In mid-December, Indonesia’s Constitutional Court dismissed a petition that had sought to criminalize all consensual sex outside of marriage, as well as adult consensual same-sex conduct. Women’s rights groups, sexual and gender minorities and others welcomed the 5-4 vote, which followed nearly 18 months of hearings.
The decision was more than hypothetical. With some estimating that as many as half of Indonesian couples do not get legally married because of difficulties registering, criminalizing their sex lives could overwhelm police and prison systems. The judgment also provided some respite to Indonesia’s besieged lesbian, gay, bisexual and transgender (LGBT) community, which has faced nearly two years of harassment and violence stoked by the public animosity of government officials.
But gay men in Indonesia already face prosecution and imprisonment under Indonesia’s dangerously ambiguous 2008 Law on Pornography. Within 24 hours of the Constitutional Court judgment, a municipal court in North Jakarta sentenced eight men arrested in May at a gay meeting place to two or three years in prison under the Pornography Law.
The decision to reject the petition on the technical grounds that the Constitutional Court was not the right venue for creating new laws provided only temporary reassurance. The petitioners and their allies are sure to persist in their efforts, and in the meantime, authorities target and prosecute LGBT people under existing laws.
Sexual and gender minorities in Indonesia have historically learned to live with scattered instances of animosity, but pluralistic social attitudes provided a shield that typically prevented violence. Against this background, civil-society groups gained a foothold and free expression of sexual and gender identity became more common. But the breathing room was tenuous: While the government has never criminalized homosexual conduct, the lack of legal protections for LGBT people left them vulnerable.
Absurd to Apocalyptic
The onslaught by government officials starting in January 2016 tipped that delicate balance. The anti-LGBT rhetoric ranged from the absurd to the apocalyptic: at a maternal-health seminar, a mayor warned young mothers off instant noodles – their time and attention, he said, should be given to nutritious cooking and spending time with their children, which would prevent them from becoming gay. Then the defense minister labeled LGBT rights activism a proxy war on the nation led by outsiders, more dangerous than a nuclear war.
The National Children’s Protection Commission issued a decree against “gay propaganda.” The national psychiatry association proclaimed homosexuality and transgender identities “mental illnesses.” And the Nahdlatul Ulama, Indonesia’s largest Muslim organization, called for criminalization of LGBT activism and for “rehabilitation” for gay people.
Then in 2017, there were at least seven raids on LGBT people in private spaces.
In March, unidentified vigilantes forcibly entered an apartment in Aceh province and took two men in their 20s to the police for allegedly having same-sex relations. The men were publicly flogged. In April, police raided a private gathering of gay and bisexual men in Surabaya, arrested and detained 14, and subjected them to HIV (human immunodeficiency virus) tests without consent. In May, police raided the Atlantis Spa in Jakarta. In June, police in Medan apprehended five “suspected lesbians” and shared a video of the raid and the women’s names with reporters.
In July, police raided a gathering of transgender women in Kalimantan, arresting at least 200. In September, police in West Java province entered the private home of 12 women they suspected to be lesbians, and forcibly evicted them from the village. In October, police raided a Jakarta sauna popular among gay men and arrested more than 50 people. In December, vigilantes in Aceh province targeted transgender women attending a friend’s birthday party and handed them to the local Sharia (Islamic law) police.
Law on Pornography Exploited
All told, more than 300 Indonesians were arrested in 2017 for alleged LGBT-associated behavior – the majority under the Pornography Law – and countless others terrorized.
While the petition before the Constitutional Court was preposterous in its scope, the roots of its impetus were no secret. The chairman of the Family Love Alliance, the main petitioner in the Constitutional Court case, told the media in August 2016 that while Indonesia’s criminal code does not typically touch on private matters, this petition was a specific reaction to the increased visibility of LGBT rights activism.
So-called specialists testifying in the case blamed the rise in LGBT visibility on everything from gay dating apps such as Grindr to a Jewish conspiracy.
After the court ruling, the Family Love Alliance pledged to redouble its efforts to amend the Criminal Code in parliament, where it is currently under debate.
The obligations for Indonesia’s policymakers are to draft laws that live up to the country’s proud co-sponsorship of a United Nations resolution on privacy in 2013, enshrine the distinction that the Law Ministry has made between morality and criminality, and protect free expression and security rights of LGBT people as the government pledged in 2017 at the UN Human Rights Council.
In the meantime, authorities should end police targeting of suspected LGBT gatherings. Raids on private spaces are certainly not in line with Indonesia’s “unity in diversity” motto.