Can Verbal Sexual Harassment be Criminalized?

PERTANYAAN

In the case of verbal sexual harassment that occurs in a public place (e.g. on a public street) such as with pornographic words, or pornographic expressions towards a woman on the street, is it possible to take legal proceedings against the perpetrator? Which laws and articles are possible to criminalize such perpetrators? I think this is a minor matter but very often encountered in society. Please explain, thank you.

INTISARI JAWABAN

Sexual harassment is a form of sexual violence that can take the form of physical or non-physical sexual harassment. What is verbal sexual harassment? It is non-physical sexual harassment committed by uttering inappropriate and sexually suggestive words with the aim of degrading and humiliating.

So, can verbal sexual harassment that occurs in public places be punished? What is the legal basis?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Bisakah Pelecehan Seksual Verbal Dipidana?, written by Dian Dwi Jayanti, S.H., and published on Monday, 12 June 2023.

This article is an update of the article entitled How to Charge the Perpetrator of Verbal Sexual Harassment? Written by Letezia Tobing, S.H., M.Kn. and was first published on Thursday, 9 May, 2013.

This article is written according to the previous Indonesian Criminal Code and Law 1/2023 on the Criminal Code, which was promulgated on 2 January 2023.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Sexual Harassment

In the Criminal Code as explained by Ratna Batara Munti in Sexual Violence: Myths and Reality, the term sexual harassment is not recognized but only recognizes the term obscene acts, which are regulated in Article 289 to 296 Criminal Code.

Ratna quoted R. Soesilo's opinion in the KUHP Serta Komentar-komentarnya, which states that the term obscene acts are explained as acts that violate the sense of decency, or other acts that are vile, and all within the environment of sexual lust. For example, kissing, groping the genitals, groping the breasts, and so on.

According to Ratna, based on the above definition, it means that any act if it is considered to violate decency can be included as an obscene act.

Meanwhile, sexual harassment according to the National Commission on Violence against Women a.k.a. Komnas Perempuan in 15 Forms of Sexual Violence: An Introduction is a sexual act through physical or non-physical touch with the target of the victim's sexual organs or sexuality. It includes whistling, flirting, sexual words, showing pornographic material and sexual desires, poking or touching body parts, gestures or signals of a sexual nature that cause discomfort, offense, humiliation, and may cause health and safety problems (p. 6).

Furthermore, according to Law 12/2022, sexual violence crimes shall consist of physical sexual harassment and non-physical sexual harassment.[1]

Also read: Criminal Penalty for Sexual Harassment and the Proof

Verbal Sexual Harassment in the Criminal Code

An important element of sexual harassment is the unwillingness or rejection of any form of attention of a sexual nature. So it can be actions such as whistling, words, and comments that according to local culture or manners (moral sense) are normal. However, if it is not desired by the recipient then it can be categorized as sexual harassment.

Related to Article 281 Criminal Code, R. Soesilo explained that modesty in the article means decency; feelings of shame related to sexual lust such as sexual intercourse, groping a woman's breasts, groping a woman's private parts, exposing female or male private parts, kissing, and so on.

Furthermore, it is explained that these outrages of modesty are all committed by actions. Can it be done with words? Prof. Dr. D. Simons opposes the possibility of outraging modesty with words. In the event that the act is committed with words, it can be subject to Article 315 Criminal Code.

Then, as quoted by R. Soesilo, Mr. W.F.L. Buschkens argued that damaging honor (insult) in general also includes damaging modesty if it includes statements (either by words or by actions) concerning sexual lust, then modesty is a special, narrower sense and that based on the provisions in Article 63 section (2) Criminal Code, Article 281 Criminal Code is better used than Article 315 Criminal Code.

Meanwhile, the full text of the provisions mentioned above is in accordance with the previous Criminal Code, which is still applicable at the time this article was published, as well as in the new Criminal Code, Law 1/2023, which will entry into force 3 years from the date of its promulgation,[2] in 2026, as follows.

Criminal Code	Law 1/2023
Article 63 section (2) If for an act that falls under a general penal provision there exists a special penal provision, only the special penal provision shall be considered.	Article 125 section (2) An act which is regulated under the general criminal regulations and the special criminal regulations shall only be subject to special criminal regulations, unless the Law determines otherwise.
Article 281 By a maximum imprisonment of 2 years and 8 months or a maximum fine of IDR 4,5 million[3] shall be punished: any person who with deliberate intent publicly offends against decency; the person who with deliberate intent offends against decency whereby another person is present in spite of himself.	Article 406 Shall be sentenced with imprisonment for a maximum of 1year or a maximum criminal fine of category II, that is IDR 10 million,[4] which is any person who: violates decency in Public; or violates decency in front of other persons who are present without the will of the person present.
Article 315 A defamation committed with deliberate intent which does not bear the character of slander or libel, against a person either in public orally or in writing, or in his presence orally or by battery, or by a writing delivered or handed over, shall as simple defamation, be punished by a maximum imprisonment of 4 months and 2 weeks or a maximum fine of IDR 4,5 million.[5]	Article 436 Defamation that are not slander or libel which are committed against someone either in public verbally or in writing, as well as in front of the persons who are insulted verbally or by action or in writing which are sent to or received by them, shall be sentenced due to minor defamation with imprisonment for a maximum of 6 months or a maximum criminal fine of category II, that is IDR 10 million.[6]

