I. Integrated Criminal Justice System (ICJS) for Violence Against Women (VAW) Cases in
Women experience violence and torture both in situations of conflict and where there is no `formal’ conflict (P. Sen 1998) --as also apply in the case of
A. Framing the Policy: The Legal Substances, Legal Structure, the Legal Culture and the Problem of Intersection
The causes of ineffective legal system which is responsive in handling VAW cases are stemmed from the three pillars that form the legal system itself: the legal substance, the legal structure and the legal culture (INCW 2004).
Firstly, the legal substances refer to the material or the content of law and regulations related to VAW, including both substantive and procedural or administrative law. It encompasses not only the recognition and protection of women’s rights but also placing women as a subject and not as an object of cases during the legal proceedings. The conventions, UN Declaration and any other international law documents stand as a basis to eliminate gender biases within the existing laws and regulations. Many international legal documents related to VAW have not been properly adopted within the National legislation. It also causes by the lack of enforcement of such international documents.
Secondly, the legal structures involve the infrastructure and organization of legal institutions in handling VAW cases. The well-coordinated and well-organized legal institutions would create effectiveness and efficiency within the bureaucracy and administration of the legal proceedings. In many cases, many criminals could get away from the sentences because of “administrative justice” reason which cause by insufficient administrative requirements and procedures. It also related to how the legal institutions provide a gender-responsive service, infrastructure and information in handling the VAW cases such as: (i) the special units of investigation room for VAW cases within the Police Department; (ii) medical and/or psychological help for the victims; (iii) information and legal protection and assistances during the court proceedings.
Thirdly, the legal cultures involves the perception and understanding of the legal apparatus and the society on the issue of VAW. These perceptions are embedded in culture and religion, in relation to the perception of “good women”. Many people in Indonesia still believe that a good woman should not be seductive as to expose her body to the public, which could stimulate violence. Some people still believe that violence occurred because of the woman poses herself in a seductive way. In domestic violence cases, it also related to the concept of a good wife who has the obligation to fulfill (and submissive) to their husband’s needs. These conception of a seductive women reflected in the attitute of legal apparatus to the women as victims during the legal proceedings in which victims could be treated as the ‘criminal’ as reported by Indonesian National Commission on Women (INCW) and many other women’s organizations.
B. Elimination of Domestic Violence Act (2004)
Following the Asian crisis which led to economic and political distress in 1998,
It was started with the EDV bill that had been prepared by a network of women’s movements since 1997. The Parliament finally passed it on
The basis for the EDV bill was:
1. Humanity, justice and equality values.
2. The constitution (whicad been amended)
3. Law No. 7 Year 1984 on the ratification of CEDAW.
4. National Action Plan on Elimination of Violence Against Women, 1999.
5. Law No. 39 Year 1999 on the protection of Human Rights and Law No. 26 Year 2000 on
6. President’s Instruction No. 9 Year 2000 on Gender Mainstreaming
The UN VAW Declaration defines domestic violence as: “Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation”. Basically, the contents of the Indonesian EDV Act are:
The Indonesian EDV Act
1. The Main Arguments
· Every citizen entitled to rights to be secured and to freedom from any form of violence based on the Pancasila (the Nation’s ideology) and the Constitution.
· Any forms of domestic violence are considered as violating human rights and thus, become crimes against humanity;
· The state and society have to protect the victims of domestic violence, which are usually the women.
· The EDV Act is based on the human rights, gender equality and justice, non-discriminatory and the protection for the victims.
2. The scope of the Act
· Domestic violence that occurs within: (i) the nuclear family (husband, wife and children); (ii) the extended families; (iii) the people who work and stay at the house, i.e domestic workers.
· An act of violence on an individual, particularly women.
3. Types of domestic violence
· Physical violence which causes pain, sickness and severely injured.
· Psychological violence which is any action that causes fear, losing self-confidence, and eliminating the capability to act, the feeling of helpless and psychological torture.
· Sexual violence: (i) against people who stay and work at the house (i.e domestic worker); (ii) sexual violence against any person which is conducted within the house for commercial or any other purposes
· Economic violence, including if one limits and forbids his/her spouse to work which cause his/her economic dependency other one’s control.
4. The obligation to secure and protect the rights (the role occupant)
In providing protection and rehabilitation for the victims, the EDV Act relies on the state, the legal system (the police, general attorney office, the judiciary and legal practioners), society in general (the medical profession, social worker and religious counselor) and from the family.
The EDV Act became a legal foundation in handling domestic violence which is not covered in any Indonesian legislation, particularly on the Criminal Code and the Criminal Law Procedures Code. In addition, the EDV Act introduces new legal proceedings in providing evidences where it only requires one witness and one eligible proof. Therefore, in the case of rape, the victim’s testimony and one visum et repertum or medical record from the doctor as a proof are considered legally enough for evidences.
