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Legal Policy Against Sexual Violence in Indonesia (A Study

on the Concept of Criminalization Based on the Aceh
Qanun and
the TPKS Law)
Fitha Ayun Lutvi Nitha*, Abdul Karim Munthe**
* Faculty of Law, Semarang State University
* * Faculty of Law, University of Indonesia
Email :[email protected] ,abdulkarim17@
ui.ac.id

Abstract
The spectrum of cases of sexual violence is still often
encountered by Indonesian people. Especially when viewed in
Komnas Perempuan's complaint data, the case continues to show
a significant increase. A sharp increase occurred in the range of
52%, namely 327,629 cases from the initial 215,694 in 2020. With
this record, the state began to improve, namely taking steps to
ratify Law No. 12 of 2022 concerning the Crime of Sexual Violence
(UU TPKS). This regulation is at least a breath of fresh air for
people in Indonesia. Then long before the existence of the TPKS
Law, the rules of Islamic law have been applied, namely:

Aceh Qanun Number 6

Years 2014 About LawQanun Jinayat. But from the two rules
If the law is explored in more depth, the handling of cases of
sexual violence has a different legal content. The reason is that
the TPKS Law itself stipulates the maximum penalty for sexual
violence offenses with a maximum confinement of 12 years in
prison or a maximum fine of 300 million. Meanwhile, in the Aceh
Qanun related to the crime of sexual violence, the maximum
penalty is 45 lashes or a maximum fine of 450 grams of pure
gold or a maximum imprisonment of 45 months. Seeing the
disparity in punishments in the two regulations, the focus of this
research aims to find out how the application and comparison
between Islamic criminal law in Aceh Qanun and positive law in
the TPKS Law, as well as considering the effectiveness of the two
rules as the basis for sentencing cases of sexual violence in
Indonesia.statutesandcomparative approach. Then for the final
result of this research is the concept of punishment contained in
the Aceh Qanun, allegedly does not reflect its effectiveness. This
is not directly proportional to the concept of punishment in the
TPKS Law which is considered capable of creating new concepts
related to more effective punishment. Keywords: Sexual
Violence, Crime, TPKS Law, Qanun Jinayat
 I. PRELIMINARY
Indonesia is known as a state of law, adherents of
three systems at once, namely:civil law,customary law and
Islamic law.1The system refers to the laws and regulations
that are binding. However, it is still accepted by society as
an ideology, which is then applied in order to achieve a
state's intent. That is to protect the entire nation and the
entire homeland of Indonesia.2

Understanding this goal, the legal presence in a

country is positioned as a means of comprehensive
protection for the community. As described in Article 28G
Paragraph (2) of the 1945 Constitution, every citizen has the
right to be free from torture or treatment that
underestimates human dignity. Therefore, the law in a
country is required to be able to protect the constitutional
rights of every citizen, both the right to life, the right to
freedom from all forms of threats and violence, then the
right to protection and the right to justice, all of which have
urgency in their implementation.

But today, various distortions have led to changes,

causing the Indonesian people to experience a moral crisis.
One of them is a case of violence

1Indonesia is known as a state of law as attached in Article 1 paragraph

(3) of the 1945 Constitution of the Republic of Indonesia, which has a legal
system. Interestingly, this country adheres to three legal systems at once that
live and develop in the life of society and the state administration, namely the
civil law system, the customary law system, and the Islamic legal system. Look
at Zaka Firma Aditya, et al,The Romanticism of the Legal System in
Indonesia: A Study on the Contribution of Customary Law and Islamic Law to
the Development of Law in Indonesia,Journal of Rechtsvinding, Volume 8
Number 7 April 2019, p. 39

2The purpose of the Indonesian state is contained in the preamble of the 1945
Constitution, precisely the fourth paragraph which reads "Protecting the entire
Indonesian nation and all of Indonesia's bloodshed".
 sexual which Keep going experience enhancement3. Enough
Unfortunately, not only adults but also a number of young
Indonesians have become perpetrators and victims of sexual
violence.For example, what had gone viral was the case of
obscenity perpetrated by the leader of the foundation on his
students.4In fact, the impact of sexual violence is very
detrimental, apart from depriving the right of a sense of
security, victims often experience ongoing trauma. Not only
that, sexual violence is considered capable of being a
means of rapid spread of AIDS and HIV.

