Gender-Based Violence in South-East Asia: Policy in Practice 9811924910, 9789811924910

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Lidwina Inge Nurtjahyo Mochammad Arief Wicaksono   Editors

Gender-Based Violence in South-East Asia Policy in Practice

Gender-Based Violence in South-East Asia

Lidwina Inge Nurtjahyo · Mochammad Arief Wicaksono Editors

Gender-Based Violence in South-East Asia Policy in Practice

Editors Lidwina Inge Nurtjahyo Universitas Indonesia Jakarta, Indonesia

Mochammad Arief Wicaksono Universitas Indonesia Jakarta, Indonesia

ISBN 978-981-19-2491-0 ISBN 978-981-19-2492-7 (eBook) https://doi.org/10.1007/978-981-19-2492-7 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Foreword

I am delighted to write this foreword for this collection of research on gender-based violence in South-East Asia. The bringing together of research in law, policy, and practice is an important structure which allows for greater understanding of violence against women as an international concern as well as the particular issues that arise in South East Asia. As Queen’s Counsel and Professor of Legal Practice, I have spent large parts of my career contributing to changes in law, policy, and practice in relation to violence against women and girls particularly in the context of serious criminal offending, domestic and sexual abuse, FGM, human trafficking and modern slavery. I am perhaps most proud of my work as an advocate and a researcher in collaboration on international, human rights and death penalty issues in South East Asia. The collection in this book is invaluable for practitioners like me and the wider research and political and social communities to understand the complexities involved in eliminating violence against women and girls in South East Asia. Against a background of international obligations to ensure women’s rights through laws and policies and guarantee results in the ending of violence against women and girls, this research documents the state failures, individual shame and fear and societal culture that can affect the reporting, investigation, prosecution of perpetrators, and protection of victims. The research explores the differing legal mechanisms internationally and within states to physical and sexual violence. It recognizes the need for functioning mechanisms to ensure women can report their cases safely and be provided with protective and therapeutic services in a way that is systematic, effective, and measurable. Laws and court decisions are analyzed, crisis and safety centers are examined, in-depth interviews conducted with actors and NGO’s with relevant roles and functions in the mechanism of cases of violence against women. The result is a comprehensive assessment of the incalculable harm it does to people and within South East Asian society and the obstacles for law enforcement. The research uncovers mechanisms with unique characteristics across South East Asia, together with a range of case handling processes. Each country considered has its own community characteristic and state-law structure. The findings indicate that violence against women cases are often not reported properly to police officers, may be withdrawn and are often affected by poor investigations and infrastructure, v

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family intervention and patriarchal cultural norms. The collection in large part gives an understanding of the cultural and social background and the religious structures that can both help and hinder suitable frameworks. There is a recognition of the many ways in which violence, victimization and multiple victimization occurs and, even where regulated, how the mechanisms for reporting, protection, and therapy are affected by absent laws or how regulations are implemented. The figures and personal stories from the various studies, the analysis of entrenched beliefs and the catalog of pressures not to report are shocking but the efforts at cooperation give cause for hope that mechanism may be sustainable, if supported by authoritative, and effective regulation. The work in this collection also highlights the growing concern relating to online abuse of women and girls, the challenges of health issues such as HIV and COVID-19 and the negative effects caused by ill-informed media reporting. There are some significant projects and approaches discussed in the collection that provide blueprints for progress through listening, validation, trust and support for victims through sensitive investigative services, progressive changes in criminal laws and the recognition of rights and responsibility in social institutions, including universities and during peace keeping operations. In South East Asia, the research in this collection finds that experience mirrors many countries around the world where victims of sexual violence face difficulties in accessing justice. This can come from absent laws, poor implementation of laws, societal and cultural barriers, shame, mistrust of the police particularly where investigative methods remain inadequate and often discriminatory or corrupt, fear of retaliation and more. In seeking to bring together extensive research with a determination to address such problems, educating the public and protecting and empowering women, this collection provides theoretical and practical examples in law, policy and wider sociology to provide some answers. The analysis and understanding comes with a vision and commitment for comprehensive prevention, response, and resolution of matters through the combination of education, special units, standard operating procedures, and legal infrastructure and national-scale regulatory approaches. It is a valuable contribution towards empowering the women of South East Asia out of victimhood to valued equality, involvement in governance and leadership through the elimination of violence and discrimination and an excellent resource not just for those working in this field but for those involved in law making, the media, and the people of South East Asia. Libertas Chambers, London and Crockett Chambers, Melbourne

Felicity Gerry QC

Felicity Gerry QC Professor of Legal Practice at Deakin University, Honorary Professor at Salford University, and Barrister at Crockett Chambers Melbourne and Libertas Chambers, London.

Contents

Introduction Why the State Must Regulate? One Stop Crisis Center for Violence Against Women Cases: Some Notes from Southeast Asia . . . . . . . . . . . . . . Lidwina Inge Nurtjahyo, Mochammad Arief Wicaksono, and Anastasia Cindy

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Theory and Methodology Research on Gender-Based Violence in Southeast Asia: Some Notes on the Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mochammad Arief Wicaksono Feminist Legal Analysis on the Rules of Handling Cases of Violence Against Women: Comparative Study on Timor Leste, Malaysia, Thailand, Singapore, and Indonesia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lidwina Inge Nurtjahyo

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Violence Against Women in Public Sphere Defining Rape in Indonesia: A Never-Ending Struggle . . . . . . . . . . . . . . . . Patricia Rinwigati

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Sexual Violence on the Higher Education Institution . . . . . . . . . . . . . . . . . . Muh. Wildan Teddy Bintang P. Has and Prilia Kartika Apsari

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Indonesia and Peacekeeping Operations: Protection of Womens’ Rights in Africa Under MINUSCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aryo Pradhana Putrasatriyo and Illona Christine

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The Silence Scream: Lesson from Violence Against Women Under Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gita Ardi Lestari

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Contents

The Role of Forensic Institution in Handling Violence Against Women in COVID-19 Pandemic: Forensic Perspective . . . . . . . . . . . . . . . . 105 Yudy Violence Against Women in Domestic Arena Victim Protection of Multiple Victimization of Violence in Indonesia: A Right Way to Go? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Nathalina Naibaho and Yosefin Mulyaningtyas How NGO Handle Domestic Violence Cases During COVID-19 Pandemic: Case Study in LBH APIK Jakarta . . . . . . . . . . . . . . . . . . . . . . . . 143 Patricia Beata Kurnia Recommendations on the Prevention of Female Genital Mutilation in Indonesia Through a Cultural and Legal Perspective as a Social Engineering Tool: A Comparative Study of FGM Practices in Indonesia and Egypt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Anindita Puti Radini and Muhammad Pramadiathalla Conclusion Interdisciplinary Research on Gender Based Violence: Collaboration in Knowledges and Practices . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Lidwina Inge Nurtjahyo and Mochammad Arief Wicaksono

Contributors

Apsari Prilia Kartika Universitas Indonesia, Depok, Indonesia Christine Illona Legal Clinic for Women and Children, Faculty of Law Universitas Indonesia, Depok, Indonesia Cindy Anastasia Criminal law and gender, Faculty of Law, Universitas Indonesia, Depok, Indonesia Has Muh. Wildan Teddy Bintang P. Universitas Indonesia, Depok, Indonesia Kurnia Patricia Beata Fresh Graduate of Social Anthropology, Faculty of Social and Political Science, Universitas Indonesia, Researcher at Law Reform Division, LBH APIK Jakarta, Jakarta, Indonesia Lestari Gita Ardi Faculty of Law, Universitas Indonesia, Depok, Indonesia Mulyaningtyas Yosefin Faculty of Law, Criminal Law Department, Universitas Indonesia, Jakarta, Indonesia Naibaho Nathalina Faculty of Law, Criminal Law, Universitas Indonesia, Depok, Indonesia Nurtjahyo Lidwina Inge Faculty of Law, Universitas Indonesia, Depok, Indonesia Pradhana Putrasatriyo Aryo Legal Clinic for Women and Children, Faculty of Law Universitas Indonesia, Depok, Indonesia Pramadiathalla Muhammad Faculty of Law, Universitas Indonesia, West Java, Indonesia Puti Radini Anindita Faculty of Law, Universitas Indonesia, West Java, Indonesia Rinwigati Patricia Faculty of Law Universitas Indonesia, Director of Djokosoetono Research Center, Lecturer of Criminal Law and Human Rights, Universitas Indonesia, Jakarta, Indonesia

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Wicaksono Mochammad Arief Department of Anthropology, Faculty of Politics and Social Sciences, Universitas Indonesia, Depok, Indonesia Yudy Forensic Specialist in Cipto Mangunkusumo Hospital and Lecturer in Faculty of Medicine, Universitas Indonesia, Jakarta, Indonesia

Introduction

Why the State Must Regulate? One Stop Crisis Center for Violence Against Women Cases: Some Notes from Southeast Asia Lidwina Inge Nurtjahyo, Mochammad Arief Wicaksono, and Anastasia Cindy

This chapter is written based on the argumentation, that state regulation and the clear operational standards are needed in the mechanism of handling women victims of violence. The Cases of violence against women have become an international concern. However, the complexity of the structures within the state system and the community often makes the state-set regulatory standards not work and the cases are going worse. In the midst of the entanglement of state bureaucratic processes in assisting women victims and public attitudes that tend to neglect or cover up the violence itself for various reasons, the presence of a one stop crisis centre is very helpful. One stop crisis centres play a very important role, so the state must have clear regulations and support arrangements for the existence of these facilities. This chapter tries to describe some examples of best practice one stop crisis centres. The authors collect data using in-depth interviews with socio-legal and feminist perspectives to mapping actors both within the structure of government and non-government and identify their roles and functions of each. In addition, researchers also try to explore the related regulatory instruments and other supporting documents. One thing that is not less important is identifying the complexity of the structures and processes that occur at the state level, non-state institutions, and society. This complexity often occurs in the context of drafting the regulations, compiling operational standards for handling the cases, distributing institutional roles and functions, financing problems, and also social aspects.

L. I. Nurtjahyo Faculty of Law, Universitas Indonesia, Depok, Indonesia e-mail: [email protected] M. A. Wicaksono Department of Anthropology, Faculty of Politics and Social Sciences, Universitas Indonesia, Depok, Indonesia A. Cindy (B) Criminal law and gender, Faculty of Law, Universitas Indonesia, Depok, Indonesia © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 L. I. Nurtjahyo and M. A. Wicaksono (eds.), Gender-based Violence in South-East Asia, https://doi.org/10.1007/978-981-19-2492-7_1

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1 Background More than 2000 cases of partner violence were reported to the Police Department and other agencies in Malaysia (Colombini et al., 2011). But as told by resource persons from NGO and state institutions (Human Rights Commission, lawyers and academicians from universities who have been interviewed in July–September 2018) this was seen as “the tip of the iceberg”. That phrase refers to the fact that there were more cases than the percentage. In Timor Leste, 32% of women in 2016 have experienced cases of violence. Our research team got this data in July 2018 through interviews with directors of NGO and state officers. Looking on at these data, genderbased violence, especially violence against women has become an important agenda in human rights issues in all countries of the world. The amount of violence against women also occurs in Indonesia. According to National Commission on Violence Against Women (Indonesian National Commission on Women’s Rights)’s annual record per 2019 in Indonesia, violence against women is about 406,178 cases. The Indonesian National Commission on Women’s Rights states that this number has increased compared to the previous year which was 348,466 cases. This amount has been collected from cases handled by the courts or religious courts and service provider institutions in Indonesia. Violence against women can happen to women from various economic status, social classes, ages, educational backgrounds, races, ethnic groups, religious or faith groups. The expression that the number of reported cases of violence like an iceberg, is happened because violence against women is a crime which has been often not reported by victims. Only a few cases of violence against women are revealed through service providers or through families that provide support to victims. There are many factors that cause victims not to report the case specifically. For example, the pride of the family, the shaming of the victim woman, or the victim is afraid that the offender will hurt the victim’s family, even the presence of cultural values that teach that women must forgive the perpetrator especially if the perpetrator is a family member. Thus, women who live in very closed communities with strong social cohesion will tend to find it more difficult to report cases of violence and obtain assistance with their cases. In communities with strong social cohesion, women often do not have the courage to report cases of violence they have experienced. Women victims are sometimes reluctant to report not only because they are so shamed. The victim is also afraid that the community will isolate themselves because they are considered as people who divulge family secrets. Thus, a mechanism is needed where women can report their cases secretly, get protection for their safety, then receive physical and psychological trauma recovery services. Therefore, the mechanism for handling violence against women on one stop crisis center should be the one of priorities in the state policies constructing process. Women victims must be one of the priorities to be protected by a system and regulation by the state. In the mechanism for handling victims of the violence against women, there are some very important aspects for recovery process of victims. The first aspect

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is the physical and mental health recovery process of the victims. Second aspect is how the law process could fulfill the sense of justice of the victims. The third aspect is providing capacity building to women victims so after the case is legally completed and she leaves the house safely, she can support herself and her child. In order to guarantee that these three aspects are fulfilled through the process of handling violence against women, certainly cooperation between several authorized institutions is needed. Thus, the state must intervene by regulating not only the mechanism but also the standards for the process in handling the victims of the violence against women. Regulations regarding the mechanism for handling violence against women, especially those which are related to the one stop crisis centers, have been different in various countries. The research team specifically focused on how countries in Asia, especially in Southeast Asia and Timor Leste regulated this. Some countries that are research areas have their own characteristics that make the legal system and society unique, for example because of the influence of customary law or certain religious laws that influence how state law is built and implemented. The complexity of this law will ultimately lead to how women victims of violence are dealt with. Complexity at the local level makes standards or similarities much needed, but certainly does not completely eliminate the diversity and complexity of the problems and handling that occurs between them. This standard concerns agreements regarding certainty of state regulations and procedures for dealing with violence against women. This standard is needed so that the handling of violence against women is more systematic, effective and measurable.

2 Violence Against Women, OSCC, Feminism and Socio Legal Approach Landscape Although this article at the beginning present data of and discuss about violence against women and how they are handled in three states (Indonesia, Malaysia and Timor Leste), the authors actually focus on how OSCC as part of the mechanism for handling violence against women is regulated in various countries. The regulations become interesting analytical materials to show whether the feminist perspective has been accommodated in state policies related to the protection of women’s rights, especially victims of violence. After explaining the data in three states, the authors describe One Stop Crisis Center (OSCC) from Malaysia, Timor Leste, and Indonesia. The three states were chosen as the research arena to capture how diverse and complex the problem is in handling cases of gender-based violence. This complexity occurs because within the community itself there is no single legal structure. In addition to the state legal system, there is also a structure of customary law and religious law that also applies in society. Those countries do have legal plurality: state law, religious law, customary law, and also international law while they are adopting the international conventions

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and covenants. This condition of legal pluralism has an impact on how gender-based violence is defined, classified, interpreted and has an impact on how the handling mechanisms do. These pluralistic conditions of law also influence women’s decisions on how she will resolve cases of violence that have befallen her. Women will be faced with options for settlement of their cases. They could settle their cases through customary law mechanisms, which often tend to be patriarchal and place women as objects. The decision on the fate of the women is in the hands of the customary council, most of whose members are men and do not necessarily have a pro-victim perspective (Nafi et al., 2016). Women also could have settlement options through the mechanism of religious law, which in some places in Southeast Asia put women as parties to forgive the perpetrator but not have the opportunity to get the recovery and relief. Another option for women in Southeast Asia, they can settle their cases through state law procedure, which does provide punishment for perpetrators but as according to Galanter (1971), state law often fails to take into account aspects of social relations between parties. In addition to the legal pluralism condition in Southeast Asian society, the issue of patriarchal cultural values is also one of the things that can influence women victim’s choices in deciding whether to report or not reporting their cases. As a special note based on the documentary and field research, patriarchal values in this society grow and are maintained both in the context of people who are obedient to the teachings of religion and the people who hold strong traditional rules. As we know if we spread the archipelago of Southeast Asia landscape map, the more westward the religious structure has more influence on the community, while the more eastward, the customary structure has more role. The patriarchal values in society influence the way of thinking of both men and women in looking at themselves, their roles, and then finally in making decisions. Women who are victims of violence, who are influenced by patriarchal values often perceive that the violence they experience is fair because they cannot fulfill their role in the family as women (according to patriarchal values). For example, as in Timor Leste, the Ministry of Women’s Empowerment (SEI) obtained research data that showed that around 30% of women answered that if they could not carry out household chores properly it would be natural for them to be beaten by their husbands. Other example from Indonesia, in some cases the researcher found, women were forced to accept the fact that her husband remarried because the woman could not give birth a child, or could not give birth a son, or was unable to fulfill the husband’s sexual needs. The paradigmatic question of violence against women problem is: why when discussing gender-based violence cases or domestic violence, women always be the victims. Mies (1982) introduced the concept of “Housewifesation” (women domestication-ed). In the end, Mies concludes that women in a family are the most powerless, and this must be critically reviewed, both in academic and practical aspects. The concept of housewifesation according to Mies is “the process when women are socially defined as housewives, which depend on the husband’s income, regardless of whether or not the de facto woman is a housewife or not” (Mies, 1982:

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180). In this process, women have the position that they are not more productive so that they depend on their husbands. As a result, he became isolated, and experienced economic denial. This then places women in subordinate positions in their relations with men, including in social and political structures in society. Women who are economically dependent on the perpetrator, educated with the perspective that women are subordinate, and have an obligation to keep family honor and secrets, of course it will be difficult for them to report the violence in the family. In a situation where women have some obstacles to report their cases because of various factors, One Stop Crisis Centre (OSCC) facilities regulated by the provisions of state products and jointly managed by the state and non-state institutions become very important to exist. OSCC as a concept is a system applied to handle cases of violence against women and children that focus on the physical and mental health aspects of the victims. In other words, OSCC will be our entry point to examine the importance of effective operational standards in handling cases of gender-based violence, especially violence against women. In order to analyze data generated from the research on OSCC in Malaysia, Timor Leste, and Indonesia, the research team used a feminist perspective on legal studies and socio legal studies. These two perspectives are used in order to explore critical understanding of several things. First, how the rule of law works in society. Second, how the rule of law can fulfill the sense of justice of the community, specifically accommodating a sense of justice in cases of violence that afflict women, especially those from vulnerable groups. Third, to explore best practice mechanisms for handling violence against women. We also realize that state law is not the only single rule applied in society. The state must have its own legal system, but not all of these legal systems operate properly in society. In addition to state law, there is a structure of other agreements that are more specific or local in nature which are sometimes more authoritative, namely religious law and customary law. The existence of legal pluralism in the community is what makes the complexity and diversity of legal conditions in the community need to be a concern to eventually form a national regulation. State regulations should not be made top-down directly, but bottom-up first then top-down. The research outlined in this paper seeks to answer the question: (1) Why is there a need for clear and explicit state standards in handling cases of violence against women? (2) How does the system for handling cases of female violence position themselves when faced with the complexity of other legal structures and the socio-cultural structure at the community level?

3 The Research Process This research has been conducted since July 2018 until now, both in field research activities, in-depth interviews, and document studies. This research was carried out by collect and analyze legal and non-legal documents related to mechanisms for handling violence against women in several countries: Malaysia, Thailand, Timor

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Leste, Indonesia. The research team also observed two safe houses at Kuala Lumpur, Malaysia and at Maliana District, Timor Leste. In addition, this research was also conducted by in-depth interviews with some actors and agents who had relevant roles and functions in the mechanism of cases of violence against women. The Informants in in-depth interviews included those within the state government structure as well as those outside the government structure, such as non-governmental organizations (NGO). The team also interviewed the managers of safe houses and their staff. This research was carried out using a multidisciplinary perspective: law studies, gender, and anthropology of law. The paper is written also in a multidisciplinary framework in order to provide a more holistic perspective on seeing a case and its handling mechanism.

4 Some Lesson Learnt from Southeast Asia 4.1 Malaysia Malaysia is the first country in the region that adopted the law of violence against partners, the Domestic Violence Act 1994 (5). Since the 1980’s a number of women’s organizations in Malaysia has begun to raise the issue of violence against women as a public issue based on the interviews with some informants in Malaysia during 2019–2020. The establishment of the DV Act in 1994 was also inseparable from the important role of women’s organizations and institutions. According to an interview with the Ministry of Human Rights of Malaysia, the Law on Domestic Violence has undergone improvements three times to date to better guarantee the security and certainty of legal protection for women victims of violence. Malaysia provides three bases of legal protection for its citizens in the context of violence against women, namely the Interim Protection Orders (IPO), Emergency Protection Orders (EPO), and Protection Orders (PO). However, the Malaysia legal system will only deal with cases of violence for married couples and their core families. Unlike the one accommodated by the Malaysian legal system, OSCC and shelter that handle cases of violence against women are open to anyone and whatever the status of the victim. Parallel with efforts to strengthen the legal basis of domestic violence, women’s organizations along with health activists in Malaysia also sought to begin to build a formal multi-sectoral and multi response protocol service system to deal with victims of violence based on the interviews with some service providers in Malaysia in 2019. This is the forerunner to the founding of One Stop Crisis Center. OSCC is the frontline in handling cases of violence against women in Malaysia. In 1993, a number of women’s institutions made services to victims of violence but in small and simple places and mechanism capacities. Based on the interview above, it seems that it is no different from the statement of the Malaysian Human Rights commissioner when we interviewed. A commissioner said:

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“... One big obstacle, in our opinion, is not the availability of shelter numbers, but the resources of counselors (psychologists) who are still very minimal. They should be permanently placed in the shelter because the recovery of the psychological aspects of the victim is very important ... ” (Interview with one of Commissioner of Human Rights, Malaysia 2018)

The first OSCC was founded in 1994, the same year with the implementation of the Domestic Violence Act. The first OSCC was founded in Kuala Lumpur Hospital as a pilot project to deal with sexual and physical violence. The main concept of OSCC is to integrate health (medical) services, counseling (psychological health), and service by the police (legal issues). All cases of violence must be recorded or reported firstly in the Accident and Emergency Department of the Hospital. This is an important characteristic of the OSCC in the Malaysian context, all of the cases must be properly recorded in the hospital. OSCC integrates three components: medical, counseling, and police services. All cases must be recorded first in the Accident and Emergency Department of the Hospital. Legal assistance and religious counseling will be provided later with a referral system. One crucial thing is the coordination relationship between medical services and NGO institutions. NGOs must be ready to be contacted 24 h by the hospital if there are women victims of violence coming to the A & E Department. The first step taken by NGOs if there are victims who come to the hospital, is to conduct counseling to calm and make victims feel safe. However, Colombini’s writing noted misunderstanding about the problem of medical treatment of victims between medical agents in hospitals and women’s NGOs. This misunderstanding is believed to be the cause of OSCC implementation being ineffective. The medical community has expectations that they have a role to serve the medical and mental health of victims at an early stage, which is then continued by the NGO on an ongoing basis. However, NGOs felt that the medical assistance and counseling they were doing was temporary. “The initial expectation from the medical sector was that they would focus primarily on treatment, while the counselling and long-term support was given by volunteers from women’s NGOs. On the other hand, women’s NGOs thought that they would only cover the counselling temporarily until more social workers would be seconded to the OSCCs” (Colombini et al., 2011: 4)

Regarding the state regulation issue, the one agency we met while in Malaysia was the Human Rights Commission in Malaysia (Suhakam). Suhakam does not have direct authority in drafting state laws and regulations. Suhakam only has limited authority, it only has the functions to give the suggestion to the state and recipients of complaints from the public. Given that in Malaysia there are two legal structures that govern, namely civil law and Islamic law, Suhakam only moves in the context of civil law. Suhakam has a role to deliver international regulations of human rights issues to be followed up or ratified in the state legal system. All the cases that were reported to Suhakam must be recorded by the police. This became reasonable when Suhakam said that the issue of the availability of psychologists was an important problem in the implementation of the OSCC. The mechanism for handling cases of violence against women in Malaysia has unique characteristics because of the influence of religious structures: Islam, in their

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legal system. Religion and culture have always been considerations in the construction process of laws in Malaysia, especially in a constitutional law in Malaysia that mentions Islam as the basis of state law, and the law in Malaysia applies Islamic sharia specifically to regulate Muslim Malays. While for non-Muslims, the legal rule used is civil law. The role of the National Mufti and the State Mufti is very large in the formulation of laws which have to do with Islamic principles. The religious interpretation used refers to the interpretation of the mufti. That is why in the Domestic Violence Act in Malaysia the term marital rape and intimate partner is not known. The influence of the structure of Islam in the state legal system also has an impact on the process of violence itself and how the violence is defined, classified, and handled. For example, when a wife rejects a husband’s request for something, then in the structure of Islamic law, the wife will be subject to the law of disobedience to her husband. This is certainly biased if faced with civil law. According to Suhakam’s records, Malaysian citizens, especially women, actually have understood human rights issues well. However, they tend to be passive when their human rights are violated. A woman, especially a wife, when they are victims of domestic violence, they tend to cover it up because it is considered a disgrace.

4.2 Timor Leste It is interesting if we compare the OSCC in Malaysia with the system of handling cases of gender-based violence in Timor Leste. Although it does not use the same term, the process of handling cases of violence against women in Timor Leste also considers the physical and mental health aspects of the victim as the main thing before the victim is taken to the Safe House. Safe Houses are built and owned by the state through the Ministry of Social Solidarity and Women’s Empowerment but managed by Non-Governmental Organizations. In the context of Timor Leste, Safe Houses are not just a place, but a system, namely a referral system. This referral system is based on the urgent needs of victims. If the victim urgently needs immediate medical treatment, the victim is immediately taken to the hospital. If the victim urgently needs more security from the pursuit of the perpetrators of violence, then the victim will be brought first to the Police unit or safe house. This mutual referral system is coordinated by Safe House as the implementing party of the system that has been built by the state through the Ministry of Social Solidarity. The status of Safe House ownership is by the state, but its management is run by Non-Governmental Organizations (NGOs). looseness-1Unlike Malaysia where the system for handling violence against women prioritizes aspects of medical and mental health of victims in hospitals, the system in Timor Leste also prioritizes the health aspects of victims, but in a special shelter. When we conduct research in Timor Leste, we go to Pradet, an NGO that focuses on the physical and mental health aspects of women victims of violence. At the special shelter there is a clinic with medical facilities and counseling along with medical staff. An examination in the initial stage of the physical condition of

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the victim was also carried out at this clinic. The location of this clinic is inside a large hospital complex but structurally, it is not part of the hospital. If the victim of violence needs medical treatment that is quite serious and cannot be handled at the clinic, then Pradet will take him or her to the hospital. During the medical service, the victim also received assistance from Alfela, the NGO that has a focus on providing legal assistance to victims. From the Pradet shelter, the victim was taken to a safe house. The Fokupers as the largest Women’s NGO in Timor Leste will act as a “coordinator” of the victims of violence during their stay in the hospital. The following outlines the handling of victims of gender-based violence by Safe House in Timor Leste (Table 1). At least there are several districts in Timor Leste that have Safe Houses. In its management, Fokupers cooperates with a number of other NGOs that focus on more detailed aspects, such as in legal matters, strengthening the economy, and so on. Districts that have Safe Houses are Dili, Suai, Licquica and Ermera. In Timor Leste, even though the name is a non-governmental organization, the funding is still from the state. One important characteristic possessed by Timor Leste is the relationship of coordination in various aspects between institutions coordinated by Safe Houses and Fokupers. All parties support each other to recover victims of violence. Meanwhile, on the other hand the state has a role in drafting and strengthening procedural handling corridors through the preparation of SOPs and strengthening legal instruments. If in the Malaysian context there is Islamic legal structure that makes the issue of gender-based violence and its handling process dynamic, then in Timor Leste the thing that causes the dynamics is the customary mechanism. When experiencing cases of gender-based violence, a victim is faced with two choices, they can bring the case to the state justice system. If this is done, women who are victims of such Table 1 Scheme for handling women victims of gender-based violence (read from left to the right) Gender-based violence occurs, women become the victim

Treated by Pradet NGO (if urgent medical treatment is needed)

Alfela will provide legal assistance to victims, including assistance during the trial Taken directly to the nearest Safe Houses coordinated by Fokupers: Safe House provide skills when the live in Safe House, besides opened to children of the victim if they come with the victim The Safe House also helps reintegrate victims, communicate with families, provide economic capital after leaving the Safe House, and carry out monitoring after reintegration to ensure victims do not experience violence again

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violence will be taken to the Safe House. In addition to bringing to the state’s official justice system, a victim can also resolve his case in a family manner. Here is the problem, a woman who is a victim of violence is often persuaded by her extended family not to report cases of violence she experienced to the police or the court. For Timorese people, marriage is not just the union of two men and women, but also the union of two families. A problem that befell someone in the family will be resolved within the family itself. Therefore, involving other people in the country will be considered as something that is not good. The state has made every effort to socialize the legal system and official victim handling procedures, but still the mechanism for resolving family-based violence cases is still strong in the Timor Leste community.

4.3 Indonesia Based on Act on the Elimination of Domestic Violence Number 23 of 2004 of Republic Indonesia, the handling of violence against women is specifically mentioned in Articles 10 and 13. Article 10 specifically regulates the rights of victims that must be fulfilled, for example: a.

b. c. d. e.

to get protection from the family, police, prosecutors, courts, lawyers, social institutions both temporarily and based on the stipulation of court protection orders; to get health services according to medical needs for the recovery; to get handling specifically relating to the confidentiality of victims; to get assistance by social workers and legal assistance at each level of the inspection process in accordance with the provisions of the legislation; to get spiritual guidance service.

