I INTRODUCTION
On 18 January 2022, Indonesian parliament enacted the Sexual Violence law known as RUU TPKS.[1] The law sets out nine kinds of sexual abuse and recognised rape as a form of sexual abuse which is a significant step in the criminalisation of sexual violence.[2] While the reforms led to a significant shift in political attitudes towards sexual violence, at a practical level there are still concerns in the way law enforcement agencies and the judiciary understand and apply the relevant provisions to cases. Despite the law embedding a victim-centric approach by focusing on how the accused took advantage of the victim’s vulnerability, the perception that rape must be inherently coercive underlie the attitudes of many first responders which has impaired the effectiveness of the legislation and affected conviction rates. Furthermore, the RUU TPKS emphasis on vulnerability deviates from the consent-based model which is continuing to dominate the domestic laws of many countries including Australia. As Australia and Indonesia continue to strengthen their relationship through initiatives like the Australia-Indonesia Partnership for Justice it is important to consider the similarities between their laws. Despite Indonesian law not explicitly identifying rape as a non-consensual it may still be implied within the provisions. As a global frontrunner in sexual assault reform, Australian law could serve as a model on how a consent standard, if adopted, could operate in practice and also highlights the drawbacks of the framework if it is invoked in a society such as Indonesia which has a significantly different socio-cultural environment to Australia.[3]
- Research Question and Aims
This paper has sought to address the question of ‘How have the reforms to Indonesia’s criminal code and sexual violence altered legal perceptions of rape and sexual violence? How can this be distinguished from other jurisdictions particularly Australia?’
The primary aims of this research are two-fold. Firstly, the report seeks to explore the Indonesian sexual violence framework to interrogate the effectiveness of the provisions in the newly reformed Law on Sexual Violence and Criminal Code. The scope will be limited to considering these two pieces of legislation as the criminal procedural laws are currently being updated and therefore any analysis of the current procedural provisions is impractical and irrelevant. According to Article 4 of the Anti-sexual violence law, it covers 9 offences namely: non-physical sexual violence, physical sexual violence, forced use of contraceptives, forced sterilisation, forced marriage, sexual abuse, sexual exploitation, sexual slavery and electronic based sexual violence.[4] Remaining sexual acts including rape are discussed in the criminal code.[5] Instead of discussing all of these offences, this paper will focus on the crime of rape and physical sexual violence to limit the scope of the paper and compare it to Australian laws. Due to the newness of the statute, the discussions remain backward facing by focusing on how the reforms are different from the previous provisions. At the moment there is a gap in the literature that fails to reconcile how the substantive law is applied in practice. this paper seeks to examine how the sexual violence laws are interpreted by law enforcement, judicial officers and lawyers alike and understand how it is applied at a practical level. Secondly, this paper intends to compare Indonesia’s framework to the affirmative consent approach predominant in many common law countries including Australia. Affirmative consent has gradually become the mainstream standard for sexual violence and this report intends to examine whether this standard could be successfully utilized in Indonesia. Currently there is limited literature comparing Australian and Indonesia sexual violence laws. While Tarigan and Barus argue the laws criminalises ‘non-competent consent’ this relates more to the victim’s vulnerability predetermined by their age and social status rather than the agency they have because of innate status as a human being. This paper will further unpack this distinction between competency and agency to clarify the existing sexual violence provisions and compare them with NSW and Australia.
- Methodology
To address the primary research question, this paper adopts a doctrinal methodology within a legal positivist framework to understand the current role of consent within Indonesian rape provisions and consider whether an affirmative consent standard would be better suited to Indonesia’s socio-cultural environment. A comparative study will also be conducted between Indonesian and Australian sexual violence laws to assess whether an affirmative consent approach could be adopted in Indonesia.
Doctrinal legal research involves analysing legal principles[6] and exploring how existing law is shaped by norms, concepts, and institutions.[7] By drawing on academic scholarship this paper will explore how socio-cultural attitudes shape the sexual violence reforms and whether those societal beliefs have been considered by the law enforcement agencies and the judiciary in their application of the law.
Comparative legal research involves comparing the laws of one country to another to asses their similarities and differences to broaden the understanding of content.[8] As a global frontrunner in sexual violence reform, analysing NSW sexual assault laws and cases will allow for a nuanced discussion into how the Indonesian sexual violence frameworks compare to other jurisdictions.[9] A comparative study also highlights opportunities for reform in the management of sexual violence to ensure cases remain victim-centric while balance the constitutionally enshrined rights of the offender.
- Structure
This thesis will argue that the reforms to the criminal code and implementation of the anti-sexual violence laws are inconsistent with how it is applied in court. To further draw out these differences this paper will compare Indonesian rape and sexual violence provisions to the sexual assault laws in Australia.
Part two will provide context into Indonesia’s sexual violence framework by providing an overview of how the sexual violence law was reformed. This section will focus on the changing socio-political discourse that shaped the law on sexual violence and criminal code. It will also define key terms relevant to the discussion of rape by outlining the distinction between consent and affirmative consent.
Part three will explore the Indonesian law on sexual violence and criminal code. The section will delve into the nuances of incompetent consent which has shaped the scholarly conception of Indonesian sexual violence law. This section will draw on qualitative data gained through interviews with academics and use judicial regulations to illustrate how sexual violence provisions operate in practice.
Part four will focus on Australian sexual assault laws. After identifying the key legal and political differences between Australia and Indonesia, this section will examine the provisions of the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021. By analysing the case law to understand the application of affirmative consent the paper will draw out fundamental differences in socio-cultural attitudes towards sexual violence in Indonesia and Australia.
