Gender Discrimination Against Minor Children Who Complete
Criminal Acts of Inclusion and Law Based on Child Protection Law
Andry Suharto
Universitas 17 Agustus 1945 Jakarta, Indonesia
Keywords: Gender Discrimination, Sexual Intercourse and Obscenity, Child Protection, Transformation of Cultural
Values.
Abstract: In a state of law, equality before the law is a principle. In reality, it turns out that there is a process of
discrimination in the crime of sexual intercourse and obscenity based on the Child Protection Act. The
justification for the perpetrators of sexual intercourse and obscenity is confirmed to be a boy. In fact, it is
possible that the occurrence is based on a consensual agreement. The act which is known as experimental
sexual intercourse cannot be construed as a crime. This study examines how the issue of the crime of sexual
intercourse and obscenity is based on the Child Protection Act. Studies was conducted on the three cases of
the perpetrators. The research method used is normative juridical research. The theory which is
implemented to these cases are the theory of Rule of Law, Legality and Critical Theory. Based on the
analytical framework of the rule of law, legality and critical theory, it is found that the law develops. It
should be responsive to cultural transformation that occur. Consensual relationships between boys and girls
cannot make boys convicted. The protection of boys against consensual sexual relations or experimental
sexual relations needs to be covered in the laws
.
1 INTRODUCTION
Rape is a very serious problem, but few of victims
and their families report the cases to the authorities.
In addition, the mass media discloses only a small
number of cases reported to the police. The most
detrimental and disturbing rape to the community is
the rape of children.
Rape is coercion. If there is no coercion, it
cannot be categorized as rape. This statement
appears in the provisions of Article 5 of
Permendikbud, Research and Technology Number
30/2021. If the victim does not give consent, then an
act can be categorized as sexual violence. This
Permendikbud drew criticism from many circles,
because the moral impression was ignored. In
Indonesia the sexual relations that were not through
the marriage were not accepted by society.
The provision seems to contradict the meaning of
rape. Agus Purwadianto in his dissertation stated
that empirically rape is a phenomenon of violence
and/or sexual coercion or threats of sexual
intercourse from male perpetrators, which can be
one or more individuals against female victims
(which can be one or more). It can be called as rape
because there is the penetration of the penis
(perpetrator) – vagina (victim) or extended as a form
of insertion of any object into any part of the body
orifice of the victim, regardless of the age of the
victim, without prior or at the time of the incident
the male perpetrators get the victim's consent. In
rape, the perpetrator and the victim are bound by
marriage or not, which takes place at a certain place,
time and law (Purwadianto, 2003: 97).
Rape as a gender based violence has been
included in the United Nations Declaration on the
Elimination of Violence against Women. Mely G.
Tan cites a number of articles related to sexual
violence against women in the declaration,
including:
Article 1. For the purposes of this Declaration,
the term 'violence against women' means any act
of gender based violence that results in, or is
likely to result in, physical, sexual or
psychological harm or suffering to women,
including threats of such acts, coercion or
deprivation of liberty arbitrarily, which occurs in
public or private life.
346
Suharto, A.
Gender Discrimination Against Minor Children Who Complete Criminal Acts of Inclusion and Law Based on Child Protection Law.
DOI: 10.5220/0012024600003582
In Proceedings of the 3rd International Seminar and Call for Paper (ISCP) UTA â
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A
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Z45 Jakarta (ISCP UTA’45 Jakarta 2022), pages 346-357
ISBN: 978-989-758-654-5; ISSN: 2828-853X
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 2023 by SCITEPRESS – Science and Technology Publications, Lda. Under CC license (CC BY-NC-ND 4.0)

Article 2. Violence against women includes, but
is not limited to, the following: (a) physical,
sexual and psychological violence occurring in
the family, including beatings, sexual abuse of
girls in the family, violence related to dowry ,
wife rape, female genital mutilation, and
traditional practices that harm women, violence
by non-husbands, and violence related to
exploitation; (b) Physical, sexual and
psychological violence in the general population,
including rape, sexual assault, sexual harassment
and intimidation in the workplace, educational
institutions and elsewhere, trafficking in women
and forced prostitution; (c) Physical, sexual and
psychological violence perpetrated or permitted
by the Government, which occurs anywhere
(Tan, 2003: 47).
Mely G. Tan noted that the rate of rape is
included in the category of ultimate violence in
Indonesia. In 2001 there were 3.167 cases of
violence against women reported. Of the 3.167
cases, there were 1.023 cases of rape (32.3%) and
228 cases of sexual assault/harassment (7.2%). In
Jakarta there were 500 rape cases, followed by East
Java and Yogyakarta, each of which recorded 356
cases, but from very different groups (Tan, 2003:
48).
Indonesia as a state of law has formulated laws
and regulations against the perpetrators of rape.
Initially, the Criminal Code (KUHP) stipulates the
provisions for crimes against crimes related to
morals. Article 281 to Article 303 regulate it. The
legal threat to the crime of rape is stated in Article
285 with a maximum sentence of 12 years in prison.
This is in accordance with Article (285) which
stipulates that anyone by force or by threat of
forcing a woman who is not his wife to have
intercourse with him, is punished for committing
rape with a maximum imprisonment of twelve years
(Hamzah, 2011: 15).
The causes of rape include family environmental
factors. The freedom feeling and the neglect of
parents can be the cause of this crime. Lack of
parental supervision for their children is very much
needed. Environmental factors can also make a
person commit a crime. Because of wrong
association a person can commit a crime.