However, the EDV Act has some weakness and limitations. Firstly, table 4 shows the implementation of the capability approach and the reliance to the state in securing the rights and providing the protection and rehabilitation without considering that the state (machineries) and the society is not gender-neutral and it raises the question of gender awareness and gender responsiveness of the state machineries, especially the legal institutions. Secondly, it excludes marital rapes which stimulated public debates inside and outside the Parliament. There were 3 bills submitted by the Parliament, the Government and the Women’s NGOs (Indriati 2004). The Moslem conservative religious group in the Parliament did not agree that marital rapes as a form of domestic violence. However, the women’s movements played an important role as they were intensively advocating the EDV Act. They came to all meetings inside and outside the Parliament and formed an unofficial faction which was called by the media as the “balcony faction” (because they usually sit on the balcony during the Parliament’s sessions). The EDV bill was finally passed, with some notes from the religious party (the Reformation Faction)
However, the EDV Act is necessary but not sufficient. It should be supported within a broader legal framework. As a response to increasing pressures from women’s movements, in 2004 after the general elections, the Parliament launched a national legislation program (Prolegnas) which consists of a list of prioritized bills in 2005-2009 to reform the gender-biased law.[2] Along with this, the Indonesian National Commission on Women (INCW)[3] initiated to coordinate the collective action for the ICJS in handling VAW Cases.
C. Collective Action for the ICJS for VAW Cases
The collective action is focused on two areas. Firstly, the Parliament as explained above. Secondly, within the legal system as initiated by the INCW. It is involving the legal institutions, legal scholars and four influential women organizations (INCW, LBH-APIK, Derap Warapsari and Convention Watch).
1. What and Whose Policy
The collective action on ICJS for VAW Cases is a collective action within the legal system (the Supreme Court, the General Attorney Offices, The Legal Associations and the Police Department), the legal scholars and four women organizations under the coordination of the INCW.
Before the enactment of the program, there was an assumption that each institution did not have a gender responsive policy in handling VAW cases. However, it was found that they do have few internal policies related to VAW but it was ineffective, not well-coordinated, and not publish to the public. However, the policy is more general or focusing on the trafficking issue, not the domestic violances cases. The policies that were found are:
Table 5
The VAW Policy within the Legal Institutions
| Institution | Policies |
| The Supreme Court | Gender training as part of the education training for the judges (male and female) |
| The General Attorney Office | 1. The establishment of Gender Focal Point. 2. The internal guidance for each general attorney in handling cases on robbery with violence and rape in which the victims are usually women (SEJA No. B-409/ES/8/1996) |
| The Police | 1. Gender training for 500-1000 policewomen, particularly on traffiking. 2. The establishment of 230 special service investigation rooms in 26 provinces, especially for those citizens who have trafficking cases. 3. The establishment of 18 unit Integrated Service Centre, for cases related to women and children who need legal, medical and psychological help. In additional, the hospital (32) and NGOs (137) also provide centre for VAW cases. |
| The Legal Practitioner | The establishment of legal aids. |
The collective action program was two years program (2003-2005) focusing on the strengthening the legal institutions and was designed as:
2. The Site of Struggle: The Policy Environment of Collective Actions
To conclude, as a collective action, the policy should be put firstly, in to a broader context of a policy environment, so we could trace the question of who informs the policy making. The policy environment can be seen as:
This is the site of struggle in collective action. The main policy maker (the Government and the Parliament) are responsible for setting up the legal framework which then elaborated by each legal institutions within the legal system domain. The public domain, the medical profession and the social workers are the groups who informs and influence the policy-making process, whether to the main policy maker, the legal system or the public domain. On the other hand, the women’s movement is located in the public domain along with the NGOs. However, each bubble and each box within also represent a sub-site of struggles which often contradicts to each other; for example, the public domain is a site of conflicting arenas between each box within it and reflected in the Government or the Parliament as each box informs their knowledge and interest to them.
3. The Problems and Limitations
However, there were some limitations to the policy and the collective action. Firstly, putting the collective actions initiated by the women’s movement and the INCW into the policy environment picture, the collective actions were limited to some part of public domain giving informations and pressures to the main policy maker and the legal system. Moreover, it only focuses on reforming the legal substances through the EDV Act (with some limitations as explained before) and the legal structures. However, it could not solved the problems of legal culture (embedded in social structure, culture and religion) which made the limitation in the EDV Act (by excluding the marital rape) and ineffectiveness of the legal infrastructures (which had been reported that it was used as a place for reporters to take a break during their duties in getting the criminal news from the Police).
