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  1. IV. Application of OGBV Law with a Victim Perspective

IV. Application of OGBV Law with a Victim Perspective

In the era of digital, consent is pivotal. When consent is given for one specific thing only, its scope cannot be expanded. In the context of OGBV, it is important to recognize that when victims agree or give their consent to record or exchange intimate images, it does not mean that they give their consent for the content to be shared or disseminated to the public. The dissemination of such personal data should be considered a violation of privacy, especially in the public sphere. Unfortunately, existing regulations in Indonesia do not sufficiently cover these two crucial matters of consent and privacy, and they are not applied through a gender lens. However, a new Bill related to acts of sexual violence, the Elimination of Sexual Violence Bill (widely known and will be abbreviated as RUU PKS) has the potential to provide a breakthrough. In the RUU PKS, the types of sexual violence that are regulated are more comprehensive and can fill the legal lacunas of the Criminal Code which only regulates rape and obscenity. The RUU PKS has also regulated the protection of the rights of victims such as the right to treatment, the right to protection, and the right to recovery, and even the right to obtain assistance services such as complaint services, health, and psychology, which was not specifically regulated in the Criminal Code and ITE Law.38

The RUU PKS itself does not have a minimum requirement of two witnesses as stated in ITE Law and Pornography Law, but instead emphasizes evidence such as a psychologist and/or psychiatrist’s certificate regarding the condition of the victim, medical records and/or the results of a forensic examination of the victim, records of examinations during the investigation process, information that is electronically available during the OGBV practice, as well as results of checking bank accounts.39 In addition, Article 45 of RUU PKS states that the statements of victims and witnesses from relatives (who are by blood, by marriage, up to the third degree) can be sufficient proof of the defendant’s guilt if accompanied by one other piece of evidence. Statements of victims or other witnesses who have mental disabilities can be treated as valid evidence (excluded from taking oath before the court).40 This regulation significantly strengthens the position of the testimony of victims. Currently, the absence of witnesses weakens the position of OGBV victims in the eyes of the law, which causes the current Criminal Code and ITE Law regulations to be not very effective in implementation. LBH APIK experiences this as it annually receives hundreds of reports, while only 10-20 victims dare to report to the police and only 1-2 victims proceed their case to the court.

Another obstacle in protecting OGBV victims is the absence of a gender perspective, not only in the legal product itself, but also in the application of the law, and in those responsible for the application of the law. There are too many enforcement officers, both men and women, who are gender-biased and do not understand the deeprooted unequal position between men and women. Starting with the police as the first party to report, victims are often blamed for what happened to them. Often the initial report is not pursuit further because it is considered to be lacking evidence while OGBV victims are being lectured on moral values. Examples are statements like, “Wow, this is

38 Elimination of Sexual Violence Bill, Article 48, in meeting of 8 December 2021.

39 Ibid, Article 18 paragraph (3).

40 Ibid, Article 45.

found in many cases, Miss. Probably it happened to you because you did not wear the hijab/scarf or you did not dress properly”, and so on. We have seen the partisanship of law enforcement in the discussed cases involving public figures, when law enforcement treats men and women victims unequally. If the victims involved are public figures, they are often the ones who are quickly identified as suspects (as in the GA case) without looking further into the case. The fact that recordings are private and intended for personal interests in accordance with the contents in the Explanation of Article 4 Paragraph (1) of Pornography Law, is insufficiently taken into consideration, where the same happened in the case of AP, CT, and LM.

SAFEnet guidelines mentions that there are two legal processes that can help the victims. First, the legal process through litigation which requires reporting to the police; and second, the non-litigation route by sending a subpoena letter and go through the mediation process. In the end, the choice must be made by the victim, which process they want to go through to get justice. The struggle to change the patriarchal culture among law enforcement officers and replace it with a gender perspective must continue to be carried out by women’s advocacy institutions, by working closely with the police through discussions and evaluations between institutions related to handling cases, especially the handling of OGBV practices.

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