USA: RSVP for our 303 Creative webinar
On December 5, the Supreme Court heard oral arguments in 303 Creative v. Elenis, one of the most significant cases on LGBTQ issues this term. We hope you can join us tomorrow, December 13, at noon PT/3pm ET for an online discussion of the oral arguments, the evidence we presented in our amicus brief, and what the decision could mean for LGBTQ rights. RSVP Today |
Indonesia has recently gained the international spotlight for criminalising sex outside marriage in its new Criminal Code
Indonesia has recently gained the international spotlight for criminalising sex outside marriage in its new Criminal Code (Kitab Undang-Undang Hukum Pidana), which was passed by the parliament (Dewan Perwakilan Rakyat, DPR) on 6 December 2022, with a transition period that will last for three years before the code comes into force. While the new Criminal Code is comprehensive and includes novel provisions that merit academic considerations (such as Article 597 which criminalises acts prohibited by customary law and Articles 598 and 599 which criminalise genocide and crimes against humanity), this post will focus on the criminalisation of sex outside marriage under Article 411 and cohabitation under Article 412. What usually escapes international headlines is that these acts can only be prosecuted if there is an official complaint from the husband/wife for married persons, or from the parents or the child for unmarried persons. This post will explain the background of these provisions, and also analyse what these new provisions imply for Indonesia.
Before explaining the background of the criminalisation of sex outside marriage and cohabitation, it is important to understand why the DPR decided to adopt a new Criminal Code. Indonesia declared its independence on 17 August 1945, and Article II of the Transitional Provisions of the 1945 Constitution stipulates that “[a]ll existing laws and regulations shall remain in effect as long as new laws and regulations have not yet taken effect under this Constitution.” Hence, the Criminal Code from the Dutch era that came into force in 1918, the Wetboek van Strafrecht voor Nederlands-Indië, remained in effect in the territory of the new Republic. This was then confirmed by Law Number 1 Year 1946 on Rules concerning Criminal Law.
Since then, there were various adjustments made to the criminal code, such as in 1965 when President Soekarno introduced provisions criminalising blasphemy. Reliance on colonial-era criminal code was considered problematic. First, there was no official translation enacted by the authorities, and thus judicial practice had to depend on unofficial translations. Second, the criminal code was considered obsolete and too focused on retributive justice. Third, given that it was enacted during the Dutch colonial era, a new criminal code was considered necessary not only for decolonialisation, but also to reflect the moral values and norms of Indonesians today.
However, while the proposal to create a brand new Criminal Code can be traced back to the First National Law Seminar in Semarang in 1963, such efforts were stalled for decades. During President Susilo Bambang Yudhoyono’s tenure in 2004-2014, a draft Criminal Code was submitted to the DPR, but the process was never completed. After President Joko Widodo took office in 2014, the bill was resubmitted by the Justice Minister Yasonna Laoly in 2015, but it was again delayed many times until finally it was passed by the DPR on 6 December 2022.
The new Criminal Code criminalises sex outside marriage; Article 411(1) prohibits intercourse with someone who is not their husband or wife, which is subject to a maximum one year in prison or a fine of maximum category II (ten million rupiah or around US$640). Article 412(1) prohibits cohabitation by an unmarried opposite-sex couple with the threat of maximum six months imprisonment or a fine of maximum category II.
There is, however, an important detail in these two provisions. Both Articles 411(2) and 412(2) stipulate that sex outside marriage and cohabitation are an Antragsdelikt (delik aduan in Indonesian), which means that no prosecution may be initiated without an official complaint from: a) the husband or the wife for those who are married, or, b) the parents or the child (who has to be at least 16 years old, according to the explanatory note) for those who are unmarried. Furthermore, this official complaint can be revoked anytime before the trial commenced. Consequently, criminalisation of sex outside marriage and cohabitation, in theory, has become largely ‘symbolic’ in the sense that it is very difficult to enforce without the initiative of first-degree family members.
Moreover, if one examines the previous drafts of the Criminal Code, these provisions have been watered down significantly. Articles 420 and 422 of the 2002 draft would have allowed family members (including second- and third-degree relatives), head of a customary law society or head of the village or subdistrict to file a complaint against fornicators and cohabitators. The references to the marital status of the perpetrator also seem to be a recent addition, since the September 2019 draft would have allowed the husband, the wife, the parents or the child to lodge a complaint, regardless of the marital status of the person concerned. Furthermore, the 2018 draft would have imposed imprisonment of maximum five years for those who commit sex outside marriage.
The Criminal Code inherited from the Dutch colonial era already criminalised adultery (overspel in Dutch) under Article 284, although this was a delik aduan and thus no prosecution may be initiated without an official complaint from the spouse. Sex between unmarried persons was not criminalised, with the exception of the Province of Aceh which has the autonomy to enact Islamic criminal law. As a result, there were calls by conservative Muslims to expand the scope of the provision to cover zina, a term in the Islamic fiqh referring to ‘unlawful sexual conduct’ including adultery and fornication. Meanwhile, vigilante acts against ‘fornicators’ occurred in conservative area from time to time, such as the infamous assault against an unmarried couple in Cikupa, Banten, in 2017 after they were accused of fornication. A survey by the Pew Research Center in 2014 also found that 97% of Indonesians believe sex between unmarried adults is morally unacceptable.
