Indonesia’s Parliament on Tuesday passed a long-awaited revision to the country’s penal code that criminalises sex outside of marriage for both citizens and foreigners, prohibits the promotion of contraception, and prohibits defamation of the president and state institutions.
The code maintains the previous criminalization of abortion but adds exceptions for women with life-threatening medical conditions and for rape if the foetus is less than 12 weeks old, in line with a 2004 Medical Practice Law. Some of the revisions were criticised by rights groups as being overly broad or vague, and they warned that including them in the code could penalise normal activities and jeopardise freedom of expression and privacy rights.
Amid the development, News18 explains Indonesia’s adultery ban, India’s stance on the issue along with other major countries.
Under Indonesian regulations, legislation passed by Parliament becomes law after being signed by the president. But even without the president’s signature, it automatically takes effect after 30 days unless the president issues a regulation to cancel it.
President Joko Widodo is widely expected to sign the revised code in light of its extended approval process in Parliament. But the law is likely to gradually take effect over a period of up to three years, according to Deputy Minister of Law and Human Rights Edward Hiariej. “A lot of implementing regulations must be worked out, so it’s impossible in one year,” he said.
The amended code says sex outside marriage is punishable by a year in jail and cohabitation by six months, but adultery charges must be based on police reports lodged by a spouse, parents or children.
‘Bad for Tourism?’
The laws, according to critics, are a “disaster” for human rights and a potential blow to tourism and investment, the BBC said in its report.
Several groups of mostly young people protested the legislation outside Jakarta’s parliament this week. The new laws are expected to be challenged in court. They apply equally to Indonesians and foreigners living in Indonesia or visiting tourist destinations like Bali. Unmarried couples caught having sex can face up to a year in prison under the laws.
They are also prohibited from living together, which is punishable by up to six months in prison. Adultery will also be a crime punishable by imprisonment. Ajeng, a 28-year-old Muslim woman living in Depok, West Java, said she was now in danger because she had been living with her partner for the past five years. “Under the new law, both of us could go to jail if one of the family members decides to file a police report,” she explained to the BBC.
“I do not believe that living together or having sex outside of marriage is a crime. It is considered a sin in my religion. However, I do not believe that the criminal code should be based on a specific religion.”
‘Morality is Mostly Pushed on Women’
Elaine Pearson, Asia Director at Human Rights Watch, told the BBC that it was a “huge setback for a country that has tried to portray itself as a modern Muslim democracy.”
Andreas Harsano, the group’s Jakarta-based researcher, stated that millions of couples in Indonesia lack marriage certificates, “particularly among Indigenous peoples or Muslims in rural areas” who married in specific religious ceremonies.
“These people will theoretically be breaking the law because living together could result in a six-month prison sentence,” he told the BBC. He went on to say that research from Gulf states, where similar laws govern sex and relationships, showed that such morality laws punished and targeted women more than men.
India Had in 2018 Decriminalised Adultery
Adultery was previously considered a serious crime in India, so there were provisions for it under Section 497 of the Indian Penal Code. Section 497 described Adultery as: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor”.
However, the Supreme Court had overturned the law in 2018.
“Adultery cannot and should not be a crime. It can be a ground for a civil offense, a ground for divorce,” then Chief Justice of India Dipak Misra had said while reading out the judgment. The judgement had come weeks after the SC had overturned a colonial-era ban on gay sex.
While very few people have been sentenced for adultery in recent years, according to a report by Reuters, lawyers say the threat of charges is frequently used in matrimonial disputes to put pressure on women. “Physicality is an individual choice,” Justice D.Y. Chandrachud (who is now the CJI) one of the five-member bench, had said in the ruling. The law was based on the concept that a woman loses her individuality once she is married, he said, adding, “adultery is a relic of past”.
Petitioner Joseph Shine, a businessman, had argued that the adultery law is unconstitutional because it discriminates against both men and women. The petition claims that exonerating wives of adultery if done with their husbands’ consent discriminates against women and amounts to “institutionalised discrimination.”
Shine’s lawyer, Kaleeswaram Raj, stated that “there is no empirical evidence that decriminalising adultery threatens the sanctity of marriage,” adding that extramarital affairs are not illegal in 80 countries.
“The judgement has unequivocally stated that the state has no business interfering in aberrations in family relations,” Raj, a senior Supreme Court lawyer, told Reuters.
Raj claims that the law has been widely abused, despite the fact that it has rarely resulted in a jail sentence.
When there are matrimonial disputes or maintenance claims, belligerent husbands use “malicious prosecution on the ground of adultery,” according to Raj.
“Wives are helpless in such cases. They are no longer involved in the legal system. They cannot defend themselves, and the stigma imposed by the prosecution will last forever, which is a punishment in and of itself for the women.”
However, the court had stated that the decision should not be interpreted as permission to engage in extramarital affairs. “Decriminalizing adultery is not licensing adultery,” Justice Chandrachud observed during the hearing.
History of Adultery Law in India
In 1860, a pre-constitutional law called adultery law was enacted. Women had no rights apart from their husbands at the time and were treated as chattel or “property” of their husbands. As a result, adultery was considered a crime against the husband, as it was considered a “theft” of his property, for which he could prosecute the offender, a report by Restthecase explains. The Law Commission of India did not include adultery as an offence in the first draft of the Indian Penal Code (IPC) in 1837.
Lord Macaulay, the primary architect of the Indian penal code, was opposed to including such a provision in the underlying framework and demanded that it remain outside the purview of penal laws issued by the Indian Judicial Commission. He believed that such inclusion was unnecessary and baseless, and that marital infidelity should be handled by the community.
The Second Law Commission suspected something and recommended that the offence be added to the IPC and that the man be punished, keeping in mind the country’s treatment of women. Later on, it was added. Infidelity was mentioned in Chapter XX of the IPC, which deals with Offenses Relating to Marriage.
Adultery in Other Countries
Nations Which Have Struck Down Adultery Provisions: China, Japan, Brazil, New Zealand, Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria, Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago, and Seychelles are among the countries that have repealed provisions similar to Section 497 of the IPC, which was struck down in 2018.
What about US? The United States is one of the few industrialised countries with laws that make adultery a crime. Laws differ from state to state in the United States. Until the mid-twentieth century, most U.S. states (particularly those in the South and Northeast) had laws prohibiting fornication, adultery, or cohabitation. These laws have gradually been repealed or declared unconstitutional by courts.
State laws prohibiting adultery are rarely enforced. Federal appeals courts have ruled inconsistently on whether these laws are unconstitutional (particularly following the 2003 Supreme Court decision Lawrence v. Texas), and the Supreme Court has yet to rule directly on the issue as of 2019.
Adultery is a criminal offence in 16 states as of 2022, but prosecutions are uncommon. In 1973, Pennsylvania repealed its fornication and adultery laws. West Virginia (2010), Colorado (2013), New Hampshire (2014), Massachusetts (2018), Utah (2019), and Idaho are among the states that have decriminalised adultery in recent years (2022).
With inputs from Reuters, Associated Press
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