Of course it is very clear, after all the offense injures

the rights of the victim. This violation needs special attention
for the government and the people of Indonesia. Moreover,
in collecting CATAHU in 2021, Komnas Perempuan found an
astonishing increase in the percentage of sexual violence in
the last 10 years. From the data, which initially reached
105,103 cases in 2010, it continued to increase until it
reached 299,911 cases in 2020.

3This increase is contained in the Annual Records (CATAHU) of the

National Commission on Violence Against Women (Komnas Perempuan). The
program collects a number of data on cases of sexual violence from both
community institutions and government institutions spread across all
provinces in Indonesia. In addition, it also contains data on direct complaints
from the Referral Complaints Unit (UPR) as well as Komnas Perempuan's
official email. From the results, it was found that the rate of increase was quite
high from year to year. Look at Komnas Perempuan, Women in the Embrace
of a Pandemic: Rise in Sexual Violence, Cyber Violence, Child Marriage and
Limited Handling Amid Covid 19, Jakarta : National Commission on Violence
Against Women, Komnas Perempuan, 2021, p. 1

4The crime of sexual violence has again occurred in the world of education
in Indonesia. As happened at the SPI (Good Morning Indonesia) School in
Malang, East Java, which involved its leader and founder, Julianto Eka Putra,
Malang in July 2022. The owner committed sexual violence against at least 15
of his students. /d-5589261/school-in-the- rock-stumbling-cases-sexual-
violence-accredited-a-and-free. Accessed on October 23, 2022 at 05.00 WIB.
 In conclusion, the average increase is around 19.6% per year.5
Then regarding the legal basis, as adopted, Indonesia
applies three legal models at once,civil law,customary law
and Islamic law6in solving sexual violence cases. Among
them in customary and Islamic law applied are:
Aceh Qanun Number 6 of 2014
concerning LawQanun Jinayat. Islamic law, indeed has
existed from
At the time of the apostles, this is where all forms of abuse of
sexual violence are included in the realm of crime so that the
law is haram. Likewise, regarding the sanctions imposed, in
accordance with Islamic law, namely ta'zīr in the form of
lashes.7Strictly speaking, the punishment is intended to
provide a deterrent effect for the perpetrators.
Even in positive law, recently the government has
believed in the urgency of punishing perpetrators of sexual
violence, namely by ratificationLaw No. 12 of 2022 concerning
the Crime of Sexual Violence (TPKS Law). The regulation is at
least a breath of fresh air for the people in Indonesia because
it has included a classification

5Contains statistical data on the increase in cases of sexual violence from

year to year as of 2020-2021, See Komnas Perempuan,Women in the Embrace
of a Pandemic: Rise in Sexual Violence, Cyber Violence, Child Marriage and
Limited Handling Amid Covid 19, Jakarta : National Commission on Violence
Against Women, Komnas Perempuan, 2021, p. 1

6Zero Firma,Legal Romanticism System in Indonesia: A Study on the

Contribution of Customary Law and Islamic Law to the Development of
Indonesian Law,Rechtsvinding Journal : Vol. 8 Number. 1 of 2019, p. 37
7Contained in the hadith of the Prophet Muhammad: "Listen to me, Allah
has decreed for them, virgins and virgins who commit adultery are subject to
lashes a hundred times and are exiled for one year, while men who are not
virgins and women who are not virgins (who both have had sexual intercourse
in the status of marriage) ) then sentenced to lashes and stoning."(HR.
Muslim). The hadith represents sexual violence behavior, so the perpetrator can
be sentenced to ta'zīr in the form of lashes. See in Yayah Ramadyah, Sexual
Harassment (in View from the Eyes of Islamic Law and the Criminal Code), UIN
Jakarta Repository: 2010, p. 65
criminalization of sexual violence cases, legal threats, as well
as guaranteeing the rights of victims.
Then if explored more deeply, the handling of cases of
sexual violence, has a different legal content. The reason is
that the TPKS Law itself stipulates the maximum penalty for
sexual violence offenses with a maximum confinement of 12
years in prison or a maximum fine of 300 million. It is different
in the Aceh Qanun itself regarding the crime of sexual
violence, the maximum penalty is 45 lashes or a maximum
fine of 450 grams of pure gold or a maximum of 45 months in
prison. Seeing the disparity in punishments in the two
regulations, the focus of this research aims to find out how the
application and comparison between Islamic criminal law in
Aceh Qanun and positive law in the TPKS Law, as well as
considering the effectiveness of the two rules as the basis for
sentencing cases of sexual violence in Indonesia.

