On Dec. 15, 2017, a 17-year-old girl from Nagan Raya, Aceh, who will be referred to as Mira, says she was raped.

According to a court document of her account, the girl said her 18-year-old boyfriend had asked to meet her at a quiet location to exchange mobile phones, and when they met, he made sexual advances toward her. She told him, “Don’t, don’t,” but the boyfriend ignored her pleas and threatened to put a curse on her family if she resisted, before pushing her down and raping her.

Mira suffered excessive bleeding and was hospitalized for two days before her family reported the incident to the local authorities, who charged the boyfriend with child rape and brought him to sharia court.

She testified in court, and her attacker was punished – not for rape, but for the crime of zina (fornication) with a child under Aceh’s sharia code, which exists alongside the state legal system in the province. The Meulaboh District Sharia Court reached the verdict despite Mira’s testimony and a medical examination that concluded that her hymen had been broken as a result of the incident.

In the verdict, the court contended that the sexual intercourse between them had been consensual as they were dating at the time and had had sexual intercourse before. The defendant, they ruled, was not guilty of the primary charge of child rape and was guilty instead of zina with a child, a charge akin to statutory rape in other legal systems, implying that the victim was complicit in the crime.

The prosecutors appealed the verdict, contending that the court had not appropriately taken the victim’s testimony into account. The Aceh Sharia High Court, however, rejected the appeal. 

There is no record of Mira being charged with zina, but that does not mean it could not happen to others, said activist and researcher Waskito Jati, who recently conducted a study on the enforcement of the sharia in Aceh.

He concluded that the way Aceh applied the sharia could lead to the “prosecution of children for committing zina, or the possible prosecution of rape victims”.

The Aceh Project by Waskito takes a data-driven approach to the implementation of the sharia in the province, which involved fieldwork over two separate periods between 2017 and 2020. The activist and researcher worked primarily with women’s rights group Solidaritas Perempuan Aceh (Aceh Women’s Solidarity) and the Banda Aceh Legal Aid Foundation (LBH Banda Aceh) on his study, with funding from his alma mater, Harvard Divinity School, and a Harvard Law School fellowship.

Child rape victims or fornicators?

The root of the problem, Waskito said, was the dual legal system in Aceh, the only province in Indonesia to enforce the sharia alongside the national legal system. The Qanun Jinayat sharia legal code, he said, had adopted the definition of “juvenile delinquents” outlined in the 2012 Juvenile Justice System Law.

Under the law, 12-to-18-year-olds deemed juvenile delinquents may be subject to criminal prosecution, raising the question of whether children under 18 can consent to sexual intercourse and could therefore be charged with zina. 

“Since the Qanun replicates the national definition of juvenile delinquents, children who [are thought to have] committed zina could also face prosecution,” Waskito told the Post. “This understanding could lead to the prosecution of children for committing zina, or worse, the possible prosecution of rape victims.”

Waskito noted that the prosecutors had charged Mira’s boyfriend with child rape under Article 50 of the Qanun Jinayat as well as zina with a child under Article 34 of the same law. The defendant was eventually sentenced to 100 lashes and 12 months of prison after being found guilty of the second charge and escaped the prosecutors’ demand that he be sentenced to 182 months in prison if found guilty of the first charge.

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It is likely that the prosecutors were trying to increase their chances of convicting the defendant by adding the secondary charge, which they likely believed would be easier to prove.

“But the [combination of] charges brought for this case is just absurd, because they cancel each other out,” Waskito said.

The concept of “fornicating with a child” was problematic, he said, as it presupposed consent. At least 20 male defendants have been convicted of the crime since Aceh began enforcing Islamic law in 2015. It is not known how many of those convicted were initially charged with child rape.

The Simpang Tiga Radelong Sharia Court database shows at least one other case in Bener Meriah regency in 2016, in which a man was charged with raping a 15-year-old girl but was only convicted of zina with a child. The defendant, identified as Junaidi bin Tamrin, was sentenced to 100 lashes and 20 months’ imprisonment.  

Whether a case should be treated as rape, or zina, was up to the interpretation of law enforcement officers, said Aceh Sharia Agency head EMK Alidar.

"When a case is reported, law enforcement officers will definitely see which [requirements] are met. This subjectivity lies with the investigators," he said.

Less focus on victims 

Minors who commit zina should not be prosecuted, according to Banda Aceh Legal Aid Institute (LBH Banda Aceh) director Syahrul. Sexual crime cases involving minors, he said, should refer to the guidelines stipulated in the Child Protection Law.

Syahrul said the court had failed to understand the psychological condition of child rape victims. Children who experienced sexual abuse were under enormous psychological pressure not to file a report, he said, because of the fear of becoming social outcasts and the targets of bullying. If a report was not filed, the offender might be able to repeat his actions.

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Even after being punished under the sharia, some convicted rapists repeated their actions, because authorities failed to pay sufficient attention to sexual abuse victims, he said.

In February, a convicted rapist in Banda Aceh allegedly raped the same victim less than a month later. When reported to the police for the second time, the case was dismissed, because it was considered the same case, even though the incidents had occurred at different times. LBH Banda Aceh is set to file a motion against the police’s decision.

Syahrul argued that the Child Protection Law was “more comprehensive” than the Qanun Jinayat, as it sought to ensure that more attention was paid to child rape victims, with the state obliged to assist in their psychological and social recovery.

“[Sharia] law enforcement officers are preoccupied with the idea of punishing the perpetrators as severely as possible. They often miss out on how child sexual abuse victims should be protected and taken care of and how their image should be restored.”

Criminal Code or sharia law?

It is not easy to have rape cases officially addressed in Aceh. Law enforcement officers sometimes discourage families of child rape victims from pressing charges, saying their children could end up being charged with zina, according to LBH Banda Aceh. Some families, Syahrul said, chose to marry off child victims to their rapists as a “way out” of the situation.

Read also: Q&A: What you need to know about sharia in Aceh

In 2020, LBH Banda Aceh recorded 16 child rape cases, two of which were dropped by the police because of a lack of evidence. The institute, Syahrul said, was working to ensure that no cases were settled with marriage and that the rights of victims were upheld.

A women’s rights activist in Aceh who declined to be named because of the sensitivity of the issue said each region of Aceh had its own way of addressing rape cases.

In North Aceh regency, for example, several rape cases in 2017 were resolved according to customary law, where the perpetrators only needed to pay financial retribution, she said. In other regions, rape victims or their families could choose to press charges under the national legal system.

Waskito said civil society groups in Aceh had been advocating for the use of the Criminal Code and not the Qanun Jinayat to handle rape cases, considering the latter’s problematic stipulations. “This is to ensure that a rapist will not just be caned and then walk free. They have to be sent to jail for a long time,” he said.