Part five will conclude by highlighting the key differences between Australian and Indonesian approaches to sexual violence and explore whether consent has ever been used or is likely to be used by Indonesian legal institutions.
II INDONESIA
- Context and the development of Anti-sexual violence law in Indonesia
To understand the legal perceptions of sexual violence in Indonesia it is necessary to explore how the sexual violence law has evolved. In 2022, the Law Of The Republic Of Indonesia Number 12 Of 2022 Regarding Sexual Violence (referred to as the Anti-sexual violence law) was passed after a decade of deliberation. In 2012 the National Commission on Violence against Women (Komnas Perempuan) introduced the Bill of Elimination of Sexual Violence to the House of Representatives (DPR) following their findings that there was an increase in sexual violence reports.[10] According to the data there were at least 2 women experiencing some form of sexual violence every three hours.[11] The purpose of the bill was to shift the perception of sexual violence as a morality issue, which was how it was construed in the 1946 Penal Code, to a human rights issue.[12] While it took 4 years for the Commission to draft the bill after their initial proposal, after holding 132 consultants with civil society and other stakeholders, they eventually submitted their Bill to the DPR in 2016. Over the next 6 years the Bill was debated at length by politicians which resulted in a political tug of war between supporters who believed in strengthen national law to prevent further cases of sexual violence and opponents who argued that it would promote promiscuity because it did not outlaw premarital sex.[13] There was also misinformation that the law would encourage deviant behaviour including homosexual sex and abortion which would violate social and religious norms.[14] While some scholars have argued that this back and forth was founded in fundamental differences concerning the interpretation of Islamic principles,[15] Siregar and Prihatini, have more accurately identified that the main source of contention was about the role of the patriarchy and traditional gender roles.[16] For example members of political parties including the Islamist Prosperous Justice Party(PKS),who were the main opposers of the bill, believed that wives must be obedient to their husbands in the context of family relations.[17] This posits a certain view of women and their role in their marriage which does not necessarily align with the notion that women can be victims of rape within their marriage. These patriarchal views about a womans place within and beyond their home not only impacted the development of sexual violence laws within the political sphere but have bled into the judicial space with some judges denying the existence of for instance marital rape or downplaying the impacts of rape on women. The political discussions are illustrative of broader social discussions being had in society at large and have shaped the formulation of the Anti-sexual violence laws. Salamor, Purwanti and Rochaeti argue that there is culturally rooted sexual violence in Indonesia which has arisen from entrenched social norms.[18] This kind of sexual violence is influenced by many factors including perceptions about male supremacy over women, cultural rationalisation and acceptance as well as gender and social inequity between men and women.[19] The victim-centric focus of the Anti-sexual violence may be averse to some of these cultural ideas and have affected how victims report sexual violence as well as the approach adopted by law enforcement agencies and the judiciary when applying the law. This distinction between the victim-centric views advanced by the anti-sexual violence law and those held by law enforcement impacts the legal perception of sexual violence. The separation between the theoretical framework and practical application of these laws implies that the legal perceptions of sexual violence may not have changed despite the law itself changing how it handles sexual violence cases which challenges the effectiveness of these laws and presents a broader inquiry into the nature of justice in Indonesia.
- Consent and affirmative consent defined
Consent is a highly influential concept within the international legal understanding of rape. Despite not adopting a consent-based understanding of rape, it may impact how legal professionals and the judiciary perceive sexual violence in Indonesia. The Anti-sexual violence law and the criminal code both embed a coercion-based approach which stipulates that a person must be forced or coerced to engage in a sexual act for a rape or act of sexual violence to occur.[20] A victim’s lack of consent is the defining feature of sexual violence particularly rape in many societies including Australia. While Indonesia’s anti-sexual violence law does not explicitly use the term ‘consent’ and focuses on the victim’s vulnerability and incompetency, it is important to define consent to properly understand how Indonesian laws compares to other jurisdictions particularly Australia. Consent is defined as an agreement, by both parties, to participate in a sexual act.[21] Moreover, an affirmative consent-based model of consent has emerged in many jurisdictions including Australia. Affirmative consent extends the notion of consent by imposing a positive obligation on individuals to ensure the other party is consenting to the sexual act.[22] The emphasis is on the active and express communication of consent by both parties. [23] This affirmative consent model is used in NSW which is relevant to future discussions comparing the operation of rape laws in Australia and Indonesia.
