In the world of crime, repeat offenders are arrested, put on trial and punished according to the law so that they stop committing their harmful, criminal acts.

However, in Indonesian politics, some repeat offenders are given positions in the higher echelons of government office. One of them is Mahfud MD, coordinating political, legal and security affairs minister and former chief justice of the Constitutional Court (2008-2013).

His latest instance of repeat offense is related to misogyny - which should be defined as a hate crime. His first public foot-in-mouth moment was in May 2020 when he said “Corona is like your wife. Initially, you try to control it, then you realize that you can't, so you learn to live with it” (see “Coronavirus is your wife vs half the sky”, The Jakarta Post, June 10, 2020).

At the time he got a huge backlash, but due to his misogynistic mindset, he made a repeat offense, even way more egregious than his first. He gave examples of restorative justice, defined loosely as “a system of criminal justice that focuses on the rehabilitation of offenders through reconciliation with victims and the community at large” (Oxford Dictionary).

In a National Police leadership meeting on Feb. 16, Mahfud explained it thus: “Restorative justice is law ... it comes from the Indonesian legal culture where law is not a tool to win, but to build harmony and togetherness. Therefore, trivial matters do not have to be brought to court”.

By way of trivial matters he used these examples: stealing a chicken, cucumbers, melons, rubber sandals, and … rape. Before we explode with rage at him for lumping these crimes together (I did), hold your breath and listen to his explanation: “Siti is raped, if you want a strict law, the rapist Amin is arrested and is tried in court - it's over. But restorative justice says this: if we arrest Amin the rapist, and then announce that he raped Siti, Siti's family is destroyed”. Oooh, it’s the family that’s destroyed is it?

One solution he suggested was the traditional practice of kawin lari, which can range from elopement to outright kidnapping. This practice, which still exists in Lombok, Bali, Lampung, Sumba, Maluku, and North Sumatra etc., is one that the government and women activists are trying to eradicate as it invariably involves underage teens and gender-based violence (GBV). And this is what Mahfud calls restorative justice?

Backlash? You bet!

In their press statement dated Feb. 18, the Institute for Criminal Justice Reform (ICJR), the Indonesia Judicial Research Society (IJRS), and the Institute for Judicial Independence Studies and Advocacy (LeIP) stated that “restorative justice is not about silencing victims' rights to false harmony in society." 

Executive director of Amnesty International Indonesia Usman Hamid said Mahfud’s statement hurts the victim's sense of justice, underestimates rape and degrades the victim. It does not recognize the unequal power relations between the victim and the perpetrator.  “… the minister's statement …[…]… is against the spirit of ending sexual violence, which has the potential to perpetuate a culture of impunity for perpetrators of sexual violence. " Usman said on Feb. 19.

Ratna Batara Munti, head of policy advocacy for the Legal Aid Foundation of Indonesian Women's Association for Justice (LBH-APIK) said, in the perspective of restorative justice, the victim is seen as the property of society, not as an individual with her or his own integrity. “Sexual violence is a serious case that cannot be underestimated. You cannot exchange criminal sanctions with customary sanctions or just customary fines, which are not related to legal interests and the sense of justice for the victims themselves”, she said. Law enforcement against perpetrators of sexual violence should be in accordance with existing regulations. For rape, it’s a maximum of 12 years in prison, which she says could  be a way  of fulfilling a sense of justice for the victim.

Does it really? Sulistyowati Irianto, professor at the School of Law, University of Indonesia, said sexual violence, including rape, is a crime against humanity, not a crime of decency because it  is life threatening. However, she said, “sexual violence is seen as merely a moral crime in the Criminal Code, in which the definition of sexual violence cannot accommodate the complexity of its elements, namely: sexual acts (physical, verbal and non-verbal), which are unwanted, without consent, by  coercion or by exploiting power relations, and causing misery and suffering for the victim”.

Furthermore, “the Criminal Law Procedures Code (KUHAP) imposes proof on the victim, and generally it cannot be fulfilled, due to stigma, fear of the perpetrator, or the revulsion of law enforcement officials. The victim dares to report only long after the fact when, the physical evidence is long gone”. And what about the trauma of rape, which can last a lifetime?

Sulistyowati further cited figures from the 2019 and 2020 reports of the National Commission on Violence Against Women (Komnas Perempuan). “Every two hours there are three victims of sexual violence in Indonesia. Of the 431,471 cases of violence against women reported, there were 4,898 sexual violence, consisting of 2,807 cases in the domestic realm, and 2,091 in the community. During the pandemic period, there were 461 cases, namely 258 domestic cases and 203 public cases.”

Does Mahfud take into account cases of incest rape, like the case of AOS, a teen in Samarinda who reported her father for raping her? He claims he did it merely to teach her a lesson. What?? What is educational about plying your teenage daughter with alcohol and raping her while she is unconscious? When AOS regained consciousness, she tried to fight him off but her father beat her up badly. For his rape crime, he was only punished with one year imprisonment. He’s an influential public figure, so members of the community actually wanted the case resolved outside the legal system.

And what about rape in schools and campuses whereby the teacher or professor uses the power he has over his pupils or students to take advantage of them sexually? Threatened with non-pass marks or even expulsion, what does a female student do?

I agree with online commentators who said, “What if it were Mahfud’s own family member that was raped?” They also suggested he resign as he is not fit to be a cabinet minister. Maybe not even fit to be called a human being, certainly not a decent one!

The stats show that Indonesia is experiencing an epidemic of gender-based crimes. The most appropriate thing to do is for Mahfud to apologize publicly to victims of rape and to society at large, and to support the ratification of the draft law on the elimination of sexual violence.

OK ya Pak Mahfud, no more foot-in-mouth disease! COVID-19 is bad enough!

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The writer is the author of Sex, Power and Nation.