعَناَكَفْيَك ْرُظْناَفا ًرَطَمْمِهْيَلَعاَن ْرَطْمَأ َو
َ (84)
“And (We have also sent) Lot (to his people). (Remember) when he said to them, "Why are you doing that fahisyah act, which has never been done by anyone (in this world) before you?" Indeed, you come to men to release your lust (to them), not to women you are a people who transgress limits.
The answer of his people was nothing but saying, "Expel them (Luth and his followers) from your city;
in fact, they are people who pretend to purify themselves. Then we saved him and his followers except
for his wife; he was one of those who were left behind (destroyed). And we sent down rain on them (stones); so see how the end of those who sinned.”
From the explanation of the word of Allah in Surah Al-A'raf above, it can be seen that the actions of liwath or currently better known as LGBT, in addition to going against human nature, can also harm other people. In addition, such behavior should not be allowed to just happen but must be prevented and the perpetrators must be given sanctions by the Sunnah of the Prophet to give a deterrent effect to other unknown actors and prevent others who have the same intention from taking similar actions.
Apart from that, the perpetrators should not be given the space to spread such deviant views, because this understanding of LGBT can damage the mind, and soul, damage morals and disturb the peace in society.
Apart from causing sin and causing torment in the hereafter, the negative effects of adultery also bring harm to the world. Moreover, if this adultery happens to a student of knowledge, it is feared that this kind of thing will eliminate the blessings of knowledge. The harm that is caused, among others, is the damage to the offspring because the child resulting from adultery has his lineage cut off from his father.
One of the implications arising from sexual relations outside of marriage is the occurrence of pregnancy outside of marriage, which is then followed by pregnancy in marriage. In Islam, women who become pregnant because of adultery are allowed to marry either the man who committed adultery or another man, provided that they repent or do well, this has also been regulated in Article 53 KHI. However, it is more important for a woman who is pregnant out of wedlock to marry a man who committed adultery with her, this is based on the word of Allah in Surah An-Nur verse 3. And there is no need to wait for the child she is carrying to be born first because women who are pregnant because of adultery do not have an iddah period. However, it should be noted that the child from adultery does not have a civil relationship with his father. So that the child is not assigned to his father and does not receive an inheritance from his father. This has also been explained in article 43 paragraph (1) of Law Number 1 of 1974 and article 186 KHI, apart from that adultery is also a source of the spread of dangerous diseases such as HIV/AIDS, gonorrhea, syphilis, and various other dangerous diseases. And this is a serious problem if not prevented properly. Moreover, coupled with the emergence of the phrase without the consent of the victim in the Minister of Education and Culture for Research and Technology Number 30 of 2021 which can be interpreted as legalizing adultery in a university environment, of course, this can create problems as described earlier.
It is for this reason that the Minister of Education and Culture for Research and Technology Number 30 requires revision so that in the future it is more in line with the life of the Indonesian people. As well as to avoid cases of adultery and polemics, it is better if the substance of the Minister of Education and Culture and Research and Technology Number 30 includes rules regarding immoral acts.
IV. Conclusion
The phrase without the victim's consent contained in article 5 of the Minister of Education and Culture and Research and Technology Number 30 of 2021, when viewed from a legal perspective, is not a problem because basically, the so-called victim must not agree with the perpetrator's actions.
However, if interpreted with Argumentum a Contrario, the phrase can be interpreted that immoral acts/sexual activities are permissible as long as there is consent between the perpetrators (sexual consent). So in this case the Minister of Research and Technology Regulation No. 30 seems to legalize adultery in tertiary institutions on a consensual basis. In Islamic law itself, adultery/sexual intercourse outside of marriage is an act that is unlawful to do based on Allah's word in Surah Al-Isra' verse 32, because basically, sexual intercourse is haram unless it is done in marriage. The perpetrators themselves were divided into 2 namely muhshan and ghairumuhshan, the punishment given to the perpetrators of adultery muhshan was by stoning while the perpetrators of adultery ghairumuhshan were beaten 100 times and exiled for 1 year.
In addition to being in opposition to Pancasila, the 1945 Constitution, Law Number 11 of 2008 Concerning Information and Electronic Transactions, Law Number 44 of 2008 Concerning Pornography, and the high ideals of the Indonesian nation itself, this PermendikbudRistek also violates the principles of the Islamic Republic of Indonesia..
References
[1] M. A. R. Rivaldi, A. Fernanda, and B. Baidhowi, “Pro Kontra Pengaturan Pencegahan dan Penanganan Kekerasan Seksual di Perguruan Tinggi: Tinjauan Perspektif Hukum Islam,” Mutawasith J. Huk. Islam, vol. 4, no. 2, pp. 103–115, Dec. 2021, doi: 10.47971/mjhi.v4i2.370.
[2] K. Perempuan, “Perempuan dalam himpitan pandemi: Lonjakan kekerasan seksual, kekerasan siber, perkawinan anak, dan keterbatasan penanganan ditengah covid-19,”
Catatan Tah., 2021.
[3] R. Rahmasari, “Analisa Makna ‘Persetujuan’ dalam Pemendikbud Ristek No. 30 Tahun 2021 terhadap Fenomena Kekerasan Seksual di Lingkungan Pendidikan yang Dianggap sebagai Upaya Legitimasi Terhadap Perzinaan,” J. Penegakan Huk. dan
Keadilan, vol. 3, no. 1, pp. 78–89, Apr. 2022, doi: 10.18196/jphk.v3i1.13484.[4] P. Jaya Hairi, “Problem Kekerasan Seksual: Menelaah Arah Kebijakan Pemerintah Dalam Penanggulangannya Sexual Violence Problems: Analyzing the Direction of Government Policy in Handling the Problems,” Negara Huk., vol. 6, no. 1, pp. 1–16, 2015.
[5] R. Zulfiko, “Paradigma Sexsual Consent Dalam Pembaharuan Tindak Pidana Kekerasan Seksual,” Pagaruyuang Law J., vol. 5, no. 2, pp. 104–122, Feb. 2022, doi: 10.31869/plj.v5i2.3151.
[6] H. Ela, “Pendidkan Sexual Consent Perspektif Tujuan Pendidikan Nasional dan Pendidikan Islam (Jenis Studi Teks Draft RUU P-KS Tahun 2016 BAB 1 Pasal 1 Ayat 1 ),” Al Mujaddid, vol. 3, no. 1, pp. 1–20, 2021.
[7] Muhaimin, Metode Penelitian Hukum, 1st ed. Mataram: Mataram University Press, 2020.
[8] I. Niswati, “Hubungan Loving, Kepuasan Seksual Dan Religiusitas,” J.
PSIBERNETIKA, pp. 1–15, 2011.
[9] M. Triyono, “Analisis Epistemologi hukum Islam atas pemikiran Faqihuddin Abdul Kodir tentang Sexual Consent,” Universitas Islam Negeri Sunan Ampel, 2021.
[10] I. Z. Mubhar, N. Muthmainnah, and N. Rusli, “Jurnal Media Intelektual Muslim dan Bimbingan Rohani,” J. Media Intelekt. Muslim dan Bimbing. Rohani, vol. 7, no. 2, pp. 164–185, 2021.
[11] H. Nauli Rambe Alvi Syahrin and Mh. Thaib, “Perzinahan Dalam Perspektif Islam Sebagai Alternatif Pembaruan Hukum Pidana Tentang Perzinahan di Indonesia,”
USU Law J., vol. 4, no. 1, pp. 74–85, 2016.