III INDONESIAN SEXUAL VIOLENCE LAWS AND CRIMINAL CODE
- Wording of provisions and notion of incompetency
The victim’s competency underpins sexual violence offences including rape and physical sexual violence in Indonesia and impacts the legal perception of sexual violence. To gain a holistic view of Indonesian sexual violence laws this paper will confine its discussion to focus on the crimes of rape, contained in article 473 of the criminal code and physical sexual violence defined in article 4 of the anti-sexual violence laws. Both the anti-sexual violence law and criminal code were reformed recently highlighting that despite the different legislation, the socio-political views that underpin them remain the same. The competence of the victim is also emphasised in both provisions. Under Article 473 of the Criminal Code a person is found guilty of rape if they use ‘violence or threats of force to forced someone to have sexual intercourse with them’.[24] This includes circumstances where there was sexual intercourse with an unconscious or helpless person, child, person with mental or intellectual disability or any abuse of their position of authority or relationship. Violence and threats of violence are fundamental to this crime. It also emphasises the victim’s natural state and whether they had any additional vulnerabilities at the time of the offence took place. In their 2021 article, Tarigan and Barus have coined this ‘non-competent consent’ meaning that regardless of whether or not consent was freely given the victim did not have capacity to consent in the first place.[25] This means in these cases the question of consent is moot. In applying the term to the Parigi case that occurred in 2020, where a young woman was raped by a police officer in exchange for her father being released from jail after committing drug offences, they stated that consent given by the victim was a form of coercion. The helplessness of the victim can be based on a person’s disability or consumption of drugs or alcohol. Helplessness can also be caused by psychologically where there is an unequal power relationship. While article 473 does not ever use the term ‘consent’, its wording could suggest that it incorporates this notion of non-competent consent because the victim is coerced or threatened into having sex. Of significance here is the emphasis on the victims inability to participate in the sexual act due to inherent features like their age or mental capability at the time of the act. Article 6 of the Anti-sexual violence law defines physical sexual abuse as committing sexual abuse directed towards the body, sexual desire and/or reproductive organs: a) with the intention of degrading and humiliating a person based on their sexuality or moral values or b) intention of unlawfully causing another person to be under their control both within and outside marriage or c) any person abusing their position, authority, trust or charisma through fraud or taking advantage of their position of vulnerability, inequality or persons dependence to allow the commission of sexual intercourse or indecent acts.[26] Like Article 473, there is a significant emphasis on the accused using their position to take advantage of the victim’s vulnerability. While the provision does not explicitly list out the additional disadvantages that may affect victims it does highlight how there must be an unequal power dynamic between the accused and victim. Both Article 473 of the Criminal code and Article 6 of the Anti-Sexual Violence Act highlight how the victim’s vulnerability and lack of power is central to the commission of rape and sexual violence. While Tarigan and Barus’ article was published prior to the enactment of the anti-sexual violence act and the newness of this legislation has meant there is limited scholarship on the interpretation of these provisions, non-competent consent could be used once again to describe the victims state of helplessness and vulnerability necessary for a physical sexual violence offence to occur.[27] Unfortunately, Tarigan and Barus are the only academics to use the term and it has not yet been subsumed into the mainstream academic discourse on Indonesian criminal law. Despite this however the scholars have raised an interesting argument regarding the victims competence. As noted previously both Article 473 of the criminal code and article 6 of the anti-sexual violence law state that victim must be incapacitated in some way before the sexual act took place. In the context of rape, the victim must be forced into sexual intercourse which is inherent if they are a chid or unconscious.[28] In the context of physical sexual violence, the victim may be under the control of another person or had their vulnerability taken advantage due to the offenders position of authority. Both of these suggest that the victim was incompetent to make their own decisions. According to the Cambridge dictionary to be competent, in a legal sense, is the ability to make legal decisions.[29] It is a persons ability to react and understand a situation.[30] In applying this to articles 473 of the criminal code and 4 of the anti-sexual violence law it suggests that the for rape or sexual violence to occur the victims must be unable to understand what is happening to them at the time of the sexual act. While there is no Indonesian literature distinguishing between competence and consent, Sofia Gårdving in her 2010 article suggests that in most circumstances competence and knowledge is a prerequisite to legal consent.[31] Gardving states that in many models of rape the existence of desire which demonstrates consent to sex is irrelevant when the victim is incompetent and cannot give valid consent due to mental illness or incapacity.[32] Therefore ordinarily the victim must be competent to consent to sex, however under Indonesia’s model where there is an assumption that the victim was forced to have sex[33] or under the control of the accused[34] incompetency becomes the underlying notion fundamental to the existence of rape and physical sexual violence. This is different to how consent particularly affirmative consent operates and therefore highlights the difference between the two approaches. Like many international jurisdictions, Indonesia has adopted a coercion-based definition of rape which means victims must be forced into sex for there to be rape. This is averse to the mainstream consent definition that an increasing number of countries are adopting and is contrary to notions related to the victims agency which stem from these consent-based understandings. The limited academic and judicial direction on the application of articles 473 of the criminal code and 4 of the anti-sexual violence act implores examination into the provisions of the anti-sexual violence law, which qualify rape as an act of sexual violence and clarify certain provisions of the criminal code, to determine to whether taking advantage of the victims vulnerability implies the need for their consent to be present before sexual intercourse.
- Cases
The cases of No. 32/Pid.B/2021/PN Rah and No. 83/Pid.B/2022/PN Sag demonstrate the prevailing legal attitudes towards rape and sexual violence in Indonesia. While these cases were adjudicated prior to the enactment of the anti-sexual violence law and new criminal code, they highlight the inconsistencies in judicial approaches towards rape and centralise the the victim’s incompetency to engage in sexual activity. In No. 32/Pid.B/2021/PN Rah the victim, who had mental disabilities, was called by the defendant into his home where he allegedly raped her. According to the medical report there were abrasions found to her labia and perineum caused by blunt object friction suggesting, from a medical perspective, that a sexual act took place. Of significance in this case is the judges’ finding that the victim was not forced or compelled to have sex, under then Article 285 of the criminal code, with the defendant despite initially telling witnesses that she was raped when she was questioned immediately after the incident took place. While the victim in her testimony told the court she had not been forced to have sex, the judges’ failure to inquire into why the victim changed their testimony after the incident took place suggests a lack of understanding of how victims of sexual assault behave. Victims may be threatened by the defendant or their family and friends and this may impact what they say in court and the judges’ failure to understand this suggests that the judiciary have greater training to educate them on the implicit ways sexual violence affects victims. In case No. 32/Pid.B/2021/PN Rah the judges then considered the subsidiary charge under article 286, the crime of adultery, which required the prosecution to prove that defendant knew the woman was unconscious or helpless. The fact that the defendant was charged with adultery implies that the victim had a level of fault in having that relationship. There is still implicit blame on the victim which further problematises the verdict. The judges held that this element had been established and found the defendant guilty on this basis. While the defendant was eventually found guilty of a sexual offence, the fact that the judges did not properly consider the element of coercion or force is deeply problematic. While it is unclear what level of mental disability the victim had, the fact that the victim had a mental disability means it is likely that they may not have understood what they were agreeing to therefore their testimony that they were not forced should hold any weight in these circumstances. this testimony also contradicts the victims initial account to witnesses that she’d been raped. Despite this the judges relied on this testimony to find the defendant not guilty of rape demonstrating the problematic legal perceptions towards rape. The issue here is not whether or not a conviction was given rather how judges came to their conclusion. While it would be optimistic to believe this attitude has changed after the enactment of the anti-sexual violence laws and new criminal code reforms, based on the authors interactions with other academics it is unlikely that this is the case and these judicial attitudes still prevail in Indonesia.