In this context, proponents of criminalisation of zina claimed that a new Criminal Code must reflect Indonesian moral values, which are often juxtaposed with the so-called ‘liberal West’. For instance, a legal academic at the University of Gadjah Mada, Fajri Matahati Muhammadin, wrote in The Jakarta Post in 2018 that ‘[f]ornication and homosexual conduct, even when consensual, is wrong according to Indonesian values (…) [T]he only wonder is that homosexual conduct and fornication has not been formally criminalized sooner.’
Lobby against zina even reached the courtroom. On 19 April 2016, a family advocacy group consisting of conservative Muslim academics, the ‘Family Love Alliance’, filed a petition to the Constitutional Court asking that the scope of the Criminal Code be expanded to include, inter alia, sex outside marriage and homosexual sex. In December 2017, the Court in a 5-4 decision held that it was not legally competent to expand the scope of the Criminal Code, and thus the majority recommended the petitioners to bring their agenda to the DPR instead.
What is particularly notable from this case is the elaborate dissenting opinion written by the Chief Justice of the Court at that time, Arief Hidayat. The dissenting judges argued that the Indonesian Constitution is a ‘Godly’ Constitution, since Indonesia is based on the five fundamental principles, the Pancasila, whose first principle is ‘belief in One God’. Thus, they argued that norms which ‘reduce, narrow, overstep and/or contradict religious values’ must be declared unconstitutional. With regard to sex between unmarried persons, they held that zina is considered ‘very repugnant’ by all religions in Indonesia. Since the Dutch-era Criminal Code only criminalised adultery, it limited the application of religious values, and thus the dissenting judges claimed that the provision should be declared unconstitutional. As I have argued elsewhere, had this dissenting opinion become the majority, it could have initiated an informal constitutional change in Indonesia, as it would have established a ‘Godly values repugnancy test’ by which all legal norms would be subject to a review based on their compatibility with religious values.
At the same time, civil societies are vigorously pushing back against the conservative lobby. Human rights groups, such as the Institute for Criminal Justice Reform, made submissions before the Constitutional Court to argue against the petition of the Family Love Alliance. In 2019, mass protests led by students erupted, and one of their grievances was the draft Criminal Code that was being discussed in the DPR at the time. With pressure from both sides, it is perhaps not surprising that the provisions ended up being watered down so much in the DPR.
Criminalisation of sex outside marriage and cohabitation constitutes a setback for the right to privacy, which covers consensual sexual activity between adults in private (see Toonen v Australia). Nevertheless, the bigger picture is much more nuanced. The concept of delik aduan has been used to render the criminalisation very difficult to enforce in theory. Furthermore, the new Criminal Code does not only reflect traditional religious values. Article 473(6) criminalises marital rape, much to the chagrin of conservative Islamic groups. It remains to be seen whether these provisions would survive a judicial review at the Constitutional Court, and how they would be enforced in practice.
Source: Ignatius Yordan Nugraha, https://verfassungsblog.de/inherently-repugnant/
European Parliament condemns Qatar and FIFA for alleged human rights abuses – The adopted resolution also criticizes Qatar’s treatment of the LGBTQ+ community and women
The European Parliament Thursday condemned Qatari authorities for the alleged human rights abuses and urged FIFA and Qatar to compensate for widespread human rights abuses that migrant workers have endured while building the 2022 World Cup infrastructure.
European Parliament supported migrant workers and their families, human rights organization, football associations, sponsors, political leaders, athletes, and labour unions who have criticized the ongoing human rights violations in Qatar. European Parliament acknowledged the significant labor reforms implemented by Qatar and further stated that the existing compensation scheme was operationalized only in 2020. Qatar also failed to compensate for widespread wage abuse since FIFA’s 2010 controversial selection of Qatar as World Cup host.
The European Union resolution is designed to pressure Qatari authorities to conduct thorough investigations into all reported incidences where a migrant worker has died on the job, and provide restitution to the families of those whose deaths are determined to have been caused by unsafe working conditions. The adopted resolution also criticizes Qatar’s treatment of the LGBTQ+ community and women.
European Parliament observed:
With the 2022 FIFA World Cup having kicked off in Qatar, Parliament deplores the deaths of thousands of migrant workers ahead of the tournament. MEPs deplore the deaths of thousands of migrant workers primarily in the construction sector who helped the country prepare for the tournament, as well as all those injured.
Earlier on November 1, Qatar’s Labor Minister Dr. Ali bin Samikh Al Marri clearly rejected the call to remedy migrant workers who have suffered. He also hailed domestic reforms as sufficient and testified at the European Parliament two weeks later, despite again failing to publicly commit to compensation. Al Marri did, however, show some openness to making the existing fund available retroactively.