Article 13 specifically regulates the obligation of the state: a. b. c.

to provide a special service room at the police station; to provide provision of officials, health personnel, social workers, and spiritual guides; to create and develop the systems and mechanisms for cooperation in service programs that involve parties that are easily accessible to victims; andd. provide protection for escorts, witnesses, families and friends of victims.

In order to fulfill the obligation as told by Article 13, the Government shall cooperate with other communities or social institutions. This cooperation is regulated by Article 14 of this Act. In the Act No 23/2004 and in other regulations in Indonesia in general, it is not specifically regulated about the OSCC. However, in Indonesia there are several mechanisms that are implemented in collaboration in order to deal with violence against women. For example, the Integrated Women’s and Children’s Empowerment Service Center (P2TP2A), some shelters and safe houses which are

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organized by NGOs. Research on safe houses in Indonesia will be carried out this June until July in Yogyakarta (Rifka Annisa) and Jakarta (Akara Perempuan). Based on Nafi et al. (2016), the P2TP2A will receive cases which have been reported by the victim or the family of the victim to the police special unit for women and children case (PPA Unit). The parties managing P2TP2A came from local NGOs at the regional level in collaboration with the social services and local women’s empowerment services. Funds for the management of P2TP2 are obtained from the regional government. However, in its implementation P2TP2A really depends on who the manager is, whether they have a good understanding of the issue of violence against women. It often happens that domestic violence or sexual violence against children and women brought to P2TP2A is mediated rather than accompanied by legal processes and recovery of victims. Some examples of P2TP2A that are good in service are P2TP2A Kupang and Jakarta.

5 The Significant Roles of OSCC, Safe House, and State Regulation: Discussion Both OSCC in Malaysia and the Safe House in Indonesia and Timor Leste actually have characteristics that both comprehensively want to deal with cases of violence against women in aspects of physical-mental health and legal. OSCC and Safe House are not the only agents, but one important agent that becomes the “entry point” (in the Malaysian context) or central (in the context of Timor Leste) from handling cases of violence against women. However, there are still differences in the pattern of OSCC-based treatment or safe houses in dealing with women victims of violence. In the Malaysian context, the handling of victims of violence tends to be carried out separately by various parties. In other words, all aspects of the victim (physical health, mental health, and legal handling) are indeed carried out but are not mutually integrated. In Malaysia, OSCC is only the first step and Safe House is only one of the places where victims can come. Unlike in Malaysia, Safe House in Timor Leste is the central party that coordinates the handling of victims of violence. The victims are fully protected at Safe House, while other aspects, medical and legal, are still handled. The handling of victims in Timor Leste and Indonesia are involving more parties, both government and NGOs than in Malaysia, and Singapore, based on the results of observations and interviews to several parties in both countries from 2018-2020. The next issue that we noticed was the issue of reintegration, which was how a victim after a number of times stayed at Safe House back in his community. This aspect of reintegration is more of a concern for Safe House in Timor Leste. Safe House has a role in connecting or communicating victims with their families and communities where they live. A victim will be returned to his family and community if it feels conducive. Not only returning victims to their families, Safe House also has a role in monitoring to ensure that victims do not return to cases of violence.

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The next note regarding handling cases of gender-based violence from Timor Leste, Malaysia and Indonesia is that the legal system built by the state is not the only one of legal choice for its people. The cases recorded in the statistics of violence in each country do not necessarily reflect the actual number. These statistics contain only reported cases. We never know how many cases happened and were not reported. This is caused by the existence of other legal choices in the community other than within the corridors of law and state standards. Responding to cases of gender-based violence that occur at every level of society, NGOs also have a significant role. NGOs are considered to have more control over the field aspects that really occur at the local community level. These explanations from NGOs are the provision of the state in preparing a legal product or procedure for handling cases of gender-based violence. However, not all NGOs can implement their idealism optimally due to several factors, including funding constraints. NGOs in Malaysia in 1990 recorded a gradual lack of support for the OSCC mechanism and tended to be passive due to funding problems, based on research interviews with some women activist in Malaysia at 2019. Once we know about landscapes and detailed issues regarding the handling of women victims of gender-based violence in the context of OSCC and Safe Houses, we can capture the patterns that describes diversity and complexity of situations, management mechanisms, and legal mechanisms for women victims of genderbased violence. It is important also to understand not only the context of handling cases of the violence, but also how the case was handled at an early stage and the context or background in which the case occurred. All these complexities will greatly affect the handling of cases. For example, in some cases of gender-based violence handled by the authorities of customary law, religious leaders, or the authorities in the extended family, both the perpetrator and the victim are in the same environmental context. Thus the victim - in this case mostly women - again faces a situation of subordination not only because of the perpetrator’s actions but also from other people around her in the community. This context describe in Chapter 7, 9, 10, 11 in this book. Sometimes the community members even put the blame on the victims (and the family). This situation can put the victims - especially women - in a more vulnerable situation and even feel threatened. Vulnerable situations and the possibility of new threats to the victims occur because of the subordinate position of the victims - especially women - in the community. that have a patriarchal culture. As a result, victims, especially women are passive objects and do not have high bargaining power for men and even their families. Thus, we may say this unique context and background also influences the success of handling cases of gender-based violence, especially in cases which are involving women. The importance of understanding the context of community and culture can also occur, for example when observing the handling of cases of gender-based violence that occurs in the scope of institutions with special characteristics such as educational institutions or even military institutions, in Chapter 5, 6 and in this book. A standard and regulation need to be made explicitly and carried out consistently to minimize the occurrence of recurring cases (This Chapter does not talk about the prevention or socialization aspects). By whom do regulations need to be explicitly

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made? We think that the most authority agency in managing these regulations and procedures, which is none other than The State. In its implementation, only then does the State cooperate with other institutions, for example hospitals, NGOs, other health facilities, safe houses or shelters, the expert of trauma management, legal aid service providers (affiliated with NGOs or private pro-bono practice or as well as legal clinics in universities), the community, and so on. In addition to clear and explicit regulations, which need to be strengthened and agreed upon by many parties are procedures for handling victims, especially regarding physical and medical health. In implementing the regulation in the form of implementing the procedure, Safe House is the party that needs to be strengthened by the State. Both the OSCC and the Safe House will not be able to work alone. These parties need other institutions to realize a holistic victim handling mechanism, so that a victim feels protected from all aspects. We can see standards of safe house-based handling in Timor Leste as a holistic standard of handling. Therefore, inter-agency relations that have the same passion to protect women victims of violence also need to be regulated in a regulation of institutional relations. Do not let what happened in Malaysia in the past 1990s repeated, when NGOs had the experience with uncertainty in providing assistance to victims of gender-based violence, especially for psychological and health counseling services, including in the post-traumatic stage. Simply because there are no clear rules about what kind of services that the victims of gender-based violence need at that time. This information was obtained based on the results of an interview with the informants in Kuala Lumpur, Malaysia in 2019. Regulations and standards of handling the cases of violence are the “meeting points” of the complexity among actors, content, and context. The regulations are needed, not only containing who are the actors or agency, but also what are their roles and functions, authority, even obligations of each (in this case the institution). Detailed regulations are needed to avoid overlapping roles and responsibilities. The specific and clear division of roles in the regulation also serves to avoid throwing responsibility. In fact, the interest to protect women from violence, especially when women have been victims of violence, is the interest of all parties as describe in Chapter 4, 8, 9, 10 in this book. Regulations made by the State together with other institutions are also expected to play a role in strengthening Safe Houses. One important thing that must be considered when talking about safe houses, besides the procedure for how they handle victims, is also the sustainability of the Safe House itself. A good safe house is not only when the service program for victims is sustainable, but the Safe House itself must be sustained. In other words, if Safe House is sustainable, the programs will also be sustainable. However, even though top-down seems to be regulated, regulations constructed by the state must still accommodate complexity and voices originating from below, namely from those referred to by Lipsky (1980) as “street bureaucrats”. In other words, the regulation formed is a response from the bottom up, then applied top down. Therefore, it is expected that every regulation that has been formed will no longer experience obstacles in its implementation because it has accommodated complexity in the “streets” or at the community level.

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6 Conclusion The complexity of the regulation and mechanism for handling women victims of gender-based violence is the background of the need for the only one, authoritative, and effective regulation. This is needed to realize the handling of women victims of gender-based violence in a holistic and mutually well-coordinated way. The One Stop Crisis Center and Safe House are the initial institutions or central institutions where cases of violence against women are handled. Handling women victims of violence must also be holistic. The meaning of holistic in this context refers to the involvement of multiple stakeholders and the type of services. Important stakeholders that should be involved in One Stop Crisis Center and Safe House are: state institutions themselves (police, witness and victim protection institution for example in the Indonesian context we call it as LPSK), NGOs, hospitals and other health facilities, safe houses or shelters, the expert of trauma management, legal aid service providers (affiliated with NGOs or private pro-bono practice or as well as legal clinics in universities), and the community. The standards set by the state must also consider the complexity and diversity that exists at the community level. An important note is that if diversity occurs in the community tends to be detrimental to the victim, then the state must be present to deal with it. State regulations and standards are needed to minimize the occurrence of repeated violence in the same victims.

References Books and Articles Colombini, M., Ali, S. H., Watts, C., & Mayhew, S. H. (2011). One stop crisis centres: A policy analysis of the Malaysian response to intimate partner violence. Health Research Policy and Systems, 9(1), 25. Galanter, M. (2013). Justice in many rooms: courts, private ordering, and indigenous law. Journal of Legal Pluralism and Unofficial Law, 01/1981, 13(19), 1–47 Lipsky, M. (1980). Street-level bureaucracy: Dilemmas of the individual in public service. Russell Sage Foundation. Mies, M. (Ed.). (1982). Fighting on two fronts: Women’s struggles and research. Institute of Social Studies. Nafi, T. H., Nurtjahyo, L. I., Parikesit, T. & Kasuma, I. (2016). Peran Hukum Adat dalam Penyelesaian Kasus-Kasus Kekerasan terhadap Perempuan di Kupang, Atambua, dan Waingapu. Jurnal Hukum dan Pembangunan Tahun ke, 46 (2).

Regulation Act on the Elimination of Domestic Violence Number 23 of 2004 of Republic Indonesia.

Theory and Methodology

Research on Gender-Based Violence in Southeast Asia: Some Notes on the Studies Mochammad Arief Wicaksono

This chapter will be talking about the experience, lesson learnt, and some critical notes of studying the case and handling process of gender-based violence, especially violence against women in some Southeast Asian countries: Indonesia, Malaysia, Singapore, and Timor Leste. Each country and each community have its own complexity, dynamics, and value of gender construction and to seeing the violence against women cases and how to solved it. The process of handling mechanism of violence against women needs the good synergy of many institutions, both of state institutions and non-government organization. The supportive epistemic community is very needed to give the protection of any women inside the communities. The main same lesson learnt are: (1) gender-fair perspective and sensitivity is very needed for all actors in the handling mechanism process of violence against women, (2) we need to examine the social and cultural context of communities to understand the background of violence against women cases, (3) the final decision of handling mechanism process is must be decided by the women-victim herself, not others, and (4) this research is not only examining the policy of each state in how to handling mechanism of violence against women, but we also studied how the policy itself was practiced. The practice was very important to understand how far the effectiveness of policy itself can protect the women from violence case.

1 Introduction Started from 2018, the research team was studied the state regulation on handling mechanism process of gender-based violence, especially the violence against women M. A. Wicaksono (B) Department of Anthropology, Faculty of Politics and Social Sciences, Universitas Indonesia, Depok, Indonesia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 L. I. Nurtjahyo and M. A. Wicaksono (eds.), Gender-based Violence in South-East Asia, https://doi.org/10.1007/978-981-19-2492-7_2

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case, and how that regulation was practiced. This study was held in some Southeast Asian countries: Indonesia, Malaysia, Singapore, Thailand, and Timor Leste. The interview was held to many actors from any institution, both governmental organization and non-governmental organization. The governmental organization was the relevant ministry, such as the ministry of women empowerment, ministry of social affairs, ministry of law and human rights, the police, the commission of human rights, etc. Besides that, the perspective of non-state organization was also needed, such as from non-governmental organizations (NGO) and Safe house, the religious organization, civil legal aid, etc. The fair perspective of both is needed to assess the complexity about law and standard operational procedure formulation, policy in practice, budgeting issue, and how the society awareness and knowledge about violence against women cases. Each country has its own community characteristic and state-law structure. Each country also has its own way to make sure that their regulation was worked. The aim of this research rather than to find out of the best regulation on how to handling case of violence against women, is to studies how the regulation or policy was practiced effectively and what the lesson learnt while the regulation was not worked properly in communities. This research was run with a multidisciplinary perspective, namely law perspective, gender studies perspective, political studies perspective, and social anthropology perspective. This collaborative experience pointed to how interdisciplinary projects that include academics, undergraduate, graduate, and law student researchers can help to facilitate partnerships with existing institutions, such as schools, social service, public health facilities, criminal justice facilities as well as with the media (Powell & Liston, 2020). Law perspective was needed to examine the structure of state regulation on handling process of violence against women. Gender studies perspective was needed to make sure that in this research there are gender-awareness, gender-fair perspective, and gender-sensitivity to studies every single detail data and interviews with many actors. The political studies perspective is needed to examine the complexity of regulation formulation and national budgeting issues at the level of government, usually in legislative and executive actors. And the last, the anthropological perspective is needed to consider the cultural background and social context to understand why and how the violence against women can be happened in a community.

2 Some Issue on Violence Against Women Research We are not only focused on quantitative data (the amount of violence against women cases), but also the explanation on how the case can be happened and how the handling mechanism process should be worked. However, the number of cases was the first entry point to grasp the general condition of a community, it can be district, provinces, or states. But, the number of reported cases actually was not giving us the real condition. The common trust on this issue was the reported cases number was the tip of the iceberg. The reported cases were the small representative of unreported

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cases. The first issue of studying violence against women, especially when it related to state regulation, was the number of cases reported to law or police officer. We need to cross check to another institution that also provides the reporting service, for example the safe house or non-governmental organization in this issue. Not all violence against women happened cases, reported properly to police officer. Next issue regarding this matter is report withdrawal by the women-victim that usually because of (extended) family intervention. Accurate information on the extent and nature of violence against women is needed in order to develop explanations and to evaluate policy innovations (Krug, etc., 2002). Walby (2005) was mentioned the causes of why the reporting amount of violence against women was not proper yet. According to her, it is because of first, dilemmas in developing indicators based on consistent definitions; second, developments and remaining challenges in survey methodology; third, developments and gaps in collecting data from routine administrative sources. In Indonesia for example, there is 15 categories in sexual violence, that are: rape, sexual intimidation and threats of rape, sexual harassment, sexual exploitation, women trafficking for sexual purpose, forced prostitution, sexual slavery, forced marriage, forced pregnancy, forced abortion, forced contraception, sexual torture, inhuman sexual punishment, sexuallyharm tradition of women, and sexual control that discriminate the women with religion or morality reason (Indonesia National Commission for Anti-violence Against Women/KOMNAS Perempuan, 2013). The main case reporting problem was related to case term and identification matters. Gender-based violence, especially violence against women, is much more than several terms written in the law regulation. Therefore, states through their law officers must always renew the terms of gender-based violence in their regulation. One form of case that is not regulated properly yet is online gender-based violence. Indonesia National Commission for Anti-violence against Women found a significant increase in cases of online gender-based violence, especially cases of revenge porn or revenge pornography, which often afflicts teenagers. These include approaches to tricking, cyber harassment, hacking, illegal content, infringement of privacy, threats to distribute personal photos or videos (malicious distribution), online defamation, and online recruitment. In the 2019 Annual Note released by Indonesia National Commission for Anti-violence against Women, the types of cases of violence against women in cyberspace have increased. Throughout 2018, there were 97 complaints of cases of violence against women in the cyber world with 125 types of cyber violence. The previous year, there were 65 cases of cyber violence against 95 cases. The other issue related to the small number of reporting cases was the law literacy level in the community is still low. The government and civil or non-governmental organization must be aggressively and proactively giving the campaign to the community about violence against women issue to increase their awareness of the case, and socialize the mechanism of reporting the case in the nearest relevant officers, such as police, hospital, and safe house. Safe house was the most important organization, both managed by government or not, to handling the mechanism of violence against women. Community awareness on violence against women cases is needed to protect

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any women from violence in their surroundings, and also to give the fast-handling process, such as make a report for their neighbor suspected experiencing violence. In the level of institutional matter, the issue was inter-institutional coordination and to what extent it can be effectively runned. We need to examine the detail of position, role, and responsibility of every single institution. Budgeting issues and conflict of interest between the institution, especially between government and nongovernmental organizations are also the matters that we need to consider. In this context, studying the written law regulation and the dynamic process of law and regulation formulation is useful to understand the context at an organizational level.

3 Perspective and Gender Sensitivity The most important note in doing research on gender-based violence is that all researchers must have a strong gender-fair sensitivity. The gender-fair sensitivity was also needed to understand the position of women in the context of violence case. This gender sensitivity is also needed for all actors that involved in gender-based violence, especially violence against women handling mechanism process. All the police officers, prosecutors, and all other law enforcers must be understanding the context of case complexity while they handle it. The case of violence against women can be happened usually because there is no gender fairness, for example, there is patriarchy value dominant so the women was positioned in subordination level. Several case of violence against women precisely put the women-victims as suspects and perpetrator of the violence, for example was the case found by research team while in Timor Leste: We have handled cases where a man often had sex with a commercial sex worker then after doing that, he goes back home and force his wife to have sex with the same style as he did with the sex worker. This habit made the husband’s sexual fantasies go wild. So, every night when returning home, he would often force and torture his wife when having sexual relations to fulfil his desire. One night, when the husband was coming home after having sex with sex worker, the wife prepared a knife that she put under a pillow. When the husband entered the room and wanted to have sexual intercourse, the wife used the knife she had prepared to cut off her husband’s genitals. The wife was finally arrested and accused of being a perpetrator of violence while the husband was treated abroad and now his genitals can recover, while his wife is still in prison (Interview with Safe house officer in Timor Leste, 2018 in Wicaksono & Nurtjahyo, 2019).

In the beginning, there is less gender-fair sensitivity among the law enforcement officers. Besides that, there is less of an effort to study the context of the case: why the women do that (violence) to her husband. To grasp the context and to get the truth, state law enforcement officers need other parties to explore the case, such as the forensic department, psychologist professional, and any other relevant non-governmental organization. For some women-victims from middle to lower economic class, probono (voluntary) lawyer usually is very helpful. One other case from Indonesia that represents this context was the Baiq Nuril case. From November 2018 to August 2019, Indonesian mass media reported on

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the case of Baiq Nuril, a woman who was a victim of sexual harassment yet was prosecuted for defamation. Her deliberate portrayal as a victim in the media gave rise to movements for women’s rights and led to the questioning of certain laws. Most importantly, it provoked a major discussion among feminist media researchers about female representation (Gunawan, 2020). The Baiq Nuril case is a useful opportunity for scrutinizing how Indonesian media, notably newspapers, function to position women as subjects in criminal cases, and how this influences public perception (Gunawan, 2020). It proved that gender sensitivity was also needed by the journalist and media industry. How the media industry and journalist framing the case of violence against women has the effect on how the society build their perspective on it. The good or fair-gender perspective on the media will increase the gender-fair and gender sensitivity perspective on the communities. Violence against women case must always be investigated from a variety of perspective, women as gender identity is the product of many overlapping elements in society, such as cultural and religious value. The combination of the aforementioned of conflict of interests and hegemonic patriarchal values of the country still pushes the application of classic women objectification in issues of sexual violence and gender-based violence. Fostering gender sensitivity that is equitable can be pursued in several ways, for example through outreach to educational institutions, integrating gender sensitivity material in primary, secondary and tertiary education curricula, providing training and capacity building for law enforcement officials so that they are not dominant masculine, so often communicates and coordinates with non-governmental organizations that are concerned with handling cases of violence against women.

4 Social-Cultural Matters and Epistemic Community Butler (1990) said Gender intersects with racial, class, ethnic, sexual, and regional modalities of discursively constituted identities. As a result, it becomes impossible to separate out “gender” from the political and cultural intersections in which it is invariably produced and maintained. Frug (1992) asserts that differences between women and men are socially constructed and not biologically determined. Although this chapter situates all violence against women as a human rights issue, it emphasizes “culturalized” forms of this violence, such as honor-based violence/abuse, forced marriage and female genital mutilation (Gill & Walker, 2020). Cultural and religious value must be also considered while we study gender-based violence. The structure of law in the community itself is influenced by cultural and religious values. These values can be constructively used to protect women from violence. In rural communities for example, the informal leaders were needed to resolve the case of violence. Based on our interview in one small community, in Yogyakarta, Indonesia, the role of Catholic religious leader was needed to advise his people while their peoples were experiencing the domestic problem. In Eastern Indonesia, traditional elders have the significant role to resolved the case of violence

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against women. This fact shows us that there is alternative way to respond the case of violence against women, beside the state law structure. On one hand, the cultural and religious value was constructive to support the protecting system for women from the violence case. All the cultural and religious values are supporting the gender-fairness perspective, but in the implementation by humans, it can be changed. On the other hand, while the cultural and religious value is transformed to a law or regulation instrument, usually it will be problematic. Our finding in Malaysia was an interesting case regarding this matter. Based on our interview with National Human Rights in Malaysia (Suruhan Jaya Hak Asasi Manusia/Suhakam), there is two structures of law in Malaysia, especially regarding to violence against women case: national law and Islamic law. Malaysia National Commission of Human Rights just have the responsibility in the domain of national law. There is a case in Malaysia that put the womenvictims of unmarried sexual violence in dilemma condition. In one side, that women victims of unmarried sexual violence must be reported her case to the law officer or human right commission, but in another side, when she reports her case, she will be punished by Islamic Law because her status with perpetrator is unmarried couple. So, we need to consider the contestation between the structure of law in the country. Contextualization is very needed by the law enforcement officer to decide the legal provision. To consider the role of women in handling mechanism of violence against women, Nurtjahyo (2020) has the good example. Based on her research on Eastern Indonesia, the recruitment process for customary council members or perhaps customary court judges at the community level in the village, apart from taking into account women’s representation, also has other things to consider. The sensitivity of customary council members or customary court judges also needs to be continuously honed, especially in relation to the understanding of power relations that are often faced by women, especially as victims in cases of violence. The variation of cultural value in Indonesia about gender construction was because of the various structures of Indonesia society that consist of so many ethnic groups, so it’s difficult to build up the single ideology of gender and spirit against gender-based violence. Blackburn (2004) believes that the incoherency and inconsistencies of gender ideology in Indonesia are a result of the different gender traditions of various ethnic groups. Whatever the cultural and social background among the society, the supportive community, then called an epistemic community, is very needed. One good example was founded by a research team in Kuala Lumpur, Malaysia. There is one shelter for women-victims contemporary place during they undergo a judicial process or legal process to handle cases of violence against women that befall them. The safe house is located together with a residential complex. Therefore, the people living around the Safe house will help provide protection if there is a threat to the safe house. This also means that because the Safe house is in the middle of a residential area, parties with bad intentions will be reluctant to carry out their actions. The next issue is the matter of reintegration of women-victims into their families and communities. This is the one of not easy part of the violence against women handling process, that is to ensuring that women who have been victims are not

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victimized again in the future. This is difficult because the Safe house cannot provide 24-h monitoring and protection for women once they have left the Safe house. Therefore, the Safe house also engages in monitoring and evaluation through home or family visits with former victims after a certain period of time to ensure that the woman has not become a victim again or is not threatened. Not infrequently, a woman-victims of domestic violence does not want to return to her family or community because of severe trauma. If this happens, the Safe house cannot force the woman to leave the Safe house, but can instead move her to another Safe house or equip her with the skills to earn a living to be able to pay for her own life. When the woman victim is disposed to return to her home and family, which means she has mental stability, monitoring and evaluation and periodic communication by Safe house must be carried out to ensure that the woman does not experience violence or threats of violence anymore.

5 Subjectification on Women Victims The main principal in accompaniment the women-victim of sexual or domestic violence is not to intervening the final decision of women-victims herself. All the actors that helped the women-victims just have the role to give her any choices and its consequences. Processing the case legally in court or get a divorce were not the only one final decision of women-victims of sexual or domestic violence. The example of women-victims capacity strengthening in Timor Leste was a good example. The Safe house as one of important part in handling mechanism of violence against women in Timor Leste provides more security guarantees for women-victims of genderbased violence, and not only physical security, but also mental and legal security. With this security guarantee, coupled with access to psychologists who can help women victims tell their stories of violence more calmly and openly, women who are victims can be seen as subjects during the trial process. Limiting communication with a victim’s family is one way to ensure that the victim does not experience intervention from another party (Wicaksono & Nurtjahyo, 2019). My interview with a Safe house officer in Yogyakarta, Indonesia more or less tells the same thing about the principle of women-victims as a subject. The wife that becomes the victim of domestic violence does not always want the divorcement with her husband. Divorcement will bring up a new problem for the woman herself, especially when she must be separated from her children. One thing that women domestic violence victims do is not experiencing violence again. Of course, to achieve the final decision for processing her domestic violence case, it needs several times for the women-victims to “pause-think-do”. The conducive situation without any intervention and a safe place, oftentimes needed by women-victims to decide the steps that she need to take. The exclusion of women’s experiences in law has been discussed by Sandiata (2018) in her study of Indonesia’s judiciary system. By assessing the national legal elements (articles, structure, and culture), Sandiata suggests that the legal system does

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not fully recognize women as a result of the deep-rooted patriarchy within society. When charged with a crime, women are regarded as meek, yet are responsible for things that they do not wish to befall upon them. This tends to come into practice in rape cases in which the female victims share partial blame for not being strong enough or subconsciously incite the perpetrators. Tuchman (2000) refers to this phenomenon as “symbolic annihilation,” claiming that it functions to maintain women’s subordinate position in society and shapes young girls’ needs, wants, and expectations. Media representations of women exploit taken for granted binaries, such as mind/body, subject/object, and reason/ emotion, in order to justify portrayals of women as inferior to men. In professional newsrooms, the objectification of women has been conceived as a strategic ritual or routine procedure, as a protection for the organization to deflect any potential criticism (Tuchman, 1972). The subjectification of women is supported by Safe House which guarantees the safety and legal measures of women victims of violence, which will slowly shift a woman victim of violence from a passive, weak, and subordinated object to an active subject who can consciously understand her position. in their socio-cultural life. In this case the Safe House has the following roles: First, Safe House has the function of ensuring the safety and physical and mental health of women victims of violence. One important aspect to be able to say that a woman is an active subject and can be responsible for understanding herself and what she does is aspects of physical and mental health. Physical and mental health are the first and foremost vulnerabilities that occur in women victims of violence. This is because almost all the violence that occurs is physical violence that causes injuries, injuries to the body and trauma to the victim’s psychological condition. Therefore, the mechanism for handling physical health aspects by doctors in hospitals as well as mental health aspects by psychologists is very important to create a stable female victim. The stability of the physical and mental condition of the victim is an important factor so that the woman victim can think clearly. Second, Safe House has a role and function in providing legal assistance. Almost all women victims of violence do not have adequate legal knowledge so that many of them feel afraid and worried when faced with legal proceedings, even though they are victims, not perpetrators. The victim’s ignorance of the mechanisms and details of regulations in violence against women can become a reproach or an opportunity for the perpetrator to evade the legal process. It is not uncommon for a perpetrator of violence to pay a number of lawyers to defend himself from prosecution due to the violence he has committed. From this, we can see that attempts to objectify women victims are still taking place in the courtroom. Therefore, Safe House has the responsibility to provide legal education and literacy, provide lawyer services, legal consultation, and trial simulations. These things help foster self-confidence in women victims so that the “whole human” side or subjectivity of women victims can emerge and strengthen. Talking about the court, one obstacle that is often experienced by Safe House, lawyers, and women victims of violence is that it is not accommodated in certain contexts that can actually help women victims to achieve justice. In the example of

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the case in Timor Leste, a woman must be detained and tried by law enforcement officials because she cut off her husband’s genitals. In the viewpoint of positive law, what these women do is completely unjustified. However, contextually, what this woman did was the cumulative impact of the violence she had experienced for years, which resulted in the woman being unable to take it anymore. In cases like this, Safe House seeks to help women victims of violence to explore and fight for certain contexts in facing trials. Another obstacle is that judges and court structures tend to be patriarchal so that women victims of violence sometimes feel afraid of being in the courtroom.