The case of No. 83/Pid.B/2022/PN Sag further demonstrates how Indonesian law operates in practice. While unlike the previous case, the defendant was successfully convicted of rape, the Court made an interesting comment about the victims marital status. In determining that the sexual intercourse was done by force, following their comments about how the rape occurred the judges noted that the victim was not the defendants wife nor was there any marriage relationship between them. While for rape to occur in the previous criminal code it must have been done outside of marriage, the emphasis was not on the victims agency as a person and the trauma they suffered but on their relationship to the defendant is at odds with the element of force required. The victim’s coercion to being raped is independent from their status as someone’s wife and a person can be coerced into having sex even by their partner. This comment on their marital status is confusing and demonstrates the attitudes of the judiciary in Indonesia.
IV AUSTRALIAN SEXUAL ASSAULT LAW
- Context
Australian and Indonesian sexual assault laws operate in fundamentally different contexts and it is necessary to understand how Australian political structures and social attitudes impact the criminalisation of rape. The contextual differences between the two countries are also important to note. Unlike Indonesia which has one criminal law for the entire country Australia is a federalist system meaning that power is divided between the federal, often referred to as the Commonwealth government, and local regional governments known as states.[35] Rather than comparing the laws of every state and territory with Indonesian criminal law, this paper will focus specifically on the criminal law of NSW. Although it is significant to note that every state jurisdiction in Australia has adopted a definition of sexual assault based on consent, suggesting that despite discrepancies in the wording of the criminal statutes themselves there is uniformity in the approach to sexual assault in Australia.[36] Therefore although NSW is being examined due to the authors familiarity with the jurisdiction, even if another Australian jurisdiction were to be used the discussion would likely be the same. Australia also has a common law system which means it uses an adversarial method where the prosecution and defence present their case before an impartial judge or jury.[37] Unlike the civil law system used in Indonesia where the judge plays an active role in finding the truth, in Australia judges are passive participants whose main role is to direct court proceedings and determine the guilt, if there is no jury, and sentence of the defendant. In most cases juries decide whether the accused is guilty or not guilty meaning that prosecutors and defence counsel need to tailor their courtroom advocacy to the jury. Because juries are comprised with members of the public with limited knowledge of the law judges, particularly in sexual assault trials, can direct a jury to disregard evidence that for example may arise during the cross-examination of a witness. If lawyers are unsure on their evidence the jury may be instructed to leave the courtroom so a voir dire hearing may be conducted, which is a trial within a trial, to determine the admissibility of such evidence.[38] In a common law system judges make case-law or precedent and provide extensive reasons for their decisions which may guide future decisions or be given weight by judges in another court.[39] This results in judgements that are hundreds of pages long and means that the ratio decidendi which is binding principle or analysis of key facts may be appealed.[40] These key political and legal differences have shaped how the affirmative consent sexual assault provisions are applied and interpreted in Australia.
Australia has certain socio-cultural beliefs around religion and sexuality that alter how sexual assault is understood. From a social perspective Australia is a secular society which constitutionally enshrines the separation between the church and the state.[41] This means that no political party is linked to a particular religious ideology or belief and therefore religion is not intertwined with any of the moral or political discussions that may arise in parliament. While it is unclear what specific effect this has had on the discussion of affirmative consent laws in NSW parliament, the overriding political support of the inclusion of affirmative consent into the law reflects the difference in political will and social attitudes towards intimate relationships.[42] Despite the NSW legislative assembly proposing various amendments to the law, the central question was never whether affirmative consent should be incorporated into the law but rather how can it best be incorporated. While Indonesia and Australia have significantly different socio-cultural beliefs, these socio-cultural beliefs have manifested themselves in parliament and have affected how both governments perceive sexual assault meaning there is no right or wrong method of law and that is not the intended purpose of this paper either. The purpose is to understand how Indonesia’s sexual violence operates in a global context and whether the approach adopted in the criminal code and anti-sexual violence laws could be better utilized at a practical level to protect the rights of victims. The discussions on the wording of the affirmative consent provisions demonstrate how Australian law makers were able to criminalise sexual assault in an effective manner to not only deter offenders but also to protect victims in trials. While the act is by no means perfect, it has been effective in preventing rape myths and other factors from retraumatising victims further and has altered judicial understandings of sexual assault.