Another cause of rape is sexual factors. The
details of this factor are a person's desire and lust for
sexual intercourse. For example, the perpetrator who
already has a wife, this happens because there is no
sexual satisfaction that is channeled when dealing
with his wife.
Factors of advances in science and technology
telecommunications factors can be a factor in the
occurrence of sexual crimes. The existence of
pornographic sites is one of the main factors. With
the rapid development of telecommunications, it is
easy to access porn sites through cyberspace or the
internet. The sophistication of telecommunication
tools and the ease of accessing pornographic sites
that are so easy can lead to crime. Because you don't
have a partner, someone will vent with other people,
even people they don't know. As a result of the
sophistication of this communication tool, it is easy
for criminals to vent their desires and make it easier
for them to commit their crimes.
In Indonesia there is the protection to the rape
victims, but there is also legal protection for children
who commit that crimes. UU no. 11 of 2012
concerning the Juvenile Justice System aims to
protect children who are in trouble with the law.
This law states that the Juvenile Criminal Justice
System is the entire process of resolving cases of
children in conflict with the law. The juvenile justice
system process starts from the investigation stage to
the guidance stage after serving a crime. The
juvenile justice system calls children in conflict with
the law with three characteristics. They are children
in conflict with the law, children who are victims of
criminal acts, and children who are witnesses of
criminal acts (Article 1 paragraph 1 and paragraph 2
of Law no. 11 of 2012 concerning the Juvenile
Justice System).
The Juvenile Justice System Law recognizes the
concept of diversion. With this concept, children can
be transferred to the settlement of children's cases
from the criminal justice process to processes
outside of criminal justice (Article 1 paragraph 7 of
Law no. 11 of 2012 concerning the Juvenile Justice
System). In every criminal justice process, whether
from the Police, the Prosecutor's Office and the
Judiciary, the diversion process is prioritized. The
purpose of diversion is to; achieve peace between
victims and children; resolve cases of children
outside the judicial process; prevent children from
deprivation of liberty; encourage people to
participate; and instill a sense of responsibility in
children.
(Article 6 of Law no. 11 of 2012
concerning the Juvenile Justice System)
The goal of the research paper is to find out
whether the diversion carried out by law
enforcement officers in the Juvenile Justice System
against children who are in conflict with the law
because of alleged abuse and sexual abuse has
reflected the absence of gender discrimination. The
object of the research is related to the crime of
Gender Discrimination Against Minor Children Who Complete Criminal Acts of Inclusion and Law Based on Child Protection Law
347

sexual intercourse and sexual abuse of minors. The
object of this research specifically are 3 decisions of
the district court related to the crime of sexual
intercourse and obscenity committed by SH bin S.
The perpetrators were SH bin S, SM bin IS and CA.
All three are underage boys who were sentenced to
prison terms that have permanent legal force on
charges of sexual intercourse and obscenity. The
legal area for the 3 cases is the North Jakarta Police
area.
2 LITERATURE REVIEW
Hershkowitz and Katz interviewed 426 children
aged 4 to 13 who were victims of sexual violence
in the family. Interviews used the Standard
Investigative Interview Protocol (SP) of the
National Institute of Child and Human Health
(NICHD) found evidence that many victims were
reluctant to make reports, despite evidence and
documentation of allegations of abuse taking place.
This study was conducted using a forensic
interview method to facilitate valid reports of child
abuse (Herskowitz, I. Lamb, 2014).
Laura K. Noll et al conducted a study of children
who were just growing up who consumed
pornography on the internet. The results show that
there is an increasing trend of consumption of
pornography on the internet. It also encourages a
culture of violence against women and minority
groups, including the rape (Laura K. Noll, 2022).
Edward L. Rowan MD made a definition of
sexual violence. He defines it broadly as the
unwanted sexual act of contact with another person.
Child sexual abuse, or child abuse, is more narrowly
defined but definitions vary from one legal
jurisdiction to another. The bottom line is that a
child cannot knowingly or voluntarily consent to a
sexual relationship with someone who is stronger
and older. Depending on the jurisdiction, to be
charged with harassment, the older one must be at
least sixteen or eighteen years of age. This limit is at
least three or five years older than the child (Rowan,
2006: 3)
By this definition Rowan MD admits that sexual
experimentation between younger peers does exist,
but that sexual contact between a child and an adult
male or female is wrong. However, violating social
norms is inevitably the same as endangering children
(Rowan, 2006: 3).
Josie Spataro et al conducted a study on children
who were victims of both boys and girls. The
prospective study conducted looked at victims who
were both children and post-adults. The result is the
risk of experiencing mental stress psychological
problems reached 12.4 % compared to 3.6% who did
not. Psychological illnesses experienced include
excessive anxiety and affective disorder. From the
research, it is shown that many boys who become
victims end up receiving treatment compared to girls
with a ratio of 22.8 % and 10.2% (Spataro, 2004:
416).
Nathanael Sumampouw examines the handling
of court files on child sexual abuse cases. His
research explains that case disclosure is often not
processed properly through the next stage. For
example, it is not forwarded to the realm of
investigation and prosecution by law enforcement
agencies. Previous studies from various countries
have shown that the rate of child sexual abuse is not
continued as high as 40%. In Sweden, only 1 in 10
cases reported to the police end up being processed
by the courts. In New South Wales, Australia, it was
found that most cases of sexual assault do not
progress beyond the stage of a police investigation.
Of the 15% of cases of child sexual violence that
underwent prosecution, only 8% were proven in
court. The low level of prosecution of child sexual
abuse cases is associated with a number of factors.
The main factor is the insufficient availability of
corroborating evidence to support the testimonies of
child victims (Sumampouw, 2002: 984-985).
