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  1. III. Stagnation and Legal Vacancies in Indonesia

The cases described above illustrate how the legal system in its application of the rules contained in Criminal Code, ITE Law, and Pornography Law, still has the tendency to position victims with multiple layers of punishment. This is shown by the first court decision involving ‘Rejoy’, AP, LM, and CT in which ‘Rejoy’ distributed the intimate videos without the permission of AP, CT and LM, the public figures who recorded their explicit videos. The court failed to consider that AP, CT, and LM’s rights to privacy were violated by ‘Rejoy’’s actions when he published the personal content to the public without permission or without the consent of the parties involved in the video. In fact, AP had given Rejoy the instruction to delete all copies of the videos. As a result of Rejoy’s action, CT and LM as women public figures, became multi-layered victims of data leaks that should be privately owned and not disseminated without their consent. As a result of massive pressure from the Indonesian people the women victims had to apologize publicly, suffer excessive public embarrassment, and lost several contracts. The mass media coverage even attached the label ‘national disturbance’ to their actions. Thus, in addition to the legal substance of the law and its application by the legal authorities that already were not in favor of the victims, as women public figures they also were assigned the responsibility for having disturbed the nation’s morality.

In the ten years between the two cases the views within Indonesia’s legal system had not changed much. In the settlement process of the GA and MYD case, law enforcement officers again emphasized the morality issues instead of protecting the privacy of the victims, which makes the position of the victims very vulnerable. They are blamed for having violated the moral values that live in society. As a result, the act of OGBV is considered the logical consequence of the acts of the victim. When the victim is a public figure, public opinion will turn on them. This often hinders and holds back consideration for factors that vindicate the victim’s rights to truth, justice, and remedies. Victims are considered a family disgrace and are often humiliated, hated, ostracized, and expelled. Such chain of adverse consequences of the case becoming public can certainly make the victim to have second thoughts about pursuing a legal case concerning the violence she experienced and instead take the blame herself to end it all. Even when the victim dares to report the case to the police, she will experience unsympathetic attitudes, starting from the police report, service provider institutions, judiciary, to the health services. Even though eventually the perpetrators of OGBV were penalized, and the suspect status for GA and MYD was revoked, the long-term effects experienced by GA and MYD as OGBV victims were still not considered in the legal process.

Until today (January 2022), there is no specific legislation that protects OGBV victims in Indonesia. The urgency is real, as the creation and dissemination of information through internet as a medium will continue to grow rapidly and any placement of explicit material will be very difficult to contain. When this happens, women become multiple victims. The cases discussed here show that, it is the women victims who always ended up apologizing under pressure from society– not men. This again shows that there is an unequal position between women and men, and especially women public figures will undergo a “punishment” process, in line with the patriarchal culture in Indonesian society, where women are positioned as parties who should apologize and are more guilty than men because they are considered to have a responsibility to safeguard the nation’s morality.

The protection of personal data and cybercrime is regulated in ITE Law. The protection that can be provided derives from Article 26 paragraph (1), where it recognized the legality of consent before a data privacy can be distributed. Furthermore, paragraph (2) of the same article stipulates that individuals can file a lawsuit for the violation of paragraph (1). Unfortunately, the absence of our legal authorities’ understanding of the concept of “consent” and “privacy” have rendered these protections irrelevant. Moreover, the ITE Law lacks a gender perspective and provides tools for law enforcement officers to persecute parties involved in content that is sexually charged on grounds that the acts are not in accordance with morals. Consequently, victims are vulnerable for revictimization, meaning that it is a concept of a crime being reported and happening again after the report itself (Puti Marsha Diani 2014, 9).

The Criminal Code is also very limited in regulating sexual violence, by knowing only rape, obscenity, and sexual intercourse – OGBV is absent. Meanwhile, the Criminal Procedure Code (KUHAP) has not yet accommodated the procedural law that is sensitive to victims and gender. The entire legal system in Indonesia, which formally aims to protect women and children victims of GBV and OGBV, often plays a negative role. Often legal actors take an insensitive, prejudiced position towards the women victims, for instance by giving statements or posing questions that are demeaning and irrelevant to the case. This happened in the cases described above and in many others. OGBV regulations must be made with a gender perspective and the implementation must be equally gender-sensitive to ensure fair treatment of OGBV victims.

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