- NSW Sexual assault law
NSW sexual assault laws adopt a different approach to Indonesia by embedding affirmative consent within their definition of rape. In 2021, following the controversial decision in R v Lazarus, NSW parliament enacted the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 which enshrined affirmative consent in sexual assault crimes. In NSW the Crimes Act 1900 (NSW) is the main legislative instrument governing criminal offences and contains the law on sexual assault. Unlike in Indonesia where if reforms are made to the law the specific act of parliament is completely overridden, in Australia there is more of a piecemeal approach to law reform and reforms can be made to all the provisions of the Crimes Act. In R v Lazarus at first instance Her Honour Judge Tupman held that despite no evidence demonstrating the complainant’s consent to anal sex, the fact that the complainant did not say stop or physically resist meant that it was reasonable for the accused to form a reasonable belief of consent.[43] The NSW Criminal Court of Appeal, the highest criminal court and appellate body in NSW, later found that Her Honour failed to consider whether the accused took reasonable steps to ascertain consent.[44] However in making this determination, the Court did not grant a third trial after two previously unsuccessful trials resulting in an unresolved decision.[45] This failure of the law was heavily criticised by both scholars and legal professionals and led to reform in NSW sexual assault law.[46] As part of these reforms section 61 of the Crimes Act 1900 (NSW) defines sexual assault as occurring when ‘any person who has sexual intercourse without the consent of the other person and who knows that the other person does not consent.’[47] Section 61H which precedes this provision notes that consent exists where parties ‘freely and voluntarily agree’ to intercourse[48] and is absent if the person ‘does not say or do anything to communicate consent’.[49] Consent cannot be assumed by the accused and they must take ‘reasonable steps’ to ensure consent.[50] By imposing a positive obligation on parties to gage consent, the provision is adopting an affirmative consent approach. The Prosecution must prove that the defendant had knowledge of the complainant’s non-consent as the mens rea and the actus reus that the complainant did not consent to sex.[51] There is also a focus on the defendant’s state of mind at the time of the act[52] contrary to the precondition that the victim must be in a vulnerable situation or incapable of engaging the sexual act as is the case within Indonesian law.[53] Despite the newness of these reforms, the Bureau of Crime Statistics and Research has shown a 42% increase in sexual assault reports within a five-year period suggesting that the codification of affirmative consent has an impact on community perceptions of sexual assault.[54] Therefore the wording of the Crimes Act demonstrates how affirmative consent dominates judicia perceptions of sexual assault in NSW and is different to the approach adopted by Indonesian courts.
Sexual assault cases in the NSW Supreme Court and Court of Criminal Appeal demonstrate how the judiciary understands sexual assault and demonstrates how affirmative consent is fundamental to legal practice. Unlike in Indonesia where there is a disconnect between the legal understanding of rape and sexual violence enshrined in the legislation and the application of these laws by law enforcement and the judiciary, in Australia there is greater uniformity in how sexual assault is applied and understood as highlighted through the extensive case law. In DS v R the NSW Court of Criminal Appeal confirmed that the defendant was guilty of 21 counts of sexual intercourse without consent. They did not accept the defendant’s belief that he had a right to have sexual intercourse with his wife because she was his wife regardless of whether she consented to it, nor did they accept his belief that he was entitled to punish his wife for apparently being unfaithful to him.[55] Not only does this case demonstrate how section 61 of the Crimes Act is applied to cases but it also highlights the significant differences between Australian and Indonesian judicial attitudes. In Indonesia some individuals, including some judges probably agree that a husband has the right to treat his wife in whatever manner he likes because they are married as illustrated by some patriarchal political parties during the anti-sexual violence bill negotiations, however, in Australia the judiciary, as demonstrated, condemns such a belief. The emphasis here is on the victim’s agency, not stemming her status as someone’s wife but as a human being. Despite this it is probable that if this case went to trial in Indonesia it would yield a similar outcome because it meets the threshold in Article 473 of the criminal code because the sex was coerced and article 4 of the anti-sexual violence law because the perpetrator used their position as the victim’s husband to control her. While an affirmative consent standard doesn’t necessarily change the outcome it does impact the judicial reasoning behind the decision. In the common law system this emphasis on why judges make guilty findings is as important if not more important than why parliament and politicians chose to enact the bill in the first place. This judicial reasoning shapes the future cases through precedent and may be utilized by prosecutors to persuade judges when they argue their case. A further case that illustrates the operation of affirmative consent is Bridger v R which concerned how a jury understood and applied the law. Of the seven counts of sexual intercourse without consent the jury was unable to reach a verdict count one and found the defendant guilty of count three while the remaining acts were found not guilty.[56] The defendant in their appeal argued that the jury’s finding of guilt was unreasonable and the judges in the NSW Court of Criminal Appeal referred to the judges direction given to the jury to determine why the jury found the defendant guilty on some counts and not others. The purpose of referring to this case is to understand how judge’s directions to juries and juries generally play such a significant role in Australian criminal law. While the Crimes Act is primarily used by members of the legal profession the fact that a jury determines the guilt of the accused in many sexual assault cases means that the legislation must be easily accessible and understood. Unlike in Indonesia, which is an inquisitorial system without juries, in NSW juries are fundamental to the operation of criminal justice system and the presence of a jury within a courtroom change how sections 61H-J of the Crimes Act are applied. For example, practice notes are frequently written and circulated by the NSW Supreme Court, similar to an Indonesian High Court, and the NSW district Court. Often these practice notes will guide judges on how they should direct the jury in cases, and they work alongside the legislation to uphold an affirmative consent-based understanding of sexual assault. While this is similar to the judicial regulation handed down by the Indonesian supreme court, it functions a bit differently and is less extensive than its Indonesian counterpart. In NSW District Court Practice Note 6 emphasises the sensitivity of these interests by stating that the complainant’s needs must be the primary consideration especially during the trial process where sexual assault cases must be given priority.[57] There are also judicial bench books which provide further direction to judges in NSW and may also contain further information on how affirmative consent provisions should be applied in a trial. These bench books are another source that impact judicial perceptions of affirmative consent and sexual assault. The cases and judicial practice notes demonstrate the judicial perceptions of sexual assault in australia which is different to conceptions held by the judiciary in Indonesia.