6 From Physical to Online Violence One new form of gender-based violence in the last ten years is online gender-based violence. Online gender-based violence cases also have their own complexities. At least there are several issues if we discuss online gender-based violence, namely: (1) the definition of online gender-based violence itself; how is the novelty of Online gender-based violence discussions in academic circles, (2) identification of cases, (3) policies and dynamics so far, and (4) dynamics of regulation implementation and constraints. Apart from that, it also pays attention to the subjectivity of victims of violence in dealing with cases that happened to them. Many women victims of violence often experience pressure and fear when they want to handle their cases. If summarized, the research issue is trying to be answered is how the effectiveness of policy implementation in handling cases of gender-based violence online. Beside that is to find out how far the issue of online gender-based violence is understood by the public, what is its position in academia and policy, and what problems are encountered in the corridors of handling it. Currently, the issue of online gender-based violence is a relatively new issue. In Indonesia, this issue arose due to an increase in the reporting of cases related to Indonesia National Commission for Anti-violence Against Women. Whereas in fact, from the past, there have been many cases related to online gender-based violence. This indirectly also creates a perception that this is a natural thing so that not many people understand that cases like this are serious cases and require appropriate action. This right action is a precautionary measure and a solution for the victims who have experienced it. Because cases related to online-based violence have occurred around us. This has led many victims to think that they should keep the harassment to themselves, because they feel that if they are told, they will be afraid of being blamed and will make their names even more tarnished because they are known to the wider community (Illene, et al., 2019). The victims of online gender-based violence can be women or men. Online genderbased violence, which specifically takes the form of online sexual violence, has the same elements as Gender-based Violence in the real world (physical) where acts are committed on the basis of unequal gender relations, with the aim of making the perpetrator or third-party gain both sexual and financial benefits or both. causing feelings

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of discomfort and harm to the victim. The distinctive characteristic of Online genderbased violence is that in addition to being carried out by using internet technology, some actors can also be anonymous actors (SAFEnet and Never Okay Project, 2020). Another characteristic of Online gender-based violence is that it attacks someone’s personal self, it is not always related to physical attacks, but the impact is as severe on the victim as physical violence. Starting from loss of self-confidence, trauma, and even depression which can lead to suicidal thoughts.

7 From Policy to Practice This research not only focuses on the regulation, but also how these regulations were implemented. We must pay attention also to what extent the policy was implemented effectively. Some indicators to shows that the policy on handling mechanism of violence against women have effectively implemented are: (1) The process of the mechanism, especially in court, does not take long to complete or the case is closed (in the sense that the case can be resolved properly). (2). There were no repeated cases of violence against women so that no female victims returned to the safe house or reported similar cases again. (3) Women victims of violence receive proper treatment in terms of physical and mental health, as well as guarantees of personal safety and temporary economic empowerment assistance. Fulfillment of all these points indicates good cooperation or coordination between institutions. (4) The level of legal literacy of the community is high so that they are aware of the issue of violence against women in particular and cases of gender-based violence in general. Violence against women had been one important issue addressed in national policy and legislation. Responses by most societal institutions to women assaulted by male partners are still based primarily on a lack of knowledge about the prevalence, severity, and outcomes of violence perpetrated by men against female intimates. Although well suited to make a vital contribution, psychologists still rarely involve themselves in proactive interventions with women victims (Browne, 1993). Based on the opinion from Browne, the role of psychologist was very needed to strengthen the capacity of regulation implementation. The process of drafting regulations that is “bottom-up” requires institutions that are in direct contact and participation with and are directly connected to the mechanisms for cases of violence against women in communities in local level. Therefore, empirical studies and cases from non-governmental organizations will be useful to formulate state law regulations that are holistic and accommodative of the dynamics that occur in communities. The dynamics that occur in the structure are usually obtained from institutions that are directly in contact with women victims of violence, for example safe houses, one stop crisis centers, courts, hospitals, and non-governmental organizations themselves. Institutions in the Safe house system and structure refer to and coordinate with each other according to the needs of women victims of violence.

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Policy responses to domestic violence are must be examined by first reviewing what provisions exist in the country’s constitution to address the problem and then the specific steps the government itself has taken. Civil society’s response in the form of activities by non-governmental organizations is also reviewed. Finally, the effects of domestic violence on women’s health and well-being are examined and suggestions for addressing the problem are made (Amoakohene, 2004).

8 Conclusion Although each country has its own way to handling the violence against women, but they have the same spirit to make sure that all women in this world are free from the gender-based violence cases. Through this research, we learn so many things, the differences and the same thing. From comparative studies, we can learn from some state and government’s experience and dynamic on implemented the regulation on women protecting from gender-based violence and handling process of violence against women itself. The process of handling mechanism of violence against women needs the good synergy of many institutions, both of state institutions and non-government organization. The supportive epistemic community, such as through Safe house institution, is very needed to give the protection of any women inside the communities. The main same lesson learnt are, first, gender-fair perspective and sensitivity is very needed for all actors in the handling mechanism process of violence against women. This genderfair sensitivity is needed to understand the context of every single case that must be resolved. Law enforcers cannot impose legal sentences rashly on women perpetrators of violence who in some cases are actually victims of violence themselves. Second, we need to examine the social and cultural context of communities to understand the background of violence against women cases. Social and cultural value construction influenced how the community itself understood the issue of gender-based violence and its handling mechanism process. Third, the final decision of the handling mechanism process must be decided by the women-victim herself, not others (subjectification of women-victims). Fourth, law-regulation formulation in the issue of violence against women must be done with “bottom-up” approach. It is very important to understand how far the effectiveness of policy itself can protect women from violence case. This effectiveness is related to coordination between the institutions, both governmental and non-governmental organizations.

References Amoakohene, M. I. (2004). Violence against women in Ghana: A look at women’s perceptions and review of policy and social responses. Social Science & Medicine, 59(11), 2373–2385. Blackburn, S. (2004). Women and the State in Modern Indonesia. Cambridge University Press.

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Butler, J. (1990). Gender Trouble. Routledge. Browne, A. (1993). Violence against women by male partners: Prevalence, outcomes, and policy implications. American Psychologist, 48(10), 1077–1087. Frug, M. J. (1992). A postmodern feminist legal manifesto (an unfinished draft). Harvard Law Review, 1045–1075. Gill, A. K., & Walker, S. (2020). On honour, culture and violence against women in black and minority ethnic communities. Emerald Publishing Limited. Gunawan, A. (2020). The Case of Criminalized Victim Baiq Nuril: A Narrative Case Study of Female Representation in Indonesian Media. Illene, A., Damajanti, M. N., & Muljosumarto, C. (2019). Perancangan Kampanye Sosial Mengenai Kekerasan Berbasis gender online. Jurnal DKV Adiwarna, 1(14), 10. Krug, E. G., Mercy, J. A., Dahlberg, L. L., & Zwi, A. B. (2002). The world report on violence and health. The Lancet, 360(9339), 1083–1088. Nurtjahyo, L. I. (2020). Partisipasi Perempuan Dalam Proses Pengambilan Keputusan di Dewan Adat Terkait Dengan Penyelesaian Kasus-Kasus Kekerasan Terhadap Perempuan: Kisah Dari Atambua, Sumba Timur, Rote dan Labuan Bajo. Jurnal Hukum & Pembangunan, 50(1), 106–123. Perempuan, K. (2019). Siaran Pers Catatan Tahunan (CATAHU) Komnas Perempuan 2019. Diambil dari https://komnasperempuan.go.id/read-newssiaran-pers-catatan-tahunan-catahu-komnas-per empuan-2019. Powell, A., & Liston, R. (2020). Reflections on the Activist-Scholar in Violence against Women Policy. Routledge Handbook of Public Criminologies. Press Release from SAFENET. (2020). Retrieved 27 Oktober, 2020 at 4 PM Jakarta, from https://id.safenet.or.id/2019/01/kekerasan-berbasis-gender-online-kbgo-marak-ruu-pks-jan gan-sampai-mangkrak/. SAFEnet dan Never Okay Project. (2020). New Abnormal Situasi Pelecehan Seksual di Dunia Kerja Selama WFH (2020). Retrieved 28 Oktober, 2020 at 8 PM Jakarta, from https://neverokaypro ject.org/wp-content/uploads/2020/06/NewAbnormal_NOP-x-SAFEnet_compressed.pdf. Sandiata, B. (2018). Women facing legal cases: Reflection on the use of articles 284 and 285 of the Indonesian criminal code from the experiences their legal counselor. Jurnal Perempuan, 23(2), 117–127. Tuchman, G. (1972). Objectivity as strategic ritual: An examination of newsmen’s notions of objectivity. American Journal of Sociology, 77(4), 660–679. Tuchman, Gaye. (2000). The symbolic annihilation of women by mass media. In Lane Crothers & Charles Lockhart (Eds.), Culture and Politics. New York: St. Martin’s Press, pp. 150–174. Wicaksono, M. A., & Nurtjahyo, L. I. (2019, November). Women in Betwixt: Safe house, State, and community in the gender-based violence judicial process in East Timor. In 2nd International Conference on Strategic and Global Studies (ICSGS 2018). Atlantis Press. Women National Commission of Indonesia. (2013). 15 Bentuk Kekerasan Seksual: Sebuah Pengenalan. Walby, S. (2005). Improving the statistics on violence against women. Statistical Journal of the United Nations Economic Commission for Europe, 22(3, 4), 193–216.

Feminist Legal Analysis on the Rules of Handling Cases of Violence Against Women: Comparative Study on Timor Leste, Malaysia, Thailand, Singapore, and Indonesia Lidwina Inge Nurtjahyo

CEDAW Convention in Articles 2 and 3 requires that the countries that have ratified this international Convention are obliged to perform certain measures. Among them is the state must enforce legislation that prohibits or eliminates discrimination, provide legal protections—through competent national judiciary—and government agencies. The government should provide effective protection for women from any rules that tend to discrimination, revoke all the rules and policies or discriminatory habits and practices against women. The mandate of Article 2 and 3 of CEDAW will greatly feel its impact especially on the efforts of case management of violence against women. Although a country does not or has not ratified CEDAW, it is important that the State also conducts protection against the victims’ rights of gender-based violence. In the study of the mechanisms for case management of violence against women in four countries in the ASEAN region (Malaysia, Thailand, Indonesia, Singapore) and Timor Leste, it’s found that in the case of gender-based violence—particularly those happen to women, some countries have seriously arranged them within their legal products. Although these rules are not specifically in one specific act but are scattered in various regulations or become part of a special chapter of national criminal law, or in local legal products at the provincial level. However, from these legal products it is found that it is not entirely the rule to accommodate women’s experiences as victims. The procedure of proving, the language of the law in the position of the victim, or the perspective on the crime that occurs often is still a very strong perception of positivity and its masculinity. In this case the lens of feminist legal analysis is used to examine several products of legislation relating to the protection of victims rights of violence used by the research team to analyze. The research itself was carried out between 2018 and 2020.

L. I. Nurtjahyo (B) Faculty of Law, University of Indonesia, Depok, Indonesia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 L. I. Nurtjahyo and M. A. Wicaksono (eds.), Gender-based Violence in South-East Asia, https://doi.org/10.1007/978-981-19-2492-7_3

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1 Background The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) as an international treaty, is adopted in 1979 by the United Nations General Assembly. Then it was instituted on September 3, 1981. This Convention, then referred to as the Women’s Convention, ratified by 189 states. Indonesia ratified this Convention on 13 September 1984 in Act No 7/1984. Thailand, almost a year later, hosted the Women’s Convention on 9 August 1985. Other ASEAN countries, Malaysia and Singapore also accessed this Convention. Malaysia accessed it on 5 July 1995, then Singapore accessed this Convention on 5 October 1995. Timor Leste then accessed the Women’s Convention on 16 April 2003 (United Nation Treaty Collection). This Convention is essential, especially as the basis for the efforts of states to strengthen the capacity of women in accessing their rights. This Convention also specifically seeks to eliminate gender-based discrimination that often occurs against women and girls. Discrimination in this Convention is defined in Article 1 as: …any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

In order to create a society that is free from gender-based discrimination, States that have accepted or ratified CEDAW have several obligations. Based on the Convention, state obligations are ensuring women’s rights through laws and policies and guaranteeing the results. The states also should ensure the practical exercise of these rights—temporary special rules—creates special conditions—creates women’s access. Some of those obligations are regulated in Article 2. First, the States should transfer the principle of gender equality in their national constitution or legal products. Second, the States should adopt the legislation and other measures including sanction that can prohibit the practice of discrimination against women. Third, the States should provide legal protection of women on an equal basis with men to guarantee the protection of women against discrimination, through national tribunal and other public institutions. Fourth, the States should take preventive measures so that the government does not discriminate against women and ensure that public authorities and institutions will act in accordance with this obligation. Fifth, the States should take all appropriate measures to eliminate discrimination against women by both individuals and institutions and companies. Sixth, the States should do the proper changes in their legal system by replace or remove laws, regulations, customs and practices which constitute discrimination against women. Seven, the States also have the obligation to repeal all national criminal provisions which constitute discrimination against women. In Article 3 of the Convention, it’s regulated that States which have ratified or accessed the Convention must take all appropriate and necessary actions in all fields, in particular in the political, social, economic and cultural fields, including enacting legislation, in order to ensure that women can exercise and enjoy human rights and

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fundamental freedom on the basis of equality with men. In this Article, the Convention obliges States to take proactive measures in all fields and to create an environment and conditions that ensure the development and advancement of women. There is more emphasis on regulating state obligations related to national legal instruments in Article 2, while in Article 3 the State is encouraged to create conducive conditions for women in various fields. The Women Convention has carefully regulated what actions the state must take after signing this agreement. However, the real challenge lies in implementing this principle of state obligation. This paper describes how the States try to fulfill their obligations to provide protection for women, providing the necessary facilities in order to prevent, reduce and eliminate acts of discrimination against women. In particular, this paper focuses on how the state carries out its obligation to protect women who are victims of violence. Gender-based discrimination can take many forms. One of them is gender based violence. In this Chapter, violence that is specifically discussed is violence against women (in all aspects: physical, sexual, economic, psychological neglect—both in the private and public sphere). As mandated in the CEDAW Convention, countries that have ratified or accepted the Convention are obliged to make all efforts to eliminate discrimination. Thus, these countries must take firm action against violence against women. Some of the data from this paper were obtained from the research of handling mechanism of violence against women cases in five countries, with the research team from the University of Indonesia between 2018 and 2020. This research is multidisciplinary research on handling violence against women based on state policies. Some of the countries observed in this study were Timor Leste, Thailand, Malaysia, Singapore and Indonesia. These countries have ratified or accepted the CEDAW Convention. They also have their own policies in handling cases of violence against women. The research team succeeded in finding various matters about policies and the implementations of the policies. But in this paper, the author only focuses on two things. First, how do the states regulate the mechanism of handling violence against women in each country? Have these arrangements accommodated women’s experiences or instead of that, put women victims in complex situations? Second, how is the implementation of the rules on handling cases of violence against women? (Related to the legal institutions, the availability of facilities, and the local legal culture).

2 Methods The team chose Timor Leste, Thailand, Malaysia, Singapore and Indonesia, based on their condition of the legal and cultural pluralities, and some of the best practices. In this research, the team do “virtually there, researching there and living there” (Nelken, 2005). This research carefully studies state regulations, some legal documents and reports from some agencies.

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Later, the team wrote some letters to the NGO’s and some government offices who provide the handling mechanism for women victims, or to academicians who work on the same issues. Some of them agreed to receive the team for the interview. But not all of them. Several NGOs or government agencies objected to being interviewed for various reasons. Some of them had to prepare internal activities or agency reports according to government regulations. Or because they don’t have an English translator to help with the interview process. Or because the distance between the capital city is quite far from the location where the NGO is located and the NGO is not willing to be interviewed by telephone in order to reduce the possibility of misunderstanding during the interview. The research team were also doing some observations in some Safe Houses. Based on the ethics and safety issues, the team are not allowed to take pictures or reveal the exact location of the Safety House. During the observation the team also did some interviews with the Safety House staff (not with the survivor absolutely). All of these activities happened in 2018–2019. Unfortunately, in 2020 we will have Covid19 pandemic situation. The team decided to have the Focus Group Discussion with some experts on August 29th 2020 and September, 10th 2020. Also, the literature research is still being carried out until November 2020. This paper was presented at the 17th ASLI Conference at National Law University New Delhi, India in 2020 as a short paper. After receiving input from the presenters and participants, this paper was revised and published as this book chapter.

3 Feminist Legal Analysis Framework Before we discuss the findings, it is important to first discuss the analytical perspective used in this paper. Why does the author use a feminist legal analysis perspective? In the perspective of the broader legal discipline, law has various characteristics. It can be simplified into five legal facets, namely the values of universal truth and justice, orders from the authorities, steady and particular macro behavior, in-concreto judges’ decisions, and community behavior. Although there is always a danger of simplifying the face of the law (Shidarta, 2009). When we talk about the face of the law as a command authority, or as the judge’s decision, or in the context of people’s behavior, the law in a form that is not separated from the construction of the values that are believed in the community (where the judge, or ruler is located). Thus, it is relevant to use the perspective of critical legal studies which sees that law is the result of community construction. Law is inseparable from the values that are believed, applicable in society. It should be remembered that because it cannot be separated from society, in society decision-making is often carried out by parties with authority where ownership of authority is obtained because they are appointed voluntarily by the community or appointed by themselves. Thus, the law also represents the interests of the authorities or the interests of the elites in society. In the view of critical law, law is also the result of bargaining for political interests (Unger, 2015). Thus, the consequences are:

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• Law is never objective, although positive legal studies consider law to be a positive norm, general in nature and should be objective (Irianto, 2009). • Therefore, the law needs to be viewed critically, especially in examining whether the law has a fair content, accommodating protection for parties that actually need to be protected by the law. • Legal experts who have a critical view, develop an analysis tools which is then called critical legal studies In order to critically examine how the law places women fairly both in the text and in the context of implementation, a critical legal analysis from the Feminist Legal Studies branch is needed. Feminist Legal Studies includes a series of feminist legal theories which are used to analyze law with a feminist perspective (Feminist Legal Analysis). In this critical legal study with a feminist perspective, how women are positioned, how the construction of legal values will impact on women, and how women’s experiences are accommodated in the rule of law, is an important concern (Irianto, 2020; Nurbayanti, 2020). A series of feminist legal theories are built on the basis of critical thinking on several matters. First, about the basic assumptions about the relationship between women and the law. Second, that law in some societal contexts is constructed by men in speech spaces that have zero women and are full of patriarchal arguments. Third, norms, experiences, and men’s power ignore women’s experiences. Thus the law is not neutral (Irianto, 2020; Bartky, 2005). In the Feminist legal analysis (state law), several questions are asked to help read legal texts critically. • • • •

What is the philosophy used when forming a legal product? How does the State position women and men in the legal product? How does the positioning bring advantage or discriminate women and/or men? How do law enforcement officials interpret a rule of law, especially in the relation to gender and gender issues?

4 Findings and Analysis This section consists of two subsections. First, the sub-section discusses the existing regulations in each country related to handling violence against women. These regulations may stand alone or as part of a general rule regarding criminal law and family law. The point is whether the contents of the rules for handling violence against women have accommodated the principle of anti-discrimination mentioned in Article 1 of CEDAW, and in order to promote the achievement of aspects of equality and justice for women (and men) as mentioned in Article 2 and 3 of CEDAW. The second subsection contains the implementation of these rules. Data about this implementation was obtained from data from interviews, observations, and FGDs. The five countries that were the location of the team’s research have been ratified or accessed CEDAW. Those all have regulations for handling violence against women. The following are the explanations for each country regarding their policy and implementation.

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4.1 Regulation 4.1.1

Timor Leste

Timor Leste has accessed the Convention on the Right of Children CRC, and CEDAW. The Constitution of the Republic of Timor Leste Title 1 Article 2 concerning equal position and rights of men and women, also included in the law of inheritance. So, every regulation in Timor Leste must be based on the Constitution, the CRC, and the CEDAW.1 Timor Leste already has The Act of Domestic Violence No 7/2010 for regulating domestic violence cases. Also, Timor Leste has some articles in their Penal Code regulating violence against children and women. In the context of the rule of law in Timor Leste, state regulations deal with religious and customary laws which are still being implemented by the community. In this pluralistic legal system situation, the drafters of legislation are also cautious. Especially when it will include the formulation on violence against women, especially sexual violence. The issue of marital rape is one of the issues that has been the subject of long discussions among the legislators of Timor Leste. This happened because there were concerns that the religious authorities would have the objection to the rule regarding the inclusion of the formula of marital rape in the Timor Leste Criminal Code. Not only the objections of religious leaders. Lawmakers and law enforcers in Timor Leste often encounter statements of objection from local customary leaders. Customary rules often contradict state regulations in handling cases of violence against women because they are considered to be the property of their families. So, handling violence against women is a matter for the woman’s family and society, not a state affair. However, in this situation, both law enforcers and NGO service providers will approach traditional leaders to educate them so that the prevailing state law rules in the event of human rights violations in the form of violence against women.2

4.1.2

Malaysia

Malaysia has Domestic Violence Act 1994 (with the latest amendment in 2012). This Act needs to be used by reference to the Penal Code. Based on those two Acts, women may charge abusive husbands for their actions such as physical violence or threats. But the only criminal offence with a marital exemption is Rape (Art 375). Section 376 of the Malaysia Penal Code states that whoever commits rape shall be punished with imprisonment for a term which may extend to twenty years, and shall be liable to whipping. Actually marital rape is not legally recognized in Malaysia. But the new Sect. 375A states that any husband causing fear of death or hurt to his wife in order to have sex shall be punished. The punishment for that term which may extend to five years. In 1 2

Based on interview with Director of the National Legislation Agency. Based on interview with FOKUPERS and Ombudsman.

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Malaysia, there is also a one stop crisis center under the emergency center unit at the hospital. This certainly makes it easier for victims to report and make visums. Regarding regulations, Malaysia, although it has regulations on handling domestic violence which is a state product, still conditions of legal pluralism exist. Some examples, for example, are Muslim women who experience domestic violence when they leave their house, and must immediately report to OSCC or the police so that this woman does not have any difficulties being accused of being disobedient to her husband. On the one hand, this is something that legally protects women from being accused of insubordination. However, this policy will burden women who are looking for a safe place to hide themselves (and their children) but must immediately go to the police station to report. According to Bartky (2005), this is not possible for all women, especially those who experience illiteracy, including legal illiteracy. After dealing with perpetrators, women still have to deal with police officers who do not necessarily understand how to handle reports of cases of violence against women.

4.1.3

Thailand

In Thailand, women and children are under protection of the state, based on the Amendments to Law No. 44—Royal Declaration on the Protection of Human Rights. This Royal Declaration before 2019 was also accompanied by the Law on Domestic Violence Protection Act. In 2019 there is a major legal change under the Family Institutions Protection Act. This Act was adopted in February 2019 which replaced the 2007 Domestic Violence Protection Act. This Act can help violence survivors navigate the legal system and other services. The new law allows for up to 48 h detention orders for perpetrators of domestic violence without having to wait for court approval. This change is expected to save many lives.

4.1.4

Singapore

In Singapore there are two types of legal systems that regulate domestic and genderbased violence, namely Protection Order and Restraining Order. Laws and regulations included in the Protection Order are a system of regulations that regulate cases of violence against women for those who are married, and therefore the court system is a family court system. On the other hand, the regulatory system included in the Restraining Order regulates violence against women for those who are not married, such as violence in dating, rape, and so on. The Protection Order is a legal system aimed at protecting a woman victim of violence in conditions of threat from recurrence of violence, while the Restraining Order is a regulatory system that prevents someone from taking action against legal norms. Therefore, everything concerning the shelter is included in the Protection Order.

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Singapore also has regulations regarding criminal penalties for perpetrators of violence against women—specifically sexual violence. This rule is part of the Singapore Criminal Code. In the Singapore Penal Code, especially Article 375 concerning rape, it has been stipulated that penetration of the mouth and anus can also be categorized as acts of rape, in addition to vaginal penetration. Such an act can also be categorized as a criminal offense if it is carried out forcibly by a husband against his wife outside of the wife’s consent. But it is not included in the penalties regulated by that Article, the penetration act mentioned above if based on the consensus of the wife. This Article accommodates the facts from real cases that acts of sexual violence in the form of rape do not only involve vaginal penetration. It may happen that the victim has experienced forced penetration of the mouth and anus. Unfortunately, this Article still refers to penetration that is carried out using the genitals. Whereas in cases of sexual violence that have occurred (and even victims have experienced death) penetration is carried out using either the genitals or other objects so that the victim experiences extreme pain. Singapore Penal Code in Article 376 also regulates acts of sexual violence against persons under 18 years of age. In particular, item E relates to sexual grooming through attempts to communicate with sexual content to minors. According to Winters and Jeglic (2017) in their article on predatory behavior in child sexual abuse cases, grooming means that a potential child sexual violence offender is in the preparation stage for his action. The perpetrator uses his manipulation skills on the child and the community where the child of the potential victim lives so that it will be easy for the perpetrator to carry out his plan without being detected. The perpetrator also develops the child’s and the child’s family’s trust in him so that it will make it easier to carry out these acts of sexual violence (Winters & Jeglic, 2017). The inclusion of the sexual grooming aspect, where one of the elements mentioned is communicating with sexual content to victims, approaching underage victims, shows that the legislators understand the context of sexual violence. Acts of sexual violence occur because there is an unequal power relationship between the perpetrator and the victim. In this case, grooming is one of the opening ways in which the perpetrator marks the potential victim as children or adolescent women who place their trust in him thereby putting this victim in a vulnerable position because of his belief. It is very important to include sexual grooming as an act that can be punished as a protection measure for women and children who are in a vulnerable position.

4.1.5

Indonesia

Indonesia has ratified the CEDAW Convention through Act No. 7 of 1984. Then the Act has been translated by the Government through the Instruction of Republic Indonesia President No. 9 of 2000 about Gender Mainstreaming in Indonesia. In Indonesia, there is a special regulation regarding the handling of violence that occurs in the domestic sphere (including protection for female and child victims). This regulation is Act No. 23 of 2004 on the Elimination of Domestic Violence. This

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Act is supported by Violence against children is specifically regulated in the Child Protection Law No. 35 of 2014. The regulations in Indonesia are not specifically regulating Sexual Violence in a particular law. Sexual Violence issues still incorporate in the Criminal Code in a special section on morality. Sexual violence in Indonesia’s criminal law is divided into rape, attempted rape and sexual immorality. The formulation on rape in Article 285 states that the elements of the act of rape are happened when the perpetrator by the physical abuse or threats to do the abuse, force female victim to have sexual relations with the perpetrator, outside of marriage. Based on the feminist legal analysis lens, this formula adheres to a narrow definition regarding rape, that rape only occurs when there is violence (physical) and threats (Estrich, 1996)—even though the victim may follow the wishes of the perpetrator because of an imbalanced power relationship (for example a worker who is afraid of being fired will follow suit. the will of the foreman or employer); then rape only occurs between men and women (heterosexual in nature), and can only occur if the perpetrator and the victim are not married (do not acknowledge the existence of marital rape). The Draft of Proposed Act on the Elimination of Sexual Violence, which has been proposed since 2014 this year, was removed from the list of proposed national legislation products. Instead the parliament included a draft of family resilience law which does not mention any words of protecting women and children from domestic violence in its text.

4.2 Policy in Practice (Implementation) 4.2.1

Timor Leste

In Timor Leste, the handling of cases of violence against women is mostly carried out in a coordinated manner between government agencies and NGO service providers, and safe houses (both managed by NGOs themselves and by the government). There are several temporary houses (temporary shelters), which have been entrusted by MSSI (Ministry of Social Solidarity and Inclusion) to be managed by FOKUPERS. One house is in the city of Dili. The purpose of the temporary house is social protection and psychology assistance. After that it will be referred to a protection service provider. Reporting of cases of violence by whistleblowers (both victims and bystanders) is carried out to the VPU (funeral personal unit) in the police. This special unit is in charge of handling cases of gender-based violence that have occurred in Timor Leste. From these cases, if the reporter is willing to continue the process of the case, the victim reporting will be referred to Pradet. Pradet’s job as an NGO engaged in the health sector is to do physical and mental visums. After obtaining the visum, the victim is directed to live in a safe house, which is managed by FOKUPERS (one of the NGOs in Timor Leste) in collaboration with the Ministry of Social Affairs.

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Apart from safe houses, there are also transit houses, which cannot accommodate more than 15 people. In the mechanism for handling violence in Timor Leste, the confidentiality of the identity of the victim is an important aspect that must be maintained. In order to get all of the service providers to protect their client very carefully. After 14 days, the victim is immediately transferred to the shelter or reintegration to the family. In many cases, unfortunately the police did not immediately arrest the perpetrators, thus hampering work for assistance and recovery for victims.

4.2.2

Malaysia

Malaysia not only has law enforcement agencies. The State also has a commission for human rights protection. The Malaysian Human Rights Commission (SUHAKAM) is a legal entity established by the Malaysian parliament on 1 September 1999 under the Malaysian Human Rights Commission Act 1999. SUHAKAM is committed to its duty to protect and ensure human rights in Malaysia, including the rights of women and children. Apart from SUHAKAM which is tasked with monitoring the implementation of human rights protection in Malaysia, another government institution that is tasked with providing protection to women victims of violence is the Social Welfare Department. The department has the power to issue Emergency Protection Orders (EPOs) during the term of the MCO. Victims after reporting and examining service providers such as WAO, will be entrusted to the shelter. But according to the informants, this service is somewhat difficult to access in rural areas such as Sabah and Sarawak. Online gender-based violence, such as doxing, harassment, stalking and incitement, has also increased recently, especially during the MCO era. These forms of violence are still not accommodated in the legislation. It is important that there is an emergency framework with clear SOPs for dealing with cases of domestic violence. Also, there is necessary to increase the activation and strengthen the capacity of officials at the district and provincial levels in helping to handle cases of domestic violence against women and children, especially in areas that are difficult to reach such as in rural communities (such as in Sabah and Sarawak). The number and capacity of temporary shelters must be increased to meet the needs of victims and survivors, regardless of nationality and legal status. Sufficient resources must be allocated to ensure the operation of the shelter. Information about protection services should be disseminated widely through various media. It’s also necessary to disseminate information about protection service to community leaders in various languages. There are some needs to have an amendment to the Criminal Code (Penal code) regarding the criminalization of gender-based violence online immediately. Especially in anticipating online gender-based violence. It is necessary to provide support services for victims, both adult and child victims of violence, especially during this MCO period.

