A

legal attempt by a group of conservative academics to criminalize any sexual relations outside marriage has sparked concern about a serious breach of civil liberties.

The academics, who claim to be motivated by a desire to protect the country’s morality, are seeking revisions to three articles in the Criminal Code, including Article 284 on adultery, which they say should not be confined to consensual sexual activities by married people with partners who are not their legal spouses.

The move comes amid an apparent shift by the country toward a more moralistic stance, with the government and the Constitutional Court being regarded as supporting a strongly conservative agenda.

Criminalizing casual sex could create an oppressive society with morality police investigating people’s private lives, Wahid Foundation executive director Yenny Wahid told The Jakarta Post on Wednesday. “Private police forces could emerge from among extremist groups, stalking people and using the law to intimidate other people.”

Yenny, the daughter of the nation’s pluralism icon, Abdurrahman Wahid, questioned the feasibility of proving someone is having sex outside marriage. “Who has the right to file a report? If it’s a married couple where a spouse is cheating, then the cheated one could file a report. But what about unmarried couples?”

University of Indonesia (UI) criminologist Josias Simon said the public would be enraged if the court ruled in favor of the group. “It goes against the essence of our country, which is pluralistic,” he said. “Indonesian people are diverse. There’s no agreement or complete research on this matter.”

Casual sex could be considered a victimless crime as it was consensual, Josias said. Therefore, he went on, putting someone in jail for having consensual sex outside marriage would be unjust.

“While I do agree that sexual intercourse outside marriage should be managed, it shouldn’t be banned or criminalized,” Josias said. “Although this legal move was made with good intentions, the impact could make society worse.”

The petitioners, whose main goal is to make same-sex relationships illegal, have been given a chance to present expert witnesses to speak in their favor.

On Monday, they invited Indonesian Council of Islamic Propagation (DDII) chairman Adian Husaini to address the court. He said the country was facing a tough “morality challenge”. “This is exacerbated by the LGBT [lesbian, gay, bisexual and transgender] phenomenon that has become more rampant,” he added.

The Constitutional Court is traditionally known as a “negative legislator”, meaning that it can only annul legislation or scrap certain wording from a law. However, Chief Justice Arif Hidayat has said the court could change the wording of an article in a law if its ruling inadvertently created a legal vacuum.

Renowned lawyer Todung Mulya Lubis said the panel of judges were likely to rule in favor of the plaintiffs. “I feel that the current Constitutional Court justices tend to have conservative views. If we look at recent court rulings, they tend to be conservative,” he told the Post, citing the court’s decision to reject a petition to raise the minimum age for marriage for women last year.

The court argued that changing the age requirement to 18 for both sexes, from the current minimum age of marriage for women at 16 and men at 19, was not guaranteed to reduce divorce rates, or to solve social, health and economic problems.

Only one judge, the sole woman on the panel, expressed a dissenting opinion.
_________________________________