V COMPETENCY V CONSENT – INDONESIA V AUSTRALIA
- Is incompetency diff to consent?
The criminal laws in Indonesia and Australia embed different conceptions of sexual assault which has a significant impact on victims and the prosecution of these offences within the criminal justice system. In Indonesia rape, criminalised in the criminal code, and physical sexual violence, codified in the anti-sexual violence law, suggest that the victim must be incompetent in some form. While Article 6(c) stipulates that the perpetrator may exercise a level of control or authority over the victim which is not a disability or additional incompetency, this is still distinct from the consent standard adopted within other jurisdictions. The inclusion of this provision recognises the unequal power dynamic however it still doesn’t consider how the victim’s agency and ability to make decisions for themselves factors into their protection from sexual violence. In Australia, there is an affirmative consent standard under section 61H of the Crimes Act 1900(NSW) which stipulates that both parties must mutually agree to sex or else it considered sexual assault. This highlights the distinction between legally incompetent engage in a sexual act and not wanting to consent to sex due to personal reasons. Incompetence means a person does not have capacity to engage in a sexual act regardless of whether they want to have intercourse. However, consent is when a person chooses not to have sex making the question about the individual’s choice than whether they possess capacity. This recognition of individual agency in relation to sexual violence has altered how NSW courts apply and understand sexual assault as demonstrated through DS v R and Bridger v R. The Court of Criminal Appeal not only reiterates the centrality of the victims consent as underscored by s61H of the Crimes Act but they add their own commentaries to the law by clarifying that defendant’s do not have a right to expect sex from the victims almost like a moral condemnation of rape. For example, in DS v R, Justice Adamson admonishes the defendant stating, ‘he believed, wrongly, that he had a right to have sexual intercourse with his wife because she was his wife, irrespective of whether she consented to it on the particular occasion.’[58] This approach is different to the Indonesian cases which are more to the point and refrain from such commentaries. Additionally, the cases demonstrate the inconsistency between judicial attitudes and the legal frameworks around sexual violence. There is also a significant emphasis on the victim’s incapability to have sex particularly prevalent in cases where the victim has a physical or mental disability. The Indonesian cases of No. 32/Pid.B/2021/PN Rah and No. 83/Pid.B/2022/PN Sag further highlight this difference in approach. While these cases were adjudicated prior to the enactment of the anti-sexual violence law and new criminal code, the victim’s incompetency to engage in sexual activity are still central to these cases. In No. 32/Pid.B/2021/PN Rah the victim had mental disabilities, and the judges found the defendant guilty of adultery not rape, despite the victim’s initial statement to witnesses that she’d been raped. The victims treatment in this case is inconsistent with the judiciary’s view in No. 83/Pid.B/2022/PN Sag where there was limited discussion of the victims speech disability despite the speech disability impacting the victim’s ability to escape from the defendant’s attack. While the purpose is not to suggest that the judge’s should have placed a greater emphasis on the victims disability in the 2022 but highlight the inconsistencies in the cases and legal attitudes. Furthermore, these cases also illustrate how the victim’s incapacity to have sexual relations is the defining feature of their rape which is averse to the consent approached which focuses on agency in Australia. Therefore, this demonstrates the difference between the legal perceptions of sexual violence in Indonesia and Australia.
VI CONCLUSION
Overall, while the reforms to criminal code and the enactment of the anti-sexual violence laws have changed the sexual violence framework in Indonesia the legal perceptions of law enforcement, the judiciary and prosecutors have not changed. As demonstrated through the academic discourse and interviews with Lidwina Nurtjahyo and Maria Tarigan there is disconnect between the law and how it is applied in practice. Law enforcement still fails to take cases of sexual violence seriously which is averse to the victim-centric approach embedded within the law which emphasises how the victims vulnerability was taken advantage of by the accused. This not only impacts victim’s access to justice but also highlights the difference between Indonesia’s sexual violence framework and other jurisdictions particularly Australia. In NSW the Crimes Act embeds an affirmative consent standard of sexual assault which is significantly different to Indonesia’s coercion-based approach to rape and focus on the victim’s incompetency in being able to engage in a sexual act. This distinction between having agency to refuse to have sex versus an incapability of being able to engage in sexual activity means that instead of sex being a choice, Indonesia’s legal system frames it as more binary in that it is something an individual either can or cannot do. Furthermore, the caselaw and additional judicial direction given to judges through practice notes and benchbooks demonstrates how there is greater consistency between the sexual assault framework and application of these laws in NSW further highlighting the differences between the legal perceptions of sexual violence in NSW and Indonesia.
Report written by Rabia Rasul
[1] Wahidah Zein Br Siregar and Ella Syafputri Prihatini, Passing the sexual violence crime law in Indonesia: Reflection of a gender-sensitive parliament?, Politics and Governance 12 no.8245 (August 2024) DOI: https://doi.org/10.17645/pag.8245.
[2] Aisyah Llewellyn, ‘Explainer: Why is Indonesia’s sexual violence law so important?’ Al Jazeera, 14 April 2022, https://www.aljazeera.com/news/2022/4/14/explainer-why-is-indonesias-sexual-violence-law-so-important.
[3] Leila Ullrich et al, ‘Affirmative Consent in Commonwealth Jurisdictions’ (Oxford Pro Bono Publico, January 2024) 36.
[4] Law Of The Republic Of Indonesia Number 12 Of 2022 Regarding Sexual Violence (2022) s4(1).