Sumampouw shows a number of solutions to
overcome obstacles to legal settlement of child
sexual violence. In Indonesia the confession of a
suspect, the presence of a doctor's expert witness on
a report of sexual violence and the duration of the
investigation between 1 to 2 months help to
complete the prosecution. Suspects and evidence of
visum et repertum along with the testimony of expert
witnesses from doctors are important (Sumampouw,
2002: 999).
I Dewa Gede Budhy Dharma Asmara, discusses
restorative justice which is defined as the recovery
of the condition of the victim and the community by
the defendant as the fulfillment of his obligations
because he is aware of his guilt. In judicial practice,
the thesis reveals that people are often dissatisfied
with the judge's decision which does not
accommodate the concept of restorative justice. The
results of the study, in the case of Orli Masudara
Alias Oling and Asman Husin Alias Asman, the
concept of restorative justice could be applied.
Considering the various factors that influence the
judge's judgment and the obstacles he experiences, it
is recommended to regulate the concept of
restorative justice in the Criminal Code in the form
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of expanding the meaning of excuses. As a criminal
policy, the defendants should be released from
lawsuits/onslag (Asmara, 2013).
The research states that children are the next
generation and development assets. The author states
that children as the next generation, children must
get guidance so they can carry out their obligations
and get protection to get their needs and rights.
Guidance and protection of children is the
responsibility of parents, families, communities and
the state. However, if the child commits a behavior
deviation in terms of committing a crime of decency
in the form of sexual intercourse with a child, then
protection for the child must be given to both the
perpetrator and the victim. The protection and
handling of children who are perpetrators or victims
in this crime of decency has a legal umbrella,
namely the Juvenile Court Law and the Child
Protection Act and the Child Criminal Justice
System Act. The handling of child perpetrators and
victims must receive special treatment from law
enforcement officers from the beginning of the
criminal justice process until the judge's decision is
made, both in the form of crime and the actions and
implementation of the decision (Endah, 2014).
Moh Faruk Rozi’s research describes legal
protection, and the efforts of investigators in this
case the North Jakarta Polrestro PPA Unit against
the practices of sexual crimes against children. His
study is related to obscene acts committed by
Syanwani alias Iwan, a marbot who guards the Al-
Barkah mosque in Kelapa Gading, North Jakarta.
The treatment carried out by the suspect against 26
boys was carried out in the room in the prayer room.
In addition, this research describes and explains
what obstacles are experienced by investigators in
handling cases of sexual harassment and violence in
the jurisdiction of the North Jakarta Police (Rozi,
2017).
The research has a different method with the
research of Hershkowitz and Katz, Laura K. Noll
et.all., Josie Spataro and Nathanael Sumampouw.
The different is on the method. Others used the
quantitative method and mine used the case study on
the discrimination to the child.
The differences between the I Dewa Gede Budhy
Dharma Asmara research dissertations and the thesis
can be seen that the theme is almost the same as the
study conducted by the researcher, namely the study
of the crime of sexual intercourse. The difference is
that the analysis and discussion of the writer of this
thesis still uses the old Law Article 81 of Law
Number 23 of 2002 concerning Child Protection.
Meanwhile, the researchers used the reference of
Law no. 35 of 2014 which is a revision of the Child
Protection Law Number 23 of 2002. Another
difference is that researchers review from the
perspective of gender discrimination.
Another difference is on the perspective of
gender discrimination. In the Naning Marini Sarwo
Endah’s thesis concerned on restorative justice. The
difference between the Moh Faruk Rozi’s research is
on the perspective. The writer reviews from the
perspective of gender discrimination, but Rozi
emphasizes legal protection for male victims.
3 METHODS
Methods the research conducted in this study is a
normative juridical legal research method. Legal
research is conducted on statutory regulations. Legal
research raises the issue of policy and the
implementation of the rules that apply in abstracto at
a certain time and area that is published as an
explicit product as a national law that has become an
explicit and positive rule or norm that is clearly
formulated (Waluyo, 2002: 50). The objectives of
this legal research are to: interesting legal principles
Studying systematics, conducting an evaluation of
the synchronization of existing laws and regulations,
identify the basic understanding of the legal system (
Soekanto, 1981: 204 ).
The data collection carried out in this study used
primary data and the next is secondary data. Primary
data was obtained from the first source in the form
of court decisions related to cases of child sexual
violence. Secondary data collection comes from
documents related to research on child sexual
violence. The tertiary data sources are the Legal
Dictionary and the Indonesian Dictionary. An
explorative analysis was carried out on the research
results. The place and time of the research is the
library. The search will be carried out during
doctoral studies at the University of 17 August 1945.
The agenda for this semester is making research
proposals for Legal Research Methods.
The approach used in this research is a case study
related to the legal issues faced. The cases studied
are cases that have obtained court decisions with
permanent legal force. The main thing that is studied
in each of these decisions is the judge's
consideration to arrive at a decision so that it can be
used as an argument in solving the legal issues
faced.
The primary data source of the research is the
basic data of this study. The object of the research is
related to the crime of sexual intercourse and sexual
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abuse of minors. The object of this research
specifically are 3 decisions of the district court
related to the crime of sexual intercourse and
obscenity committed by SH bin S. The perpetrators
were SH bin S, SM bin IS and CA. All three are
underage boys who were sentenced to prison terms
that have permanent legal force on charges of sexual
intercourse and obscenity. The legal area for the 3
cases is the North Jakarta Police area.
