“Crimes related to decency that are victimless crime in nature have the tendency to be overcriminalized”
On 14 December 2016, the Working Committee (Panitia Kerja – “Panja”) of the Draft Bill on Criminal Code (“RKUHP”) at the Commission III of the House of Representatives, discussed the Second Book of RKUHP, in particular Chapter XIV regarding crimes against decency. The National Alliance for KUHP Reform (“Alliance”) is of the view that the state is conducting an extraordinary intervention towards privacy matters during the RKUHP discussion. It is evident from the deliberation regarding articles on decency.
Under Chapter XIV of RKUHP, several provisions proposed by the government show overcriminalization potential for the decency crimes. These provisions including victimless crimes such as broader definition of adultery, cohabitation, exhibiting contraception, all of which are categorized as crime.
Crimes Against Decency Proposed by the Government
| Articles | Potential |
| Adultery
(Article 484) |
Overcriminalization. In particular adultery committee by persons that are not married. Punishable up to 5 years (subject to detention) |
| Cohabitation as husband and wife
(Article 488) |
Excessive crime and has the tendency to overciminalization |
| Pornography
(Articles 470-480) |
Subject to multiinterpretation, no limitation on pornography definition. The formulation, construction, and clarity of the crime are not sufficient, vulnerable to multiinterpretation, unclear limitation on crimes. Overcriminalization. |
| Birth Control and Contraception
(Articles 481 and 483) |
Tendency to overcriminalization, as it will punish a person that exhibit contraception |
Crimes of adultery under Article 484 has a broader formulation compared to the current framework under KUHP. Furthermore, adultery under RKUHP is not only applicable to a perpetrator who is married, but also to anyone that is not married. This crime does not require accusation (aduan).
Crimes of cohabitation outside a marriage under Article 488 of RKUHP aims to couples that live together without being married. This is an excessive punishent and has a tendency to be overcriminalized.
Crimes of pornography under Articles 470-480 under RKUHP are broader than the Pornography Law, no limitation of pornography definition unlike the Pornography Law. The formulation, construction, the clarity of crimes are not sufficient, vulnerable to multiinterpretation, and unclear limitation on crimes. These articles are overciminalization, particularly in regards to storing pornographic materials privately.
Crimes related to exhibiting contraception under Articles 481 and 483 under RKUHP have the tendency to overciminalization, as it will punish the person that exhibit contraception. These provisions also threatening the family planning (keluarga berencana) program and reproduction health, in particular related to protection towards sexually transmitted diseases, as it will limit the public access towards information on contraception.
At this moment, the discussion at the parliament shows an overcriminalization potential and overreaching state intervention into its citizen’s private life. Up to this date, several articles related to decency have been agreed upon and concluded, while several formulation on the articles are still pending, including the crimes of adultery and cohabitation.
The Alliance is still encouraging the parliament to carefully consider the formulation of the articles proposed by the government, as these provisions threaten the privacy rights and allowing significant state intervention. The Alliance is also reminding the public to keep paying attention towards the discussion of these crucial articles at the parliament.
