When the Jambi High Court weighed the force majors in its ruling, it displayed that the Panel of Judges when reviewing this case was not only black and white but meticulously considering the condition of the victim. This consideration is in accordance with the Amicus Curiae Letter who was sent by ICJR on 6 August 2018 noting the importance to consider force majors or emergency situation or overmacht pursuant to Article 48 of the Penal Code.
The good news came from Jambi High Court, the Panel of Judges ruled to release from all charges a minor rape victim who was earlier sentenced with 6-months of imprisonment in the Muara Bulian District Court for an abortion case.
ICJR valued highly the Jambi High Court Judges’ decision because the Panel of Judges dared to take steps to try the force majors in the case of this minor rape victim, pursuant to Article 48 of the Penal Code, wording: “Not punishable shall be the person who commits an act to which he is compelled by force majors.”.
When the Jambi High Court weighed the force majors in its ruling, it displayed that the Panel of Judges when reviewing this case was not only black and white but meticulously considering the condition of the victim. This consideration is in accordance with the Amicus Curiae Letter who was sent by ICJR on 6 August 2018 noting the importance to consider force majors or emergency situation or overmacht pursuant to Article 48 of the Penal Code.
In the use of Article 48 of the Penal Code for similar cases of abortions, this decision can be used as a Landmark Decision for law enforcement in Indonesia. Victims, mostly women, are often viewed unevenly for cases such as abortion. The condition of victims suspected of committing crimes must be considered carefully, once again the law cannot be seen as only black and white, the law must guarantee a sense of justice and consider the condition of the victims, let alone victims who are considered to have committed crimes because of being forced.
ICJR also underlined one thing from this case that there should be a change of perspective for the law enforcement officers, especially the police and prosecutors in handling cases of Children and Women. For the Supreme Court, the decision of Muara Bulian District Court was a sign of warning, meaning that the Law No. 03 of 2017 concerning the Guidelines for Trying Women in Court had not been properly implemented. Furthermore, this decision is also an alert for the development of criminal law because the Police, Prosecutors, and Judges had been inaccurately interpreting the provisions in the Penal Code, especially Article 48 of the Penal Code, whereas for such cases the perspective and carefulness are needed from the law enforcers.
In the context of regulation, ICJR emphasizes the importance to be cautious when trying abortion cases. In accordance with the Health Law, under medical conditions and rape victims, abortion must be considered as an act that cannot be held liable for criminal liability.
For this reason, the Government and Parliament need to immediately ensure that the regulations on the exclusion of punishment for committing abortion by rape victims are regulated. For the record, in Articles 502-504 of the Draft Bill of Penal Code (draft per 9 July 2018), abortion committed on the grounds of rape victims were not accommodated by the Drafting Team as Exclusion of Punishment. The Exclusion of Punishment applies only to doctors who perform the abortion due to indications of medical emergencies or rape victims but does not apply to the pregnant women. Even the Draft Bill specifically criminalizes women who have abortions, regardless of their background. This formulation of the Draft Bill raises the fears of a re-criminalization of rape victims who have abortions.
Finally, ICJR calls the government through relevant ministries and institutions to provide medical and psychological protection and treatment to the minor rape victim in Jambi and the access to rehabilitation and compensation for the criminal proceedings must be guaranteed.
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