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Criminalising Sex in Indonesia: Undemocratic, Culturally Irrelevant, and Religiously Oppressive

Since the late 2017, the Indonesian parliament has been discussing a bill attempting to revise the current criminal laws, particularly around sex crimes. One of the proposed revisions is the inclusion of the new law of zina (article 484), which criminalises any sexual activity between two consenting adults outside of the legally-recognised marriage. This short writing makes a case against this specific bill of zina using various perspectives such as social, psychological, political, cultural, religious, and public health within the Indonesian contexts. The main argument is that this bill is undemocratic, culturally irrelevant, religiously oppressive, promotes a narrow and dangerous morality, jeopardises reproductive health initiatives, and puts vulnerable groups (such as women and children) in even a more vulnerable position. This reflection ends with a suspicion that such bill was proposed out of conservative political interests rather than well-informed, evidence-based reviews of what is best for all Indonesians.

The linchpin of a democratic society is the assurance of individual freedom. Without individual freedom to make choices, democracy is merely a lip service for a tyranny – either majority or minority tyranny. The law in a democratic country should protect individual freedom as far as it can, as long such freedom does not violate other’s freedom. In this case of zina bill in Indonesia, the law is mixed up with morality. While morality can be a source in the law-making process, it is not equal with the law. Moralities may differ across groups within a country, and it is the role of the law to ensure that those moralities may exist together. For instance, eating a certain (livestock) meat may be sinful or immoral for a religious group, but the law should guarantee that other groups who do not adhere to that moral code have the freedom to eat it. Accordingly, consensual sex outside of marriage might be immoral for certain religious groups, but the law in a democratic country should protect others who do not believe in such morality as long as they do not violate others’ rights, such as using force, coercion, or threat to engage in sex. In short, it is the sexual violence that should be criminalised, not consensual sex between adults. In this framework of democracy, the zina bill is fundamentally undemocratic. It is draconian – in the way it unnecessarily controls people’s private ethical practice that does not violate others’ freedom.

Scientifically, there are considerable amount of evidence against the abstinence-only-until-marriage (AOUM) approach to sex as advocated by this zina bill. Frequently applied in educational settings in conservative countries, AOUM approach encourages young people to avoid any forms of sexual relations. It does not talk about contraception nor sexually-transmitted infections (STI) prevention at all. In term of reproductive health, studies in both OECD and developing countries have demonstrated that AOUM approach did not decrease the rate of sex outside of marriage; but rather, increased the prevalence of unprotected sex, unplanned pregnancy, and sexually-transmitted infections including HIV/AIDS. Indonesian National AIDS Commission, for instance, has long refused the AOUM approach and taken up a more comprehensive approach that includes STI prevention strategies, such as using condom consistently. Unfortunately, another bill accompanying zina bill (article 481) is the criminalisation of contraception promotion by anyone other than government’s designated officials. AOUM has also been proven to increase early and children marriage, because young people who were caught engaging in sex have often been suggested to marry each other to avoid family shame. Early and ill-prepared marriages have commonly resulted in school dropouts, poverty, psychological problems, unplanned pregnancies, and domestic violence against women and children. The zina bill does not only jeopardise public health initiatives to improve reproductive health, but even add more problems, namely imprisonment, to the already reproductively-unhealthy society.

It has often been argued that sex outside of marriage is in opposition with the “Indonesian culture”, so that criminalising it is viewed as the solution to uphold our cultural values. The problem with this notion is that the claim of the “Indonesian culture” is fundamentally simplistic and naïve. Scholars in the field of cultural studies have demonstrated that there is no authentic culture. All cultures are mixtures of various ancestral roots and historical traditions. Culture is dynamic, shifting, and always interwoven with social-political discourses. The question is: Which culture is “Indonesian culture,” considering the extraordinary diversity of Indonesian cultures? And who decides that it is the authentic “Indonesian culture”? There are evidences that first wave of people migrated to Indonesia did not have the concept of marriage. Men occasionally came down to villages from mountains and jungles to mate with women. Sex within marriage was not their culture, because marriage did not exist at all. Another example is monogamy, which was introduced only recently in the long history of Indonesia. Considering it historical sustainability, should polygamy be claimed as an “Indonesian culture” that needs to be maintained in the 21st century? Oppression and violence against women have also been our “culture” until recently when feminist discourses entered Indonesia. Just because sex within marriage is the dominant narrative within our current cultural practice does not mean it is who we are and what we have been, as well as who we have to be in the future. Culture is always in-flux, and I hope it develops into more humane ways of being Indonesians – more respectful of human rights and individual freedom.