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The Ministry of Women, Family and Community Development must provide tele-counseling services for victims of domestic violence during the MCO period and must provide a 24-h, free, child-centered national emergency helpline, equipped with child-friendly operators. Adding a helpline that can be accessed easily by women and children victims of violence and service providers are necessary. Promote the channels as child-friendly, and the child can seek help when needed through the channels. It is important to remember that not all women, children, and the elderly have easy access to the internet due to, among other things, the uneven mastery of the ability to use communication equipment and also because of the problem of internet network constraints (because their residence is far from urban areas).

4.2.3

Thailand

In the context of Thailand, domestic reports of women or girls decreased during COVID 19. Women’s organizations and activists have developed innovative ways to raise awareness and support survivors during the COVID-19 outbreak, for example, setting up a network to help survivors; publishing an online manual on how women can protect themselves from domestic violence (based on the interview and public discussion with Associate Professor Punchada Sirivunnabod from Mahidol University, 2020); holding live streaming workshops to tell people what they can do to support DV Survivors; creating posters reminding observers to speak out against domestic violence; raising awareness online using hashtags to voice situations more openly. The increased risk of workplace violence in the health sector due to the serious stress the pandemic is putting on patients, their relatives and other healthcare workers. Increased risk of abuse and exploitation for vulnerable women workers. One way to solve this problem in Thailand is by socializing LIVES: L: listen, service provider/police officer/bystander should listen to the victims; I: investigation, service provider or police officer need to be careful in asking questions to the victim; V: Validation, the victim should validate their views and feelings as well as their situations and conditions; E: increase, the victim may increase the sense of security with NGOs they trust; S: Support, the service provider, the government (include the government officer and police officer) need to improve the safety of the victims. In Thailand, for reporting cases of domestic violence there is a hotline number 1300.This number is used in a pandemic as a hotline for reporting cases of COVID-19. After the pandemic is over, this hotline is again used to report domestic violence.

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Singapore

The issue of violence against women has become a serious issue for attention for 10–15 years ago in Singapore. The criminal law system deals with other aspects, including gender-based violence. Regarding violence against women, anyone who knows if a case has occurred is obliged to report it, especially on cases of violence against children. Regarding cases of violence against children, parents do not have to report, all citizens can report. It is an obligation for every citizen to report. Singapore already has its own legal system apart from ratifying international regulations, including CEDAW. However, Singapore still has problems in terms of regulations governing Marital Rape or violence in marriage. Violence against the wife is also prohibited. Not many people know about the standard operating procedures for handling cases of violence against women established by the government. Cases of violence against women can be reported to a special crime unit or special criminal unit. It would be great if there were female police officers. Another party that can provide first aid apart from the police is the hospital. In terms of handling cases of violence against women, initiative from the hospital is needed. In addition, a hot line is also needed as a means of emergency calls if there are cases of violence against women occurring. This crisis hotline is a tool that allows any citizen of Singapore to report cases of violence that they know, in this case, the victim’s neighbor. However, the difficulty that occurs is a matter of proof. It is possible for a neighbor of the victim to report the case, but in this case the difficulty that occurs is that they cannot prove it. Services provided by NGO service providers apart from hotline services also include: a. Legal advocacy. b. Provide a legal clinic, including an Islamic law clinic. In this case the shelter has voluntary lawyers who can help. c. Provide temporary accommodation, clothing and food for women victims of violence. d. Art therapy, which takes the form of classes in painting and music, and psychological counseling the relationship between non-governmental organizations and the state is in a coordinative relationship. The government has guidelines for handling cases which are then continued, implemented and strengthened by non-governmental organizations. Regarding cases of violence against women, Singapore is still under reporting, in other words, the reporting rate tends to be lower than the actual cases. Thus, according to the informants, public education is needed, in this case in the form of holding workshops and campaigns. This education includes educational programs for doctors who treat women victims of violence. NGOs are also trying to make the family court a court tool that is friendly to women. In addition to providing protection and recovery programs for women victims of violence, shelters also provide financial support and loans for victims who have separated (divorced) from their husbands so that these women can be independent. The loans are usually used for transportation money to find jobs. How to access or how a woman victim can receive shelter services? In Singapore women can do these steps:

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• Make a report (it can also be the victim’s neighbor who makes the report) at the nearest police station, then the police will refer to the shelter. • Make reports of violence to the hospital if there are physical injuries, then the hospital will refer to the shelter. • Visit the nearest Family Service Center to report cases and the Family Service Center will conduct an assessment of the cases before referring to the shelter. 4.2.5

Indonesia

In Indonesia women victims may choose between reporting her case directly to the women’s and children’s service unit at a police officer in the district or city. Then, it’s very common that the victim will be confused regarding reporting procedures and visum et repertum (a written and official document of medical examination results of human body made by a medical doctor based on the official request from the authorized investigation institution e.g. Police) making process. Especially if the woman is having legal illiteracy. Then reporting without legal assistance also can put the victim to the vulnerable position to be intimidated by the perpetrator or his family. Another step that can be taken by the victim. She can report first to a service provider institution such as LBH APIK or Rifka Annisa (the NGO’s which provide advocation and legal aid institutions for women). Then assisted by this institution, the victim reports to the police—makes a visum et repertum and reports documents in the police office—then carries out counseling with psychologists appointed by the service provider institution. Rape cases decreased in April–May based on the interviews with our informants from the service provider institutions. However, online complaints of gender-based violence are increasing; with a chronology of events occurring before the pandemic. But because of the pandemic situation, the service provider should change their Standard Operational Protocols (SOP) in handling reported cases. Most consultations take place online or if the case is severe enough, it is done face to face with due observance of health protocols. Most of the service providers’ clients age during the pandemic are 18–45 years old. Clients in this age range, according to informants from service providers, some are able to access the internet and use the case reporting service facilities provided on the agency’s website. However, the institution also continues to provide reporting mechanisms and friendly services for clients who are outside this age range and do not have access to the internet so that they can still access assistance from the service providers, for example by phone or visit the office directly. This policy (even it quite risky in the pandemic situation in 2020) allows the clients to access to services, especially for victims outside that age range who are not familiar with technology, or who do not have supporting equipment. Some of the cases that have been reported in 2019-2020 were cases of online gender-based violence such as revenge porn, malicious distribution, doxing, cyber

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grooming, online harassment, stalking. Not all of the police are familiar with that kind of online gender-based violence. The police responses to domestic and online sexual violence case reports are not always responsive and precise. In several regions in Indonesia, for example in Yogyakarta, the police response was quite good. However, in some certain areas based on the interviews, our informants said that the reports of domestic violence cases are responded by the police by bringing the perpetrators and victims in the same table to do the mediation process, even though the victim has suffered physical injuries and trauma. In particular during this pandemic, online court services and psychology assistance services are needed for online counseling. Online legal assistance has been carried out by several NGO service providers. Both Rifka Annisa in Yogyakarta and LBH APIK Jakarta provide the online court services and online counseling during the pandemic situation. There are some funding issues for the NGO service providers. Not all regions have the budget for case assistance or legal assistance for women victims of violence. Then also for women victims of violence who take shelter in shelters, they need daily expenses. There is a shortage of pro bono advocates. Especially in this pandemic situation where the number of domestic violence increases significantly. The victims also have problems with access. Some of them have a technological illiteracy problem. Not all victims have smartphones or can access internet easily in order to communicate with their lawyer in service provider institution. There was another problem in 2020, not all law enforcement agencies have an online case processing mechanism. Thus, the process of examination, investigation, trial is still carried out offline. This situation has an impact on the legal process that runs slowly and can cause some loss for the victims in terms of time, cost and energy. There is also a vulnerability in keeping the evidence in online storage. The security of the evidence storage needs special technology knowledge. Thus, the data leaked and service provider institutions cannot get charges for violation of the Information Technology Law in Indonesia. Violence against women in the campus area is still constrained by support from the campus in the form of internal regulations. Not all campuses have SOPs related to handling sexual violence, especially violence against women. At the time this article was published in 2022, a regulation related to the handling of sexual violence had been enacted. First, the Regulation of the Minister of Education and Culture of the Republic of Indonesia No. 30 of 2021 concerning the Prevention and Handling of Sexual Violence on Campuses (has been stipulated on August 2021, a year after this Chapter presented as a draft in 17th ASLI Conference). Second, the Act No 12 of 2022 on Sexual Violence in Indonesia (has been stipulated on April, 2022, two year after this Chapter presented as a draft in 17th ASLI Conference). However, the road to providing justice for the victims is still far away. There are bureaucratic problems and coordination between service providers, especially in safe house services. One of the challenges that is quite complex is how to integrate medical services, psychological counseling services, and police examinations under one roof. Especially when it takes time for immediate handling. One of the forensic doctors who provides visum et

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repertum examination services to victims of domestic violence and victims of sexual violence, in this research also hopes the best for this one stop service. He said that the majority of cases that are submitted to the Hospital’s Forensic Department regarding violence against women are physical violence and sexual violence (sodomy, adultery/fornication and rape). The forensic doctors in the FGD said that most of the perpetrators were family members or someone who was very trusted and close to the victim. These victims often feel burdened emotionally and also financially when they have to go back and forth between the police station and the hospital. So having a one-stop service would be very helpful, according to our informant. From the Indonesian perspective, we have 2 protocols from the Ministry of Health and the Ministry of Women and Children Empowerment regarding the Protocol to Address Sexual Violence. At Cipto Mangunkusumo Hospital, there is an Integrated Crisis Center (ICC). The ICC was created for the examination of medicolegal and other disciplines related to violence against women and children, such as pediatrics, psychiatry, and O&G. The ICC workflow consists of two stages. First, the victim comes to the hospital, can come alone or with parents, police, NG. Second, the victim and his companion registered at the department concerned. The case can be divided into 3 levels: critical, semi-critical and non-critical. If it is considered a critical status, it will be taken to the ICC. Psychic and medicolegal examination, psychosocial, counseling, and specialist consultations can be carried out. Medicolegal steps consist of three stages. First, the victim reports to the police, or in an emergency situation can come directly to the hospital. Second, victims can report to P2TP2A (Integrated Service Center for the Empowerment of Women and Children), which is a government program to provide integrated services for women and children. Third, the police, after obtaining the case, requested a letter to the forensic institution/hospital which was the opinion of the experts. Ideally, the victims are accompanied by the police. However, it’s often happen that the police not accompany the victim because lack of human resources. In that case, request Letter brought by the victim. But when the victims and her/his accompany arrive at the hospital, they will face other problems. First, not all hospitals coordinate with the Ministry of Health Office regarding the examination. Second, some victims and their families don’t know the procedure of reporting the case. For example if there is a wound in victim’s body, whe/he should come to the hospital first. In a number of cases, the victim waited for a while, before went to the hospital or police, because the victim because the victim feels ashamed or afraid. As the consequences, the injuries suffered by the victim have recovered or are gradually recovering, no more wound at the victim’s body. Thus, it is important to educate the public that evidence of physical injury or injury needs to be immediately examined and to get visum et repertum, the process should not take too long. There must be psychological assistance also which is important in some cases. This assistance facility has not been regulated in the Indonesian procedural law, for victims. In Indonesian procedural law, counseling and legal assistance are specifically regulated for perpetrators or defendants in order to guarantee their rights. However, there is no article mention about victim’s right to get conseling and legal assistance in procedural law. Why are these rights specifically regulated for suspects

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and defendants? Because in order to protect their rights related during the process of examination, investigation, trial and conviction. Thus, victims actually need to get access to the same rights, especially in gender based violence that cause physical, psychological, even financial and social suffering for the victims.

5 Conclusion Five countries, namely Timor Leste, Thailand, Malaysia, Singapore and Indonesia have each ratified or accepted the CEDAW Convention. Specifically, these countries have the obligation as stated in Articles 2 and 3 of CEDAW that States that accept or ratify the Convention are obliged to, among other things, formulate laws and regulations that can promote the creation of equality and justice for women and men. Then there is also an obligation for the state to guarantee the implementation of a fair court system so that there is no discrimination for women. These obligations are important to be implemented into a series of regulations at the national level. The five countries already have several regulations related to handling violence against women, although not always specifically in the form of special laws. These five countries have regulations related to handling violence against women that occur in the domestic sector. However, not all of them have rules regarding violence against women that occur in public spaces (for example in cyberspace) or that occur in relationships that are not formalized in marriage. Regulations on handling violence against women in several countries are still gender biased. For example: requires that domestic violence only occurs in a marital relationship. Then sexual violence only occurs between those who are not bound by a legal marriage. Also found a narrow definition related to the definition of rape. At the implementation level, aspects of human resource capacity, then changes that have occurred due to the pandemic, the availability of funds for service programs, and the issue of limited access to technology are strong issues in the implementation of state policies on mechanisms for handling violence against women. The aspect of legal culture also challenges. Several issues arise from the area of legal culture. First, legal officers who do not have a pro victim perspective. Second, the cases of violence against women are not considered as cases that need to be prioritized to process. Third, the court culture has not changed, it is still hard for the court to adapt the online mechanism during the pandemic conditions. Fourth, the issue of legal illiteracy. Fifth, the challenges from the aspects of traditional and religious leaders who have different perspectives from the state on violence experienced by women (and children). Sixth, economic aspects, especially related to funding from the process of handling cases of violence against women, assistance and recovery of victims.

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References Books and Journal Aiyar, S., Plante, N., & Phillips, K. (2002). Single mothers: Survivors of domestic violence. Women”s Aid Organisation: Malaysia Amirthalingam, K. 2003. A feminist critique of domestic violence (Laws in Singapore and Malaysia, Working Paper Series). Asia Research Institute, Faculty of Law National University of Singapore: Singapura. Banakar, R., & dan Max Travers. (2005). Theory and method in socio-legal research. Hart Publishing. Bartky, S. (2005). Battered women, intimidation, and the law. In F. Marilyn (Ed.), Women and citizenship. Oxford Press. Banakar, R., & Travers, M. (Eds.). (2005). Theory and method in socio-legal research. Bloomsbury Publishing. Estrich, S. (1996). Rape. In D. Kelly Weisberg (Ed.), Application of feminist legal theory to women lives: sex, violence, work, and reproduction. Temple University Press. Irianto, S. (2020). Teori Hukum Feminis. In S. Irianto & N. dan Lidwina Inge (Ed.), Perempuan dan Anak dalam Hukum dan Persidangan (pp. 41–64). Yayasan Obor Indonesia. Ministry of Women, Family and Community Development, Malaysia. (2013). Good Practices: Eliminating Violence Against Women And Children (Evawc). Putrajaya: Malaysia. Nurbayanti, Herni Sri. Konsep-konsep Utama Hukum dan Gender. Bab 4 dalam Sulistyowati Irianto dan Lidwina Inge Nurtjahyo, Perempuan dan Anak dalam Hukum dan Persidangan. Jakarta: Yayasan Obor Indonesia, 2020:hlm. 67–98. Nurtjahyo, L. I. (2020). Partisipasi Perempuan Dalam Proses Pengambilan Keputusan di Dewan Adat Terkait Dengan Penyelesaian Kasus-Kasus Kekerasan Terhadap Perempuan: Kisah Dari Atambua, Sumba Timur, Rote Dan Labuan Bajo. Jurnal Hukum & Pembangunan, 50(1), 106–123. http://jhp.ui.ac.id/index.php/home/article/view/2485. Unger, R. M. (2015). The critical legal studies movement another time, a greater task. Harvard University Press. Wicaksono, M. A., & Nurtjahyo, L. I. (2019, November). Women in betwixt: Safe house, state, and community in the gender-based violence judicial process in East Timor. In 2nd International Conference on Strategic and Global Studies (ICSGS 2018). Atlantis Press. https://www.atlantispress.com/proceedings/icsgs-18/125922537. Wulandari, W., & Kekerasan dalam, R. T. (2020). Bab 5 dalam Sulistyowati Irianto dan Lidwina Inge Nurtjahyo, Perempuan dan Anak dalam Hukum dan Persidangan. Jakarta: Yayasan Obor Indonesia, 2020:hlm. 165–210. Winters, G. M., & Jeglic, E. L. (2017). Stages of sexual grooming: recognizing potentially predatory behaviors of child molesters. Journal of Deviant Behavior, 38(6), 724–733. https://doi.org/10. 1080/01639625.2016.11976566.

Regulation Indonesia, Republik. Undang-undang No 7 Tahun 1984 tentang Pengesahan tentang Konvensi Mengenai Penghapusan Segala Bentuk Diskriminasi terhadap Wanita (Convention on the Elimination of All Forms of Discrimination Against Women/CEDAW). Lembaran Negara Republik Indonesia Tahun 1984 Nomor 29. Indonesia, Republik. Undang-undang No 39 Tahun 1999 tentang Hak Asasi Manusia. Lembaran Negara Republik Indonesia Tahun 1999 Nomor 165.

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Indonesia, Republik. Undang-undang No 23 Tahun 2004 tentang Penghapusan Kekerasan dalam Rumah Tangga. Lembaran Negara Republik Indonesia Tahun 2004 Nomor 95. Indonesia, Republik. Instruksi Presiden No 9 Tahun 2000 tentang Pengarusutamaan Gender. Sekretariat Kabinet Presiden Republik Indonesia, 19 Desember 2000. Indonesia, Republik. Undang-undang No. 35 Tahun 2014 tentang Perubahan Atas Undang-undang No 23 Tahun 2002 tentang Perlindungan Anak. Lembaran Negara Republik Indonesia Tahun 2014 No 297. Kitab Undang-undang Hukum Pidana (KUHP). Kitab Undang-undang Hukum Acara Pidana (KUHAP). Malaysia. Laws of Malaysia: Act 521 Domestic Violence Act of 1994. Last addendum March 1, 2012. https://zygentoma.mschosting.com/~wccpenan/01important/laws/Act-521-Domestic-Vio lence-Act-1994.pdf. Singapore Penal Code. https://sso.agc.gov.sg/Act/PC1871?ProvIds=P4XVI-P4_375-. Thailand: Act No. B.E. 2562, on the Family Protection and Development. https://www.refworld. org/docid/4a5460692.html. Timor Leste, Republic of Law of Domestic Violence No 7 of 2010. http://mj.gov.tl/jornal/lawsTL/ RDTL-Law/RDTL-Laws/Law%207-2010.pdf.

Link https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lan g=en.

Violence Against Women in Public Sphere

Defining Rape in Indonesia: A Never-Ending Struggle Patricia Rinwigati

The act of rape has been and is always viewed as a sexual crime. It has been criminalized in most parts of the world, including Indonesia. Nevertheless, its scope and definition have been changing in accordance with social understanding of sexuality and women’s status based on morality, religious and cultural values. In this light, this article will address how Indonesia gives the meaning to rape, and how it is changing. First, the discussion will highlight the development of the concept of rape in international and national laws. It will then discuss various social aspects influencing the criminalization of this act. In the end, it urges Indonesia to take necessary action to efficiently regulate the act of rape.

1 Introduction Legal and social responses to rape in Indonesia have been in upheaval for the four decades. This is due to the amendment of the Indonesian Criminal Law, which started in the 1960s, but its process has not yet been finalized. Defining rape has been gaining momentum and more attention due to the drafting of the Sexual Offence Bill. This process was driven by the intention to fill in gaps brought about by the unfinished amendment process of the Criminal Code. At the same time, the current Criminal Code is unable to address various sexual behaviors involving women and children as victims. The drafting process of the Sexual Offence Bill is quite progressive in the sense that it captures various sexual acts which have not been covered by the current Indonesian legal system. It further provides legal certainty to vulnerable groups, particularly P. Rinwigati (B) Faculty of Law Universitas Indonesia, Director of Djokosoetono Research Center, Lecturer of Criminal Law and Human Rights, Universitas Indonesia, Jakarta, Indonesia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 L. I. Nurtjahyo and M. A. Wicaksono (eds.), Gender-based Violence in South-East Asia, https://doi.org/10.1007/978-981-19-2492-7_4

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women and children who are often subjected to sexual behaviors. Hence, it indeed could guarantee more protection to women and children. Finally, it attempts to place males and females on an equal footing. This is particularly reflected in several ‘new’ offenses, in which either gender could be victim and/or perpetrator. Despite vast changes in the criminal laws and/or other social institutions and a series of scholarly literature, there has been little attention paid to defining the act of rape. This article attempts to fill such gaps by discussing the nature of rape by providing a sound foundation for analysis and reform. The discussion will highlight the development of the concept of rape in international law and national law. It will discuss various social aspects influencing the criminalization of such acts.

2 The Act of Rape in International Law: Regulatory Development of the Act of Rape At the international level, the development of the concept of rape is relatively novel. It does not mean that the act of rape has never previously been prohibited, but rather it had been developed further at the national level. Internationally, there are several instruments that have been regulating rape. However, they lack of the clear feature of such crime. The 1863 Lieber Code was the first framework to prohibit rape during armed conflict punishable by death.1 Later, the 1907 Hague Convention spoke similarly to protect the honor of women. However, the regulation of rape in international law did not emerge until the end of World War II. In 1945 Charter of International Military Tribunal (Nuremberg Charter), the word rape or sexual violence was not mentioned. Article 6 (c) of the Charter only establishes crimes against humanity as murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds for execution. Control Council Law No. 10, on the other hand, makes reference to rape as part of crimes against humanity.2 However, this had not been used as a basis for prosecuting sexual slavery and other forms of sexual violence. Hence, rape or any sexual violence was never prosecuted by the Nuremberg Trial.3 This is different from the Charter of the International Military Tribunal for the Far East. Although the Charter did not explicitly criminalize rape,4 the Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota 1

Article 44 of the 1863 Lieber Code. Article 2 (d) of the Control Council Law on Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated. 3 Clare McGlynn and Vanessa E. Munro (2010). 4 General Matsui was acknowledged to be guilty of participating in the system of sexual slavery, in accordance with § 1 of the same Article 3. See: Christine Levy (2014): 139. 2

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criminally responsible for a series of crimes, including rape, committed by persons under their authority.5 Nevertheless, the Tribunal did not address the enforced prostitution of the so-called ‘comfort women’.6 For this reason, the survivors of comfort women have been trying endlessly to secure recognition of and compensation for the atrocities committed against them through various mechanisms.7 Further information on this issue has been subjected to other discussion. A significant milestone related to an international definition of act of rape was developed in ad-hoc tribunals namely the International Criminal Tribunal for Yugoslavia (ICTY),8 the International Criminal Tribunal for Rwanda (ICTR) as well as International Criminal Court.9 The Statutes of ICTY and the ICTR highlighted important elements. The act of rape has been perceived as one of elements of crime against humanity, a war crime, genocide and in certain extend torture. At this point, these ad-hoc tribunals created a foundation for a statute of The International Criminal Court. Echoing the ICTY and ICTR, the ICC prohibits rape in the context of crimes against humanity, genocide, and war crime.

2.1 The Elements of Crimes The act of rape has historically been defined at the national level as ‘non-consensual sexual intercourse’. Nevertheless, the ad-hoc Tribunals and Court through their cases have been expanding the interpretation of rape in several contexts:

2.1.1

Mens Rea

In the Kunarac case, the Tribunal confirmed that mens rea of rape had been already established with the intent to penetrate the victim sexually with the knowledge that 5

General Matsui was acknowledged to be guilty of participating in the system of sexual slavery, in accordance with § 1 of the same Article 3. See: Ibid.; The Prosecutor v. Anto Furundžija (International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber II, The Netherlands 10 December 1998). 6 In December 2000, the Women’s International War Crimes Tribunal was held by civil society. Survivors presented their testimonies of being forcibly transported by the Japanese military to rape camps as part of a standard and integral part of the Japanese war efforts. This effort has been initiated after unsuccessfully attempt to bring the legal-suit in Japanese courts. For further discussion see: Christin M. Chinkin (2001. 7 Christine Levy, ‘The Women’s International War Crimes Tribunal Tokyo 2000: A Feminist Response to Revisionism?’. 8 ‘Statute of International Criminal Tribunal for The Former Yugoslavia’ (1993), Article 5. 9 Sexual violence falls within the scope of “other inhumane acts”, set forth Article 3(i) of the Tribunal’s Statute, “outrages upon personal dignity,” set forth in Article 4(e) of the Statute, and “serious bodily or mental harm,” set forth in Article 2(2)(b) of the Statute. ‘The Statute of International Criminal Tribunal for Rwanda’ (2010), Article 3 & 4.

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it occurred without the consent of the victim,10 or by force or by threat of force, or coercion, by taking advance of a coercive environment, or against a person incapable of giving genuine consent.11 This implies that specific intention to commit rape or at least knowledge or awareness is required to prove that the act of rape had occurred as part of widespread or systematic attack directed against a civilian population or part of genocide and/or war crimes.12 Many of cases basically involving high level officials were not the physical perpetrators to commit the actual act of rape but they facilitated, allowed or created a condition allowing other to commit rape. It is argued that they should have known that such a situation would or would have occurred under his authority.

2.1.2

Actus Reus

In the Furundžija case, the ICTY set objective elements related to rape to be sexual penetration including oral and/or anal sex.13 The judgment of Akayesu goes even further by stating that rape does not constitute only the ‘physical invasion of a sexual nature’ but it may also include other acts, which do not involve penetration or even physical contact.14 Hence, rape may cover various sexual activities but its underlying foundation lies on the coercive sexually nature. This brings into the next crucial elements of consent. What is consent and non-consensual sexual intercourse? Based on existing legal definitions, consent is key in the context of rape but it is not considered to be the element of crimes. The ICC in its Elements of Crimes does not clarify what consent means but rather provides three factors influencing the capability of giving genuine 10 Judgment, Case No. IT-96-23/1-T (Feb. 22, 2001) available at http://www.un.org/icty/kunarac/tri alc2/judgement/kun-tjO10222e.pdf. It was further discussed in: Mark Ellis, ‘Breaking the Silence: Rape as an Internatonal Crime’, Case Western Reserve Journal of International Law 38, No. 2 (2007 2006): 229. 11 The Prosecutor v. Jean-Pierre Bemba Gombo (International Criminal Court 21 March 2016). 12 Intent will be established where it is proven that the perpetrator meant to engage in the conduct in order for the penetration to take place. Knowledge means that it must be proven that the perpetrator was aware that the act was committed by force, by the threat of force or coercion, by taking advantage of a coercive environment, or against a person incapable of giving genuine consent. For further discussion, see: Ibid. 13 The actus reus has been defined as: (i) the sexual penetration, however slight: (a) of the vagina or anus of the victims by the penis of the perpetrator of any other object used by the perpetrator; or. (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victims or a third person. 14 The Tribunal provides an example of non-penetration: “..The incident described by Witness KK in which the Accused ordered the Interahamwe to undress a student and force her to do gymnastics naked in the public courtyard of the bureau communal, in front of a crowd, constitutes sexual violence” See further in The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T (International Criminal Tribunal for Rwanda 1998).

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consent namely: ‘natural, induced or age related incapacity’.15 It further clarifies that force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion against a person may result the incapability of such person to giving true consent16 ; thus consent given under this situation cannot be accepted an evidence for rape.17 It is also concluded that military presence or armed conflict including genocide, crimes against humanity and war crime are universally considered to be coercive, thus violating true consent.18 The challenge is not to determine the presence of consent but rather to address its absence. Cases already confirm that the victim’s lack of consent will not determine the legal element of the crime.19 Even the background of a victim cannot be used as ground for justification for defendant to deny the act of rape.20 In such cases, prosecution does not need to prove the non-consent of the victims beyond reasonable doubt on the basis that such a requirement would, in most cases, undermine efforts to bring a perpetrator to justice.21 Hence, the emphasis of the rape is no longer only on the presence of coercion or force, but rather unwanted sexual penetration. In short, the absence of consent to sexual penetration is sufficient enough to establish the act of rape.

2.1.3

Victim and Third Party

In the Furundžija case, the Tribunal stated that coercion is not a necessary act imposed against the victim or a third party. This implies that rape can also involve accomplices. A vital question then pertains to the gender of the victim. Although the language of Statutes in ICTY and ICTR do not refer to any specific genders, little attention had been given to male rape victims. Cases related to sexual violence suffered by male victims have been mentioned, but they are mostly considered as torture and inhumane treatment rather than rape.22 Moreover, certain categories used in cases involving a guard forcing his penis into the mouth of a male detainee in Prosecutor v Naletili´c and 15

‘Elements of Crimes—Explanatory Note, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3–10 September 2002’, Pub. L. No. International Criminal Court Publication, RC/11 (2002), Footnote 16. 16 The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-T at Judgment, para 688. 17 Ibid. 18 The Prosecutor v. Mikaeli Muhimana, Case No. ICRT—95-1B-T (n.d.). 19 The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05–01/08 paragraph 105. 20 ‘Rules of Procedure and Evidence of International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991’, IT/32?Rev.43 § (2009). 21 The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05–01/08. 22 Andreq Pitt, ‘Recognising Male Victims of Sexual Violence in War: A Pathway to Gender Equality’, n.d., https://www.lse.ac.uk/gender/assets/documents/research/graduate-working-papers/ Recognising-Male-Victims-of-SexualViolence-in-War.pdf.

