Oleh: Alanah Garzia, Mahasiswa Universitas La Trobe, Melbourne
Victims of domestic sexual violence face several challenges in their dealings with the criminal justice system, however, victims from certain countries face greater challenges in comparison to their neighbours. These challenges become clear when a comparison between the experiences of Indonesian and Australian domestic sexual violence victims is brought to light. This essay will explore some of the challenges that restrict the rights of domestic sexual violence victims in Indonesia and address how these challenges have been resolved in the Australian criminal justice system.
Patriarchal and religious barriers
There is a vast contrast between the discussion of women’s rights and issues in Indonesian versus Australian society. In particular, issues such as gender equality and awareness about sexual violence haven’t historically been topics of debate in Indonesia’s political sphere until more recently. Like Australia, where feminist movements have been an active part of politics for 50+ years, Indonesia also has a rich history of feminism. During the Sukarno era from 1945-1966 and in the years that led up to Indonesia’s independence, some of Indonesia’s leading politicians were women after the launch of the Indonesian Women’s congress (Kowani) and as a result, feminism “flourished”. However, when Sukarno was replaced by Suharto, the position of leadership these women held fell too. This meant that women’s place in politics was forced back into the shadows for decades. Since then, the feminist movement has developed momentum over the years but Indonesian women still struggle to have their voices heard. This can be seen as a consequence of the overlap between Indonesia’s political and law-making bodies, and the country’s most prominent faith – Islam. While proposals to make Islamic law “the basis of the state” have been unsuccessful, the presence of Islam in Indonesia’s public and political sphere is still very prominent. Throughout Indonesia’s Muslim communities, men are often regarded as being of superior social standing and are viewed as leaders in the community. This notion leaves little room for women to participate in political affairs.
In a country that is so heavily dominated and influenced by Islamic ideals, efforts to create more gender-balanced policies are often resisted by conservative Muslim leaders. A new proposed anti sexual violence bill has experienced severe delay in being enacted due to conservative Islamic political parties resistance in the House of Representatives. These parties such as the Prosperous Justice Party (PKS), argue that the bill promotes sexual deviance and goes against Islamic ideals. When considering the issue of domestic sexual violence in particular, these parties strongly oppose a clause in the proposed bill that would criminalise marital rape. Conversely, in every State and Territory in Australia, marital rape can still be considered rape, despite the relationship between victim and offender. However, Australia hasn’t overcome these challenges by way of law making or policy reform. Instead, there is simply a significant cultural difference between Australia and Indonesia. In Australia, there exists very little overlap between religion and politics or law-making affairs. Australia is a predominantly Christian country, however, Australians themselves hold very fragile Christian beliefs. There is a much greater separation of church and law / politics in Australia and this has become more evident in recent times, with the legalisation of same sex marriage and abortion country-wide; despite the fact these practices do not reflect Christian religious beliefs. Unfortunately, this offers little insight into what can be done in Indonesia to overcome these patriarchal and religious barriers for sexual domestic violence victims.
Insensitive sentencing practices and victim blaming culture
There also exists a strong victim blaming culture in law enforcement in Indonesia which presents quite the challenge for victims of domestic sexual violence. This is reflected in some of Indonesia’s law enforcement practices and trial procedures, such as how victims are asked to prove that they made an attempt to resist the sexual violence that happened to them. This is not the case in Australia where instead it is just a matter of whether the sexual act was intentional, and whether there was a lack of consent. Regarding the matter of consent, following reforms to the Crimes Act 1958 in 2014 and 2016, section 36 defines ‘consent’ as ‘free agreement’. This section directly opposes Indonesia’s policy that victims must have attempted to resist the assault, but rather indicates that consent is not the absence of ‘no’, (as if the burden is on the non-consenting person to protest or express their lack of consent), but rather the presence of ‘yes’. Further, when it comes to consent in Australia and in accordance with the Jury Directions Act 2015, a perpetrator’s belief in consent may be based on general assumptions about the circumstances in which a person may consent. These assumptions may include a person’s sexual history, marital status, relationship with the perpetrator, etc. However, these directions make it clear that an accused cannot reasonably infer consent simply from such generalities and that the consent of the particular person must always be ascertained and hence, considered by the jury. In contrast to this, in Indonesia, a victim’s sexual history, marital status, occupation, clothing, body language and other factors may be admitted to evidence and considered by the judge in potentially lowering a sentence.