Secondary sources of research are books and
laws related to the issue of sexual intercourse and
obscenity. These books serve as material for
analyzing the facts revealed in court decisions which
are the primary sources of research.
The third source of research is legal dictionary
books that provide explanations related to phrases,
norms, legal concepts that are the research
discussion. This third source helps a lot to clarify
issues or discussions that are not yet clear.
4 RESULTS AND DISCUSSION
4.1 The Legal Aspect of Rape
Punishment
The principle of legality has a general meaning that
every act must be based on the applicable laws and
regulations. This legal principle in Latin reads,
"nullum delictum nulla puna sine preavia lege
poenali" which means, "criminal events will not
exist if the provisions of the law in the law do not
exist first. This principle is contained in Article 1
paragraph 1 of the Criminal Code (Hamzah: 20).
The purpose of this principle is the existence of legal
certainty so that human rights can be protected.
This principle of legality also includes criminal
events that can be justified by law, based on
statutory provisions. It is based on justifying reasons
(rectsvaardigingsrood) which are outside the law.
The form of this reasoning in the container of
jurisprudence (Adji, 1980: 194).
The principle of legality is related to the
teachings of the nature of being against the law.
Ruslan Saleh stated that the nature of being against
the law is divided into two, namely the nature of
being against the formal law and the nature of being
against the material law. Ruslan Saleh's explanation
regarding the nature of being against the formal law
is, "an act is against the law if it has fulfilled all the
elements mentioned in the formulation of the offense.
If you have fulfilled all the elements stated explicitly,
then there is no need to investigate whether the act
according to the community is truly deemed
appropriate (Saleh, 1962: 11).
Ruslan Saleh also mentioned the nature of being
against material law. He said that "this unlawful
nature as an act that is clearly included in the
formulation of the offense, it can be based on
statutory provisions and also based on unwritten
rules. So, the nature of teaching against material
law is the same as being contrary to written law,
including morals (ethics) and so on. (Pious, 11)”
Hans Kelsen's theory of the hierarchy of legal
norms was inspired by Adolf Merkl. He uses the
theory of das doppelte rech stanilitz, namely legal
norms have two faces. The first face of the legal
norm is that it originates and is based on the norms
above it. The face of the two legal norms down is
that it also becomes the basis and becomes the
source for the norms below it. So that if the legal
norms above are revoked or deleted, then the legal
norms below are revoked or erased as well (Maria
Farida, 1998: 25).
Hans Kelsen places legislation in a hierarchical
form. Besides the hierarchy of law formation is also
considered dynamic by Kelsen. Kelsen considers the
rule of law as a stufenbau of several ladders where a
lower norm applies, originates and rests on an even
higher norm. The highest norms are norms that
cannot be traced again. There are no more stairs to
reach than a standard Kelsen ladder. He describes it
as follows, “a norm the validity of which cannot be
derived from a superior norm we call a 'basic' norm,
all norms whose validity may be traced back to one
and the same basic norm a system of norms, or an
order (Kelsen, 111). "
There are 3 decisions of the district court related
to the crime of sexual intercourse and obscenity
committed by SH bin S. The perpetrators were SH
bin S, SM bin IS and CA. All three are underage
boys who were sentenced to prison terms that have
permanent legal force on charges of sexual
intercourse and obscenity. The legal aspect of law is
advance than the mediation. The formal law is used
to sentence them. No room for the dialogue with the
victim relatives. There is a proof that the diversion
did not carried out by law enforcement officers in
the Juvenile Justice System against children.
4.2 The Hierarchy of the Legal Norms
The hierarchical theory of legal norms proposed by
Hans Kelsen is tiered and multi-layered in a
hierarchy. In a hierarchical arrangement where a
lower norm originates and is based on a higher
norm. The basic norm, which is the highest norm in
the norm system, is no longer formed by a higher
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norm, but the norm is determined in advance by the
community as the basic norm which is the hanger for
the norms below it.
The Child Protection Law has followed the rules
mandated in Law no. 15 of 2019 concerning
Amendments to Law no. 12 of 2011 concerning the
Establishment of Legislation. The following are the
statutory provisions referred to by the Child
Protection Act:
1. Article 20, Article 20A paragraph (1),
Article 21, Article 28B paragraph (2), and
Article 34 of the 1945 Constitution of the
Republic of Indonesia ;
2. Law Number 4 of 1979 concerning Child
Welfare (State Gazette of 1979 Number 32,
Supplement to State Gazette Number
3143);
3. Law Number 7 of 1984 concerning the
Elimination of All Forms of Discrimination
Against Women (State Gazette of 1984
Number 29, Supplement to the State
Gazette Number 3277);
4. Law Number 3 Year 1997 concerning
Juvenile Court (State Gazette Year 1997
Number 3, Supplement to State Gazette
Number 3668);
5. Law Number 4 of 1997 concerning Persons
with Disabilities (State Gazette of 1997
Number 9, Supplement to the State Gazette
Number 3670);
6. Law No. 20/1999 concerning Ratification
of ILO Convention No. 138 Concerning
Minimum Age for Admission to
Employment (ILO Convention on
Minimum Age to be Admitted to Work)
(State Gazette of 1999 Number 56,
Supplement to State Gazette Number
3835);
7. Law Number 39 of 1999 concerning
Human Rights (State Gazette of 1999
Number 165, Supplement to the State
Gazette Number 3886);
8. Law No. 1 of 2000 concerning Ratification
of the ILO Convention No. 182 Concerning
The Prohibition and Immediate Action for
The Elimination of The Worst Forms of
Child Labor (ILO Convention No. 182
concerning the Prohibition and Immediate
Action for the Elimination of the Worst
Forms of Child Labor) (State Gazette Year
2000 Number 30, Supplement to the State
Gazette Number 3941 ) (UU no. 35 of 2014
concerning Amendments to Law no. 23
year 2002);
Provisions for child protection, apart from coming
from the 1945 Constitution of the Republic of
Indonesia, the Criminal Code, the Child Protection
Act are also contained in several laws and
regulations such as.
