Criminalization of Child Victim of Rape in Qanun Jinayat (Study of the Lhoksukon Sharia Court Decision Number 10/JN/2020/MS-LSK)

Abstract

. Law enforcement against cases of sexual violence is often far from a sense of justice. That is due to the low perspective of gender justice in law enforcement officers. The reflection of the low gender justice perspective appears in court decisions related to criminal acts of sexual violence, one of which is the Lhoksukon Sharia Court decision Number 10/JN/2020/MS-LSK. This study uses a qualitative method with a normative juridical approach. The primary legal material used in this study is the Decision of the Sharia Court Number 10/JN/2020/MS.LSK and relevant legislation were used to analyze it. This paper aims to describe a court decision that is discriminatory and opens up opportunities for the criminalization of child victims of rape. The results of the analysis show that the problem began when Public Prosecutor decided to use the Aceh Qanun of 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 an alternative form with the first indictment being rape of a child (Article 50), the second indictment being adultery with a child (Article 34), and the third indictment being sexual abuse of a child (Article 47). Mixing the qualifications of criminal acts in the perpetrator-victim relationship (rape and sexual harassment) with adultery which is classified as a criminal act committed voluntarily between the two parties is inappropriate. The next mistake is when the public prosecutor charged the defendant in the requisition with the crime of adultery with a child. This decision is very detrimental to the interests of the victim because, in the crime of adultery, the victim who is a child can also be positioned as the perpetrator, can be processed by law, and be subject to sanctions. The peak of the error was that the panel of judges did not use the perspective of child victims in their decision at all. The fact that the child victim and the defendant have a courtship relation cannot be used as a basis that the intercourse that occurred was adultery, not rape. Moreover, the juridical facts show that the child victims suffered abrasions and torn hymen. This case would be more appropriate if it was resolved using Article 76D in conjunction with Article 81 of Law Number 35 of 2014 as an act of forcing a child to have sex.