Based on this narrative, it is necessary to reassess the

application of the legal basis used to trim or resolve cases of
sexual violence in Indonesia. Both related to the concept of
criminal and sentencing.
Moreover, the law used in several previous cases was
considered not optimal, so it was not uncommon for a number
of perpetrators to actually get a decision in the form of
acquittal. Therefore, by looking at these thoughts, the author
is interested in conducting an analysis and putting it in the
title:Legal Policy Against Sexual Violence in Indonesia
(A Study on the Concept of Criminalization Based on
the Aceh Qanun and the TPKS Law)
 II.RESEARCH METHODS
This study uses qualitative research methods that make
literature as primary research material. Furthermore, in order
to sharpen the analysis, this research also uses a
approachstatutesandcomparative approach, by making the
Aceh Jinayat Qanun and the TPKS Law as a basis for seeing
the effectiveness of the two regulations in handling and
punishing criminal acts of sexual violence.

III.DISCUSSION
A.THEORETICAL BASIS OF THE ACEH QANUN AND THE
TPKS LAW CONCERNING SEXUAL VIOLENCE
a)Sexual Violence in the Perspective of the Aceh Qanun and
the TPKS Law
The term violence or what is often referred to as ,the origin
is"
view”which as (power or strength) and"late"(carry), then the
meaning is to bring strength.8Then in the Big Indonesian
Dictionary (KBBI) violence is defined as coercion or describing
a behavior that leads to physical harm, causing injury or
damage to others.9

Meanwhile, the understanding related to sexual violence is

an act that injures the value of human life (especially leading to
sexuality attacks).10Which in his nature, God created humans as

8Astrid Veranita,Systemic Violence in Modern Society A Review of

Philosophy Slavoj Zizek,Zawiyah Journal of Islamic Thought: Vol 4 Number 1
2018, p. 65.
9Mulida H. Syaiful Tency and Ibnu Elmi, Sexual Violence and Divorce,
Intimedia, Malang, 2009, p. 17.
10Elmina Martha fragrance,Women of Violence and the Law, UII Press,
Yogyakarta,2003, p. 36.
 beings who are intelligent, virtuous and have a higher degree
than animalistic traits. So acts of destruction, suppression,
extortion, rape, terrorism, theft, murder, and annihilation are
acts that tarnish and destroy the existence of human
superiority as God's special creatures.
11

Then in terms of the settlement of all forms of crime, Prof.

Eddy in his book "Principles of Criminal Law" states that there
are four theories of punishment that are commonly used as a
reference in the punishment of criminal offenses including
absolute, relative, modern, and contemporary
theories.12Looking at a number of theories above, cases of
sexual violence have actually been regulated in the following
rules:
i. Aceh Qanun Number 6 of 2014 concerning Punishment
Sexual Violence Perpetrators.
The Aceh Social Service currently finds an increase in the
number of cases of sexual violence or rape against children
and women.
Around 155 cases were in Aceh Besar, then 74 cases in Banda
Aceh and in North Aceh totaling