[5]Law Of The Republic Of Indonesia Number 12 Of 2022 Regarding Sexual Violence (2022) s4(2).
[6] Terry Hutchinson, Research & Writing in Law (Thomson Reuters, 2018) 51.
[7] Christopher McCrudden, ‘Legal Research and the Social Sciences’ Law Quarterly Review 122 (2006) 632, 634.
[8] Edward J Eberle, ‘The Methodology of Comparative Law’ Roger Williams University Law Review 16 no.1 (2011) 51, 52.
[9] Leila Ullrich et al, ‘Affirmative Consent in Commonwealth Jurisdictions’ (Oxford Pro Bono Publico, January 2024) 36.
[10] Karina Utami Dewi,Hangga Fathana and Masitoh Nur Rohma, ‘Me Too as transnational advocacy networks: The case of anti-sexual violence movement in Indonesia’ Journal of ASEAN Studies 11No.2 (2023) 467,470 Doi: https:/doi.org/10.21512/jas.v11i2.8858.
[11] Wahidah Zein Br Siregar and Ella Syafputri Prihatini, ‘Passing the sexual violence crime law in Indonesia: Reflection of a gender-sensitive parliament?’, Politics and Governance 12 no.8245 (August 2024) 7 Doi: https://doi.org/10.17645/pag.8245.
[12] Wahidah Zein Br Siregar and Ella Syafputri Prihatini, Passing the sexual violence crime law in Indonesia: Reflection of a gender-sensitive parliament?, Politics and Governance 12 no.8245 (August 2024) 8 DOI: https://doi.org/10.17645/pag.8245.
[13]Tunggal Pawstri and Tim Mann, ‘Indonesia finally has a law to protect victims of sexual violence. But the struggle is not over yet’, Melbourne University, 20 April 2022, <https://indonesiaatmelbourne.unimelb.edu.au/indonesia-finally-has-a-law-to-protect-victims-of-sexual-violence-but-the-struggle-is-not-over-yet/>.
[14] Staney Widianto, ‘Indonesian Sexual Violence Bill Faces Religious Opposition’, VOA news, 11 February 2019 <https://www.voanews.com/a/indonesian-sexual-violence-bill-faces-religious-opposition/4781451.html>.
[15] Tunggal Pawstri and Tim Mann, ‘Indonesia finally has a law to protect victims of sexual violence. But the struggle is not over yet’, Melbourne University, 20 April 2022, <https://indonesiaatmelbourne.unimelb.edu.au/indonesia-finally-has-a-law-to-protect-victims-of-sexual-violence-but-the-struggle-is-not-over-yet/>.; Ken M.P Setiawan and Dirk Tomsa ‘Politics in Contemporary Indonesia Institutional Change, Policy Challenges and Democratic Decline’ (2023) Routledge Taylor and Francis Group.
[16] Wahidah Zein Br Siregar and Ella Syafputri Prihatini, Passing the sexual violence crime law in Indonesia: Reflection of a gender-sensitive parliament?, Politics and Governance 12 no.8245 10 (August 2024) DOI: https://doi.org/10.17645/pag.8245.
[17] Aisyah Llewellyn, ‘Explainer: Why is Indonesia’s sexual violence law so important?’ Al Jazeera, 14 April 2022, https://www.aljazeera.com/news/2022/4/14/explainer-why-is-indonesias-sexual-violence-law-so-important.
[18] Yonna Beatrix Salamor, Ani Purwanti and Nur Rochaeti, ‘Confronting Culturally-Sanctioned Sexual Violence: Confronting Culturally-Sanctioned Sexual Violence: Reformulating The Law To Address Female Genital Reformulating The Law To Address Female Genital Mutilation In Indonesia’ Indonesia Law review 15 No.1 (2025) 54.
[19] Dian Jayantari Putri K Hedo, Santy Irene Putri, and Philipus Prihantiko Kurniagung ‘The Influence Of Socio-Cultural Aspects On Sexual Harassment Attitudes,’ Journal of Psychology 14, No. 2 (2021) 233–45, Doi: https://doi.org/10.35760/psi.2021.v14i2.4331.; Yonna Beatrix Salamor, Ani Purwanti and Nur Rochaeti, ‘Confronting Culturally-Sanctioned Sexual Violence: Confronting Culturally-Sanctioned Sexual Violence: Reformulating The Law To Address Female Genital Reformulating The Law To Address Female Genital Mutilation In Indonesia’ Indonesia Law review 15 No.1 (2025) 54.
[20] Kiran Grewal, ‘The Protection of Sexual Autonomy under International Criminal Law’ Journal of International Criminal Justice 10 (2012) 373,396.
[21] Definition of Consent, Australian Law Dictionary accessed at 9 June 2025 < https://www.oxfordreference.com/display/10.1093/acref/9780195557558.001.0001/acref-9780195557558?btog=chap&hide=true&page=26&pageSize=20&skipEditions=true&sort=titlesort&source=%2F10.1093%2Facref%2F9780195557558.001.0001%2Facref-9780195557558>.
[22] Kiran Grewal, ‘The Protection of Sexual Autonomy under International Criminal Law: The International Criminal Court and the Challenge of Defining Rape’ Journal of International Criminal Justice 10 No.2 (2012) 373, 387.; Lea Schneider, ‘Defining Rape: Coercion or Consent-Based Approach? Towards a Definition of Rape in Wartime in International Criminal Law’ International Journal of Humanities and Social Science Review 6 No.4 (2020) 32,33.
[23] Anna High, ‘Comparing Affirmative Consent Models: Confusion, Substance and Symbolism’ Sydney Law Review 45 No.4 (2023) 1,2.
