APCOM watched with deep concern as the Indonesian Parliament passed the new Criminal Code Bill into law on 6 December 2022.
In a small way, we are relieved that upon first reading, same-sex intercourse between consenting adults (including sex between a transgender person and a cisgender person or between two transgender persons, since Indonesian law only recognizes binary genders) is not criminalized.
However, Art. 2 mentions “living law in communities,” which can be used to prosecute acts not specifically criminalized in the Code. This article can be used as the basis of prosecuting people engaging in same-sex intercourse. This is particularly worrying since the discourse that homosexual behaviour and cross-dressing are not part of Indonesian culture is increasingly quite common.
Another concern we have relates to Art. 411 on adultery and Art. 412 on cohabitation. While strictly speaking these two articles specifically mention heterosexual sex out of wedlock (411) and unmarried heterosexual couples living together (412), and persons can be prosecuted only if reported to police by spouses, parents and adult children, some legal and human rights experts worry that close relatives could report homosexual relations as well, given the homophobia and transphobia in many communities.
Other articles on display of “public indecency” (406), pornography (407) and sexual intercourse in public (414), echo provisions in other laws already in force before the new Criminal Code, such as the Pornography Law. They have been used to prosecute gay men and other men who have sex with men (MSM) in private gyms and bathhouses, in some cases even private residences. Such provisions are now formally incorporated in the Code, although a relieving caveat is that erotica produced and consumed personally is now exempt from prosecution.
Lastly, Art. 408, which prohibits the display of contraceptives to minors except by “authorized persons” could prove to be an unnecessary constraint to sexuality and sexual and reproductive health education. The fact that having condoms on a person are already often used to prosecute persons accused of engaging in “sex parties” shows the potential threat of the article.
Nevertheless, in an equally serious way, it must be noted that persons, communities and organizations of diverse SOGIESC already have the right to expression, assembly and personal safety heavily restricted by the authorities, and when these are threatened, police refuses to protect us. The Criminal Code formally states that all ideologies but the state ideology Pancasila is prohibited. Gender and sexual diversity, often limited to the acronym “LGBT” is often accused of being a foreign ideology, so one can imagine the threat to people like us.
Moreover, criticizing the President and Vice President, and state institutions, is now a crime. One can envision questioning the homophobia or transphobia of state officials being criminalized.
Therefore, APCOM clearly and forcefully states the following:
- The Indonesian government must fulfil its duties and responsibilities as mentioned in international human rights instruments that it has ratified. It should stop engaging in expedient compromises for the sake of short-term political gains.
- The Indonesian government must reconsider problematic parts of the Criminal Code, especially since it will only come into force in three years’ time. It must truly listen to dissenting voices from civil society demanding a revision.
- APCOM unequivocally stands in solidarity and supports all civil society efforts to conduct judicial reviews of the problematic articles in the Constitutional Court. We will work with Indonesian and other regional human rights organizations to that end.
To find out more about the Criminal Code:
- Indonesia: New Criminal Code Disastrous for Rights by Human Rights Watch
- Indonesia summons UN official after criticism of new Criminal Code published in thejakartapost.com