11Forever Saputro, "The Impact of Sexual Violence on Children in Sempaja

Village, North Samarinda District (Case Study "Kharisma Pertiwi Foundation"
Psychosocial Recovery Protection House, Kasih Bunda Utari Orphanage)",
eJournal of Sociology-Sociology, Vol. 6 Number. 4, 2018, p. 17.
12The four theories of punishment that are commonly applied in the
settlement of criminal cases include the first absolute theory (revenge) with
maximum punishment or in accordance with the behavior carried out so that
there is hope for a deterrent effect.
Furthermore, there is a relative theory, namely expediency, so it is not only
punishing but rather towards punishment, which must provide value for the
benefit of the whole as well as the existence of restorative justice. There are
also modern theories or a combination of the two (absolute and relative) apart
from being given an appropriate punishment, they also pay attention to their
usefulness values. The last is the contemporary theory, which is a combination
of the three previous theories and has additional legal policies related to the
provision of rehabilitation services for criminals. Look at Eddy OS
Hiariej,Principles of Criminal Law. (Yogyakarta: Cahaya Atma Pustaka 2014), p.
38-42
 64 cases. This figure was recorded from January to August
2022.13 Seeing the magnitude of this figure, it becomes a
special concern for the Acehnese people for the safety of
children and women. In fact, in handling cases of sexual
violence in Aceh, the legal basis for the Qanun Jinayat has
been applied for a long time as a solution. Indonesia
implements a special policy in the Sharia Court in Aceh,
namely adhering to the basis of Islamic law and customary
law, by implementing it
Aceh Qanun Number 6 of 2014 14related to the prohibition
and
punishment for the crime of sexual violence .
Precisely in the sixth section, namely regarding sexual
harassment, it is regulated in Article 46 which confirms that
anyone if there is an element of intent to commit an act of
harassment, will be threatened with a maximum of 45 lashes
or a maximum fine of 450 grams of pure gold or a maximum
imprisonment of 45 months. Then it is also discussed in Article
47, namely for violators of sexual violence offenses aimed at
minors, they will be sentenced to a maximum of 90 lashes or a
maximum fine of 900 grams of pure gold or a maximum
imprisonment of 90 months.

In this regard, the Seventh Part also discusses sexual

violence, but is more specific in the realm of rape. That is, it is
regulated in Article 48. Rape is punishable by whipping

13TheAceh Besar region is ranked first in terms of its

cas height sexual harassment, the article looks at
e
https://infopublik.id/categories/nusantara/659637/aceh-besar-tertinggi-case
violence- child Accessed on Wednesday, October 26, 2022 at 16.50 WIB.
14It has been regulated in Law Number 11 of 2006 concerning the
Government of Aceh (Chapter XVII Articles 125, 126 and 127), as a step to
realize Islamic Sharia in Aceh, the Aceh regional government issued a qanun
namely Aceh provincial regulations. See Topo Santoso, Grounding Islamic
Criminal Law: Enforcement of Shari'a in Discourse and Agenda, (Jakarta: Gema
Insani Press, 2003), p. 106.
a minimum of 125 to a maximum of 175 times or a fine of at
least 1,250 grams of pure gold, up to 1,750 grams of pure
gold or imprisonment for a minimum of 125 months, and a
maximum of 175 months.

Then Article 49 explains that the intention to rape his

Mahram is sentenced to at least 150 to 200 lashes or a fine
with a nominal value of 1,500 grams of pure gold, and a
maximum of 2,000 grams or a minimum prison term of 150
months, a maximum of 200 months.

Furthermore, Article 50 intentionally commits a rape

offense to a child under the punishment of 150 to 200 lashes
or a fine of at least 1,500 grams of pure gold and a maximum
of 2,000 grams of pure gold or imprisonment for a minimum of
150 months, a maximum of 200 months.
In Article 51 when there is a request for restitution from
the victim, the perpetrator of a criminal offense is subject to
'Uqubat Restitution for a maximum of 750 grams of pure gold
or with a note adjusted to the ability of the party in charge
(perpetrator). Meanwhile, regarding complaints, it is regulated
in Article 52, namely the first point that a rape victim can file a
complaint with the investigator by including preliminary
evidence. Two, every time there is a report, the investigator
team is required to immediately carry out an investigation in
order to obtain preliminary evidence. Three when no evidence
is found (inadequate), then an oath can be made in the form of
representation of additional evidence. Four investigators and
public prosecutors delegate the case to the District or City
Syar'iyah Court with preliminary evidence and a statement of
the willingness of the person who claims to have been raped to
 swear in front of the Judge. Five people who confessed to being
raped were willing to take an oath together with the
investigative team in a special report.
ii. Law No. 12 of 2022 concerning the Crime of Sexual
Violence