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Martinovi´c,23 as well as involving objects being forced into male detainees’ anuses in Prosecutor v Simi´c et al.24 have been unclear. Where objects were forced into the anus of a detainee have been considered to be within the scope of the definition of rape25 ; but when the act of perpetrators did not themselves physically assault other men but rather forced male detainees to perform sexual acts on each other is not described as rape and only appear as evidence supporting other crimes.26 The lack of attention to male victims by ICTY and ICTR has been subjected to various criticisms. It was further asserted by various scholars that both genders can be victims of rape, including genocidal rape and/or rape during wartime. Statistics have also shown that cases involving male rape victims during the wartime are also significant.27 Majority of research reveals that the number of male victims is inaccurately reflected. This may often be due to patriarchal values, specifically high levels of shame that inhibit men from reporting.28 One argument blamed the vast advocacy of feminist groups which tend to only focus on women’s rights.29 Others highlight the gender issue in the time of wars in which women are targeted not just because they are the enemy but because they are women.30 Hence, one’s gender is essential to the method of assault. Nevertheless, the ICC made significant amendments in the issue of gender bias. In its Elements of Crimes, the ICC clearly confirms that “… the perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.”31 Such principle has been applied in the case of Jean-Pierre Bemba Gombo which the Court is in the opinion that the invasion of the body of person should be seen as gender

23

Prosecutor v Naletili´c and Martinovi´c 2003, para. 464. Prosecutor v Simi´c et al. 2003, paras. 728 and 772. 25 Prosecutor v. Blogoje Simi´ c, Miroslav Tadi´c, Simo Zari´c (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 17 October 2003); The Prosecutor v. Dusko SIKIRICA, Damir DOSEN, Dusan FUSTAR, Dragan KOLUNDZIJA, Nenad BANOVIC, Predrag BANOVIC, Dusko KNEZEVIC (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 3 January 2001). 26 Ibid. 27 Andreq Pitt, ‘Recognising Male Victims of Sexual Violence in War: A Pathway to Gender Equality’, 4. 28 Ibid. 29 Claire Bradford Di Caro, ‘Call It What It Is: Genocide Through Male Rape and Sexual Violence in the Former Yugoslavia and Rwanda’, Duke Journal of Comparative & International Law 30, No. 55 (2019): 77. 30 Ibid., 78. 31 Elements of Crimes—Explanatory Note, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3–10 September 2002, Article 7. 24

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neutral.32 Accordingly, ‘invasion’, in the Court’s legal framework, includes same-sex penetration, and encompasses both male and/or female perpetrators and victims.33 The ICC’s recognition diverges from the traditional understanding of rape as a crime in which that male can also be the victims of rape. It moves away from the mainstream dichotomy of male and female as a perpetrator and a victim, respectively. Focusing on gender distinctions will not only mislead depictions of reality; they also deny the fact that either male or female can be the target of crime against humanity and/or genocide. The point is that both female and male raped victims deserve to equally access to justice.

2.2 Rape as Genocide For a case to be considered as genocidal rape, there must be a close relationship between rape and genocidal intent. This implies that rape and other forms of gender violence can only constitute genocide when committed with the requisite intent to destroy, in whole or in part, a particular group, targeted as such. This is proven in various cases, wherein rape results in physical and psychological destruction of victims, their families, and their communities. Therefore, the act of rape is often used as an integral part of the process of destruction, specifically targeting women of certain group and contributing to their destruction and to the destruction of such groups as a whole.34 For example, ICTY states that systematic rape can be used to induce trauma on to a woman, to the point where she will not be able or willing to have a child. This is a common strategy to limit the population of certain groups. Another strategy is to use rape for forced impregnation aiming to transmit a new ethnic identity to the child.35

2.3 Rape as a Crime Against Humanity The Statutes of ad hoc tribunals (ICTR, ICTY) as well as ICC prohibit rape committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds. This has consistently been applied in their various cases.36 In Akayesu, the ICTR clearly stated that the act of 32

Ibid., Footnote 15. Ibid. 34 The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-T paragraph 731. 35 Karadzic and Mladic decision. 36 Prosecutor v. Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic, Case No. IT-96–23T& IT-96–23/1-T (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 2001). 33

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rape is used for intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person leading to a violation of personal dignity.37 In certain situations, the act of rape constitutes a torture when it is used as a means of punishing, intimidating, coercing or humiliating the victim or obtaining information, or a confession, from the victim or a third person by the interrogators or public officials or other person acting in an official capacity.38

2.4 Rape as a War Crime Under International Humanitarian Law, the act of rape has been acknowledged as a war tool or strategy to weaken an enemy.39 It was first recorded as a war crime in 1385 and later emerged as a core crime within Humanitarian Law.40 A major step in this legal development came in 1949, when the act of rape and sexual assault were included in the 1949 Geneva Convention. They have been included as part of inhumane treatment, which causes great suffering or serious injury to body or health. The Fourth Geneva Convention, as well as Protocol I of the Geneva Conventions provide direct reference to the act of rape by requiring that women shall be especially protected against any attack on their honor, in particular rape, enforced prostitution, or any form of indecent assault. In these situations, a perpetrator can be held accountable. Rape by soldiers has been prohibited by the law of war for centuries, and violators have been subjected to capital punishment under national military codes, such as those of Richard II (1385) and Henry V (1419). Of more immediate influence on the modern law of war was the prohibition of rape as a capital crime by the Lieber Instructions (1863). Indeed, rape committed on an individ-ual soldier’s initiative has frequently been prosecuted in national courts. In many cases, however, the act of rape has been given a license, either as an encouragement for soldier or as an instrument of policy. “Nazi and Japanese practices of forced prosti-tution and rape on a large scale are among the egregious examples of such policies.”

37

The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-T paragraphs 597 & 687. The Prosecutor v. Anto Furundžija, IT-95–17/1-T paragraph 163; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-T paragraphs 597 & 687; The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05–01/08 paragraph 188. 39 Rape is often used as a lisence, encouragement for soldier, and/or strategy to weaken the enemy. See discussion on Theodor Meron, ‘Rape as a Crime Under International Humanitarian Law’, The American Journal of International Law 87, No. 3 (July 1993): 425. 40 Ibid., 425 & 426. 38

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3 Rape in Indonesian Law 3.1 Criminal Code Of 22 articles under the Chapter of Crimes against Decency in the Indonesian Criminal Code, the act of rape is regulated in two articles. In Article 285, the act of rape is defined as: Any person who by using force or threat of force on a woman to have sexual intercourse out of marriage, shall, being guilty of rape, and shall be punished with a maximum imprisonment of twelve years.

In addition, Article 286 refers to rape with a powerless and/or unconscious woman. These two signify the strict concept of rape distinguishing it from other sexual assaults as regulated in the same chapter. Both articles on rape have shared common elements of the crime as the following.

3.1.1

The Offender

Although the perpetrator or the rapist refers to ‘any person’, the systematic interpretation of this Article only refers to a male person as the offender. Can a woman be an offender? This question has been debated by various scholars. Susilo, for example, states that there is no need to punish a woman for forcing a man to have sexual intercourse with her. This does not mean that such a situation does not exist nor a woman cannot force a man to have sexual intercourse.41 It only implies that such action may not create any harm for a man. In this case, the emphasis lies on the harmful nature of sexual intercourse although the meaning of harmful is not further implied. Susilo’s statement creates more confusion rather than clarification: can a man not be forced to conduct sexual intercourse? Is rape more harmful for women than for men? While these technical issues may already be so problematic to be addressed, the most fundamental question lies on the question of whether the rape is dependent on one’s gender and/or sexual orientation. Unfortunately, this issue has not yet been resolved.

3.1.2

The Victim

Referring to its harmful nature, it is perceived that only women are gravely affected by an act of rape. Being harmful has also been further interpreted by various scholars referring to the harmful experiences of male and female victims. It was concluded that women experience more consequences such as unwanted pregnancy, loss of 41

R. Susilo, Kitab Undang-Undang Hukum PIdana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal (Bogor: Politeia, 1994).

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virginity, high risk of abortion, and sexually transmitted diseases.42 Hence, only women can be a victim of rape in the eyes of the Indonesian law. Nevertheless, there are two points to be highlighted. First is the meaning of harm, which refers to physical attributes. The fact that psychological harm is not counted has limited the scope of an act of rape. Men can also be physically harmed, although, based on scholarly examination, their suffering may be less compared to that of women to a certain extend.43 Nevertheless, it could not be ignored that men, too, can be victims. Moreover, the Indonesian Criminal Code does not recognize marital rape, which creates a massive loophole in the legal discourse. Instead, it is regulated by other law as discussed later.

3.1.3

Intention

Article 285 does not spell out intention as a primary element of crime. This does not mean that rape does not require intention. Instead, the prosecutor does not need to prove the presence of intent in order to constitute the act of rape as the intention is considered to be the inherent element that self automatically proved. Instead, the presence of force and/or threat is sufficient to conclude that rape occurs.

3.1.4

Unlawful Action

Article 285 requires two conditions for rape: the first refers to use of force and/or the threat of force. The use of force is defined as the illegal imposition of physical strength.44 This makes a victim powerless so she or he cannot defend herself/himself. The second requirement refers to intercourse which is defined as a sexual activity in which the male’s genitalia forcefully enters the female’s vagina. This implies that raping is very limited to sexual intercourse excluding other sexual activities involving other sexual organs such as breast, anus, etc. Such sexual activities in fact are further regulated in Article 289 under the prohibition of an obscene act. As discussed, this article suffers from various weaknesses reflecting the general challenges faced by the Indonesian Criminal Law to provide protection against sexual assault. This has indeed driven the passing of other laws to expand the meaning of rape.

42

Ann E. Cudd, ‘Enforced Pregnancy, Rape, and the Image of Woman’, Philosophical Studi 60 (1990): 47. 43 Clare McGlynn, ‘Rape as “Torture”? Chatherine Mackinnon and Questions of Feminist Strategy’, Feminist Legal Study 16 (2008): 77 & 78.R. Susilo, Kitab Undang-Undang Hukum PIdana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal. 44 R. Susilo, Kitab Undang-Undang Hukum PIdana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal.

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3.2 Law No. 23 on Domestic Violence Under Indonesian law, marital rape is the first expansion of the act of rape. As mentioned earlier, the Indonesian Criminal Code does not prohibit marital rape considering that it falls under the private sphere. Hence, it is beyond the jurisdiction of the Criminal Code. Nevertheless, the 2004 Law No. 23 on Domestic Violence has particularly been passed to prohibit sexual violence among family members. Article 8 together with Article 1 Point 1 of the 2004 Law No. 23 states that sexual violence against member(s) of family particularly women can be punished with maximum 12 years imprisonment or fine of IDR36,000,000.45 This development ushers in two issues: First, the 2004 Law No. 23 does not use the wording of ‘rape’. Instead, it applies ‘sexual violence’ which is defined as sexual intercourse, unusual or non-consensual way to do sexual intercourse, or nonconsensual intercourse for commercial or specific purposes.46 Despite similarities in definition, the question is why using ‘sexual violence’ instead of ‘rape’. Does ‘rape’ carry more weight than ‘sexual violence’? Unfortunately, there is no clear answer to such a question as it lacks clarification. Nevertheless, referring to experiences in other countries, it was argued that the use of the word ‘rape’ attaches a profound stigma to the victims resulting a greater reluctance of the Court to convict a defendant.47 Therefore, countries such Canada recast rape to sexual violence. The most important thing is that the word used in this Law is broad including (1) sexual intercourse by using coercion, violence, or threat and (2) forcing a member of family to perform sexual intercourse with other people for commercial purposes and/or certain purposes.48 Second, the concept of sexual violence, covering all members of family as perpetrators, is quite broad in term of victims as well as perpetrator. In other words, husband and/or wife as well as other members of family including a child and/or non-related family living in a household can be an offender and/or victim to sexual violence. On one hand, this Law tries to provide protection against all possible sexual violence; on the other hand, it moves away from original attention from protecting against marital rape to family rape.

3.3 Law No. 26 on Human Rights Court In addition to Criminal Code, 2000 Law No. 26 on Human Rights Court clearly states that the act of rape can be considered as a gross violation of human rights if it meets several requirements of the crime against humanity. This can be defined as part of a 45

Article 46 of the 2004 Law No. 23 on Domestic Violence. Elucidation Article 8. 47 Maria Eriksson, Defining Rape: Emerging Obligations for State Under International Law? (Orebro University: Orebro University, 2010), 62. 48 Article 8 of the 2004 Law No. 23 on Domestic Violence. 46

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massive and systematic attack and is intended to attack a civilian.49 Moreover, the act of rape is also included in the interpretation of genocide providing that it is used as a tool to destroy in part or in whole a group by (1) causing serious bodily or mental harm to members of the group; (2) deliberately inflicting on the group conditions of life to bring about its physical destruction in whole or in part; (3) preventing births within the group.50 As there is no court decision publicly available related to this issue yet, no reference is available.51

3.4 Proposals to Expand the Interpretation of the Act of Rape 3.4.1

Attempt to extend the Act of Rape in the new Law on Sexual Violence

As mentioned earlier, to fill the gap due to the absence of different forms of sexual violence, there was an initiative to have a bill on sexual violence. Finally, after six years of discussion, the bill was passed on 12 April 2022. Currently, it is being processed to be signed by the President and further registered in the national gazette. In the first proposal, the bill on sexual violence attempted to expand the meaning of rape to include the act of someone using force or threat of force or deception or using incapability of someone to give consent to sexual intercourse. In this case, this proposal begs several issues. The first referred to the limitation of the victim and/or perpetrator. As there is no specific gender mentioned, it implied that woman and/or man can be a victim or perpetrator in an act of rape. Secondly, this bill raised an important question about consent. Under Indonesia’s perspective, does rape require consent? While it is difficult to imagine that rape can be conducted based on consent due to its coercive nature, there is also a possibility that someone can be fooled into performing sexual intercourse. Giving consent in an environment of deception does not mean that rape cannot happen. Hence, adding deception in addition to the use of force and threat of force enriched the definition of rape in this proposal. In short, it was suggested that the proposed bill had to follow what had already been discussed at the international level. Consent should not be seen as an element of a crime, but rather as an indication to identify the presence of force, the threat of force or deception. Even if there was a need to include ‘consent’, it should be interpreted as ‘positive consent,’ which was firmly and clearly given. On the contrary, implied consent should not be accepted in any way or form. Nevertheless, after a long discussion, such a proposal was declined. Instead, although the act of rape is acknowledged as a sexual offence in the new Law, it does not further clarify what it means by rape nor any specific punishment for the 49

2000 Law No. 26 on Human Rights Court, Article 9. Ibid. Article 8. 51 This does not mean that there was no rape in various cases brought before Human Rights Court, but it is only that rape or sexual assault has not been prosecuted yet. 50

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rapist. This implies that its definition still refers to any act using force or threat of force on a woman to have sexual intercourse outside of marriage as mentioned in Article 285 of the current Criminal Code. Therefore, the punishment also refers to a maximum of 12 years imprisonment. In short, although the new Law on Sexual Offences has indeed filled the gap particularly to criminalise different assaults and harassment including forced marriage, it still does not address the issue of rape. Hence, the only hope to expand the meaning of rape is through the amendment of the Criminal Code.

3.4.2

Proposal for extension of Act of Rape in the Criminal Code Bill

The draft article of the new Criminal Code Bill clearly modifies the current Criminal Code to be: Any person who by using force or threat of force forces any person to have sexual intercourse with him/her shall, being guilty of rape, shall be punished with a maximum imprisonment of twelve years.

This Article highlights four points. First, it argues against the traditional notion of a woman and a man, as victim and perpetrator, respectively. This implies that a woman can also rape a man (or a woman) and vice versa. The second refers to the element of ‘sexual intercourse’. It is not clear what it means by sexual intercourse: does it include anal and/or oral sex? Moreover, the meaning of force as well as the threat to force, needs to be carefully clarified. Without a clear definition, protection for the victims cannot effectively be guaranteed. Third, the proposal goes further by considering the act of rape which is specifically based on racial and ethnic discrimination can be considered as grounds for aggravation. This is something new referring to national and international practice in which the act of rape can be used as a strategy to discriminate againts people. Last, there is still homework to do particularly on the judicial system. Based on practice, there is a tendency for the punishment of a rapist is lighter than the maximum punishment. This is mainly due to the lack of evidence presented before the court. Hence, it is also important to think about the judicial system covering specific evidence for rape and/or sexual assault. In the end, Indonesia needs to take necessary steps to ensure that rapists will be brought before justice and victim’s rights are upheld and redressed effectively.

4 Implication of the Act of Rape 4.1 What is the Harm of Rape? This issue of the harm of rape has been subjected to various debates; a clear concept has yet to be accepted. Nevertheless, this issue becomes fundamental because it

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may influence the scope and definition of rape. This then can include the marital rape and male rape.52 As mentioned earlier, rape is supremely harmful to a victim. The Tribunal in Akayesu clearly stated that rape should not be seen as merely the physical invasion of a victim to violation of personal autonomy and liberty. Hence, harm should not be only about being physically, hurt but also a violation of one’s personal integrity, identity, and dignity. This is because it affects one of the most intimate aspects of a human being.53 In addition to personal destruction, rape is also linked to sexuality and honour of family and society. Hence, criminalizing the act of rape is not only seen as a means to protect sexual freedom of an individual but also allows the State to create moral demands for the appropriate behaviour of its citizen. The next question is whether the harm of rape for women and men is equally the same. Is rape different based on gender? Schools of thought provide different answers. As mentioned earlier, International Law attempts to apply the non-gender bias onto a victim of rape. Some jurisdictions still restrict the application of rape to the binary power relationship between a man and a woman. In the context of Indonesia, the progressive proposal towards the possibility of recognizing male victims of rape had indicated a switch toward sexual equality and non-discrimination. Nevertheless, such an idea requires efforts to get this proposal accepted in the parliament, particularly in the context of the amendment of the Criminal Codet. The issue is more complex when rape is associated with gendered roles of women in society. Hence, it is still believed that women have an added incentive to fabricate complaints of rape in order to explain premarital intercourse, infidelity, pregnancy or disease, for which the cost, in most cultures, is higher for women. In this case, it is true that women should be protected from the act of rape. Nevertheless, the law should be flexible enough to allow male rape victims to seek justice.

4.2 Is Rape a Serious Crime? The seriousness of rape has also been subjected to various debates. It has been generally acknowledged that rape is serious because of its profound harm towards individuals and society. Rape, indeed, is a violation of the basic core of human being. Nevertheless, the seriousness of such crime has also been challenged by many scholars stating that the impact of rape is not as severe as other crimes such premediated murder. In Indonesia, whether a crime is serious or not is reflected in the maximum punishment imposed on the offender. The maximum punishment for rapiste is 12 years imprisonment. Moreover, it becomes 15 years imprisonment and fines (between IDR 12,000,000 to IDR 300,000,000) when rape involves a child or in a marital 52

Criminal law is a tool for achieving specific goals. The moral and political rationalisations for criminalising behaviour are generally two-fold: (1) to deter from harm-doing and (2) to punish wrongdoing. 53 Maria Eriksson, Defining Rape: Emerging Obligations for State Under International Law?

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relationship. This implies that rape is a serious crimes as it already exceeds 5 years imprisonment as maximum punishment. However, in reality, the punishment for rapists has been much less, creating inefficient and deterring effects.

4.3 Does Rape Fall Under Auspice of Private or Public Sphere? The issue of rape signifies there is a blurred distinction between private and public sphere. Feminists argue that a distinction between private and public sphere serves the interests of men while shielding non-state actors from responsibilities for abuses committed against women and children in the private sphere. In this construction, the public world is governed by men, while private sphere is designated for women.54 In the former, criminal law applies, while in the latter, they do not.55 One major result is that human rights violations against women in private situations are made effectively invisible and are deemed beyond the purview of the State. The example of marital rape is obvious in which that non-interference of states in the context of rape within domestic sphere leads to impunity. The ultimate outcome is that women are marginalized. Consequently, the feminist approach strongly criticizes the strict division between public and private spheres. They advocate instead a specific recognition of criminal law in the private sphere. In this light, the State is required to intervene where there are violations against women in domestic affairs. The aim of this approach is not to create a monolithic set of views with respect to women’s issues, nor to advocate the complete collapse of a distinction between public and private. It rather calls for some flexible evaluation of and adjustment to international legal doctrine, particularly as it relates to gender issues.56 Such a distinction, then, is not a static doctrine, but a dynamic process.57

54

Hessbruegge, Jan Arno, “Human Rights Violations Arising from Conduct of Non-State Actors,” Buffalo Human Rights Law Review 11.21 (2005), p. 27. 55 Charlesworth, Hilary and Chinkin, Christine, The Boundaries of International Law; a Feminist Analysis (Manchester, Jurist Publishing, Manchester University Press, 2000), p. 56. 56 As cited by Charlesworth and Chinkin, the Nicola lacey suggested: If the public is understood […] as involving susceptibility to political debate and dialogue, while the ‘private’ is the sphere from which people can withdraw from public scrutiny (not simply the area excluded by the public) women’s experience will not automatically be excluded or marginalised by the use of public /private dichotomies. See Charlesworth, Hilary and Chinkin, Christine, The Boundaries of International Law; a Feminist Analysis (Manchester, Jurist Publishing, Manchester University Press, 2000), p. 59; Steiner, Henry J., Alston, Philip and Goodman, Ryan, International Human Rights in Context: Law, Politics, Morals: Text and Materials, 3th ed. (Oxford, Oxford University Press, 2008), p. 222. 57 Charlesworth, Hilary and Chinkin, Christine, The Boundaries of International Law; a Feminist Analysis (Manchester, Jurist Publishing, Manchester University Press, 2000), pp. 59 & 61.

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4.4 Is the Act of Rape an International Crime? Based on these discussions, there are three points that can be highlighted in the context of rape in international law: First, the act of rape is not an isolated crime. It is part of other international crimes namely genocide, crime against humanity, war crime, as well as torture. In other word, rape in international law has been perceived and acknowledged in the very specific contexts. Hence, due to its dependency, the development of act of rape depends on the progress of these recognized international crimes. The second issue concerns other types of rape such marital rape. International Law currently does not address this issue. Nevertheless, it does not mean that marital rape may not happen in the situations involving crime against humanity, genocide and war crime. It only means that it requires further investigation. In fact, this issue has often been addressed within national jurisdictions during peacetime which can also enrich the principles under international law. The third refers to the close interplay between national and international laws. To arrive at an accurate definition of rape, the Tribunals are bound by the principle of nullum crimen sine lege stricta; therefore, the Tribunals need to define criminal principles which may be derived from national law considering that the International Criminal Rules do not define a notion of criminal law. Such reliance is justified unless international rules said differently.58 Nevertheless, importing principles from national law to international criminal proceeding must be taken specifically and carefully to avoid arbitrary transposition and the attendant distortion of the unique traits of such proceedings at the national and/or international level.59

5 Conclusion The act of rape has been considered to be a coercive action violating one’s individual dignity. Nevertheless, there is no clear understanding on what constitutes such an act. At the international law, ad-hoc International Tribunals as well as International Criminal Court have played an important role in providing clarification and meaning to the act of rape, particularly in the context of genocide, crimes against humanity as well as war crime giving international nature to the act of rape. Nevertheless, some gaps still exist particularly in relation to male rape and marital rape. On the hand, national laws have been found to be more flexible when it comes to the scope and definition of rape. Indonesia in particular is on its way to reviewing the criminality of 58

Reference to national law is justified unless two conditions: (1) unless it is indicated by an international rule that references should not be made to one national legal system only or both; (2) reference to national law should not be applied if ‘international trials exhibit a number of features that differentiate them from national criminal proceedings’. Further discussion see: The Prosecutor v. Anto Furundžija, IT-95–17/1-T paragraph 178. 59 Ibid.

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rape. Hence, it is suggested for Indonesia to revisit its proposal and consider adopting international principle in pursuit of protecting any human being from the atrocity of rape.

References Andreq Pitt. (n.d.). Recognising male victims of sexual violence in war: A pathway to gender equality. https://www.lse.ac.uk/gender/assets/documents/research/graduate-workingpapers/Rec ognising-Male-Victims-of-SexualViolence-in-War.pdf. Christin M. Chinkin. (2001). Women’s International tribunal on Japanese military sexual slavery. The American Journal of International Law April, pp. 335–341. Christine Levy. (2014). The women’s international war crimes tribunal Tokyo 2000: A feminist response to revisionism? Gendered Laws of War, 39. Claire Bradford Di Caro. (2019). Call it what it is: Genocide through male rape and sexual violence in the former Yugoslavia and Rwanda. Duke Journal of Comparative & International Law, 30, 55. Clare McGlynn, & Vanessa E. Munro. (2010). Rethinking rape law : International and comparative perspectives. Taylor & Francis Group. Cudd, A. E. (1990). Enforced pregnancy, rape, and the image of woman. Philosophical Studi, 60, 47–59. Elements of Crimes. (2002). Explanatory Note, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3–10 September 2002, Pub. L. No. International Criminal Court Publication, RC/11. Eriksson, M. (2010). Defining rape: Emerging obligations for state under international law? Orebro University. Mark Ellis. (2006, 2007). Breaking the silence: Rape as an internatonal crime. Case Western Reserve Journal of International Law, 38(2),225–247. McGlynn, C. (2008). Rape as “Torture”? Chatherine Mackinnon and Questions of feminist strategy. Feminist Legal Study, 16, 71–85. Prosecutor v. Blogoje Simi´c, Miroslav Tadi´c, Simo Zari´c. (2003). (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 17 October). Prosecutor v. Dragoljub Kunarac, Radomir Kovac, & Zoran Vukovic (2001). Case No. IT-96– 23 T& IT-96–23/1-T (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991). Rules of Procedure and Evidence of International Tribunal for the Prosecution of Persoons Responsible for Serious Violations of Internasional Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, IT/32?Rev.43 § (2009). Susilo, R. (1994). Kitab Undang-Undang Hukum PIdana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal. Bogor: Politeia. Statute of International Criminal Tribunal for The Former Yugoslavia. (1993). The Prosecutor v. Anto Furundžija (International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber II, The Netherlands 10 December 1998). The Prosecutor v. Dusko SIKIRICA, Damir DOSEN, Dusan FUSTAR, Dragan KOLUNDZIJA, Nenad BANOVIC, Predrag BANOVIC, Dusko KNEZEVIC. (2001). (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 3 January). The Prosecutor v. Jean-Paul Akayesu. (1998). Case No. ICTR-96–4-T (International Criminal Tribunal for Rwanda).

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The Prosecutor v. (2016). Jean-Pierre Bemba Gombo (International Criminal Court 21 March). The Prosecutor v. Mikaeli Muhimana, Case No. ICRT–95–1B-T (n.d.). The Statute of International Criminal Tribunal for Rwanda (2010). Theodor Meron. (1993, July). ‘Rape as a Crime Under International Humanitarian Law’. The American Journal of International Law, 87(3).