A typical argument within this cultural debate is the accusation that sex outside of marriage is a part of Western cultural imperial that attempts to re-colonise Indonesia. The West is positioned as the aggressor, the foreigner, and the immoral; while Indonesia is the pure, the innocent, and the victim of cultural imposition. While this binary invokes strong nationalist emotions, we might need to consider that just because something is “Western” or “foreign” it does not mean it is bad, imperialist, or against “Indonesian culture.” Democracy, for example, is a product of “Western” or “foreign” civilisations; as well as science, technology, mobile phones, cars, and laptops. Should we boycott all these “products” just because they are “foreign” or “Western”? Even major religions in Indonesia are not “local” products. Buddhism and Hinduism came from South and Central Asia, and Confucianism from China; Christianity came with the Europeans, and Islam with the Gujarati traders. None are Indonesian-originated. Should we ban these religions too, because they are “foreign” and not “our culture”? It does not mean that all foreign influences should be welcomed without thinking; what important is to carefully consider their impacts on Indonesians’ wellbeing, health, democracy, and peace – using comprehensive and well-informed perspectives.

Similarly, religious teachings are also frequently deployed to demonise and criminalise sex outside of marriage. While I have argued above that (religious) morality cannot be the same with the law, there is also another problem: which interpretations of which religious teachings from which religions are against sex outside of marriage? Like culture, religion is not singular and unchanged. Within any religion there is always a diversity of theologies, teachings, and interpretations. In my own Christian religion, for example, there is a range of positions on sex outside of marriage. On one end, there are churches that confirmed the dominant cultural value of sexual abstinence, and thus interpret the Bible in this light. On another end, there are theologians that refuse to make such a simple claim, considering there is no explicit prohibition about it in the Bible. In the Old Testament, for example, when a man saw a virgin woman and raped her, their sex outside of marriage was not punished with death (as it was the case when the woman is a wife of someone else), but the rapist must marry the victim, and therefore, the victim must live with her rapist for the rest of her life. Such horrible law is no longer practiced now, although it is actually written explicitly in the Bible. Supporters of both interpretations claim that their position can be theologically substantiated. Within a democratic country, there should be spaces for different interpretations of religious morality, as long as they do not violate others’ freedom. So for the sake of religious freedom, even if the majority of religions in Indonesia uphold moralist position on sex, it still should not be made into law.

Socially and psychologically, the passing of zina bill would be implicated in the multiple victimisations of women and children. Survivors of date rape, for instance, would be much more afraid to report to authorities, because she could be imprisoned too with her perpetrator since she has engaged in sex outside of marriage. The bill currently does not mention any exceptions to the act, which means all sex outside of marriage is punishable including for those who are forced into it. It is clear that this bill makes rape even harder to report. Besides criminalising survivors, the zina bill could also criminalise sex workers, because sex with their clients is not within a marital bond. Studies have shown that most women involved in the sex industry did not plan or choose to do so, but their decisions came from a dire situation where they have no other choice to survive other than selling their bodies for sex. Better regulation, protection, and empowerment for sex workers might be more beneficial for the public health rather than criminalising them. Persecution, which has already happened in Indonesia, would significantly increase if the zina bill is passed, giving a foundation to such an anarchist self-righteous moralist action.

Typical of conservative movements’ strategy, proponents of this zina bill might deploy a fear-mongering rhetoric: What will happen if sex is not criminalised? Can you imagine your children f**k (expletive) each other like animals? Such imagery invokes reactionary oppositional responses against sex outside of marriage; however, we might need to look up what scholars have studied regarding this. Data from various countries have shown that young people who engaged in a consensual, protected (i.e., using contraceptives), and pleasurable sex reported a sense of fulfilment and positive mental health. In fact, countries with a relaxed attitude towards sex outside of marriage (and strong opposition against sexual violence) are the safest democratic countries with the highest Human Development Index in the world, such as the Scandinavians, Denmark, the Netherlands, Japan, Australia, and New Zealand.

To conclude, in this reflection I have argued that the zina bill should not be passed if we still believe in democracy, religious freedom, cultural progression, women’s reproductive rights, and the rights to be free from fear, intimidation, and persecution. I have two concerns (or, to be precise, suspicions) about the recent spiralling supports from politicians, scholars, and general public on this zina bill. Firstly, scholars who support this bill are ignorant and irrelevant scholars, in the way they are not sexuality researchers, have not published anything on sexuality in reputable academic platforms, and – I am afraid – have not even read academic findings about the topic. Secondly, what is more concerning for me is that those who support the bill might be coming from a political ideology that is against democracy, namely, attempting to impose certain religious ideals on every aspects of nationhood, and thus, is fundamentally against Pancasila.

This post is also available in: Indonesian

About Teguh Wijaya Mulya

Teguh Wijaya Mulya is a lecturer in the Faculty of Psychology, University of Surabaya, Indonesia. He completed his Ph.D. in sexuality education in 2017 at the University of Auckland, New Zealand. His research has been published in international and Indonesian journals including Asian Studies Review; Culture, Health, and Sexuality; Media Psychology; Sexuality & Culture, Journal of Asian Women's Resource Centre for Culture and Theology; and Anima Indonesian Psychological Journal.

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