The content of the TPKS Law itself includes 8 chapters

with 93 articles, specifically regulating the stages of
preventing, dealing with, and criminalizing sexual violence
offenses from the perspective of the victim.15Then regarding
the classification of the types of criminal acts, there are quite
a lot, there are non-physical sexual harassment, physical
sexual harassment, forced contraception, forced sterilization,
forced marriage, sexual torture, sexual exploitation, sexual
slavery, electronic-based sexual violence and many more.

In addition, the TPKS Law contains the crime of sexual

violence accompanied by other crimes, then in the law it is
stated as a single unit, namely the crime of sexual violence.
This rule also classifies complaints into two types, namely
physical harassment and non- physical harassment. Complaint
offense term(klacht delict)or the complaint itself is interpreted
as a crime so that a prosecution can be carried out, when it
has made a report.16

Regarding the sanctions and rehabilitation regulations in

the TPKS Law, it is stated that perpetrators of sexual
harassment will be subject to a maximum prison sentence of
12 years.

15Nadhila Cahya Nurmalasari,The Effectiveness of Indonesia's Sexual

Violence Law,Journal of Democracy and National Resilience : Volume 1, Number
1, 2022, p. 62

16Nadhila Cahya Nurmalasari,The Effectiveness of Indonesia's Sexual

Violence Law,Journal of Democracy and National Resilience : Volume 1, Number
1, 2022, p. 63
up to a fine of Rp. 1 billion. The punishment depends on the
form of sexual harassment committed. As for the lightest fine
for perpetrators of non-physical abuse, there is a maximum of
IDR 10 million or a maximum imprisonment of 9 months. This
provision is stated in Article 5 of the TPKS Law.
In contrast to perpetrators of physical sexual harassment,
there are various kinds of criminal sanctions that apply.
Among them is a maximum imprisonment of 12 years or Rp.
300 million given to perpetrators of physical sexual
harassment. In this case, the perpetrator usually provides a
trick to take advantage of someone's vulnerability. This is
regulated in Article 6 of the TPKS Law. The following are the
articles that guarantee legal certainty in cases of sexual
violence in Indonesia:
Article 8

Affirming that every perpetrator of sexual violence, especially

related to forcing contraceptives with all forms of violence or
threats, is subject to a maximum imprisonment of 5 years
and/or a fine of Rp. 50 million.
Article 9

Strictly regulate the perpetrators who force the use of

contraception which results in the permanent loss of the
victim's reproductive function. Therefore, the punishment is a
maximum imprisonment of 9 years and or a fine of Rp. 200
million.
Article 10

If there is forced marriage with him or someone else, then

marriage on children, and forced marriage of the victim with
the perpetrator of the rape, will be sentenced to 9 years in
prison and or a fine of Rp. 200 million.

Article 11

Punishment aimed at officials or in

the capacity of official officials who commit sexual violence in
the form of intimidation and humiliation or degrading of
the victim's dignity, can be sentenced to 12 years in prison
and or Rp. 300 million.

Article 12

Similar to the previous article, this article regulates threats or

violence in the abuse of position, position, or trust, using
deception, with the aim of physically exploiting the victim for
sexual exploitation, which can result in a prison sentence of
15 years and/or a fine of Rp. 1 billion.

Article 13

When there is sexual exploitation of the victim who is under

his control, he will be punished for sexual slavery with a
prison sentence of 15 years and/or a fine of Rp. 1 billion.

Article 14 paragraph (2)

The act of recording or taking pictures with sexual content

without consent, then distributing them, as well as stalking or
tracking people for sexual purposes, can be punished with
imprisonment of 6 years and/or a fine of Rp. 300 million.