Sexual Violence on the Higher Education Institution Muh. Wildan Teddy Bintang P. Has and Prilia Kartika Apsari

Sexual violence on campus have rightfully become a major issue in Indonesia throughout the years. In advocating for the victims’ rights, both cases have shown that students and professors could work together in addressing this campus sexual violence as a longstanding epidemic. However, this movement against sexual violence on campus still finds challenges among the members of the university, such as the poor response from the campus stakeholders. The usual attitude shown by them is the effort to hide the fact that sexual violence happened in their campus’ jurisdiction. This chapter describes the issue of sexual violence occurring on campus because the number of sexual violence on campus is often not recorded transparently. Nor does the campus or not all provide a policy that is sensitive to the protection of victims. The absence of rules specifically governing the handling of sexual violence at the national level also contributes to the continued poor handling of sexual violence on campus

1 Introduction Sexual violence on campus have rightfully become a major issue in Indonesia throughout the years.1 Some of the cases that invoked the discussion about sexual violence on campus in Indonesia were a Universitas Indonesia’s student with initial RW raped by a lecturer and an artist named Sitok Srengenge (2013)2 and a Universitas 1

We use the terms “universities”, “campuses”, and “colleges” interchangeably for this essay. Term “school” refers to elementary, junior, and high school in Indonesia. 2 Qodar (2020). Muh. W. T. B. P. Has (B) · P. K. Apsari Universitas Indonesia, Depok, Indonesia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 L. I. Nurtjahyo and M. A. Wicaksono (eds.), Gender-based Violence in South-East Asia, https://doi.org/10.1007/978-981-19-2492-7_5

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Gadjah Mada’s student with pseudonym Agni raped by a student (2017).3 In advocating for the victims’ rights,4 both cases have shown that students and professors could work together in addressing this campus sexual violence as a longstanding epidemic. However, this movement against sexual violence on campus still finds challenges among the members of the university, such as the poor response from the campus stakeholders. The usual attitude shown by them is the effort to hide the fact that sexual violence happened in their campus’ jurisdiction. There are many reasons why we need to share spotlight to campus sexual violence and prioritize it. First, reports show that this case is rising yet it is believed that the reported ones do not represent all the cases that ever happened. A media consortium consisted of Tirto.id, The Jakarta Post, and VICE Indonesia has done an investigative report which they received testimonies from 179 survivors, in 79 campuses, and 29 cities.5 The investigative report is strengthened by HopeHelps Universitas Indonesia’s 2020 annual report. HopeHelps Universitas Indonesia is a student-run on-campus sexual violence fast response and prevention advocate.6 During March 2019–May 2020, HopeHelps Universitas Indonesia received 47 reports of sexual violence; 39 of them reported by Universitas Indonesia’s students and 8 other reports were from other universities in Indonesia.7 Based on those numbers, it is important to understand that these are limited to the locus of the universities as we believe there are more victims than those who have reported recalling there are 4670 higher education institutions in Indonesia.8 Second, higher education is conducted with principle of democratic and just and non-discriminatory by upholding human rights, religious values, cultural values, pluralism, unity, and national unity.9 Based on that, it is mandated by that law and the constitution10 to create free anti-sexual violence campuses because sexual violence has been disproportionately affecting women (in this case is female students) due to its problem as inequality of sex-based power, therefore sexual violence is concluded as a form of sex discrimination.11 This action also includes formulating law and policy regarding anti-sexual violence on campus because it has not been regulated yet nationally. 3

Redaksi (2020). We use the terms “victims” and “survivors” interchangeably in this essay. 5 Nur Zahra and Wan Ulfa (2020). 6 HopeHelps Universitas Indonesia was established in 2017 as an extended effort of “Gerakan Adili Sitok” (a movement initiated by students to bring Sitok to justice for the rape he has done). As the first student-run on-campus advocate for this cause in Indonesia, students from universities in Indonesia consulted to HopeHelps Unversitas Indonesia on how to establish such organization in their campuses. As a response towards some requests, in May 2020, HopeHelps Network was established as an effort to help students in advocating for the victims’ rights in their campuses. As per December 2020, there are 7 local chapters of HopeHelps in 7 different universities in Indonesia. 7 HopeHelps Universitas Indonesia (2020). 8 Pusat Data dan Informasi Ilmu Pengetahuan (2020). 9 Indonesia (2012), Art. 6. 10 Indonesia (2006), Art. 28I Par. (2). 11 MacKinnon (1979). 4

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Third, power relation inequality on campus. The difference of roles between professors and students, professors towards campus supporting staffs, as well as male students towards female students have shown that power difference is so much related to sexual violence. That is based on system of oppression and social identities between the offender and victim.12 System oppression could be translated to sexism, homophobia, racism, and so on. Meanwhile, social identity consists of social construction that gives identities meaning such as gender, sexual orientation, race, and so on.13 Plenty of cases on campus which are caused by inequal power relation involved professors who lure or pressured their students to forcefully engage in sexual activities threatening to fail the victims in classes if they refuse, intoxicating of female students by male students, distributing private content, etc. Fourth, campus’ responsibilities regarding sexual violence have been neglected. To create a safe environment for its members from sexual violence, campus needs to implement three important efforts: prevention, response, and resolution. We see these three things as a triangle in which each edge affects each other. Therefore, all aspects of the triangle must work together to create a respected output.

2 Poorly Regulated Existing Regulations Challenges that sexual violence victims on campus—most of them are students— face might be niche, and it is rather more difficult to address as well as for them to seek justice. This is because the demographic of them and how the existing regulations apply to them. In this part, we would elaborate the vulnerability of campus sexual violence victims in the perspective of law. Most Indonesian university students started their journey to higher education when they were 18 years old. Reflecting to that fact, the Child Protection Law of 2002 cannot cover the students when they become sexual violence victims14 as the act defines a child as any person under the age of 18.15 This also relates to the variety of child age limit in Indonesia that is ruled in different laws in different aspects, such as Kitab Undang-Undang Hukum Perdata, Kitab Undang-Undang Hukum Pidana, Child Court Law of 1997, Child Welfare Law of 1979, Marriage Law of 2019 (amendment of Marriage Law of 1974), Human Rights Law of 1999.16 Since most university students do not fall under the category of “child”, the existing law that could protect them is Kitab Undang-Undang Hukum Pidana (Indonesian Criminal Code). However, before we go there, it is important to analyze 12

Michael (2006). Linder (2018). 14 See Art. 81 and 82 of Child Protection Law of 2002. Children are bound to protection towards sexual violence on which the offender would be punished a maximum of 15 years of jail time and 3 years minimum, and fine with range from 60 to 300 million rupiahs. 15 Indonesia (2002). 16 Jauhari (2014). 13

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other laws which could be used by adult victims of sexual violence to seek justice at the court. Firstly, Elimination of Domestic Violence Law of 2004 defines domestic violence as “any act against anyone particularly woman, bringing about physical, sexual, psychological misery or suffering, and/or negligence of household including threat to commit act, forcing, or seizure of freedom in a manner against the law within the scope of household.”17 However, a household as mentioned in this law refers to those spouses who are legally registered under Indonesian law. Furthermore, this law does not rule claim of compensation for those who suffer personal injury, financial loss, or damage to property due to the violence.18 Secondly, another law that could be used by sexual violence victims including students who experienced it is Eradication of the Criminal Act of Trafficking in Persons Law of 2007. However, the action is limitedly defined as “recruitment, transportation, harboring, sending, transfer, or receipt of a person by means of threat or use of force, abduction, incarceration, fraud, deception, the abuse of power or a position of vulnerability, debt bondage or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, whether committed within the country or cross-border, for the purpose of exploitation or which causes the exploitation of a person.”19 Although the provision of victims of sexual violence is ruled in this law, the challenges remain big because the rigid definition of trafficking in persons. Lastly, as mentioned above regarding challenges faced by campus sexual violence victims, when they decided to access criminal justice system, the victims would use Indonesian Criminal Code to sue the offender. Indonesian Criminal Code should be a subject to change when it comes to sexual violence provision due to its limiting forms of sexual offenses. In that law, crimes against ‘decency’ are regulated under the Chapter XIV20 : 1. 2. 3. 4. 5. 6. 7. 8. 9. 17

Violating decency in public (Art. 281) Broadcast, show, and so on, writing, images or objects that violate decency (Art. 282) Offering, giving, etc., writings, images or objects that violate decency (Art. 283) Adultery (Art. 284) By force or threat of violence to force a woman have intercourse outside of marriage (rape) (Art. 285) Have sex with a woman in a fainted state or helpless (Art. 286) Intercourse with a woman who is not yet 15 years old (Art. 287) Having intercourse with a woman in a marriage who has not been able to be married (Art. 288) By force or threats of violence force him to commit obscene acts (Art. 289)

See Art. 1 Number 1 of Elimination of Domestic Violence of 2004. Arief (2018). 19 See Art. 1 Number 1 of Eradication of the Criminal Act of Trafficking in Persons Law of 2007. 20 See Indonesian Criminal Code Chapter XIV. 18

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Committing obscene acts with an unconscious person, not yet 18 years old (Art. 290) Committing obscene acts with people of the same sex, who are underaged (Art. 291) By giving or promising, mobilizing someone who is underaged and in good behavior to commit obscene acts (Art. 293) Committing obscene acts with children, stepchildren, adopted children, children under their supervision who are underaged (Art. 294) Connecting or facilitating obscene acts by children, stepchildren, or adopted children who are underaged (Art. 295) Connecting, facilitating obscene acts by others with others and making it a means of living or habit (Art. 296) Trafficking of women and underaged boys (Art. 297) Treat a woman or order to be treated which can abort her pregnancy (Art. 299).

From those articles, the ones which usually used by the victims are rape Art. 285 and 286 on rape and Art. 289 and 290 Par. (1) on obscene acts. As an act that violates decency, R. Soesilo defines obscene act as an act which violates decency (kesopanan—in Bahasa) or heinous acts, all within the scope of sexual lust, as instances kissing, groping the genitals, groping the breasts, and so on.21 Furthermore, definition of rape is force to have intercourse. Intercourse itself was defined within the decision of Arrest Hoge Raad 5 February 1912 (W. 9292) as the encounter of male and female genitalia that is usually carried out to have children, so the male genitalia must enter the female genitalia, so that it secretes semen.22 This definition by R. Soesilo is commonly used by the police when they receive reports from the victims. The provisions within the Indonesian Criminal Code have not acknowledged anal sex, oral sex, and inserting of other body parts and/or objects to one’s body as rape, and the rape victims recognized by the law is only female. These limiting provisions of sexual violence are outdated and have neglected the struggle of the campus sexual violence victims when they try to access the criminal justice system. Agni, student of Universitas Gadjah Mada, experienced rape that has not been recognized by the Indonesian Criminal Code yet that is the inserting of finger to her vagina.23 Had she decided to report her case to the police, Agni could not use rape for the legal claim. She had to use the act of obscenity as ruled in Art. 289 of the Indonesian Criminal Code.

21

Soesilo (1995). Ibid., p. 209. 23 Syambudi (2020). 22

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3 Regulating Campus Sexual Violence Among cases that have been reported, students still find it hard to get justice. The difficulties they found would be how hard it is to file a report due to the vagueness of campus’ system, trial within the campus that took so long, revictimization that occurred in the trial room committed by the campus’ stakeholders who acted as ad hoc team, the absence of the psychological and other supports by the campus, and the decision which took side with the offender. One bad treatment that has been absent from the detail is that when the victim decides to report to campus, she would face retaliation from the campus or even her social group.24 The negative reaction from the campus towards the victim is because her decision to report refers to something called institutional betrayal. That terminology means “wrongdoing perpetrated by an institution upon individual’s dependent on that institution, including failure to prevent or respond supportively to wrongdoings by individuals (e.g., sexual assault) committed within the context of the institution.”25 The campus’ response feeds the need of the offender to get away with sexual violence especially rape—as one of forms of sexual violence26 —is an underreported crime generally despite its high prevalence among male and female students.27 Even the number is estimated to be slightly higher for the sexual minority students.28 If generally rape is an underreported crime, rape is also the most underreported crime on campus. This reflects to less than 5 percent of both completed and attempted rapes experienced by college students were reported to the officials.29 How institutions act towards the epidemic of campus sexual violence have neglected the effects of it. The victims may suffer from physical and psychological conditions, including but not limited to, injuries, pregnancy, post-traumatic stress disorder, depression, suicidality, substance abuse, and sexually transmitted diseases. Moreover, college sexual violence victims may suffer declining in academic performance, dropping out, leaving school, or moving to another college/transfer.30 Campuses should take a serious action and it could be started or followed by the government through their policing campus sexual violence. Nationally, anti-violence policy in education setting has been regulated through Regulation of Minister of Education and Culture No. 82 of 2015 on Prevention and 24

Rosenfeld (2015, p. 368). Freyd (2020). 26 National Commission on the Elimination of Violence Against Women (2020). 27 Within range of 20–25%, female college students reported to have been sexually violated and 4% of male students experienced the same thing. See Centers for Disease Control and Prevention, “Sexual Violence Facts at a Glance 2012,” http://www.cdc.gov/ViolencePrevention/pdf/SV-DataSh eet-a.pdf. 28 Between 15.5 and 16.9 percent of lesbian and bisexual women reported being sexually assaulted as adults and 10 percent of gay and bisexual men reported being raped. See Lee van der Voo, “Sexual Violence on Campus: Not Just a Crime of Men against Women,” https://www.invw.org/2010/02/ 25/941/. 29 Karjane et al. (2002, p. 9). 30 Kirkland (1994). 25

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Treatment of Act of Violence on Educational Environment. This regulation regulates various acts of violence which are physical, psychological, sexual, in an online, or written in the books which show aggressive act and assault.31 However, this regulation does not include higher education as it is only applicable to kindergarten to high school students. The approach this regulation is trying to use is community-based as it does not only involve teachers, but also those who care deeply about the student’s wellbeing and anti-violence issue. Although that regulation does not rule higher education, it is still worthy to be studied. For its prevention, among the efforts, this regulation still mandates the school to create and apply its own standard operational procedure which refers to guidelines applied by the Ministry of Education and Culture.32 This provision could be an issue for those underfunded institutions because to form an SOP is a challenging process and requires experts. Instead of asking each institution to create their own SOP, the Ministry should have created an SOP which could be applicable to the addressed education institutions. By doing so, the efforts of making the SOP for each institution could be cut so it would be more cost efficient. Regarding treatment of any violence that occurs in the education institutions, the Minster Regulation is also lacking in the subject that is covered. The absence of provision towards teachers as offender and victims is crucial. Although the rights and responsibility of adult humans, in this setting is teachers, have been governed in several regulations, we should not deny the number of violence caused by them. Indonesian Child Protection Commission recorded 21 sexual violence cases with the number of victims reaching 123 children in schools during 2019.33 If schools should be another the safest place for children, the government should have taken better approach and decision in addressing any kind of violence, including sexual violence.

4 The Absence of Regulation Means Failure in Prevention, Response, and Resolution of Campus Sexual Violence In a place where the society is permissive and repressive would have more sexual violence cases than the other.34 As the number rises, sexual violence as an underreported crime would strengthen its status quo due to many sexual offenders are not caught (including unlikely to be caught), and this could translate into the absence of criminal sanctions. This also implies to the costs of sexual violence are lower, and the benefits of it are greater.35 As explained in the previous part, Indonesia has not regulated campus sexual violence nationally. Only a small number of universities take initiative to create their 31

See Regulation of Minister of Education and Culture No. 82 of 2015, Art. 1 No. 1. Ibid., Art. 8 Par. (1)e. 33 Septianto (2020). 34 Howells (1984, p. 114). 35 Posner (1992, p. 385–386). 32

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own regulations although it is not specifically talking about campus sexual violence and the approach is still discriminative towards the LGBTQ students.36 Aspect like comprehensive prevention is often missed by the campus. Prevention through highquality sex education would improve the knowledge and attitudes towards gender and sexuality regarding a propensity to assault.37 Knowing its importance, prevention should be targeted towards the offenders to-be. What is missing within campus is their ability to spot what is should be addressed for this effort. Science of prevention has been identified and it has nine characteristics: (1) comprehensiveness, (2) varied teaching methods, (3) sufficient dosage, (4) theory-driven, (5) fosters positive relationships, (6) appropriately timed, (7) sociocultural relevance, (8) well-trained staff, and (9) outcome evaluations.38 The failure to identify prevention program could worsen the status quo of this issue, therefore step through educational programs (could be targeted to new students and others) is needed.39 When the student victims experienced campus sexual violence, they often find it hard to report because there is an absence of regulation on their campus.40 Other barriers for student victims are also, but not limited to, (1) no sufficient proof to support that such incident occurred, (2) retaliation by the offenders, (3) hostile treatment by campus stakeholders, and (4) not wanting the family, friends, and others know about the incident.41 Besides the confusing mechanism (or even the absence of mechanism) in filing report, student victims also experience hardship in following up their claim or tracking the progress of their claim towards their campus due to its lack of transparency. Campuses must notify the student victims who decided to report their sexual violence experience regarding the procedures and outcomes. Furthermore, campuses need to ensure that the procedure especially the hearing process would not be hostile towards the victims. This investigation should not take a long time to process,42 therefore the decision could be announced in a reasonable time manner. Campuses need to understand that their efforts to investigate a sexual 36

See Peraturan Senat Akademik Institut Pertanian Bogor Nomor 33/SA-IPB/P/2019, Art. 9. Schneider and Hirsch (2020, p. 451). 38 Nation et al. (2003, p. 451–454). 39 Karjane et al. (2002, p. 95). 40 After the disruptive campus sexual violence happened to Agni, student of Universitas Gadjah Mada, we noted that only two universities have taken action by creating internal regulation specifically about campus sexual violence. Those two universities are Universitas Gadjah Mada (through Peraturan Rektor No. 1 Tahun 2020) and Universitas Padjadjaran (through Peraturan Rektor No. 16 Tahun 2020). 41 Fischer et al. (2000, p. 23). 42 A sexual harassment in Universitas Negeri Padang experienced by victim with pseudonym Bunga has not yet found a tangible solution. The university’s president has sent a letter of recommendation to fire the sexual offender who is a lecturer to the Ministry of Education and Culture. On 6 March 2020, a group of people from some organizations focusing on eradication of sexual violence including HopeHelps Universitas Indonesia met Minister of Education and Culture to address sexual violence on campus. The minister said that he is committed to address this issue. See Rahmadi, “Dosen UNP Terduga Pelecehan Seksual di Padang Menolak Dipecat,” https://langgam.id/dosenunp-terduga-pelecehan-seksual-di-padang-menolak-dipecat/ accessed on 20 November 2020. 37

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violence complaint can happen in parallel with the law enforcement agencies. Therefore, campuses can provide needed information regarding the case to the agencies with victims’ permission.

5 Protecting Everyone’s Rights Towards Anti-Sexual Violence Practices in Universities Sexual violence as a crime against humanity,43 is defined by World Health Organization (WHO) as44 : Any sexual act or an attempt to obtain a sexual act, unwanted sexual comments, or advances, acts to traffic or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim in any setting, including but not limited to home and work.

Aforementioned, sexual violence can occur in any settings; public areas such as shops, streets, or public transportation or also often time in workplaces, offices, campus, home or school neighborhood by the perpetrators whom the victims knew well.45 In recent years, campus sexual violence has been frequently referred to as an “epidemic.”46 It is clear that the problem is widespread and devastating to its victims, and many have been working to address problems in universities responses that leave campus sexual violence unaddressed or addressed inappropriately.47 Universities as a part of educational institutions are obliged to provide and ensure the safety, security, and well-being of their members. However, in contradiction, sexual violence as a serious public health problem has affected the health and well-being of millions of individuals with notably high rates among college students throughout the world.48 Quoting a statement given by Tirto, an Indonesian news website, not even one single institution has already had accurate data on the number of cases of sexual violence that occur on campuses in Indonesia. Information about sexual harassment cases in campuses have spread sporadically.49 Generally speaking, sexual violence depicted as the tip of the iceberg which is a metaphor that represents cases of sexual violence. The iceberg that appears on the surface is only one-eighth of the actual iceberg. In other words, seven-eighths of the iceberg lurks beneath the surface of the

43

International Criminal Court, Part 2, Article 7 on the Jurisdiction, Admissibility, and Applicable Law of the Rome Statute of the International Criminal Court, art. 7. 44 World Health Organization (2012). 45 Fairchild and Rudman, “Everyday Stranger Harassment and Women’s Objectification”, Soc Just Rest, 21. 46 Denby (2020). 47 Racklin (2019, p. 985). 48 Black et al. (2011). 49 Wan Ulfa and Nur Zahra (2020).

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water, this means only a handful of sexual violence cases are seen above, but there are still more cases that have not been revealed than the cases seen.50 In an online survey conducted by Magdalene, Lentera Sintas Indonesia, and Change.org, it was found that 93% of rape survivors never reported their cases to the law enforcement agencies and 6% who reported that they finally witnessed the perpetrators free from legal traps. This survey found that even only 1% of the survivors who chose to take legal action had their cases resolved. The spike in data from victims who reported reports shows the fact that so far victims have chosen to remain silent. However, with this surge, there may still be many cases that have not been revealed.51 This phenomenon also occurs in sexual violence cases on campus in Indonesia, moat campuses have not provided any types of safe platforms for sexual violence cases to report their cases. As mentioned before because there have not been any institutions that specifically documents allegations of sexual harassment or violence on campuses in Indonesia, on February 5 2019, Tirto (an Indonesian news website) collaborating with Vice Indonesia (an Indonesian news website) and The Jakarta Post (an Indonesian news website) released their first report called #NamaBaikKampus regarding the “Agni case” which was a sexual violence case at Gadjah Mada University. What they did were they sent out forms and collected testimonials from survivors of sexual violence on campus. Receiving 207 testimonials they found 174 cases related to higher education institutions, which means that these sexual violence cases occurred on campus or were committed by academicians or occurred outside campus but in official events, such as community service programs (KKN), internships, or student events. The survivors who wrote for testimonials were spread across 29 cities and came from 79 colleges. The majority or around 88% of the total survivors come from campuses in Java. Semarang and Yogyakarta are the two cities with the greatest number of survivors who filled out the collaboration testimonial form.52 From this phenomenon, it can be seen that there are campuses in Indonesia still lack on their commitment in handling sexual violence. Campuses as a part of educational institutions should be obliged to provide safety, security, and well-being of their members. However, often time members especially students of campuses in Indonesia feel threatened to report sexual violence; stressing over what are the possibilities that might happen which include fear of not being believed or taken seriously, not knowing it was sexual assault, not wanting others to know about the experience, belief that nothing will be done, insufficient proof, and fear of retaliation from the offender or his friends.53 After reporting the cases, students are going to be asked to go through some sort of investigation where often time, without the right means and perspective, the authorized authorities might dig the traumatic sexual violence cases that occurred to the victims in order to gain all the evidence they need; this could be really triggering 50

Komisi Nasional Anti Kekerasan Terhadap Perempuan (2017, p. 25). Asmarani (2020). 52 Zahra and Ulfa (2020). 53 Fisher et al. (2000). 51

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for the victims. In the psychological aspect, sexual violence can seriously affect mental health of the victims in the short, medium, or long term. Within hours and days after sexual assault, physical, emotional, cognitive and behavioral changes can be seen. The impact felt by each victim was different from one another. However, in general, some forms of psychological impact that can be seen from the victim are trauma syndrome of rape, depression, social phobia (especially victims of rape), anxiety, and PTSD.54 Another problem that members of campuses have to undergo is how anything that relates to sexual activities have been culturally coded. Campuses are multicultural environments, bringing together people from a wide range of backgrounds sounding in socioeconomic class, cultural and linguistic vocabularies, and historical experience. Across these cultural lines, communication about many things, including matters relating to sex, sexuality, and gender, can be torqued by the incommensurability of the parties’ social codes and their inconsistent and even clashing sexual moralities. The question raised by the cultural defense in criminal law comes up here: when two cultures come into conflict over the meaning of a sexual encounter, which one wins? Authorized authorities within the campus have to anticipate that their own experiences and biases may play a role in the way that they answer.55 Often time, campuses in Indonesia regulates prohibition on sexual violence in ethic codes, where it is seen as an ethics misconduct when it should be seen as a crime against humanity. With this framing and perspective toward sexual violence, members, especially students are in a fragile position in getting sanctioned and/or even expelled by reporting sexual violence cases that occurred to them because they can possibly be accused of being involved in the sexual misconduct; as if they asked for it to happened when they did not. The three main responsibilities of a school are best described as prevention, response, and resolution of matters involving sexual misconduct; this can be seen as a three-legged stool, meaning that if one leg is missing, the stool (here, the sexual misconduct policy) will not stand. For example, if a school has good preventive education programs, and support services for survivors, but fails to impose consequences on students responsible for sexual misconduct, the overall policy will fail. Students know how seriously their schools take sexual assault and they conform their behavior accordingly. Proper resolution of cases thus feeds into preventive education. Additionally, students know how well their schools respond to allegations of sexual assault, and this knowledge will affect their willingness to report either witnessing or experiencing such behavior. Students are particularly attuned to threats of retaliation by peers, and need to know that the school is obligated to protect them. Thus, one can see how this tripartite obligation gives rise to an informational feedback loop among students. Schools should focus their programmatic response accordingly.56 Despite such high rates of victimization, the study also found that campus sexual violence was vastly unreported. Other campus sexual assault surveys have found 54

Josse (2020). Halley (2015, p. 108). 56 Rosenfeld (2015, p. 361). 55

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similarly low reporting rates, indicating that campus sexual violence is a silent epidemic.

6 Sexual Violence Victims’ Rights in Universities In reality, victims of sexual violence face difficulties in accessing justice and to even report cases of sexual violence that happened to them. One of several reasons offered is we live in a patriarchal society. As elaborated by Simone de Beauvoir in his literature “The Second Sex” (Le Deuxième Sexe) in regards to patriarchy, man is called the Self, while women are the Other. If marginalized people (Liyan in Bahasa) are a threat to the Self, then women are a threat to men. If a man wants to be free, he must subordinate women to himself.57 Patriarchy then creates the culture of victim blaming. The concept of blaming the victim is about justifying injustice by finding mistakes in the victims of the injustice.58 There is a victim-blaming culture, the victim is blamed for the occurrence of a crime that has occurred. With the victim blaming culture in society, victims of sexual violence are weakened in their position to access justice they should receive. Speaking about sexual violence victims’ rights in universities, generally Indonesia already has several existing positive laws that ideally should be able to fulfill sexual violence victims’ rights, though practically these laws still cannot overcome the current failure of the legal system to accommodate the victims’ rights and offender’s punishment. Some of the laws are; first, The Law No. 7/1984 on the Ratification of CEDAW, based on the provisions of CEDAW, countries are obliged to accommodate and attempt to advance the development of women59 ; second, The Law No. 12/2005 on the Ratification of International Covenant on Civil and Political Rights, regarding gender equality, ICCPR has exclusively stipulated an obligation for the State Parties in Article 3.60 This article states that there shall be no gender-based differences regarding citizens’ enjoyment of their rights. In the event of its violation—any human rights violation—Article 2 point (3) stipulates the obligation for state parties to provide effective remedies for the victims61 ; third, Law No. 39/1999 (Human Rights Act) and Law No. 26/2000 Human Rights Court (Human Rights Court Act); fourth, Indonesian Criminal Code; and some other sectoral laws. From the existing laws mentioned, we know that Indonesia has tried to provide protection and justice for sexual violence victims. However, Indonesia has failed to accommodate the victims’ rights and offender’s punishment in its legal system, this spirals down on how sexual violence cases are not taken seriously in the universities. 57

De Beauvoir (2011, pp. 209–223). William Ryan (1976, p. xii). 59 Indonesia (1984). 60 Indonesia (2005), Art. 3. 61 Ibid., art. 2 point (3). 58

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Aside from the legal system, generally speaking, research literature extensively documents that women who are sexually assaulted are still subject to social pressures to respond in particular ways to “prove” that they are “real” and “credible” victims.62 Social expectations to conform to the stereotype of what real or “ideal” victims look like mean that women who are sexually assaulted are expected to do the following; (1) offer physical and/ or verbal resistance to unwanted sex; (2) express clear and explicit non-consent to unwanted sexual contact; (3) discontinue contact with the person who has been inappropriate sexually or who has assaulted them; and (4) demonstrate perfect or near perfect recall, including a consistent and linear narrative of “what happened.”63 These are, of course, unrealistic expectations. They do not represent how most women who are sexually assaulted actually cope and respond. As a result, these myths, biases, assumptions, and expectations interfere with how victims’ testimony about their experiences is heard and understood in sexual violence investigation. With all these difficulties where the victims might not be taken seriously as they report the case, not knowing it was sexual assault, not wanting others to know about the experience, belief that nothing will be done, insufficient proof, and fear of retaliation from the offender or his friends, while also needing to recover from the physical, psychological, and any other types of damages that the victims have to experience, as an educational institution, campuses need to take part on ensuring the victims would have a safe space to report the an authorized authority in campus that specifically handles sexual violence cases and have the suitable means and perspective in handling sexual violence. Therefore, one of the things that universities in Indonesia have to do to prove their commitment in addressing this problem is to create a crisis center or an institution specially formed to receive sexual violence report from the universities’ members and to proceed with any types of assistance needed by the victims. Some of the universities that already have hotlines for their members to report sexual violence cases are; (1) Harvard University with its Office of Sexual Assault Prevention & Response (OSAPR); (2) University of Southern Maine with its “Campus Safety Project.”; (3) University of Michigan with its Sexual Assault Prevention and Awareness Center (SAPAC); (4) Columbia University with its Rape Crisis Center; and many more. Providing a safe platform for universities’ members to report is a part of response that universities should do. The most critical point is that schools must prevent a “second rape” through an informed response that does not cause additional trauma to the affected student.64 Schools can play the crucial role in setting the trajectory for a student’s possible recovery through a coordinated and intelligent response. On the other hand, they can—and often do—exacerbate a victim’s trauma by making her fend for herself, not investigating properly, saying victim-blaming things or asking victimblaming questions, or just overall not taking the assault seriously.65 Then, in resolving 62

Busby (1999). Randall (2010). 64 Rosenfeld (2014). 65 Rosenfeld (2015, p. 364). 63

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a claim of campus sexual assault, schools are obligated to investigate and remediate a hostile environment in a “prompt and equitable” manner. The investigation should be initiated promptly and competently, meaning by a trained factfinder who understands how to gather evidence by interviewing witnesses, examining social media, and following up on incriminating statements.66

7 Sexual Violence on Campus Provision: Good Practice in the United States through Title IX Title IX prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance which was enacted in 1972. This provision explains that “no person in the United States shall on the basis of sex, be excluded from participation in, be denied that benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance…”67 It also translates that the Title IX of the 1972 Education Amendments is a federal civil rights law that prohibits sex-based discrimination in education. Under this law and other federal laws like the Clery Act schools and universities are obligated to keep its students safe and to guarantee survivors basic rights. This law mandates all schools and universities that receive federal funding to address genderbased violence and harassment and respond to survivors’ needs in order to ensure that all students have equal access to education.68 Within the final regulations, this law uses the following terms: “complainant”, “elementary and secondary schools”, “formal complaint”, “postsecondary institution”, “respondent”, “sexual harassment”, and “supportive measures”; each term has a specific meaning under these final regulations. To conclude for understanding when reading this preamble, “complainant” refers to any person who is alleged to be the victim of sexual violence and “respondent” refers to any individual who is reported to be the offender of sexual violence. A person may be a complainant, or respondent, even when no formal complaint has been filed and no grievance process is pending.69 The reason why sexual violence in education is considered as sex inequality, therefore it is a sex discrimination, is because sexual violence in education which includes rape and other sexual assault directed against the woman because she is a woman or affect women disproportionately.70 That principle also applies to anyone who experienced sexual violence because of their gender or sexuality. This law is so much related to rape law reform in the United States which refers to pushing the colleges to respond equitably to campus sexual violence which this has correlation to progressive efforts to eradicate the unequal procedural in rape law. This also refers to 66

Ibid. 20 U.S. Code § 1681. 68 Know Your IX (2020, p. 17). 69 U.S. Department of Education (2020, p. 19). 70 See CEDAW General Recommendation No. 19, Art. 6. 67

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the idea of affirmative consent that is standard designed to maximize sexual autonomy which has been applied in many universities in the United States.71 The legal reasoning for claims against universities for sexual violence as ruled in Title IX developed by courts following the cases that happened in the US Supreme Court decisions which have several elements. The behavior that can be complained under the Title IX must, in general, be unwelcome, notion of hierarchal power (particularly in teacher student situations), substitutes for unwelcomeness or can even overcome seemingly welcome behavior for liability purposes.72 As sex discrimination perpetuates sex inequality, in this case is sexual violence, Title IX guarantees that reports to the universities can go simultaneously with the reporting to the police because Title IX is not a replacement for that. Therefore, Title IX is a parallel option for survivors. Students who have experienced sexual violence on campus, off campus, and online are protected under the Title IX. There could be limitations to the universities if the sexual offender is not the member of the universities, however the universities still can make an inquiry into the allegations. This affects to the university’s effort to provide remedies for the survivors. Title IX ensures the mechanism for survivors to report to the campus. This includes the procedures of the grievances, notification of sexual violence or hostile environment, interim measures and investigations, retaliation, remedies for a complainant. Firstly, the university has to publish nondiscrimination notice saying that the university does not discriminate on the basis of sex in their educational programs or activities. This notification mandates the questions about Title IX should be referred to the school’s Title IX coordinator or to the office for civil rights. The University must notify all students and other members of the university of the designated Title IX coordinator’s name and their contact. Secondly, about the grievance procedures, universities are mandated to adopt and publish the mechanism to file grievance providing for prompt and equitable resolution of the victims of sexual discrimination, including sexual violence. Within this mechanism, The University must provide provisions for reliable, impartial, and adequate investigations for complaints, which also provides both the complainant and the alleged offender with chances to present witnesses and evidence. This mechanism also rules that university must designate reasonable prompt time frames for the major stages of the complaint process, and write notice to both parties of the complaint’s outcome. Thirdly, about the notification of sexual violence or hostile environment, the Office of Civil Rights would classify that university has received notice of studenton-student sexual violence in several situations, including but not limited to when a responsible employee has been informed, when a complaint is filed, and/or through indirect means like social media. Furthermore, OCR evaluates whether the university is expected to know about the hostile environment in cases of hostile environments that are well-known among the student body. Fourthly, but the interim measures and investigations, university must provide periodic updates to the student victims on the status of the investigation 71 72

Anderson (2016, p. 1970). Mackinnon (2016, p. 2065).