FIFA was further criticized for urging football associations to just “focus on football” instead of engaging in “political or ideological battles.” FIFA also threatened on-field punishments for players engaging in even symbolic actions like wearing armbands in solidarity with LGBTQ+ rights.
Human rights organizations–including Amnesty International and Human Rights Watch–wrote a joint letter to the President of FIFA Gianni Infantino to work with Qatari authorities, trade unions, the International Labor Organization (ILO) and other institutions to establish a comprehensive program to ensure all labor abuses to which FIFA contributed are remedied, and to set aside appropriate financial resources.
The post European Parliament condemns Qatar and FIFA for alleged human rights abuses appeared first on JURIST – News.
Western Australia to ban so-called conversion therapy after chilling testimonies from survivors
Western Australia is set to become Australia’s third state to ban “damaging” conversion therapy practices, after hearing harrowing testimony from the LGBTQ+ community.
Western Australia follows the states of Queensland and Victoria in moving to ban conversion therapy, with Australian Capital Territory also placing laws into effect to protect its LGBTQ+ population from the practice.
More: https://www.thepinknews.com/2022/12/02/western-australia-bans-conversion-therapy/
The agency may put in place a personalized risk assessment to replace the current prohibition on men who have had sex with men in the previous three months.
More: https://www.nytimes.com/2022/11/30/health/blood-donation-gay-bisexual-men.html
Japan court upholds ban on same-sex marriage but voices rights concern
TOKYO, Nov 30 (Reuters) – A Tokyo court upheld a ban on same-sex marriage on Wednesday but said a lack of legal protection for same-sex families violated their human rights, a comment welcomed by plaintiffs as a step towards aligning Japan with other G7 nations.
Japan is the only G7 nation that does not allow same-sex marriage, and its constitution defines marriage as based on the mutual consent of both sexes.
Although Prime Minister Fumio Kishida’s ruling party has revealed no plans yet to review the matter or propose changes, several senior members support same-sex marriage.
Italy: Government loses court battle over ID documents for gay parents
ROME, Nov 17 (Reuters) – Same-sex parents have the right not to be called “father” and “mother” in the ID papers of their offspring, a court in Italy has ruled, in a decision that rubs against the country’s new right-wing government.
Prime Minister Giorgia Meloni sees herself as a defender of Christian values and of what she calls the “traditional family,” and her hard-right Brothers of Italy party is particularly hostile to same-sex parenting.
USA: US appeals court: religious organizations do not have to provide gender-affirming medical care
The US Court of Appeals for the Eighth Circuit Friday issued a permanent injunction against the enforcement of Section 1557 of the Affordable Care Act (ACA), which would require medical providers to provide gender-affirming medical services to transgender individuals.
Two groups of Catholic employers and health care providers, the Religious Sisters of Mercy and the Catholic Benefit Association (CBA), challenged the ACA’s prohibition on discrimination “based on race, color, national origin, sex, age or disability in certain health programs and activities.” According to the Equal Employment Opportunity Commission (EEOC) and the Department of Health and Human Services (HHS), sex encompasses gender identity.
The Catholic groups argued that the regulation “not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs” and that Title IX does not apply to entities “controlled by religious organizations.” The United States District Court for the District of North Dakota agreed. The Eight Circuit’s Friday decision affirmed the district court and held that “intrusion upon the Catholic Plaintiffs’ exercise of religion is sufficient to show irreparable harm.”
HHS believes that transgender Americans deserve protection in healthcare, explaining that “more than 40 percent of transgender respondents in one survey said their health insurance company denied them coverage for a gender-affirming surgery,” and a “similar proportion” were denied insurance coverage for hormone replacement therapy.
The challengers noted that HHS and EEOC have not yet evaluated how the Religious Freedom Restoration Act (RFRA) “and other religious exemptions might apply to such religious entities.” In its original regulation, HHS said it “would comply with RFRA and all other legal requirements.”
The post US appeals court: religious organizations do not have to provide gender-affirming medical care appeared first on JURIST – News.
ECtHR: Children’s interests not given enough weight in paid-surrogacy adoption ban by Denmark
More: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22003-7514285-10313040%22]}
New publication: Surrogacy and Same-Sex Parenthood before the European Court of Human Rights: Reflections in Light of Cases against Switzerland, E Brodeala, MH Peter-Spiess – Swiss. Rev. Int’l & Eur. L., 2022 More: https://www.svir-ssdi.ch/fr/publications/sriel/ Hein Online: https://heinonline.org/HOL/Page?handle=hein.journals/sriel32&id=407&collection=journals&index=
New Publication: Surrogacy and Same-Sex Parenthood before the European Court of Human Rights: Reflections in Light of Cases against Switzerland — LGBTI Recht in der Schweiz – Droit LGBTI en Suisse – by Professor Andreas R Ziegler
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 