Article 17
This article emphasizes that in addition to being sentenced to a
criminal act, perpetrators of the crime of sexual violence may be
subject to action in the form of rehabilitation which includes medical
rehabilitation and social rehabilitation.
In addition to the articles above, the TPKS Law also contains
several important points in chapter four related to Investigation,
Prosecution, and Examination in Court Sessions which are considered
mandatory in
handling cases of sexual violence, the parts of which are:

Part Three concerning Assistance of Victims and

Witnesses, several articles in it contain related to the rights of
victims to be accompanied by assistants at all levels of
examination in the judicial process which include: LPSK
officers, UPTD PPA officers, health workers, psychologists,
social workers, social welfare workers , psychiatrist. Then
there are also legal assistants which include advocates and
paralegals, officers from Community Based Service Providers,
and other assistants.

Fourth Part on Restitution. Specifically aimed at victims

of sexual violence crimes, they are given the right to
restitution and recovery services. Whether it is in the form of
compensation for loss of wealth or income, compensation for
losses caused by suffering directly related as a result of the
Crime of Sexual Violence. In addition, victims are also entitled
to reimbursement for medical or psychological treatment
costs.

Sixth Part Concerning Victim Protection. It contains a

discussion of protection, namely since the 1x24 hour report,
the police are on duty in temporary (victim) protection
services. Then regarding the temporary protection as
intended based on the existence of a warrant with a
maximum grace period of 14 days from the time the victim
was handled.

b)Differences between the Aceh Qanun and the TPKS Law

As explained in the discussion points above, it is clear

that there are disparities in sentencing policies
as well as the prosecution of perpetrators of sexual violence
between the Aceh Qanun Jinayat and the TPKS Law. These
differences include the capacity of punishment intended for
perpetrators, to guarantees of protection (rights) for victims of
sexual violence.

Judging from the example of the application of the TPKS

Law, precisely in cases of sexual harassment, the maximum
penalty is 12 years in prison or a maximum fine of 300 million,
in addition to the punishment the perpetrator is given
rehabilitation. This punishment is so that the hope is not to
commit a crime again. Meanwhile, in the Aceh Qanun related
to the crime of sexual harassment, the maximum penalty is
45 lashes or a maximum fine of 450 grams of pure gold or a
maximum prison sentence of 45 months.

In addition, the TPKS Law is also considered more relevant

to be applied, because the legal content is more complete. As
the description contains the important points in it. As stated in
Article 17 regarding the provision of rehabilitation for
perpetrators of criminal acts of sexual violence. Then in
chapter four related to Investigation, Prosecution, and
Examination in Court Sessions, especially the third part
contains points of assistance to victims and sanctions. Then
in the fourth part there are points for restitution services for
victims and the last part is points for the protection of victims
of sexual violence. It is different in the content of the Qanun
Jinayat rules which are actually considered lacking, because
they do not regulate the right to protection from sexual
crimes, and related to the rules for the right of restitution for
victims, it is only imposed on criminal actors with the
provisions
the ability to be adjusted is not maximized, even with a
note that when there is a request from the victim, it is not
an obligation.

B.CRIMINAL PRACTICES OF SEXUAL VIOLENCE IN INDONESIAN

LAW

a) Sentencing Cases of Sexual Violence Based on Aceh

Qanun Jinayat
In practice the author takes the example of Decision
Number 19/ JN/2022/MS.Lsk which tried cases of sexual
violence by the defendant on behalf of Nazaruddin Alias
Nadar Bin Zakaria. He was legally and convincingly proven
guilty of committing Jarimah (criminal act) of Sexual
Harassment against his niece Aira Nisya Naira who is still 4.5
years old. Chronology of Events

Precisely on Thursday, March 24, 2022 at 14.00 WIB, the

Defendant came to the Defendant's palm oil plantation which
was located behind the victim's house. The defendant
approached the victim who was playing, then took the victim's
hand and brought her near the oil palm tree in the garden.
The victim immediately squatted down to pick up the oil palm
fruit on the ground. Seeing his nephew squatting down, the
Defendant immediately put his hand into the victim's panties
from behind. Holding and inserting a finger into the victim's
vagina or genitals. However, not long after, a friend of the
child victim's witness named Abi arrived, so the Defendant
stopped his actions.

