Until very recently, the absence under Indonesian law of protections for victims and witnesses during the investigation of a criminal offence and before, during, and after trial, has proved a substantial impediment to the effective investigation and prosecution of crimes involving violence against women. These crimes have been difficult to prosecute successfully in the past because, among other things, they often occur in private where no witnesses are present, and victims are often reluctant to report the crime or to testify in court for fear of reprisals and stigmatization.
Protections available to victims and witnesses have significantly increased in the wake of the passing of a Witness Protection Act (Law 13/2006), and of the Domestic Violence Act. The Domestic Violence Act details extensively the protections and services to be provided to victims of domestic violence. The Witness Protection Act and the Domestic Violence Act may be used in conjunction with one another.(22)
However, there are still deficiencies in the legislation in Indonesia in addressing the particular challenges of investigating gender-based crimes, including crimes involving sexual violence. These, in conjunction with limitations in the provisions of services, will negatively impact on the ability of a victim or witness to avail themselves of protection and services.
The Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana – KUHAP) was under revision at the time of writing this briefing. Amnesty International is concerned that the current draft of the revised KUHAP requires that a victim or witness be present in court to make their testimony, in contradiction with the provisions in the Witness Protection Act abovementioned. The Witness Protection Act will remain applicable despite this incongruity, but nevertheless the revised KUHAP must be amended to avoid any contradiction and confusion between the two laws. In particular, the revised KUHAP must follow the Witness Protection Act in permitting victims or witnesses, where a court has determined that this is necessary for their protection or for other valid reasons, including in cases of sexual violence, to give their evidence in camera or via video or audio-link in a manner that fully respects the right of the accused to a fair trial.
In addition, the revised KUHAP must be amended to contain sufficient provisions designed to address the challenges of investigating gender-based crimes, including crimes involving sexual violence. For example the revision of the KUHAP must include provisions banning courts from drawing inferences about the credibility, character or predisposition to sexual availability of a victim based on prior or subsequent sexual conduct of the victim. The revision must also include provisions that regulate the admission of evidence regarding the consent or lack thereof of the victim in a crime of sexual violence. A closed hearing to consider the admissibility or relevance of such evidence should be available as of right. Furthermore the revision should expressly provide that, while a court must not convict a defendant unless satisfied of his or her guilt beyond reasonable doubt, corroboration is not required for any crime, particularly crimes of sexual violence.
Indonesia: Briefing to the UN Committee on the Elimination of Discrimination against Women: Women and girl domestic workers
January 1, 2011