Another challenge faced by domestic sexual violence victims is the fear of facing their perpetrator in court. In Australia, if the accused pleads not guilty, the victim has to be present in court as the primary witness and give evidence. However, the victim is able to give evidence using a closed-circuit television, they are permitted to have support people sitting beside them, and also may have screens placed so they cannot see the accused. These reforms address the challenge faced by victims who fear seeing their abuser once again. Until recently, there was no support in place that addressed this issue in Indonesia. Indonesian victims were not permitted to have councillors or women’s support in the courtroom and were made to face their perpetrator. However, in 2017, the supreme court of Indonesia enacted the Supreme Court Regulation No. 3 of 2017 on Guidelines in Handling Cases Involving Women. The regulation allows judges to conduct their examination using an audio-visual device so that victims aren’t made to face their perpetrator. Unfortunately, although introduced, the regulation has had very little practical effect due to a lack of implementation. Recently as a result of Covid-19, the regulation has been put to use across the country. However, judges are only making use of these devices due to their social distancing benefits given the serious nature of the pandemic. Most judges hold the sentiment that, when the pandemic is over, victims ought to be examined once again like other witnesses in order to prevent them from lying when giving their testimonies. Consequently, this is only a temporary solution to the issue.
A fear of financial instability
Another challenge that is faced by domestic sexual violence victims is the fear of losing one’s income if they were to seek help or take action against their abuser. This stems from the fact that a lot of women are financially dependent on their partners. However, in a country such as Indonesia, this challenge is felt more deeply, as some women are not permitted by their husband to take up employment. This again stems from the strong patriarchal and religious sentiments that Indonesia has historically dealt with. This interdependency created between husband and wife means that victims are often reluctant to speak out against domestic sexual abuse. Even in Australia, domestic violence unfortunately goes unreported quite often due to these challenges. However, several policy changes and strategies have been put in place in Australia to attempt to close the gap between unreported and reported cases. A strategy that was considered in 2017 and approved in 2018 was allowing women who suffer from domestic violence early-access to their superannuation funds. Additionally, following a Senate inquiry into domestic violence in Australia, several recommendations were made to the Australian government such as, providing appropriate leave provisions to assist victims in maintaining employment and financial security while attending necessary appointments such as court appearances or legal advice, the provision and availability of supportive housing models and solutions for victims and their children, and also securing dedicated funding for organisations and specialist support services. An issue felt by many countries concerned with domestic sexual violence is a difficulty in reporting whether their decision-making strategies are actually improving the situation following their implementation. This is because for every case that is reported, the amount that go unreported is simply unknown. In Australia, the above services continue to be utilised by domestic violence victims. Therefore, one can only hope that these changes are making a difference and encouraging more victims to speak out against their abusers and seek legal assistance.
In conclusion, when comparing the experiences of Indonesian and Australian domestic sexual violence victims, it becomes clear that some of the challenges that restrict the rights of victims in Indonesia have been resolved in Australia. Namely, challenges such as religious and patriarchal barriers and insensitive sentencing practices that reflect a victim blaming culture amongst law enforcement. However, issues such as a fear of reporting and speaking up are still present in both countries, notwithstanding Australia’s attempts at addressing the issue.
 Firdaus, F., ‘The long struggle of the women’s movement in Indonesian politics’, The Interpreter [online journal], https://www.lowyinstitute.org/the-interpreter/long-struggle-women-s-movement-indonesian-politics, accessed 25 Jan. 2021.
 Rinaldo, R. (2008). Envisioning the Nation: Women Activists, Religion and the Public Sphere in Indonesia. Social Forces, 86(4), 1781-1804.
 Balawyn Jones & Max Walden, ‘Conservative rejection of Indonesia’s anti-sexual violence bill misplaced’, The Conversation [online journal], https://theconversation.com/conservative-rejection-of-indonesias-anti-sexual-violence-bill-misplaced-111683.
 Mark Ferguson, Cameron Price, & Debby Blakey. (2017). One of Australia’s biggest superannuation funds wants domestic violence victims to be given early access to their super so they can have financial help when they need it most.
 Lundy, K., & Gallagher, Katy. (2015). Domestic violence in Australia. Canberra, ACT: The Senate.