Because of the incident, the victim immediately returned

home and met her biological mother (Witness II), the victim
immediately hid behind the door. Witness II saw his son
like frightened and approached himself then began to tell
what his uncle had done. As a result of this incident the victim
was frightened every time she saw the defendant, and also felt
pain in the pubic area, especially when urinating. From the
post-mortem, it appears that there was a slight stretch but
there was no injury or serious damage to the victim's vital
organs.

Legal Basis Used

Then in the settlement of the case, the basis used by the
judge was Article 47 of Aceh Qanun Number 6 of 2014
concerning Jinayat Law.
The regulation regulates the intricacies of criminalizing sexual
harassment, especially the victim is a minor, then Ta'zir will be
sentenced to a maximum of 90 lashes or a maximum fine of
900 grams of pure gold or a maximum imprisonment of 90
months.

In addition, the panel of judges also used the basis for

consideration of Article 23 paragraphs (2) and (3) of Aceh
Qanun Number 7 of 2013, so regarding the intensity of the
detention time served by the Defendant, it must be
deducted entirely from the sentence handed down.
Decision result
Court Sharia with a number of consideration
including witness statements, post-mortem evidence, and
orderly and polite treatment of the perpetrators before the
panel of judges, then decided that the Defendant (Nazaruddin
Alias Nadar Bin Zakaria) was valid and was declared
absolutely wrong to have committed the offense of Sexual
Harassment against his nephew (a child under age). As
regulated in Article 47 of Aceh Qanun Number 6 of 2014
concerning Law
Jinayat, the panel of judges sentenced Ta'zir to a prison term of
40 months reduced while the Defendant was in custody.

b). The Practice of Punishing Cases of Sexual Violence

Based on the TPKS Law
In legal practice the author takes the example of Decision
Number 222/Pid.B/2022/PN Plw which tried cases of sexual
violence by the defendant Abdul Hamid Rambe Als Rambe. He
was proven wrong because he had committed a criminal act of
sexual violence, namely forced sexual intercourse (rape)
against the victim.

Chronology of Events
Precisely on Thursday, June 2, 2022, the Defendant was in
three positions with the victim and his partner (Muhamad
Hidayat) in an oil palm plantation on the orders of their boss to
take palm oil to the victim's location. The position of the victim
was waiting for the garden because her husband was coming
home briefly to feed the livestock not far from the location.
Exactly at 21.00 WIB when he arrived at the location, the
defendant asked his partner to pick up the basket that was
left behind. When the location was deserted and the two of
them were alone, the defendant carried out his act of forcing
sexual intercourse. The perpetrator pushed the victim, then
forced sexual activity. The victim had fought back by kicking
the perpetrator, but due to the weak capacity of the woman's
body, the perpetrator tried to squeeze the victim's body and
threatened to kill her.
 From the results of the post-mortem, it seems that there
was an act of violencevulnus excoriatumon the right side of
the vagina and visible hymen tear, the impression of an old
wound at six o'clock. The result of the incident left trauma for
the victim.

Legal Basis Used

Then in the settlement of cases, the legal basis used by
the panel of judges is Article 6 letter C of the Republic of
Indonesia Law No. 12 of 2022 concerning the Crime of Sexual
Violence which contains rules regarding oppression or
coercion because they feel superior (stronger than the victim)
who in fact is a woman, then enforces sexual intercourse for
this act. a maximum of IDR 300.0OO.0OO.00 (three hundred
million rupiah). In addition, the panel of judges also used other
legal considerations such as Law Number 8 of 1981
concerning the Criminal Procedure Code and other laws and
regulations.