1. Indonesia's National Medium-Term
Development Plan (RPJMN) 2015–2019.
2. National Strategy for the Elimination of
Violence Against Children (Stranas
PKTA) 2016–2020;
3. Child Friendly City Guidelines;
4. National Action Plan for Child Protection
(RAN-PA) 2015–2019; and
5. Presidential Instruction No. 5 of 2014,
concerning the National Movement for
Anti-Sexual Crimes Against Children
(GN-AKSA) (Wismayanti, 2019:9)
There are some regulations to protect the children,
but the decisions to SH bin S, SM bin IS and CA
never pay attention on the protection of the children.
On the top of the hierarchy there are so many
regulation saying the protection to the children who
commit crime. But it is only on the paper. The
delinquency trial was used, but the environment of
the court as usual as non- delinquency trial.
4.3 The Feminist Perspective
Feminists pay attention to the gender issue and reject
discrimination between men and women. There is no
automatic preference where men are superior to
women. Feminists challenge a wide range of laws
that demonstrate direct and indirect discrimination
against women (Fellmeth, 2020: 662).
Discussions about gender cannot be separated
from sex and nature, because sex, nature and gender
are closely related, but have different meanings. In
relation to the roles of men and women in society,
the meaning of the three concepts is often
misunderstood. To avoid this and to sharpen the
understanding of the concept of gender, the notion of
sex and nature needs to be explained first. The term
sex can be interpreted biologically, namely the male
genitalia (penis) and female genitalia (vagina). From
birth to death, men will remain male and women will
remain female. Gender cannot be exchanged
between men and women.
From this definition of gender and
discrimination, a statement will emerge that nature is
a biological innate trait as a gift from God Almighty,
which cannot change over time and cannot be
exchanged that is inherent in men and women. Here
gender is more defined as sex. However, gender here
is not biological sex, but socio-cultural and
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351

psychological. If a person has a biological attribute,
such as a penis in a man or a vagina in a woman,
then it is also an attribute of the gender concerned
and will then determine his social role in society.
In principle, the concept of gender focuses on the
differences in roles between men and women, which
are formed by society in accordance with social
norms and socio-cultural values of the community
concerned. Gender roles are social roles that are not
determined by gender differences as well as natural
roles. Therefore, the division of roles between men
and women can differ from one society to another
according to the environment. Gender roles can also
change from time to time, due to the influence of
progress: education, technology, economy.
The juvenile delinquency system sentenced to
SH bin S, SM bin IS and CA because the actor
should be a male. There is an imagination that there
is the sexual consent among the others. The
confession of the female about the experimental
activity with the male never be followed as the clue
of the sexual consent. Because the three of them are
male, so they are blamed. The judges sentenced
them to the jail, because the gender bias.
Actually crime acts can be committed by men or
women, children or adults, rich or poor. The
perpetrators who have the awareness to commit a
criminal act are held accountable regardless of
background or status. Crime of sexual intercourse
and sexual abuse of minors Bad stereotypes against
boys. This is likely to be discriminatory. Made Sadhi
Astuti, who discussed juvenile justice, expressed his
views.
Boys have a greater tendency to commit criminal
acts when compared to girls, because boys are
braver and do not know danger, like to read with
their friends through the streets in the city and
outside the city. Girls, on the other hand, prefer
to stay at home and feel more delicate than boys
(Astuti, 2003: 152).
The definition of intercourse according to R.
Soesilo, refers to Arrest Hooge Raad dated February
5, 1912, namely "a competition between male and
female genitalia which is carried out to get children,
so male members must enter into female members
so that they secrete semen" or In other words,
intercourse can be interpreted as the entry of the
penis of the perpetrator of rape into the vagina of the
woman who is the victim and ejaculation occurs in
the vagina (Soesilo, 1981:209).
Developments related to physical violence in
accordance with the Criminal Code have changed in
the Child Protection Law. Articles 76D and 76E of
Law no. 35 of 2014 concerning Child Protection
stipulates that elements of violence or threats of
violence are not required to prove the existence of
rape or sexual abuse of children. This applies as long
as there is evidence that an obscene act or sexual
intercourse with the child occurred, the perpetrator
can already be charged with a punishment.
The definition of the criminal act of obscenity is
regulated in Article 289 of the Criminal Code as
follows: "Whoever by force or threat of violence
forces a person to commit or allow an obscene act to
be carried out, is threatened for committing an act
that attacks the honor of decency, with a maximum
imprisonment of nine years."
Article 289 of the Criminal Code regarding
obscenity does not specifically limit the perpetrators
and victims of obscene acts. Victims can occur to
both men and women. It does not include rape. From
article 289 of the Criminal Code, gender
discrimination occurs where men cannot be raped,
but only as victims of sexual abuse.
Criminal acts are not only based on intentional
acts, but also because of negligence. Thus, errors can
arise from intentional and also negligence Roeslan
(Saleh 1985: 49).
The Criminal Code places emphasis on
individuals who have the awareness to take actions
to be held accountable. Those who are unable to take
responsibility are granted an exception. Article 44 of
the Criminal Code confirms this. Criminal liability
cannot be given to those who have mental
disabilities or are mentally and mentally disturbed.
