- 11/12/2022
- Category: Critical Questions
Author: Febe Sarah
Editor: Amelinda Pandu Kusumaningtyas
The notion of people’s power within the digital world, despite the positivity that does exist, can be somewhat twisted, especially considering how much sexual violence exists and perpetuates in the digital space. The practice of sexually harassing others and sharing non-consensual sexual videos online almost seems normalized by society, undoubtedly concerning and unfortunate for our safety. In 2021, the Southeast Asia Freedom of Expression Network (SAFEnet) received 677 complaints of gender-based online sexual violence (KGBO) in Indonesia, more than 80% of which were from women.[i] Fortunately, with the recent enactment of the Bill on the Crime of Sexual Violence (now Law Number 12/2022 on the Crime of Sexual Violence or TPKS Law) on the 12th of April 2022, this concern is addressed, as the law criminalizes electronic-based violence.
This article explores how the future law will protect Indonesian citizens from falling victim to online sexual violence and the implications of law’s existence on the current status quo where online sexual violence is rampant and not regarded as significant. The TPKS Law guarantees legal protection against online sexual violence to Indonesian citizens. However, its implementation can only be substantial if supported by legal enforcers who are not only stigma-free but also willing to investigate cases using a victim-oriented approach to prevent victims from getting more hurt.
Q1: How does the TPKS Law protect us against online sexual violence?
The TPKS Law criminalizes online sexual violence through Article 14, which stipulates nine types of sexual violence crimes. More specifically, the article criminalizes three types of Electronic-Based Sexual Violence (KSBE):
(1) recording or taking pictures or screenshots of sexual content without or against the person’s will or consent;
(2) transmitting electronic information and/or electronic documents with sexual content against the will of the recipient aimed at sexual desire;
(3) carry out stalking and/or tracking using electronic systems against persons who are objects in electronic information/documents for sexual purposes.
An individual who commits these offenses is threatened with a maximum of 4 years of imprisonment and/or a maximum fine of 200 million rupiahs. Do note that KSBE is a complaint offense or “delik aduan,” a type of offense that can only be given criminal sanction if the victim or other legally permitted parties file a complaint to the police. Without a complaint, the case will not be processed.
However, there are two exceptions to this provision. First, the offense does not require a complaint if the victim is a child or a person with disabilities.[ii] Second, the act of recording or screenshotting sexual content without the object’s consent or transmitting sexual content without the receiver’s consent is conducted for public interest or to defend oneself from sexual violence crime(s).[iii] In addition, victims also have the right to erase their digital traces if they wish to do so.
Q2: What are the implications of the TPKS Law on the current online sexual violence status quo?
On the one hand, positive outcomes are expected from the TPKS Law’s enactment. First and foremost, sexual violence victims are closer than ever to obtaining the justice they deserve as the law is, in principle, victim-oriented.[iv] Previously, the Criminal Code solely focused on punishing the perpetrator without guaranteeing the victim’s wellbeing and condition due to the crime. However, now, victims can resort to rehabilitation and support from the government. Specifically in online sexual violence cases, this law guarantees victims the freedom from the fear of being sued back by their perpetrator with the ITE Law for defamation, such as in the case of Baiq Nuril, a victim who was sued for defamation for recording her boss’ sexual harassment against her.[v] On top of that, the law instills a deterrent effect for people, making them reluctant to commit the crime since they can be punished for it. While from a more general lens, the law contributes to making the digital world a safer space for citizens doing online activities.
Even so, several concerns must be kept in mind. One of the most urgent ones is for the government to issue implementing regulations, such as government and presidential regulations.[vi] According to Puan Maharani, the Head of DPR, there will be five government and five presidential regulations aiming to support the implementation of the TPKS Law.[vii] Until then, although enacting the TPKS Law itself is already a major step to help and prevent sexual violence victims, the rate of online sexual violence cases in Indonesia is unlikely to go down. Ultimately, the classic problem is that the law might not practically result in any real changes at the time being because it is difficult to change societal behavior, especially within the online realm where supervision is relatively challenging to conduct comprehensively. Irrefutably, it is also a rigorous challenge to train law enforcers so they regard these cases more seriously and avoid victim-blaming as it would require more resources and time. Nevertheless, the DPR has highlighted the existence of the Integrated Team (Tim Terpadu) and Implementation of Integrated Services (Penyelenggaraan Pelayanan Terpadu)[viii]specifically designated for sexual violence cases, signaling the increase in the government’s effort to tackle this crime.
[i] Sanjaya, A., Banimal, A., Kusuma, E., Arum, N., Andaru, N. and Sagena, U., 2022. Laporan Situasi Hak-hak Digital Indonesia 2021: Pandemi Memang Terkendali, tapi Represi Digital Terus Berlanjut. [online] Denpasar: Southeast Asia Freedom of Expression Network (SAFEnet), p.54. Available at: <https://awaskbgo.id/wp-content/uploads/2022/03/Laporan-Situasi-Hak-Digital-2021-Part-KBGO.pdf> [Accessed 20 June 2022].
[ii] TPKS Law, Article 14 (3).
[iii] TPKS Law, Article 14 (4).
[iv] liputan6.com. 2022. Menanti Dampak Baik UU TPKS bagi Keadilan Penyintas. [online] Available at: <https://jatim.liputan6.com/read/4944223/menanti-dampak-baik-uu-tpks-bagi-keadilan-penyintas> [Accessed 20 June 2022].
[v] Coren, A., Sit, J., Jamaluddin, M. and Regan, H., 2022. Jailed for recording her boss’s alleged sexual harassment, this mother wants to inspire women to say no to abuse. [online] CNN. Available at: <https://edition.cnn.com/2019/07/17/asia/indonesia-sexual-harassment-baiq-nuril-maknun-asequals-intl/index.html> [Accessed 20 June 2022].
[vi] Saputra, A., 2022. Akademisi Sambut Lahirnya UU TPKS: UU Ini Sangat Progresif. [online] detiknews. Available at: <https://news.detik.com/berita/d-6028745/akademisi-sambut-lahirnya-uu-tpks-uu-ini-sangat-progresif> [Accessed 20 June 2022].
[vii] Dpr.go.id. 2022. UU TPKS Resmi Diundangkan, Ketua DPR Minta Peraturan Turunan Segera Terbit. [online] Available at: <https://www.dpr.go.id/berita/detail/id/38848/t/UU+TPKS+Resmi+Diundangkan%2C+Ketua+DPR+Minta+Peraturan+Turunan+Segera+Terbit> [Accessed 20 June 2022].
[viii] Dpr.go.id. 2022. UU TPKS Resmi Diundangkan, Ketua DPR Minta Peraturan Turunan Segera Terbit. [online] Available at: <https://www.dpr.go.id/berita/detail/id/38848/t/UU+TPKS+Resmi+Diundangkan%2C+Ketua+DPR+Minta+Peraturan+Turunan+Segera+Terbit> [Accessed 20 June 2022].