[24] Law Of The Republic Of Indonesia Number 1 Of 2023 on Criminal Code s473(1).
[25] Maria Isabel Tarigan and Naomi Rehulina Barus, ‘Its not just about violence: its about powerlessness in rape’ The Conversation 26 November 2021, <https://theconversation.com/bukan-hanya-soal-kekerasan-memaknai-ketidakberdayaan-dalam-perkosaan-171011>.; Tim Mann, ‘Indonesia finally has a law to protect victims of sexual violence. But the struggle is not over yet’, Melbourne University, 20 April 2022, <https://indonesiaatmelbourne.unimelb.edu.au/indonesia-finally-has-a-law-to-protect-victims-of-sexual-violence-but-the-struggle-is-not-over-yet/>.
[26] Law Of The Republic Of Indonesia Number 12 Of 2022 Regarding Sexual Violence (2022) s6.
[27] Maria Isabel Tarigan and Naomi Rehulina Barus, ‘Its not just about violence: its about powerlessness in rape’ The Conversation 26 November 2021, <https://theconversation.com/bukan-hanya-soal-kekerasan-memaknai-ketidakberdayaan-dalam-perkosaan-171011>.
[28]Law Of The Republic Of Indonesia Number 1 Of 2023 on Criminal Code s473.
[29] ‘Definition of Competent’ Cambridge Dictionary Online at 5 June 2025 < https://dictionary.cambridge.org/dictionary/english/competent#google_vignette>.
[30] ‘Definition of Competence’ Law Dictionary at 5 June 2025 <https://thelawdictionary.org/competence/>.
[31] Sofia Garving, Consent in rape law – A comparison of three models (Faculty of Law university of Lund 2010) 15 <file:///C:/Users/rabia/OneDrive/Documents/IJRS/Report/Sofia%20garving.pdf>.
[32]Sofia Garving, Consent in rape law – A comparison of three models (Faculty of Law university of Lund 2010) 18 <file:///C:/Users/rabia/OneDrive/Documents/IJRS/Report/Sofia%20garving.pdf>.
[33] Law Of The Republic Of Indonesia Number 1 Of 2023 on Criminal Code s473.
[34] Law Of The Republic Of Indonesia Number 12 Of 2022 Regarding Sexual Violence (2022) s4.
[35] ‘Federalism in Action: The three level of government’ NSW Government 5 June 2025 < https://education.parliament.nsw.gov.au/federalism-in-action-the-three-levels-of-government/>.
[36] ‘Chapter 2 – Australia’s sexual consent laws’ NSW Government 5 June 2025 < https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/sexualcontentlaws/Report/Chapter_2_-_Australias_sexual_consent_laws>.
[37]‘Infosheet 23 – Basic legal expressions’ NSW Government 5 June 2025 < https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_23_-_Basic_legal_expressions>.
[38] Jarryd Bartle ‘What is A Voir Dire?’ Lexology 7 February 2023 < https://www.lexology.com/library/detail.aspx?g=6a1f0749-360e-47e3-a6d4-435e947a5261>
[39]Infosheet 23 – Basic legal expressions’ NSW Government 5 June 2025 < https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_23_-_Basic_legal_expressions>.
[40] ‘Ratio Decidendi Definition’ LexisNexis 5 June 2025 < https://www.lexisnexis.co.uk/legal/glossary/ratio-decidendi>
[41] Commonwealth of Australia Constitution (Cth) s116.
[42] ‘Inquiry into current and proposed sexual consent laws in Australia Discussion paper’ NSW Senate: Legal and Constitutional affairs references committee online at 5 June 2025 <https://www.aph.gov.au/-/media/Committees/legcon_ctte/sexualcontentlaws/Discussion_Paper.pdf>.
[43]R v Lazarus (Unreported, District Court of New South Wales, Judge Tupman, 4 May 2017) 73.
[44] R v Lazarus [2017] NSWCCA 279 [147].
[45]R v Lazarus [2017] NSWCCA 279 [168].
[46] PARLIAMENTARY DEBATES (HANSARD) accessed 9 June 2025 < file:///C:/Users/rabia/Downloads/HANSARD-1820781676-87229.pdf>.
[47] Crimes Act 1900 (NSW) s61I.
[48] Crimes Act 1900 (NSW) s61HI(1).
[49] Crimes Act 1900 (NSW) s61HJ.
[50] Crimes Act 1900 (NSW) s61HF.; Anna High, ‘Comparing Affirmative Consent Models: Confusion, Substance and Symbolism’ Sydney Law Review 45 No.4 (2023) 1,5.
[51] Crimes Act 1900 (NSW) s61I.
[52] Craig Bridger v R [2022] NSWCCA 125 [71].
[53] Law Of The Republic Of Indonesia Number 1 Of 2023 on Criminal Code s473 and Law Of The Republic Of Indonesia Number 12 Of 2022 Regarding Sexual Violence (2022) s4.
[54] Jordyn Beazley ‘Reports of sexual assault in NSW up 42% in five years data reveals’ The Guardian 12 June 2024 < https://www.theguardian.com/australia-news/article/2024/jun/13/reports-of-sexual-assault-in-nsw-up-42-in-five-years-new-data-reveals>.
[55] DS v R [2022] NSWCCA 55
[56] Craig Bridger v R [2022] NSWCCA 125.
[57] ‘District Court Criminal Practice Note 6’ NSW District Court https://districtcourt.nsw.gov.au/documents/practice-notes/Practice%20Note%20-%20Sexual%20Assault%20Case%20List.pdf.
[58] DS v R [2022] NSWCCA 55 [124].
