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ABSTRACT BOOK

Gender and Family

Criminalization of Child Victims of Rape in Qanun Jinayat

(Study on the Decision of the Sharia Court Number

10/JN/2020/MS-LSK)

Nursiti, Roslaini Ramli, Anta Rini Utami

Universitas Syiah Kuala

This paper aims to describe a court decision that is discriminatory and opens up opportunities for
criminalization of child victims of rape. The research method used is qualitative research with a normative

juridical approach. The primary legal material used is the Decision of the Sharia Court Number
10/JN/2020/MS.LSK and the relevant legislation used for analysis. The results of the analysis show that the
problem began when the Public Prosecutor decided to use Aceh Qanun Number 6 of 2014 concerning

Jinayat to resolve this case and ignore the Child Protection Act. The Public Prosecutor was considered not to
be careful in preparing the indictment letter in the form of alternative charges, with the first indictment

being rape of a child (Article 50), the second indictment of adultery with a child (Article 34) and the third
charge of sexual abuse against a child (Article 47). Mixing the qualifications of criminal acts involving the

perpetrator-victim relationship (rape and sexual harassment) with adultery which is classified as a crime that
is carried out voluntarily between the two parties is not appropriate. The next mistake is when what is

demanded in the Requisitoir is the crime of adultery with children. This decision is very impartial to the child
because in the case of adultery, the child victim can also be positioned as the perpetrator, can be processed
by law and be subject to 'uqubat (sanctions). The culmination of the error is when the panel of judges does

not at all use the perspective of child victims in their considerations. That the panel of judges did not
consider the age of the victim, who was only 13 years old, had only been acquainted with the Defendant for a

week and had met for the first time on the night of the incident, had intended to commit adultery in the
middle of the night in a dark atmosphere in the middle of a palm oil plantation. The Defendant's statement
that between himself and the child victim has a courtship relation, and has a relationship based on love and

consensual, cannot be used as a basis that the intercourse that occurred was adultery, not rape. Moreover,
the juridical facts show that the victim suffered many wounds and abrasions as well as a torn hymen. The

Public Prosecutor and the panel of judges should consider this case as child rape. The indictment should
clearly describe the lure and persuasion carried out by the defendant which could be part of the coercive

element in Article 50 of the Qanun Jinayat. The imposition of a crime under Article 34 of the Qanun Jinayat
also results in the victim losing the opportunity to claim the right of restitution even though in the provisions

of Article 51 of the Qanun Jinayat, the defendant who can be subject to restitution sanctions is the
perpetrator of rape. If using the Child Protection Act, this case can be strictly punished using Article 76D in
conjunction with Article 81 of Law Number 35 of 2014 as an act of forcing a child to have intercourse. Several

considerations that should have been considered by the public prosecutor in using the legal basis of the
child protection law are, first: the Child Protection Act is a special law that makes children the subject of its

regulation, so that the policies regulated in it become more comprehensive. Second: the sanctions regulated
in the Child Protection Act are much more severe than the Qanun Jinayat. Third: the use of the Child

Protection Law will be under the authority of the General Court. The Juvenile Justice System implemented in
the District Court is much better than the implementation in the Sharia Court. The number of judges with

child certification is still very limited in the Sharia Court. Work facilities to support the implementation of
child trials in accordance with the juvenile criminal justice system are also not yet available. Based on these
considerations, the Public Prosecutor should not use the Qanun Jinayat to resolve child cases, especially

those related to sexual violence.

Keywords: Indictment Letter, Adultery with a Child, Rape of a Child, Sexual Abuse
Against a Child

Short Biography:

Nursiti, SH, M.Hum is a lecturer at the Faculty of Law of Syiah Kuala University with qualifications in
criminal law. Subjects covered are Criminal Law, Criminal Procedure Law, Criminal Case Study, Criminal

Law on Public Security, Penitentiary Law, Criminology and the Criminal Justice System. In doing the
teaching and learning process emphasizes the ability of students to think logically and put the values of

truth and equality as a guide in thinking and acting. Have a high interest in legal protection issues for
women and children. She therefore tends to use gender analysis to analyse policies and cases.
Roslaini Ramli, was born in Lancang Barat (Aceh Utara) on February 1966. She work as lecturer at Law

Faculty Syiah Kuala University since March 1, 1993. She has completed her postgraduate at Syiah Kuala
University in 2007. Since 2005 she has joined as the administrator of the Gender Research Center and have

good ability to do gender analysis. At this time one of lectures that she teaches is about law and gender
study.
Anta Rini Utami was born in Banda Aceh, Aceh, on 24th December 1986. She received her bachelor

degree from Law Faculty of Syiah Kuala University in 2008 and obtained her master degree in Law from

the same university in 2016. Her journal article “The criminal responsibility of a notary official for criminal
acts of falsifying authentic deeds” was published at Syiah Kuala University in 2016. She worked in private
sectors after graduated and in 2019 she passed the civil servant exam as a lecturer at Law faculty in

University of Syiah Kuala

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