Criminal acts also cannot be applied to those who
commit out of compulsion. This is stated in Article
48 of the Criminal Code. If the judges are very
careful to make a decision, they can see there are the
sexual consent. The problem of the three cases are
the interventions of the victim family. They only see
the male as the actor, not as the sexual consent. It
can be called as the bias gender.
4.4 The Critical Legal Perspective
Critical Legal Studies (CLS) is not a new
phenomenon in legal science. Nor is it a
postmodernity movement. The postmodern
movement thinks things are not going well. In the
legal context, this school assumes that justice has
failed or the law has separated itself from ethics.
Critical Legal Studies is a doctrine of critical legal
studies that addresses the failure, injustice,
discrimination and inequality of legal traditions and
the examination of the future of law (Douzinas,
1994: 3-7).
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CLS rejects the notion that law is separate from
political, economic, social and cultural elements as
conceptualized by Hans Kelsen with his theory of
the pure theory of law, which craves the law to be
free from non-legal elements such as politics,
economics. , social and others. On the other hand,
CLS assumes that the law is always intervened by
interests outside the law so that the law is never
neutral and objective. This means that law cannot be
separated from politics because law is not formed in
a value-free vacuum. In addition, CLS does not
believe in the neutrality of the judge's decision.
Judges who are echoed by the flow of legal realism
have also not been able to provide justice because
their decisions may not be objective because they
are influenced by their background in life
(Rahmatullah, 2021).
CLS challenges theories, doctrines or principles
such as legal neutrality, legal autonomy, and the
separation of law from politics. For example, CLS
criticizes equality before the law (equality before the
law). This principle is a principle that contains
equality before the law from an ideal of a state of
law. CLS adherents suspect this idiom because every
law-making process is so elitist that it often only
benefits the elite and harms the lower strata.
Sinoidh Douglas Scott explained that the study
of law must use an interdisciplinary approach. He
has idealism in learning law to be meaningful by
fighting hegemony. The current legal approach,
according to Scott, is more to strengthen the ratio,
science and deduction. Laws with this approach
began to fade. The study of the law should bring
awareness of knowledge to the power that exploits
and oppresses (Douglas, 2013: 8).
Scott thinks that law in the modern era needs to
be identified and understood in certain attributes.
Those attributes are; trust and legal autonomy,
identification of law as state law and law
systematized into the legal system. In the
contemporary post-modern era, law is more difficult
to identify, because the law is spread out with a
more plural character. Meanwhile, the relationship
between the state and the law has become less
harmonious. The reason is that capitalism
perpetuates itself and changes all ideologies that
contradict it (Scott, 380).
This school considers that legal products in the
form of laws and their derivatives must be criticized.
This is a condition for the existence of the law itself.
In addition to being a requirement for every
formation of state legal products, CLS can also carry
out its role as a means of control for the community
over the state. Control of the checks and balances
mechanism is the target of the CLS flow. This role is
carried out by independent civil society institutions,
NGOs, state institutions, both national and
international to supervise, monitor, and evaluate
state legal policies that are considered to deviate
from the goals of the nation and state. The state must
accept a different opinion, or a different view of
what the state is doing. The goal is to help the
country see from the outside if there are still
deficiencies that need to be corrected.
The CLS stream also pays attention to
discrimination. Discrimination occurs because of
domination. The general dominance is male over
female. With this dominance, the law does not
provide protection for women's rights. The legal
equation that is considered utopian by the CLS
school can also occur, but quite the opposite.
Discrimination can occur in boys. Different
treatment occurs when there is a crime of sexual
intercourse and obscenity. Boys are certainly wrong
and their rights are not protected. The CLS stream
can see this as discrimination. Court decisions can
be criticized if there are acts of discrimination
against boys.
The culture of violence against women in the
form of rape is considered as an effort to maintain
the symbol of male gender domination over women.
Men dominate women. This becomes the ideology,
structure and law of a society. Louise Newman calls
this condition a rape culture. The female body
becomes the object of male violence (Newman,
2021: 12). The term rape culture, according to Jan
Jordan, has been around since the early 1970s. This
term became a theoretical construction of the second
wave of the 1970s feminist movement (Jordan,
2023: 17).
Does rape only happen to women, because of
thoughts and violence in the name of patriarchy?
The answer is no. There are a number of rapes
committed by women against men. Shia LaBeouf, an
artist and director in the United States, was raped by
a woman. Inna Levi's survey of 505 comments about
the incident showed that 55% thought it was the
victim's fault, 35% supported that rape could happen
to men and 10% were mixed (Levi, 2018). This
study shows that there are still many people who
think it is impossible to rape men. If that happens,
then the blame is on the man as revealed by Inna
Levi.
The contradictions of the three laws in defining
children and the minimum age for sexual consent
and marriage are problematic. The Criminal Code
and the Marriage Law override the Child Protection
Act in interpreting a case of sexual crimes against
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children. The Criminal Code can override the Child
Protection Law because it is the main source of law
for criminal law that regulates criminal acts in
Indonesia. The Marriage Law overrides the Child
Protection Law because Indonesia adheres to the lex
specialist principle. Lex specialis legi derogat
generali is the principle of legal interpretation,
which states that special law (lex specialist)
overrides general law (lex generalis). In this case,
the Marriage Law is a special law to legalize
marriage, while the Child Protection Law is
considered a general law. These conflicting laws
show inconsistencies in the application of laws to
end child marriage and protect children in Indonesia,
and in particular to protect children from sexual
abuse in the family.
The Child Protection Law also regulates the role
of parents in preventing child marriage.