Decision Result
Affirming that Abdul Hamid Rambe Als Rambe as the
defendant has been proven legitimate to commit an act of
coercion and exploit the vulnerability of women to have
intercourse with him. So based on the evidence attached, and
a number of witness statements, the panel of judges decided
that the sentence for the defendant was in the form of
imprisonment for 8 years.
C.ANALYSIS OF THE CONCEPT OF CRIMINAL IN ACEH
QANUN AND THE TPKS LAW CONCERNING SEXUAL
VIOLENCE

a)Weaknesses in the Concept of Criminalization of the Aceh

Qanun in Responding to Cases of Sexual Violence
Judging from the legal content and the practice of
applying
punishment from the two legal bases above (the Aceh
Qanun and the TPKS Law), of course, each has its own
policy. It could be said that the punishment of Aceh's
Qanun jinayat refers to the principle of absolute
punishment (or absolute punishment on the basis of
revenge). So that the hope in imposing punishment is as
severe as possible with the aim that the perpetrator gets a
deterrent effect for his actions.

However, the facts on the ground are that the incidence

or cases of sexual violence in Aceh is still quite high, even
though most of the victims are minors. However, it is clear
that this will have a negative impact on the future of the
younger generation. Judging from the severe punishment, it
turns out that it is not considered an effective choice of
punishment, therefore it is necessary to reform or refine
the rules. As with the inclusion of rights for victims, namely
the right to protection and restitution in detail, it is not only
the responsibility of the perpetrator, or there must be a
request from the victim first, but is mandatory and becomes
the responsibility of the government which must also serve
the victim fairly.
b)TPKS Law as an Ideal Model for Criminalizing Sexual
Violence Cases
Then for results end from study,
to prove the effectiveness of the implementation of the TPKS
Law. Seeing in the application of the rules of the TPKS Law, it is
considered more relevant to be applied because the legal content
is more complete.
Namely, it contains all the important components that regulate
the right to protection from sexual crimes, as well as the rules
for the right of restitution for victims.
According to the authors, the legal settlement in the
TPKS
Law uses contemporary criminal theory so that it does not
only prioritize the principle of revenge but is more towards
the value of benefits for victims and also other parties,
which includes guarantees for protection and assistance to
victims and fulfilling the right of restitution or recovery for
victims. In addition, for the perpetrators, apart from being
sentenced to imprisonment, his party is also given
rehabilitation services in the hope that they will not repeat
the crimes they have committed.

Therefore, the TPKS Law is considered suitable to be

used as an ideal form of punishment for criminal acts of
sexual violence, although it is still considered a new rule.
Therefore, it is very necessary to intensify counseling and
introduction from the government to legal entities or the
wider community. In addition, in the future, the TPKS Law
must also be given extra escort, and must obtain a follow-
up action program in the form of making derivative rules,
with the aim of ensuring that these regulations can
continue to be effective both
 in its implementation as well as in ensuring legal
certainty for victims of sexual violence.

IV. CLOSING
CONCLUSION

Seeing the increase in the number of cases of sexual

violence in Indonesia every year, we are required to review
the rules that are used as the basis for punishing or
criminalizing sexual violence cases. One of the regulations
includes the Aceh Jinayat Qanun as a manifestation of the
customary law system and Islamic law in Indonesia. In this
case, it is found that integrity, although it has been
implemented for a long time, the number of sexual
violence in Aceh is still very high. It contains a number of
shortcomings, such as the absence of points that regulate
the protection and retribution rights for victims of sexual
violence. In addition, in the concept of penalizing the Aceh
Qanun, the perpetrators of crimes are not provided with
rehabilitation services, so it is very likely that the
perpetrators can repeat their actions again. Therefore, the
Aceh Jinayat Qanun is considered not to have a good
regulation and punishment effectiveness. This is in fact not
directly proportional to the concept of punishment in the
TPKS Law as an ideal model that is considered capable of
creating a new concept related to criminal acts of sexual
violence that are more effective. So as a solution, the
government should start optimizing the use of the TPKS
Law and continue to oversee its development.
SUGGESTION

There is a need for socialization related to the

urgency of implementing the TPKS Law, especially for
people who are still unfamiliar with the new rules that
were recently inaugurated by the government. Judging
from the use of the TPKS Law which is still minimal. Not
only socialization in urban areas, but also legal institutions,
so that remote communities must understand the role and
content of the TPKS Law. So that the contents can be
implemented. And the government must also move
quickly to make derivative rules related to the TPKS Law.

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