Indonesia’s Ministry of Law and Human Rights this week defended the fundamental right to privacy in a Constitutional Court case hinging on a petition to criminalize adult consensual sex outside of marriage, or adultery.
In court to urge the judges to reject the petition, ministry official Hotman Sitorus described adultery as “against our morality,” but argued that adultery fails to meet the legal criteria of a criminal offense.
Beginning in July 2016, a group of petitioners has asked the Constitutional Court to rule on the constitutionality of proposed changes to the criminal code. They are seeking amendments to laws on adultery (art. 284), rape (art. 285), and sex with a minor (art. 292) in Indonesia’s criminal code.
Those efforts are cause for concern, particularly in light of the abusive impact of criminalization of adultery in Aceh province. Aceh is the only one of Indonesia’s 34 provinces that can legally adopt bylaws derived from Sharia, or Islamic law. Aceh’s Sharia-inspired adultery law has resulted in serious abuses since police began enforcing the local bylaw in 2009. So-called Sharia police in Aceh have interpreted the broadly worded law to prohibit merely sitting and talking in a “quiet” space with a member of the opposite sex to whom one is not married or related, including without any evidence of intimacy. Human Rights Watch has documented such abuses as aggressive interrogation; conditioning the release of suspects upon their agreement to marry; and in one case, the Sharia police’s rape of a woman during her detention.
Criminalization of consensual sexual relationships between adults, regardless of their marital status, violates their right to privacy under the International Covenant on Civil and Political Rights, which Indonesia has ratified. The United Nations Human Rights Committee in 1994 ruled in the famous Toonan case that, “It is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy.’”
The Indonesian government has already signaled to the international community its support for the right to privacy. In 2013, Indonesia co-sponsored a UN Human Rights Council resolution on that right. Sitorus’ robust defense of that right before the Constitutional Court is an important affirmation of the need to reject any efforts to criminalize adultery.