Contradictions arise when the Criminal Code
provides sexual consent according to the Criminal
Code is the minimum age of 15 years for girls. The
law only mentions sexual consent for girls and this
can increase the vulnerability of girls under the age
of 18. This law is intended for the protection of
children. When children are minors, they are not
considered capable of consenting to sex, thus
eliminating any possible defense of consent. The
Criminal Code only stipulates the age of consent for
girls, it marks that only girls need protection. For
example, if a girl is already married and is 15 years
old and has sex with a boy, neither will be
prosecuted. It is a crime if the incident is considered
coercion or rape. If the girl was under 15 years old,
it would be against the law. However, if the girl is
irrespective of the age of marriage and the incident
(even in the case of rape) only involves the husband,
then it will be legal (article 287). The Criminal Code
also fails to protect children from sexual abuse if the
incident occurred in a legal marriage.
This contradiction is narrated by the Child
Protection Act. In consideration of this law it is
stated that:
Even though the legal instruments have been
owned, in the course of the Law Number 23 of
2002 concerning Child Protection has not been
able to run effectively because there is still
overlap between sectoral laws and regulations
related to the definition of children. On the other
hand, the rise of crimes against children in the
community, one of which is sexual crimes,
requires increased commitment from the
Government, Regional Government, and the
Community as well as all stakeholders related to
the implementation of Child Protection (UU no.
35 of 2014 concerning Amendments to Law no.
23 year 2002).
Yanuar Farida Wismayanti et al examined the
difficulty of handling sexual violence against
children. Wismayanti et al. identified that social
restrictions and economic vulnerability in Indonesia
can contribute to the occurrence of child sexual
violence. There is still a taboo in Indonesia to reveal
this disaster to minimize case reporting. The
sensitive nature of these crimes often results in
victims and their families not disclosing or reporting
due to fear and stigmatization. This case is
considered a disgrace to the victim and her family.
In Indonesia, most victims do not share or report
their experiences until they are adults. In fact, some
chose not to tell anyone (Wismayanti, 2019: 7-8).
Wismayanti also sees that poverty and economic
vulnerability increase the possibility of children
becoming victims of violence. In this situation,
poverty contributes to poor child welfare, including
poor health, lack of educational opportunities, and
the risk of trafficking. The risk of violence and
sexual violence against children increases when
poverty takes root in the community (Wismayanti,
2019: 9).
Sexual violence against children is often defined
as immoral acts by adults against children who are
underage. Edward has stated that children (minors)
sometimes experiment with their peers. They
determine their own destiny sexually. They
sometimes kiss each other between peers and the
opposite sex. Edward said this act usually cannot be
equated with immoral acts of adults towards
children. This cannot be categorized as exploitation
by adults (Rowan, 2006: 18).
Cultural relativism will lead to differences in
sexual relations without sexual intercourse with
children aged 12 to 18 years. Even in the West, peer
-to-peer relationships and an agreement by both
parties are not considered acts of child sexual abuse.
The variety of definitions does not reduce the
potential impact of this behavior on the victim, but
the awareness to perform the act or sexual
intercourse is consensual.
This cultural relativism must be respected and
also when the opposite is true in the East.
Consensual relationships before adulthood can be
reported to the police. Legal proceedings will occur.
Discrimination occurs when the victim is a girl, then
the boy will be made the accused. Although sexual
desire can come from both. The report to the police
will be followed up by a prosecution by the
prosecutor and then decided by the judge. This
discrimination will cause boys to become
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“perpetrators” as well as “victims” because of
female parents' reports.
Sometimes feminist groups always consider boys
as accused before the investigation begins. They
advocate with the sentiment that women must be
victims, because of the patriarchal system in
Indonesia. Radical feminist groups do not pay
attention to the existence of equality in the
intercourse of minors. As a result, discrimination
against children occurs.
Table 1: Application of Articles to Cases of Obscenity and
Sexual Intercourse by Minors.
Perpetrator
(Age)
Victim
(Age)
Article applied Verdict
CA
(17 years)
DAB
(14 years)
Article 81
paragraph (2)
10 years
SH
(16 years)
FQBS
(15 years )
Article 82
paragraph (1)
3 years
6
months
SM
(14 years)
NA
(14 years)
Article 81
paragraph (2) and
Article 82
p
aragraph (1)
3 years
6
months
Reports by parents and NGOs affiliated with
feminism consider that sometimes they pay attention
to the context of the relationship, whether
consensual or coercive. If it is an adult who commits
it by persuading the victim to have sexual
intercourse, then it is clearly a criminal act.
However, the relationship carried out by minors on
the basis of consensual, it is necessary to deepen the
discussion. In addition, the treatment of children as
suspects must be protected by law, so that their
future is not disturbed. This protection is an
obligation and not discrimination. Discrimination
should not occur in providing protection for children
who are suspected of being perpetrators and children
as victims.
Radical feminist groups often attack the
"patriarchal" state and its legal apparatus together as
products and perpetrators of oppression by men.
Feminists believe that legal history is written from a
male perspective and does not reflect the role of
women in making history and shaping society. Such
laws have presented male characteristics as norms
and female characteristics as deviations from the
norm, therefore the applicable law will always
strengthen and perpetuate patriarchal power. For
feminists, the concept of gender is created socially,
not biologically. For feminists, biological
differences only create differences in physical
appearance and reproductive capacity, not creating
psychological, moral, or social constructions, so that
it is not appropriate for the law to be enforced,
placing biological differences as the basis for
making distinctions between women and men in
terms of their relationship. in state life (Natalis,
2020).