Secondly, the VAW approach which emphasizes on the women creates a negative impression on the collective actions itself. There has been increasing negativism related to VAW approach in domestic violence cases. Many cases show that men could also become the victims of domestic violence and women could also become the perpetrator against her husband or her children. Moreover, it also created negative sentiments over the women’s movement and even to the word of “feminist” itself which often placed as an opposition to religious norms and the good versus ‘radical’. It is reflected from the statements released by the Indonesian Council of Islamic Scholars (the MUI) to a daily conversations through internets.[4]
Thirdly, the reliance to the State created some problems. Not only the problems of cultures which was behind certain attitudes, but also the problem of financing such legal services in for special legal treatments for VAW cases, as also explained by Sen (1998) for those who fights VAW on the basis of efficiency arguments that VAW cases needs a lot of budget. It also relies on the power relations within the organizations which often do not give recognition and rewards for their apparatus who have gender awareness as reported by many gender-awareness-trained-policewomen (INCW 2004). Moreover, they also faced the unequal power relations from the policemen. It is well-known among them that a policeman is considered more potential that a policewomen in such a field work that can be considered as more “masculine”. These policemen were reported as not being pro-active in handling domestic violence questions and on the contrary, asking questions which cornered the victims (ibid). Therefore, it created gender-blindles within the organization. However, some retired policewomen established a women’s organization (DERAP Warapsari) which is also part of the network of INCW which advocating the collective action. It is hoped that they could help in giving pressures for reform within the Police Department.
4. The Problems of Intersection
The problem becomes more complex when we take on board the issue of intersection (Crenshaw 2000). According to the UN VAW Declaration (1994), some women’s groups are more vulnerable than the others. In the context of Indonesia: religions, cultures, social status and age.
Firstly, different religions and cultures form different types of marriage. Islam, the dominant religion, recognize the polygamy which is accomodated in the Indonesian marriage law (although in some part of Indonesia, there are also found polygini marriages practices). On the other hand, especially for public servants, the state only recognizes the first wife. Thus, a women who is a second wife and whose husband is a public servant becomes more vulnerable for domestic violence. She becomes even more vulnerable considering the society’s perception on the second wife who is considered as a bad women because she “steals” somebody’s husband. Thus, the (Islamic) marriage law should also be reformed. The influential religious organization are not gender-responsive to this issue which can be seen through their statements as explained before and also the polygamy campaign (a polygamy award, books on the “beauty” and the benefits of polygamy marriages and so on). However, the emergence of moslem feminists gives a new hope in providing new information and knowledge in re-reading and re-interpreting the existing gender-biased implementation of Quranic verses.
Secondly, although the domestic violence can happen to women despite her social status, but it determines the access to legal proceedings. Therefore, it needs infrastructures and resources to reach the people within the remote areas. On the other hand, a bottom-up approach to collective action could be an alternative solution. Some women’s organizations provide a free legal services for domestic violence cases. In return, after completing the legal proceedings, they become the legal apprentice to the organization and help to assist the ‘new’ victims. Therefore, it builds a network accross the social status. Since in many areas, people usually consult their domestic problems to the local religious leader, the challenge is to give pressures to these informal organizations to be more gender-responsive in handling the domestic violence problem regarding the enactment of EDV Act.
Thirdly, the younger women are more vulnerable to domestic violence than older women, especially if her mother is economically dependent to her husband. For example, in a case where a daughter had been raped by her step father, her mother went to the general attorney office, asking to not press “hard” charges against her husband (INCW 2004). She was crying because she economically dependent to her husband. One general attorney admitted her dilemma when she handled this case. On one hand, if she put maximum charges and the judge approve it, then it would destroy the economic life of both mother and daughter, while on the other hand, she thought that giving him maximum charges is the way to bring justice for the daughter. In practice, this “moral dilemma” determines the responsiveness of the legal apparatus.
II. Conclusion
To conclude, the impacts of human development framework are: (i) the top-down approach to secure women’s rights related to VAW cases, particularly on domestic violence in Indonesia by the enactment of EDV Act (2004) and the gender mainstreaming in Parliament through the Prolegnas; (ii) The reliance on the state to provide necessary actions and infrastructure needed. However, it did not recognized that the state is not gender-neutral. Moreover, it created the problem of the state capacity: (i) to reform their legal culture (which is stemmed from the unequal power relation within state machineries) and; (ii) to finance the infrastructure and resources needed.
On the other hand, the collective action initiated by the INCW and the women’s movement was framed in a broader interconnected policy environment as a site of struggle. It posed the challenge to build a broader network, involving formal and informal groups within the society. Moreover, it also posed the challenges to critically analyze the VAW approach to domestic violence and the problem of intersection in order to present a better understanding of violence cases among the society, particularly to the religious groups.
[1] The preamble of Indonesian EDV Act states that: (i) every citizen entitled to rights to be secured and to freedom from any form of violence based on the Pancasila (the Nation’s ideology) and the Constitution. (ii) Any forms of domestic violence are considered as violating human rights and thus, become crimes against humanity; (iii) the state and society have to protect the victims of domestic violence, which are usually the women.
[2] In 2005, there were seven prioritized bills which are: the Criminal Code, the Criminal Procedures Code, the Witness Protection, the amendment of family law, the amendment of health law, the citizenship bill, and the anti-pornography bill.
[3] The Indonesian National Commission on Women was an independent institutions established by the Government in 1998 as a response to the VAW during the May riots which caused many women (especially from the Chinese ethnic) were being raped. The establishment of INCW is to prevent, handle and eliminate any forms of VAW.
[4] For an interesting conversation can be seen in the wanita-muslimah (meaning: Moslem women,
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