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and take interim steps to protect student victims before the final outcome of an investigation. This includes an action that should be taken by the university that is to inform the complainant of any available resources such as victim advocacy, housing assistance, academic support, counseling services, disability services, health and mental health services, legal assistance, and the right to file reports with campus officials and/or local law enforcement. Next aspect that is retaliation refers to the Federal civil rights law, including Title IX, protect the victims against retaliations. Lastly, university must ensure remedies for complainants, such as providing safety escort to and from classes, ensuring that the complainant and alleged perpetrator do not attend the same class, moving the complainant or alleged perpetrator to another residence hall, counseling services, medical services, and/or academic support like an extension on a paper or touring. Any reasonable accommodations necessary for a victim to stay in school should be provided at no cost to the victim.73

8 The Next Steps As mentioned above, talking about prevention, response, and resolution of matters involving sexual misconduct as universities’ responsibilities we can see it as a tricycle, meaning that if one wheel is missing, the tricycle (here, the sexual misconduct policy) will not stand. Therefore, to ensure every university has the same vision and commitment in handling and tackling sexual violence in their campuses, there needs to be a comprehensive national-scale regulation on the issue to enforce the responsibilities that lie upon the universities regarding sexual violence which we try to divide into three components. The first component is prevention, in order to prevent sexual violence from happening in campus and/or by universities’ members, there are several things that are crucial to be done which are the following; first, it is important to educate all members regarding sexual violence, this intends to create radical understanding for all the universities’ members that sexual violence is a gross human rights violation and every act regarding to it will be responded and handled seriously by the universities. This can be done through workshops where those who wish to participate in the upcoming academic year, needs to pass the workshops and get certificates that indicate so; this to emphasizes the seriousness of the universities and that also they put sexual violence as a priority. Aside from that, campuses need to support and/pr initiate any types of campaigns and activisms regarding to sexual violence to spread more awareness to the campus; second, it is crucial to regulate upon all matters regarding governance which include but not limited to which authorized body has the authority for which matter; this intends to ensure the enforcement of the cases reported are done by the right body and to ensure every step taken is regulated and has a clear bureaucracy; third, to create policies that is intended to create a communal 73

Know Your IX (2020, p. 18–19).

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culture that is safe for sexual violence victims and non-discriminative toward all identities; fourth, to have certain standards that determine the quality of responses of the universities regarding sexual violence cases; fifth, that each university has to have internal regulation regarding sexual violence that is lawfully binding toward all the universities’ members. The second component is response, a in responding to sexual violence cases report, it is needed to do the following things, which are; first, making classifications on types of sexual violence, this is important to help the victims identify unwanted sexual contact as a form of sexual violence thus they feel more confident to report; second, creating a special unit that has the authority to do any types of responses, protection, and recovery for the victims that have reported their cases. One of the most important parts of creating a special unit who takes care of all the handlings regarding sexual violence is the system of filing report. Filing report cannot take too long since keeping the victims on hold will create more damages to them. There needs to be a maximum length of time on which the cases need to be responded, for instance, by the time a case is reported, the unit has to do immediate responses on the next steps that need to be done within the same week. This unit also needs to evaluate, investigate, and resolve complaints alleging sex discrimination; also conducts proactive investigations, such as compliance reviews, to examine potential systemic violations based on sources of information other than complaints; third, ensuring the handling of sexual violence cases reported are based on the standards set by the regulations made. There needs to be a standard operating procedure on how the unit handles the cases; fourth, ensuring to provide recovery, assistance, and protection for the victims, this includes assistance in trials, assistance for psychological counseling, assistance for medical procedures, providing safe home, enforcing non-retaliation policy. The third component is resolution, in order to ensure that sexual violence cases are taken seriously, there should be sanctions that are regulated and enforced firmly by the universities, the form of sanctions can be anything which possibly include but not only limited to; firing (perpetrators) and/or getting students expelled from universities; warning letters; universities making open letters for public regarding cases that need to be brought up to public, and/or rehabilitation program. Relating to other policies mentioned on response, it is important for universities to classify types of sexual violence this relates to sanction regime. making classifications on types of sexual violence, this is important to identify the degree of sexual violence occur to determine what types of sanctions should be given to the perpetrators. For example, for cat callings it would be wise for the perpetrators to be given a warning letter and a form of mediation between the perpetrators and the adjudicators. Then, for sexual violence that involves physical contact such as obscene or rape, they need to be classified to a higher degree which any deeds relating to them need to be sanctioned with detention and/or discontinuation from the position held whether as lecturers, staffs, or students.

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9 Conclusion Indonesian students are not immune to sexual violence on campus. The fact that Indonesia still does not have law and policy addressing that issue, the students’ wellbeing, including their physical and mental health, performance in class, and safety are being compromised. Therefore, a provision that rules prevention, response, and resolution is very needed. This legal infrastructure can help students and other members of the university in identifying what considered sexual violence, how and where to report when they experienced as victims, receiving supports when the mechanism of response is being held (such as getting psychological help, financial support, safehouse, educational support, etc.). This epidemic of sexual violence on campus asks each of us to act faster because justice for victims has been delayed.

References Books Black, M. C., et al. (2011). National intimate partner and sexual violence survey. Centers for Disease Control and Prevention. Busby. (1999). Not a victim until a conviction is entered: Sexual violence prosecutions and legal ‘truth’. In E. Comack (Ed.), Locating law: Race/class/gender connections. Fernwood. De Beauvoir, S. (2011). The second sex (Le Deuxième Sexe). Translated by Constance Borde dan Sheila Malovany-Chevallier. Vintage Books. Fischer, B. S., et al. (2000). The sexual victimization of college women. U.S. Department of Justice Howells, K. (1984). The psychology of sexual diversity. Basil Blackwell. Karjane, H. M., et al. (2002). Campus sexual assault: How America’s institutions of higher education respond. Education Development Center, Inc. Kirkland, C. J. (1994). Academic impact of sexual assaults. George Mason University. Linder, C. (2018). Sexual violence on campus power-conscious approaches to awareness, prevention, and response. Emerald Publishing Limited. MacKinnon, C. A. (1979). Sexual harassment of working women: A case of sex discrimination. Yale University Press. Posner, R. A. (1992). Sex and reason. Harvard University Press. Ryan, W. (1976). Blaming the victim. Knopf Doubleday Publishing Group. Schneider, M., & Hirsch J. S. (2020). Comprehensive sexuality education as a primary prevention strategy for sexual violence perpetration. Trauma, Violence, and Abuse, 21(3). Soesilo, R. (1995). Kitab Undang-Undang Hukum Pidana KUHP dan Komentar-Komentarnya Lengkap Pasal demi Pasal. Politeia, p. 212.

Journals Anderson, M. J. (2016). Campus sexual assault adjudication and resistance to reform. The Yale Law Journal, 125, 1940.

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Arief, H. (2018). Domestic violence and victim rights in Indonesian law concerning the elimination of domestic violence. Journal of Legal, Ethical and Regulatory Issues, 21(4), 6. Fairchild, & Rudman. Everyday stranger harassment and women’s objectification. Social Justice Research, 21. Fisher, B. S., et al. (2000). The sexual victimization of college women 15. NCJ, 182369. Halley, J. (2015). Trading the megaphone for the gavel in Title IX enforcement. Harvard Law Review Forum, 128, 103. Jauhari, I. (2014). A comparison of child protection law between Indonesia and Malaysia. Journal of Law, Policy and Globalization, 27. Johnson, M. P. (2006). Conflict and control gender symmetry and asymmetry in domestic violence. Violence Against Women, 12(11). Josse, E. They came with two guns’: The consequences of sexual violence for the mental health of women in armed conflicts. Retrieved November 20, 2020, from https://www.icrc.org/eng/assets/ files/other/irrc-877-josse.pdf Mackinnon, C. A. (2016). In their hands: Restoring institutional liability for sexual harassment in education. The Yale Law Journal, 125, 2038. Michelle, J. A. (2016). Campus sexual assault adjudication and resistance to reform. The Yale Law Journal, 125, 1940. Nation, M., et al. (2003). What works in prevention: Principles of effective prevention programs. American Psychologist, 58(6–7). Randall, M. (2010). Sexual assault law, credibility, and “Ideal Victims”: Consent, resistance, and victim blaming. Canadian Journal of Women and the Law, 22(2), 397–433. Rosenfeld, D. L. (2014). Schools must prevent the “Second Rape”. Harvard Crimson. Rosenfeld, D. L. (2015). Uncomfortable conversations: confronting the reality of target rape on campus. Harvard Law Review, 128, 359.

Regulations Indonesia. Undang-Undang Dasar 1945 Amandemen IV. LN. No. 14 Tahun 2006. Indonesia. Undang-undang tentang Pengesahan Konvensi mengenai Penghapusan Segala Bentuk Diskriminasi terhadap Wanita (Convention on the elimination of all forms of discrimination against women). UU No. 7 tahun 1984. LN No. 29 tahun 1984. TLN No. 3277 (Law No. 7 of 1984, SG No. 29 of 1984). Indonesia. Undang-Undang Perlindungan Anak. UU No. 23 Tahun 2002. LN No. 109 Tahun 2002. TLN No. 4235. Indonesia. Undang-undang tentang Pengesahan International Covenant on Economic, Social, and Cultural Rights (Kovenan Internasional Tentang Hak-Hak Ekonomi, Sosial, dan Budaya) (The Law on the Ratification of ICESCR). UU No. 11 tahun 2005. LN No. 118 tahun 2005. TLN No. 4557 (Law No. 11 of 2005, SG No. 118 of 2005). Indonesia. Undang-Undang Pendidikan Tinggi. UU No. 12 Tahun 2012. LN. No. 158 Tahun 2012. TLN No. 5336. Komisi Nasional Anti Kekerasan Terhadap Perempuan. (2017). Naskah Akademik Rancangan Undang-Undang Penghapusan Kekerasan Seksual. Jakarta: Komisi Nasional Anti Kekerasan Terhadap Perempuan.

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International Documents International Criminal Court. Admissibility, and applicable law of the rome statute of the international criminal court. World Health Organization. (2012). World report on violence and health. Geneva.

Online Articles Asmarani, D. 93 Persen Penyintas Tak Laporkan Pemerkosaan yang Dialami: Survei. Retrieved November 20, 2020, from https://magdalene.co/news-871-93-persen-penyintas-tak-laporkanpemerkosaan-yang-dialami-survei.html Denby, N. The sexual assault epidemic is real. Retrieved November 20, 2020, from https://www.huf fingtonpost.com/entry/yes-the-sexual-assault-epidemic-isreal_us_57be7905e4b06384eb3e4ae0 Freyd, J. J. Institutional Betrayal and Institutional Courage. Retrieved November 16, 2020, from https://dynamic.uoregon.edu/jjf/institutionalbetrayal/ HopeHelps Universitas Indonesia. Ringkasan Tahunan HopeHelps Universitas Indonesia 2020 Esa Hilang, Dua Terbilang: Refleksi Angka Kekerasan Seksual di Universitas Indonesia. Retrieved November 16, 2020, from https://bit.ly/RITAHHUI2020 Know Your IX. Know Your IX: Campus Organizing Toolkit. Retrieved November 25, 2020, from https://www.knowyourix.org/wp-content/uploads/2016/12/Toolkit-Final.pdf National Commission on the Elimination of Violence Against Women (Komnas Perempuan) found there are 15 forms of sexual violence which were based on their 12 years of experience. See Komnas Perempuan, “15 Bentuk Kekerasan Seksual: Sebuah Pengenalan”. Retrieved November 17, 2020, from https://www.komnasperempuan.go.id/file/pdf_file/Modul%20dan%20Pedoman/ Kekerasan%20Seksual/15%20BTK%20KEKERASAN%20SEKSUAL.pdf Pusat Data dan Informasi Ilmu Pengetahuan, Teknologi, dan Pendidikan Tinggi, “Statistik Pendidikan Tinggi 2018”. Retrieved November 16, 2020, from https://pddikti.kemdikbud.go. id/asset/data/publikasi/Statistik%20Pendidikan%20Tinggi%20Indonesia%202018.pdf Qodar, N. Mahasiswi W Baca Surat Curhat Pelecehan Sitok untuk Menko Luhut. Retrieved November 16, 2020, from https://www.liputan6.com/news/read/2341469/mahasiswi-rw-bacasurat-curhat-pelecehan-sitok-untuk-menko-luhut Racklin, M. (2019). Title IX and criminal law on campus: Against mandatory police involvement in campus sexual assault cases. New York University College of Arts and Science. Redaksi. Nalar Pincang UGM atas Kasus Perkosaan. Retrieved November 16, 2020, from https:// www.balairungpress.com/2018/11/nalar-pincang-ugm-atas-kasus-perkosaan/ Septianto, B. 123 Anak Jadi Korban Kekerasan Seksual di Sekolah Selama 2019. Retrieved November 17, 2020, from https://tirto.id/123-anak-jadi-korban-kekerasan-seksual-di-sekolah-sel ama-2019-ep3D Syambudi, I. Wartawan Balairung Raih Penghargaan Pogau Award untuk Keberanian. Retrieved November 16, 2020, from https://tirto.id/wartawan-balairung-raih-penghargan-pogau-awarduntuk-keberanian-dfHD U.S. Department of Education. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. Retrieved November 25, 2020, from https:// www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf Zahra, N., & Ulfa, W. Testimoni Kekerasan Seksual: 174 Penyintas, 79 Kampus, 29 Kota. Retrieved November 16, 2020, from https://tirto.id/testimoni-kekerasan-seksual-174-penyintas79-kampus-29-kota-dmTW

Indonesia and Peacekeeping Operations: Protection of Womens’ Rights in Africa Under MINUSCA Aryo Pradhana Putrasatriyo and Illona Christine

This article explains how Indonesia has committed towards empowering and protecting women in the Central African Republic under the role of peacekeeping operations led by the United Nations. After 10 attempted coups and sectarian conflicts, the Central African Republic has seen armed conflict that injures minority groups, such as women and children. Responding to the situation, is the United Nations Peacekeeping Operations, which aims to further stabilize and to ensure the protection of such groups. As of the year 2020, the number of women participating in United Nations-led peacekeeping operations only reached the number of 6% from the total force, while the role of women on the field is very much needed at conflict areas, such as the one in Central African Republic. Their perspectives have been crucial in creating and sustaining peace; thus, their role must be reassured by multiple stakeholders, including Member States of the United Nations.

1 Introduction The term “peacekeeping” does not emerge explicitly in the Charter of the United Nations. However, by practice, the organization used the term to describe efforts made by the United Nations on maintaining peace throughout the globe, particularly in areas that have or are currently engulfed in armed conflict. This practice is the implementation of the mandate that was given to the organization, particularly the United Nations Security Council, to settle disputes that were attributed towards the

A. Pradhana Putrasatriyo (B) · I. Christine Legal Clinic for Women and Children, Faculty of Law Universitas Indonesia, Depok, Indonesia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 L. I. Nurtjahyo and M. A. Wicaksono (eds.), Gender-based Violence in South-East Asia, https://doi.org/10.1007/978-981-19-2492-7_6

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breach of peace and or aggression—as mentioned under Chaps. 5 to 8 of the charter.1 The Council, which creates legally binding resolutions to all UN member states, can deploy peacekeepers under the UN’s mandate to conflict zones.2 Peacebuilding, on the other hand, is a part of the whole peacekeeping process that aims to rebuild communities that were affected by the previous conflict. It is a fundamental part of the whole multidimensional peacekeeping operation that is deployed not only to stop hostility, but to help local communities thrive once again. Until this article is written, the Security Council has adopted at least three resolutions aiming towards the role of peacekeepers in conflict zones with themes including women and child protection during armed conflict. United Nations Security Council Resolution (hereinafter stated as “UNSCR”) 1325 on was one of the first UNSCR that emphasizes the role of women in conflict, stating the importance of gender perspective towards women and girls during armed conflict as well as their protection.3 It is soon followed by UNSCR 1612, concerning children in armed conflict, and UNSCR 1674, concerning civilians in armed conflict. These UNSC Resolutions were hailed by most experts as groundbreaking and landmark resolutions made by the United Nations to ensure the safety of women and children during times of armed conflict. Currently, the United Nations has around 14 active peacekeeping operations, from a total of around 60 missions since its establishment.4 While some may tribute the number of active deployments towards the activeness of global community in stopping armed conflict, it should however, be viewed as also a worrying number towards violence against women. With active 14 operations, it should be noted that there are risks of worrying conditions for civilians, women, and children. Reports both from the UN Secretary General and Special Rapporteurs to the Security Council have stated that women and children are the most vulnerable groups during times of armed conflict. For example, during his 2020 report, SecretaryGeneral Guterres described how a mother of 6 was raped by ex-Seleka elements and thus was carried by the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) to safety for medical treatment.5 The Secretary-General also noted in his 2020 report that around 27 cases of conflict-related sexual violence was reported in Mali by the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA).6 Examples that 1

These chapters explain the powers and roles of the Security Council in maintaining peace. Chapter VI deals with the pacifist approach of the Security Council in dealing with conflict, while Chapter VII. 2 One should note that Security Council resolutions are not a source of international law as stated under Article 38 (1) of the Statute of the ICJ. However, should one reads article 24 (1) and 25 of the UN Charter, those articles implicitly state that resolutions under the UN Security Council are binding towards all member states. Hence, states that is a member of the United Nations will be binded by UNSC Resolutions. 3 United Nations Security Council, Resolution 1325 (2000), 31st October 2000, para. 8, 9, and 10. 4 Philippe Sands and Pierre Klein (2009). 5 United Nations, Conflict Related Sexual Violence – Report of the Secretary-General (2020), para. 11. 6 Ibid, para. 37.

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were given by the Secretary-General underlines the grievances felt by women and children during and after armed conflict. Indonesia as a long-time contributor to peacekeeping efforts, such as the one in Central African Republic (CAR), have and should continue to promote genderinclusive strategies in peacekeeping and peacebuilding operations. As the largest contributor for UNIFIL, 24 Indonesian women peacekeeper officers were deployed in an effort to motivate young women and girls to pursue a better life ahead,7 a hallmark as well as a commitment of Indonesia on the issue of women rights internationally. Indonesia Foreign Minister, Retno L.P. Marsudi, has stated that Indonesia will stay committed in contributing towards a greater portion of women peacekeeper officers deployed in peacekeeping missions.8 This is in line with the mission of the Ministry of Foreign Affairs of Indonesia for peacekeeping efforts, as regulated under the Ministry’s regulation number 1 of 2017. With cases of conflict-related sexual violence being reported from conflict zones, the authors would suggest that women peacekeepers are becoming more needed in battlegrounds, not only to create and maintain peace, but to build it as well. Stories and records such as the 24 women peacekeepers in Indonesia at Lebanon might strengthen the argument that the numbers of women peacekeepers are not yet enough. The United Nations has also outlined basic measures on how to treat sexual violence in the midst or after an armed conflict, with the hope that nations alike would help the victims to rebuild their lives.

2 A Historical Glimpse While both terms are not explicitly stated under the UN Charter, “peacekeeping” and “peacebuilding” have common phrases for diplomats and most people to explain a situation when the United Nations sends soldiers under the UN banner to maintain stability and to rebuild a region that is or was devastated by armed conflict. Curran noted that the phrase can be indirectly divided into the cold war and post-cold war scenarios, later explain that the former emphasizes on deployment in the middle of buffer zones between belligerents and a passive stance, while as the latter expanded its role as an impartial force in the ground that has the consent of both parties.9 The latter then expands to be the main three pillars of the UN peacekeeping activities, namely consent of both parties, impartiality of UN forces, and minimum use of force.10 The current understanding of peacekeeping operations has evolved into a multi-dimensional one, which apart from the traditional military deployment, also

7

Rany Purnama Hadi and Sartika Soesilowati (2018), p.382. Dian Septiari (2020). 9 David Curran (2017). 10 Kelly Neudorfer, Sexual Exploitation and Abuse in UN Peacekeeping, (Lanham, MD: Lexington Books), ProQuest Ebook Central, p. 20. 8

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focuses on peacebuilding capabilities and activities in conflict-riddled areas.11 Karim and Beardsley also noted that peacekeeping actors on the ground are not just military personnel from member states, but also police and civic groups dispatched by member states. These elements are also important in peacekeeping efforts, since police and civic groups have a more relevant experience and approach on community-based issues. With the paradigm shift of UN peacekeeping operations, a gender-inclusive approach has been put into the spotlight since at least from the beginning of the new millennium. Three UNSC Resolutions were passed, acknowledging the importance of not only protecting the rights of women, but also including women as a bridge builder and peacebuilder. Commitments from member states to include women in peacekeeping deployments has also increased, judging from the increasing number of women that have been deployed. Such achievements should be noted, not as a form of celebration, but as a reminder that work in the future must be better from the past. Such a paradigm shift happened because of the impact of wars and conflicts towards women. Karim and Beardsley noted that during the end of the last millennium, wars that erupted in Kosovo and Rwanda significantly impacted women, thus prompting discussions on how the international community should protect women in times of conflict.12 The discussions were then further developed in future conferences and declarations, such as the Beijing Conference’s 5th anniversary and Windhoek Declaration.13 These documents, alongside the discussions, were then made into formal and binding resolutions for all UN members, through one of the first Security Council Resolutions concerning women and their safety in conflict areas, namely the UNSCR 1325. UNSCR 1325 plays an important role on this topic since it is regarded as one of the landmark resolutions made by the UN in addressing the role of women in peace and security. The resolution creates a foundation where women rights should be considered and duly executed. It also creates an obligation for all actors14 to protect the rights of women and girls, particularly their rights relating to the constitution, electorate, and judiciary system.15 Though these points are progressive in a time when awareness of women rights is evolving, paragraph 8 of the resolution limits it only to actors “when negotiating and implementing peace agreements”, nevertheless one can underscore the importance of the resolution within the United Nations framework. Alongside the protection given under UNSCR 1325, numerous international treaties, conventions, and customary laws have given protection towards women and 11

Sabrina Karim and Kyle Beardsley (2017), p.12. Sands and Klein also mentioned that peacekeeping operations from the UN focuses on enforcing peace accords and providing humanitarian assistance. See Phillipe and Klein, Bowett’s Law of , p. 51. 12 Ibid, p.14. 13 Ibid. 14 The word actors can refer to the actors of international law, namely states, international organizations, and belligerents. 15 United Nations Security Council, Resolution 1325 (2000), 31st October 2000, para. 8c.

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children. Convention on the Elimination of Discrimination Against Women (furthermore reference as “CEDAW”) has been in force since 1981, a landmark convention which provides protection towards women against forms of discrimination.16 Additionally, the Geneva Convention on the Protection of Civilian Persons in Time of War (August 1949), reiterates the importance of protection of women against rape, enforced prostition, or assault.17 These two conventions, although there are many others, lays the foundation for protection of women during wars and armed conflict.

3 The Violence in CAR The Central African Republic (CAR) has faced social, economic, and political crises ever since she gained independence from France in 1960. Having witnessed more than 10 military coup attempts between 2005 and 2015,18 the country has only become more vulnerable towards the outbreaks of conflicts, which in this case, is exactly what happened. With the failure of the centralized governments to provide security and basic services to its citizenry over the decades, the ongoing conflict between major armed groups Séléka, a predominantly Muslim coalition of rebel groups from the north, and anti-Balaka, a network of Christian self-defence militias that rose up in response to the former’s existence,19 along with other armed groups in CAR, which has taken a toll on the country and its citizens. Due to the absence of the state’s security forces and the collapse of the state institutions,20 the use of violence by these armed groups has become prominent. One of the most predominant forms of violence used by the armed groups to target local communities and civilians is sexual violence. Women and children have become the main victims of these perpetrators, and with the lack of security, they can only become more vulnerable. In 2016, over 11.000 cases of gender-based violence were recorded nationally by the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA).21 This, of course, did not go unnoticed by CAR governments. Multiple accords have been signed between the armed groups and successive governments since 2012, alongside the making of the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) in 2017. However, ceasefires are broken immediately and signatories continued to flagrantly use sexual violence as a tactic of terror against civilians.22 In 16

Both Indonesia and the Central African Republic has been parties towards CEDAW since 1984 and 1991 respectively. 17 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12th August 1949, Art. 27. 18 Abdurrahim Sırada˘ g (2016). 19 Peter Knoope and Stephen Buchanan-Clarke (2020). 20 Ibid. 21 Peter Knoope and Stephen Buchanan-Clarke (2020). 22 United Nations (2020).