Amalia Fransiska Ilyas' study at the Batu Police,
Malang shows that children as perpetrators of sexual
intercourse do not receive procedures according to
the Child Protection Act. He explained that overall
the protection of children as perpetrators went quite
well. He felt a shortage when the boy was in the
process of being investigated at the Police, it turned
out that there were still violations of children's rights
(Ilyas, 2013).
Health problems, mental psychological,
economic can be a direct or indirect impact of the
crime of sexual abuse and sexual intercourse.
However, there are a number of cases where these
crimes were committed out of consensual behavior
by underage boys. In today's era with technological
advances and gadgets that children can carry around
and display pornographic images or videos can
increase the potential for acts of obscenity and
sexual intercourse. Therefore, it is necessary to take
a deeper look at how these actions are taken from the
perspective of positive law and critical legal justice.
Researchers' observations of the three sentences
against children in conflict with the law have not
paid attention to the existence of the Juvenile Justice
System. The existence of Law no. 11 of 2012
concerning the Juvenile Justice System that puts
forward the principle of diversion, it turns out that
there is no common ground. Whereas sexual
intercourse and obscenity are more like
experimentation with children or consensual. The
perpetrator is confirmed to be a boy and does not
pay attention to whether there is an element of
invitation from a girl. The author assumes that there
is gender discrimination against children in conflict
with the law.
Law enforcement officers in the Juvenile Justice
System are still not serious about diversion which is
part of restorative justice. This lack of seriousness
causes no common ground between the families of
the perpetrators and victims. Article 8 of the
Juvenile Justice System Law clearly states that the
diversion process is carried out through deliberation
involving the child and his/her parents/guardians,
victims and/or their parents/guardians, community
advisors, and professional social workers based on a
Restorative Justice approach. Critical legal schools
will certainly criticize and evaluate whether legal
action against children in conflict with the law is in
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accordance with this provision. If not, then injustice
has occurred. The imposition of a sentence that does
not pay attention to the rights of this child has
violated the provisions of the law.
The cases raised above need to be viewed from a
perspective other than positive law or the Rule of
Law. Critical Law School can see the cases above
from the perspective of this school. He can ask
questions whether the application of law a has been
carried out correctly by the juvenile justice system.
Or, is there a correction, because it is not
automatically a criminal law system is perfect.
Interventions in law enforcement and law
enforcement that run on political interests are not
within the corridor of law and justice are the focus
of this study. The need for efforts to correct law
enforcement from deviant procedures and goals is
the concern of adherents of this school. To carry out
this mission, law enforcers such as judges and
lawyers must understand the critical flow of law.
Law enforcement officers must dare to convey
evaluative criticism in order to realize justice for the
community.
This legal perspective is inseparable from the
political system of criminal law in Indonesia.
Mahfud MD defines the legal political system as a
legal policy or official line (policy) regarding the
law that will be enforced, both in making new laws
and by replacing old laws, in order to achieve state
goals (Mahfud MD, 2009: 1). The study of legal
politics covers, among others; First, the state's
policy regarding the law that is enacted or not
enforced. Second, the political, economic, social,
cultural background for the birth of legal products.
Third, law enforcement in reality on the ground
(Mahfud MD, 2009: 1).
At the beginning, it was stated that the
Permendikbud on Research and Technology that
puts forward sexual consent or sexual agreement in
adults encourages reviewing the existence of sexual
acts between children. Is this experimentation a form
of sexual violence perpetrated by boys. The act was
not necessarily forced, but also got the consent of
the daughter. Our legal politics still considers that
there is no sexual consent for children. Therefore
experimentation is not justified. However, the
question is, is it fair to punish only boys with
obscenity?
Sexual Consent does not violate the legislation
regarding the crime of rape as regulated in Article
285 of the Criminal Code. In it there are no
elements: his act forced intercourse; how: by force
or threat of violence; and the female object is not his
wife.
By this definition Rowan MD admits that sexual
experimentation between younger peers does exist,
but that sexual contact between a child and an adult
male or female is wrong. However, violating social
norms is inevitably the same as endangering children
(Rowan, 2006: 4).
Rowan MD's definition of sexual
experimentation between children's peers can be
juxtaposed with Article 5 of Permendikbud,
Research and Technology 30/2021. Article 5 states
that if the victim does not give consent, then an act
can be categorized as sexual violence. If the
children's experimentation is known by the parents,
the female parents will be ashamed and punish the
boy as guilty, which is then reported to the police
and punished.
5 CONCLUSION
The conclusion of the research on the three
decisions of the district court related to the crime of
sexual intercourse and obscenity committed by SH
bin S, SM bin IS and CA that there are no the
diversion carried out by law enforcement officers in
the Juvenile Justice System against them.
The three cases showed that there were still
violations of children's rights. The children as
perpetrators of sexual intercourse do not receive
procedures according to the Child Protection Act.
There is a shortage when the three boys of the case
were in the process of being investigated at the
Police, the attorney and the judge.
The system only pays attention on the legal
aspect of rape punishment. No room for the
mediation among each other. Even though there are
some the legal norms give the special attention to
protect the children as the victims or the actors. The
feminist perspective tends to blame the boy as the
actor, even there is the sexual consent or the children
sexual experiment. Permendikbud on Research and
Technology that puts forward sexual consent or
sexual agreement in adults encourages reviewing the
existence of sexual acts between children. Is this
experimentation a form of sexual violence
perpetrated by boys?. The act was not necessarily
forced, but also got the consent of the daughter. But
the facts of three cases showed there were no the
protection to the children on the delinquency justice
system.
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356

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