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2019 alone, MINUSCA has verified that there were 322 incidents of conflict-related sexual violence, affecting 187 women, 124 girls, 3 men, 2 boys, and 6 females of unknown age.23 With the number of conflict-related sexual violence cases increasing, this could be used as one of the arguments to endorse further the importance of women in peacekeeping operations. According to the MINUSCA Mission Fact Sheet, up until August 2020, the number of female uniformed personnel was as low as 6% and the number of female civilian personnel was at 28%. When it comes to talking about ways to resolve this issue, the authors are not trying to undermine the actions that has been taken with the deployment of troops to the peacekeeping operation in CAR (which mainly consists of men) per se, but rather highlight the fact that it is necessary to acknowledge that with the current situation in CAR, women and children, particularly survivors, are having a hard time in disclosing their experiences due to the fear of reprisals and stigmatization.24

4 Indonesia’s Contribution Peacekeeping operations have been one of Indonesia’s hallmark contributions to the UN and world peace. The commitment is largely mandated by the preamble of the 1945 Indonesian Constitution,25 as well as article 43 of the UN Charter,26 which stipulates that Indonesia, both as a sovereign state and a member of the international community, shall support the maintenance of international peace. The realization of such mandate is in the form of peacekeeping missions that Indonesia participated, with the first contribution was in 1956, when the state send the Garuda Contingent for peacekeeping mission in Sinai27 consisting around 500 + troops. Now, Indonesian peacekeepers have evolved up to 4000 troops deployed in various missions, such as in Lebanon under UNIFIL and in CAR under MINUSCA. From the viewpoint of world peace as well as protection of women and other minorities, the contribution from Indonesia can be viewed from two perspectives. First is direct contributions, such as the deployment of peacekeeper troops from Indonesia. Second is the in-direct contributions, through resolutions from the UN

23

Ibid. Ibid, para. 21. 25 Indonesia, Undang-Undang Dasar Negara Republik Indonesia 1945 [Constitution of the Republic of Indonesia, 1945], preamb. para 4 which translates into “… and to participate in world peace based on freedom, eternal peace and social justice”. 26 United Nations, Charter of the United Nations, art. 43, para 3 stipulates that “All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security”. 27 David Capie (2016). 24

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General Assembly or the UN Security Council, which Indonesia has a seat until the end of 2020. One of the major indirect contributions of Indonesia towards the protection of women in conflict areas is through the initiative that led to the adoption of UNSCR 2538. The Resolution, born from the soul of UNSCR 1325, reaffirms again that protection of civilians in armed conflict, including women, is and must be a top priority. While reaffirming the need for protection might be repetitive, the Resolution also encourages members of the UN whose troops served in peacekeeping missions, to increase the number of women peacekeepers in future deployments, such as through capacity-building training. This is in line with what Indonesia has endorsed through the aforementioned Foreign Ministry Regulation Number 1 of 2017, which stated the importance of increasing women officers in peacekeeping operations. Furthermore, the passed resolutions are in line with Indonesia’s commitment when ratifying CEDAW as well as Geneva Conventions on protecting civilians, especially women in particular. Nevertheless, these achievements and contributions should also be tallied to the progress and breakthrough that UNSCR 1325 has laid. The existence of the resolution UNSCR 1325 has not only become one of the ways to implement gender mainstreaming in the fields of peacekeeping operations, but also takes note that the presence of women peacekeepers contributes to a more effective peacekeeping operation in conflicting areas.28 The aforesaid statement is not without grounds, but rather could be supported by the following arguments29 : 1.

2.

3.

4.

5.

28 29

Protection: Peacekeeping operations with more women peacekeepers are better able to protect citizens, especially women and children, because women peacekeepers bring a greater awareness of challenges, and because women peacekeepers are less intimidating or provocative than men peacekeepers; Sexual Violence (1)—assistance to victims: Women peacekeepers ensure a more compassionate or empathetic response to victimized women and children especially those that have been sexually assaulted; it is often claimed that it is “easier” for a raped woman to talk to another woman about her assault; Sexual Violence (2)—deterrence: By having a “civilizing” effect on their male colleagues, women’s presence ensures a better-behaved, less-corrupt, and lessabusive peacekeeping operations; Sexual Violence (3)—incidence: With regard to the problem of sexual exploitation or abuse committed by UN personnel, women are less likely to be perpetrators, thus lowering the overall level of sexual exploitation or abuse committed; Practice advantages: Women peacekeepers are able to search local women at checkpoints; can establish better relations with local women’s groups; and can improve intelligence gathering about the local community, via better access to local women and/or a broader understanding of what constitutes as security threat; Kathleen M. Jennings (2011). Ibid, p. 3. See also Francesco Bertolazzi (2010).

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6.

Inspiration: women peacekeepers help contribute to more equitable gender relations within the local society by serving as role models or mentors for local women and girls.

The resolution also bears similarity towards several previously mentioned conventions and other international law, such as CEDAW and the Geneva Convention of August 1949. Both conventions expressed the desire and purpose of protecting women and children - as minorities during times of conflict - from the danger and the effects of the war itself, a note under UNSCR 1325 on paragraph 10. Both conventions also call for parties, that are states, to take active measures to ensure that rights of women and children shall not be infringed, also a key phrase under the resolution on paragraph 11. Therefore, the Resolution bears a similar face from previous conventions that has sought to protect women. The Resolution, with its binding power to all UN member states, indirectly binds states to the principles and values of the aforementioned conventions, regardless whether they are parties or not to the conventions.

5 Conclusion The importance of women officers’ role in peacekeeping operations have been heavily recognized by the United Nations through the creation of Resolution UNSCR 1325 as one of their first steps, in addition to various protocols and conventions such as the Geneva Convention of 1949 on the protection of civilians and the Convention on the Elimination of Discrimination Against Women. With the reports showing that women and children are the most vulnerable group during times of armed conflict, especially in CAR, the current low number of women participating in peacekeeping operations have not been able to overcome the rising number of conflict-related sexual violence cases effectively. Due to the hard time they have in disclosing their experiences because of reprisals and stigmatizations, these women and children survivors are in need for a safe space and assistance to open up. Without the intention of undermining the assistance that has been provided by the current officers (which majorly composed of men), the role of women in peacekeeping operations is still needed as ever. Aside from the fact that engaging more women to participate in peacekeeping operations could be one of the ways to implement gender mainstreaming (in which the authors feel like it should be discussed in another time), sending women to assist in conflicted areas has its advantages, namely better assistance to survivors, becoming inspirations, and becoming more relatable as fellow women in handling these cases, which could lead up to survivors being more open. As for Indonesia, being one of the major contributors in deploying personnels to the UN peacekeeping operations, including to CAR, the country is now following what has been mandated in the UNSCR 1325, including the writings of the mission of endorsing gender equality through the deployment of women personnel to peacekeeping operations in the Foreign Ministry Regulation Number 1 of 2017. But like

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other contributors, Indonesia still faces some challenges in order to execute this mission. These actions, of course, have to be appreciated. However, seeing the current condition both of Indonesia’s peacekeepers and in CAR, it is evident that there are still changes and improvements need to be made in order to increase Indonesian women’s role in peacekeeping operations.

References Books Curan, D. (2017). More than fighting peace? Conflict resolution, UN peacekeeping, and the role of training military personnel. Springer. Karim, S., & Beardsley, K. (2017). Equal opportunity peacekeeping—Women, Peace, and security in post-conflict states. Oxford University Press. Neudorfer, Kelly. Sexual Exploitation and Abuse in UN Peacekeeping. Lanham, MD: Lexington Books. Philippe Sands, Q. C., & Pierre Klein. (2009). Bowett’s Law of International Institutions. ed.6 London: Thompson Reuters.

Articles and Journals Capie, D. (April 2016). Indonesia as an emerging peacekeeping power: Norm revisionist or pragmatic provider? Contemporary Southeast Asia, 38, 1–27. Hadi, Rany Purnama, & Sartika Soesilowati. (2018). The role of women in security Indonesian women peacekeepers in the UNIFIL: Challenges and opportunities. Masyarakat, Kebudayaan dan Politik, 31, 380–388. Sırada˘g, Abdurrahim. (2016). Explaining the conflict in central African republic: Causes and dynamics. Epiphany: Journal of Transdisciplinary Studies, 9(3), 86–103.

Regulation Indonesia. (1945). Undang-Undang Dasar Negara Republik Indonesia 1945.

International Documents Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12th August (1949). United Nations, Charter of the United Nations. United Nations. Conflict Related Sexual Violence – Report of the Secretary-General (2020). United Nations Security Council, Resolution 1325 (2000), 31st October 2000, para. 8, 9, and 10.

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Internet Bertolazzi, Francesco. (2010). Women with a blue helmet: The integration of women and gender issues in UN peacekeeping missions, UN-INSTRAW Working Paper Series, Dominican Republic. Jennings, Kathleen M. (2011, September). Women’s Participation in UN peacekeeping operations: Agents of change or stranded symbols? Norwegian Peacebuilding Resource Centre (NOREF) Report. Knoope, Peter, & Stephen Buchanan-Clarke. (2020). Central African republic: A conflict misunderstood. The Institute for Justice and Reconciliation (IJR) Report. Retrieved 10 December, 2020, from https://www.clingendael.org/sites/default/files/pdfs/CAR_Report.pdf. Septiari, Dian. (2020). Indonesia committed to greater peacekeeping contribution: FM Retno. Retrieved 6 December, 2020, from https://www.thejakartapost.com/news/2019/01/24/indonesiacommitted-to-greater-peacekeeping-contribution-fm-retno.html. United Nations. (2020). Conflict-related Sexual Violence: Report of the United Nations SecretaryGeneral. Retrieved 10 December, 2020, from https://www.un.org/sexualviolenceinconflict/wpcontent/uploads/2020/07/report/conflict-related-sexual-violence-report-of-the-united-nationssecretary-general/2019-SG-Report.pdf.

The Silence Scream: Lesson from Violence Against Women Under Religion Gita Ardi Lestari

This Chapter elaborate ethnographic approach regarding three moslem women and their struggle of being daughter, mother, and wife. The three women are part of the social group of Al Qur’an recite (pengajian in Indonesian) and living life paths that are different from each other. Writer suggest the three women are struggling the dilemma of living the nurturing way of being a woman under religion they believe. At the same time, they must be as modest as they can while the passion of expressing their taste is being suppressed. The approach of the writing consists of several misleading verses from Al Qur’an about women being and how they perceive this in their life. More also about how this kind of social group of women is actually becoming the soft target of the threat of terrorist groups.

1 Introduction Feminist and religion are two different approaches. For decades the debate over feminism and its western values make religion seems like two different paths even to talk about. But the world seems to have forgotten the women who are born and bind in religious values. The fact that in some parts of the world there are women who need an escape from a never ending patriarchal perspective from the time she is born until she dies. This writing elaborates the approach of Saba Mahmood-Al Haya (Shyness and Modesty) and the lives of two women in South East Asia, Indonesia—precisely in suburban Jakarta who’s entitled to moslem study group. The concept of Al Haya itself is not far from the way of how moslem avoid the sinful act. In their life, moslem supposed to have the Al Haya characteristics. If one has no goodness like in Al Haya which is shyness and modesty, they usually have G. A. Lestari (B) Faculty of Law, Universitas Indonesia, Depok, Indonesia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 L. I. Nurtjahyo and M. A. Wicaksono (eds.), Gender-based Violence in South-East Asia, https://doi.org/10.1007/978-981-19-2492-7_7

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nothing to stop them from doing anything in life. This concept in Saba Mahmood writing: “Among the religious virtues (fadail) that are considered to be important to acquire for pious Muslims in general, and women in particular, is that of modesty or shyness (al-haya’), a common topic of discussion among the mosque participants. To practice al-haya’ means to be diffident, modest, and able to feel and enact shyness” (Mahmood, 2001:213)

There is nothing wrong with the concept of Al Haya, although the concept when it comes to religious values it is always biased with the fact that the one using it is supposed to be women rather than men. When it comes to women, Al Haya tends to be correct as stated in the story in Al Quran (Surah Al Qasas) but it is not to be stated for a man to do so. Mahmood argues that the fact that women are so submissive then follow the Al Haya is not far from the acknowledgement that women supposed to be do so even the fact that inside her, she has her own argument to do otherwise. This is one of the fundamental things in this writing that I will use to analyze the fact of women’s life in my field sample. Alison Weir in her article ‘Feminism and the Islamic Revival: Freedom as a Practice of Belonging’ stated that: It should also be noted that the pietists very definitely do not passively accept the teachings of the imams; instruction is given by women scholars who are interpreting multiple juridical texts, and the students engage in questioning and argument, so that in the end each woman’s interpretation is her own.

This writing also sees the part of women being unseen by the society just because the religious source dictates the printed values which for some reason can not be the adjustment for the way of living of women these days. Even though the writing uses the revival of Egypt and the veil as symbols of women, this is still accurate when we talk about the women in South East Asia. The wave of veil wearing is bigger than before. The modesty of moslem women is not only coming from the behavior but now it is moving fast to the clothes and other symbolism. Where people forget the fact that modesty is so far from moslem fashion in Indonesia these days. The modesty itself is still arguable in this grey area.

2 Theoretical Approach Conversation under the theme of anthropology and women are ran several years ago. Sertaç Sehlikoglu on Revisited: Muslim Women’s Agency and Feminist Anthropology of the Middle East stated the four waves on feminist anthropology and Moslem women’s agency. Like it or not, when it goes to women and religion especially moslem women, the conversation started at Middle East. The first wave started generating women and differentiate it from the man-oriented values. One of the famous conclusions is where there are two things, the word of God (Quran) and the word of men (tribal and family custom) (Sehlikoglu, 2017:76). Back then the argument centered on the values of women and men, not even gender.

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Then the second wave which happened around 1980s–1990s made the context of feminist and issues around it contacts with the postcolonial critique. In that era, the discussion among women and men has become more fluid. The ‘History of Sexuality’ from Foucault and Judith Butler on making gender as a normative system remarks the second wave (Sehlikoglu, 2017:76). In this era, the discourse of gender studies was acknowledged, shifted from women studies. Saba Mahmood and Fatimah Mernissi also became vocal from the Middle East studies regarding women. Move to the third wave, the scholar from the second wave still determines the argument. Saba Mahmood on her writing of the ‘Politics of Piety’ and her argument towards Al Haya (Shyness and Modesty) on the women and her religiousness, remark the third wave. This writing is based on its field sample and analyzes it with the concept of Saba Mahmood on Al Haya. As Christine M. Jacobsen on ‘Troublesome Threesome: Feminism, Anthropology and Muslim Women’s Piety’ introduce the argument that between anthropology and feminism there is an argument on how it is related. Not only that but the fact that religion plays an important part in the discourse especially of women’s piety. As Jacobsen put it, “In particular, I deal with how to understand women’s religious piety relation to questions of self, agency” (Jacobsen, 2011:65). Together, on Mahmood’s argument on how to define women and the previous studies that Jacobsen made, I put the stand of the argument. That women in their piety (religious values) are still strongly correlated with society values that shape them. The society values might be still intertwined with the patriarchy and it is getting more tense with the religious values.

3 Nisa and Rina Story There are a lot of layers in one’s life. Nisa’s life, for example, is juggling her roles in being a daughter and also a teacher for a number of children in her neighborhood. Every day since she decided to quit her senior high school, her life has been revolving around helping her mother for a living, and teaching children about Islam as locals called ‘ngaji’. Born as the daughter of a Kyai, a person who is respected as an expert in Islam, Nisa always sees herself as the person in charge to continue her father’s legacy. Nisa believes the life she needs to lead is doing what her father will do if he is still alive. Together with her uncle, they run a small foundation (Yayasan) which specializes in taking action by giving the neighborhood support for religious matters. Her uncle runs the weekly pengajian with a targeted audience. For example, in a week there are times they have sessions for male jamaah, women jamaah, family, and children. They are both also in charge of private lessons if there are people who want to get the session done at their home. In this regard, they separate their clients in the division of male/female basis. Nisa follows the instructions in the arrangement, if there is a woman client but the uncle wants to take the job, she must obey. The one and only session she could freely teach is in the afternoon session with the children. During the three months of observation and in-depth interview, the writer tries to connect the dots and sees the big picture of how the women in Nisa’s family

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implement their religious values under the economic pressure. The fact that women in Nisa’s family never work outside their religion’s network shows their exclusivity. They try to put religious values as the base of their life. Their devotions and understanding through religion frame their capacity in surviving life as religious women. Besides Nisa, I also met Rina, a middle-aged woman with two kids. Her husband is not limiting her space and letting her become a reseller for products like clothes and food. Rina used to work in the shop but after experiencing miscarriage, she decided to be a housewife. Her decision to stay at home is fully supported by her husband. During her time at their small house (which is attached to her mother in law’s) she takes care of her children and runs the reseller business. Unlike Nisa, Rina is connected to the pengajian through her husband. Her husband was the foster child of Nisa’s mother. For a long time, Rina’s husband follows the pengajian and becomes one of the active members who supports the group. There are two big things I can recognize by being friends with Nisa and Rina during the field observation. They both are determined to be devout women to their religion and God, and the second is their resilience toward economic pressure as a woman, as breadwinner for the family. Nisa usually sells her mom home-cooked food and several things such as cheap cosmetics or clothes. Rina on the other hand becomes a reseller for kid’s clothes, food, or many different homeware stuffs. They are both struggling in the economic pressure for the family needs. This writing elaborates the portrait of women with Islam values under their needs of economic fulfilment. Both Nisa and Rina experience the lack of educational background. Such as Nisa who chose to not continue school, not because her parents cannot afford the school fee, but because she chose to fulfill her father’s dreams. Both Nisa and Rina also pursue the life of good women under Islamic values. They both also uphold the same values of modesty (wearing clothes that cover aurat). Not only because they are taught that by the parents, but also simply because they believe that good women must comply with the values of religion. Every week both Rina and Nisa conduct at least two compulsory weekly meetings for ngaji. In the same meeting, they also provide the member with necessary material for the meeting or food for the monthly event. Since the pandemic, the event of meeting might need to be reduced but not for long. This could be the fact that the organization’s income basically comes from the charity box (kotak amal) and membership fees (seikhlasnya).

4 About the Values It is interesting to talk about the values of women in the society with Nisa and Rina. They both have similar understanding, however Rina who previously did not wear hijab before marriage has a new insight. Hijab or veil for Muslim women is more than clothes, it can be an identity or more, some are relating hijab with different practice of Islam. There are also different kinds of hijab. Some of them are wearing

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the hijab in a simple way, but some of them are wearing it with a veil covering almost all of their face. Veil in Islam broadly comes into debate. Quraish Shihab, a famous Islam academician, is one of the Muslim scholars who states that veil and Islam are not compulsory related. His daughter named Najwa Shihab, a famous Muslim woman anchor, is known to be without veil, yet still a good example of how women can be successful without hijab in a respectful way. Some people argue this kind of interpretation of veil lead to the liberal Islam view and not compatible with the pure Islam value. On the other hand, wearing burqas led to the assumption of women and radicalism. This stigma was famous since the time when terrorism hit Indonesia hard in Bali Bombing 2002. The wife of terrorists is usually pictured with the black long gamis (robe) and burqa. Feminism believes that every woman is not supposed to be judged and limited to any form of clothes. Not only in the sense of cloth-less apparel but the robe and burqa are also valid as a choice for women. But the fact that women with modest clothes, leave alone burqa and robe, most likely related to oppressed values. In the term of belief, moslem women who is entitled with modesty, act under values that reflect their modesty linear with the religion values.

5 Analysis and Conclusion There are different kinds of attitudes of following the values of society in the sense of submissive relation between women and men. For some time, women in the history of almost everywhere in the world are somehow under men’s recognition. This is not a good start when we talk about how women are supposed to be understanding their values, whatever the role she has in her family and her society. From Rina and Nisa we can conclude that understanding their values is different from recognizing the importance of empowerment. The ironic part of their stories is when they understand that economic pressure for them is real and needs to be done with the religious values that they believe in. Although they argue that with the belief under God, they will get fulfilled in any way possible as long as they believe. This is hard to understand but the time I followed them around and saw how they make money is somehow real hard. Rina might be still seeing that her role as wife is to support husband. With her will to support her husband and her tiring day to look after kids, leave alone the housework, she spends her time selling stuff with her small circle friend. Nisa, whose life is conducted by her uncle and mother, live differently. She only goes to places where she can conduct teaching for children and women. There begins the resilience of Nisa and Rina. Together they are living the life that is made for them and customized into it. On some bright afternoon, Rina told me that her modesty and shyness are from God and she believes it also helps her to be a good wife. Some days she faces a hard time when her husband’s salary is far from enough to cover their life. Nisa also buried her dream to continue school to fulfill her father’s

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legacy of teaching religion to kids around their home. Yet they understand that this is a written life that God has chosen for them. Rina stated that her life is quite hard after marriage but then again to be a modest wife is the choice, she picks to walk in. While Nisa is still living with her mom and pursuing her dream of marrying a modest guy with the same values as her. Lies Marcoes-Natsir, one of leading feminist in Indonesia on her book ‘Menolak Tumbang: Narasi Perempuan Melawan Pemiskinan’ describe this situation as a systemic situation that mend to make women stay in poverty. This is why patriarchy in societal values plays a crucial role in making women unseen. Several policies that the Indonesian government made in this area seems to be redundant if the empowerment of every woman is not recognized at the domestic level. Not only in the economic term, Lies Marcoes-Natsir also sees the religious values in the small group in the suburbs are susceptible to be radicalized if not followed by understanding the danger of patriarchy. Women are tending to be victims in the process of radicalization without active critique to the unspoken values. In conclusion, we can see that the Middle East or South East Asia are facing the same challenge in making women see at least for themselves. It is hard to make a difference when women are recognized as the same-tier two person after men. Especially to religious values when women have too many checkboxes to tick while their burden of being themselves is heavier than men. At the state level, the policy making system is led by men. Not only that, the family is led by men as well when the fact there are many cases of abusive relationships started when the men hurting women. Of course, there are also cases in reverse, but numbers show that men are still leading in that case. To give women more space to understand herself and freely pick the journey they want to be on is a small thing we can do to make a better place for women.

References Jacobsen, C. M. (2011). Troublesome threesome: Feminism, anthropology and Muslim women’s piety. Feminist Review, (98), 65–82. Islam in Europe (Palgrave Macmillan Journals). Mahmood, S. (2001). Feminist theory, embodiment, and the docile agent: Some reflections on the Egyptian Islamic revival. Cultural Anthropology, 16(2), 202–236. (Wiley on behalf of the American Anthropological Association). Natsir-Marcoes, L. 2014. Menolak Tumbang: Narasi Perempuan Melawan Pemiskinan. (Insist Press, Rumah Kitab). Sehlikoglu, S. (2017). Revisited: Muslim women’s agency and feminist anthropology of the middle east. Cross Mark. Weir, A. (2013). Feminism and the Islamic revival: Freedom as a practice of belonging. Hypatia, 28(2), 323–340. Special Issue: Crossing Borders Special Issue (Spring 2013) (Wiley on behalf of Hypatia, Inc).

The Role of Forensic Institution in Handling Violence Against Women in COVID-19 Pandemic: Forensic Perspective Yudy

Violence against women is part of Gender-Based Violence (GBV) and categorized as violation against universal human rights. Majority of this kind of violence are physical and sexual violence, such as rape, sodomy, and adultery/fornication. The perpetrators are mostly family members or close persons of the victim. We have to hand in hand inter-agencies in handling this kind of violence. In our field, there has been a unit under the ER department called Integrated Crisis Centre (ICC) since the early 2000s. We are trying to examine these victims thoroughly, to find any proof of what they had experienced. In this COVID-19 pandemic era, there are some changes and adjustments made by our hospital in doing this service. On the other hand, there are some challenges in making this system seamless.

1 Introduction COVID-19 has been declared a world pandemic by WHO (WHO, 2020). The head of national disaster management agency through Decree number 9A of 2020 extended through Decree number 13A of 2020 has determined the status of certain emergency situation for coronavirus outbreaks in Indonesia furthermore, taking into account the developments in the situations and conditions, this decision was renewed by Presidential Decree Number 12 of 2020 concerning the designation of non-natural disasters for the spread of COVID-19 as a national disaster. The increasing number of COVID-19 cases has led the Government to issue instructions for restricting leaving the house, even since March 16, 2020, civil servants have been instructed to work from home, and some private companies have Yudy (B) Forensic Specialist in Cipto Mangunkusumo Hospital and Lecturer in Faculty of Medicine, Universitas Indonesia, Jakarta, Indonesia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 L. I. Nurtjahyo and M. A. Wicaksono (eds.), Gender-based Violence in South-East Asia, https://doi.org/10.1007/978-981-19-2492-7_8

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imposed the same instructions. The ministry of labor (Kementerian Tenaga Kerja in Bahasa) and BPJS Ketenagakerjaan (Social Security administrator for Employment) recorded 2,8 million workers had been laid off during the COVID-19 pandemic because the companies they worked for were not operating. The high wave of layoffs (PHK), loss of community livelihoods, followed by other impacts such as the emergence of potential gender—based violence (for example: sexual violence, domestic violence, online gender—based violence and the forms of violence) experienced by women after the issuance of the determination of COVID19 as national disaster in Presidential Decree number 12 of 2020 concerning the designation of non-natural disaster for the spread of corona virus disease 2019 (COVID-19) as national disaster. This condition causes the burden of women to increase where in addition to managing the household, assisting a child’s school assignment, even looking for additional family income. This double burden triggered stronger domestic conflict that led to the potential violence. In crisis situations including epidemics, violence against women and children tend to increase. Despite the scarcity of data, China, Britain, and the United States have reported an increase in domestic violence cases since the onset of the COVID-19 pandemic. It certainly has a great impact on women and their children. In dealing with the non-natural disaster outbreak of COVID-19, social distancing, physical distancing to Pembatasan Sosial Berskala Besar (PSBB)—Large-scale Social Activity Restriction policies are implemented and everyone to stay at home to prevent COVID-19 transmission. When family members spend more time together, with the pressure of financial problems due to disruption of livelihoods and the ability to earn a living related to social restrictions, potentially increasing domestic tensions that cause exacerbate conflict and domestic violence. It is also exacerbated by the limited contact with other family members and friends who can provide support and protection from violence. For families who have experienced domestic violence before the pandemic era, the risk of violence is even greater, because with this social restriction, the space for victims to move is increasingly limited and the access of perpetrators to victims is getting bigger.

2 Violence Against Women Gender—Based Violence (GBV) is “a term used to describe various forms of violence that harm or cause suffering to a person, which are carried out based on social differences including the gender of men and women, which can cause physical and sexual suffering, psychological, and/or neglect include threats, coercion and various other forms that deprive someone of freedom, booth in the public/public space and in the environment of private life” (IASC, 2015). Worldwide, GBV is more frequent in women and girls than boys and men. The term GBV is often used concurrently with the term “violence against women” because the term GBV highlights the gender dimension in the forms of these actions occur due to the construction of gender has put the status of women as second class in society

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and therefore power relations that are not similar, women are particularly vulnerable to violence. GBV can occur in the private sphere (such as domestic violence or in courtship) and in the public (violence in the workplace or in public places), in normal or difficult situations (disaster, war, conflicts), whether that occurs at the individual level, community, or country. The increasing cases of gender-based violence during the COVID-19 pandemic is quite alarming because the victim should still get help and on the other side the clerk who handles have a dilemma and must make careful anticipations to avoid contracting the virus, that’s why the Ministry of Women’s Empowerment and Child Protection (Kementerian Pemberdayaan Perempuan dan Perlindungan Anak in Bahasa) together with the United Nations Fund for Population Activities (UNFPA) created a protocol for handling cases of violence against women which is expected to become a joint protocol in handling violence against women so that women who become victims are still served and institutions can still provide case treatment by referring to existing protocols. The integration of the health sector together with existing response service units has an important role in ensuring service for women and children who experience violence remains secure, receive appropriate assistance, and can be accessed during the COVID-19 outbreak. Gender based violence and especially sexual violence, is a serious problem that threatens the lives of women and girls. In many cases, genderbased violence is an international problem, related to public health and human rights and prevention and comprehensive treatment has never been found in almost all countries around the world. Gender violence is a particular issue in the context of complex emergencies and natural disasters, where women and children are often the targets of violence and are particularly vulnerable to exploitation, violence and abuse because of their gender, age and status in society. Gender based violence is violation of universal human rights protected by international human rights conventions, including the right of a person to feel safe, the right to achieve the highest level of physical and mental health, the right to be free from torture or other cruel, in human or abusive treatment, and rights to live. One of the characteristics of sexual violence, especially sexual violence, is incomplete report. Victims generally will not disclose the violence they experienced for several reasons, including feelings of self—blame, fear of the government, and the risk/fear of being victimized repeatedly. gender-based violence causes feelings of shame, guilt, social stigma, and even rejection by families and communities. Stigma and rejection are especially burdensome when the victim talks about or reports the incident. The available data, in any circumstances, about gender-based violence reports from police, legal, entities, health, or other sources represent only a small number of the actual incidence of gender-based violence. Victims of gender-based violence are at high risk of severe and long-lasting health problems, including death from injuries, they have suffered or the act of suicide. The health consequences also include unwanted pregnancy, unsafe abortion, infanticide, and sexual transmitted infections, including HIV/AIDS.

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Psychological trauma, as well as social stigma and rejection, is also common. Most societies tend to blame the victim in cases of sexual violence, which increases psychological harm. The true nature and severity of physical and emotional trauma varies widely among victims; not all the available rescue services are wanted or needed by victims. Treatment of gender-based victims should include a range of services to reduce the life—threatening consequences and prevent victims from further injury or harm. Children in emergencies may be at risk of sexual violence because of their high levels of dependence, where the ability to protect themselves is limited while not in a position to make decisions for themselves. Because they have limited experience, children are also more easily exploited, tricked and coerced than adults. Depending on their level of development, children do not understand the sexual nature of certain acts, and they are unable to give their own consent. Adolescent girls and young women can be targeted for sexual violence during armed conflict or economic hardship. Gender inequality and discrimination are the main causes of gender-based violence, but different factors determine the type and level of violence in each situation. In an emergency, norms regulating social behavior are weakened and traditional social systems often break down. Women and children can be separated from family and community protection, making them even more vulnerable to violence and exploitation that occurs because of their gender, age, and dependence on others for help and protection. During armed conflict, sexual violence is often used as a weapon of war, with women and children as a target. War related sexual violence often includes kidnapping and sexual slavery. ICC cases related to physical can be seen in the Table 1. ICC cases related to sexual can be seen in the Table 2. The forms of gender-based violence: 1.

Rape/attempted rape is sexual relations that are not mutually agreed upon. This include assaulting any part of the body using the genital and/or assaulting

Table 1 ICC cases related to physical in CMNH, Jakarta, Indonesia (Data is open for public) Year

2017

Age

Male

Female

2018