 

So, to answer your question, as outlined above, acts of verbal sexual harassment that occur in public places are punishable under the Criminal Code. However, there are still pros and cons regarding which articles in the Criminal Code can be used. Some argue to use Article 281 Criminal Code and Article 406 Law 1/2023. There are also those who argue to use Article 315 Criminal Code and Article 436 Law 1/2023 on minor defamation (insult).

Verbal Sexual Harassment Under Law 12/2022

Regarding the sexual harassment that you mentioned, we conclude that saying pornographic/sensual words are classified as non-physical sexual harassment.

According to Law 12/2022, non-physical sexual harassment is a non-physical sexual act directed against the body, sexual desires, and/or reproductive organs with the intention of degrading dignity based on sexuality and/or decency.[7]

Moreover, what is meant by ‘non-physical sexual acts’ are statements, gestures, or activities that are inappropriate and lead to sexuality with the aim of degrading or humiliating.[8]

According to the official dictionary of the Indonesian language or Kamus Besar Bahasa Indonesia (“KBBI”), a statement (“pernyataan”) means the act of declaring. As for stating (“menyatakan”) means saying, expressing (thoughts, contents feeling). This means that saying words is a form of statement. As for saying words with sexual nuances, it falls into the category of inappropriate statements and leads to sexuality, including non-physical sexual acts.

So, what is verbal sexual harassment? Verbal sexual harassment is a non-physical sexual harassment committed by uttering inappropriate and sexually suggestive words with the aim of degrading and humiliating.

Can verbal sexual harassment be punished? Yes, it can. According to Article 5 Law 12/2022, verbal harassment and other non-physical harassment are punishable by a maximum imprisonment of 9 months and/or a maximum fine of IDR 10 million.

The punishment shall be added by 1/3 if verbal sexual harassment is:[9]

1. carried out within the scope of a family;
2. carried out by health workers, medical personnel, educators, education personnel, or other professionals who are mandated to carry out handling, protection, and recovery;
3. carried out by an employee, an administrator, or an officer against a person entrusted or handed over to them to be guarded;
4. carried out by a public official, an employer, a superior, or an administrator against a person who is employed or works with them;
5. carried out more than 1 time or carried out against more than 1 person;
6. carried out by 2 or more persons in a partnership;
7. committed against a child;
8. committed against a person with disabilities;
9. committed against pregnant women;
10. committed against someone who is unconscious or helpless;
11. committed against a person in an emergency, state of danger, conflict situation, disaster, or war;
12. carried out using electronic means;

Furthermore, a judge may also impose additional penalties in the form of:[10]

1. revocation of a child custody or revocation of guardianship;
2. announcement of the identity of the perpetrator; and/or
3. confiscation of profits and/or assets obtained from sexual violence crimes.

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These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Indonesian Criminal Code;
2. Law Number 12 of 2022 on Sexual Violence Crimes;
3. Law Number 1 of 2023 on Criminal Code;
4. Regulation of the Supreme Court Number 2 of 2012 on the Adjustment of the Limitations of Minor Criminal Offenses and the Amount of Penalty in the Criminal Code.

Reference:

1. Komisi Nasional Anti Kekerasan Terhadap Perempuan. 15 Bentuk Kekerasan Seksual: Sebuah Pengantar;
2. R. Soesilo. Kitab Undang-Undang Hukum Pidana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal. Politeia: Bogor, 1991;
3. KBBI, menyatakan accessed on Monday, 12 June 2023, 15.45 West Indonesian Time (zone);
4. KBBI, pernyataan accessed on Monday, 12 June 2023, 15.47 West Indonesian Time (zone).

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[1] Article 4 section (1) letter a and b Law Number 12 of 2022 on Sexual Violence Crimes (“Law 12/2022”).

[2] Article 624 Law Number 1 of 2023 on Criminal Code (“Law 1/2023”).

[3] Article 3 Regulation of the Supreme Court Number 2 of 2012 on the Adjustment of the Limitations of Minor Criminal Offenses and the Amount of Penalty in the Criminal Code (“Supreme Court Regulation 2/2012”).

[4] Law 79 section (1) letter b Law 1/2023.

[5] Article 3 Supreme Court Regulation 2/2012.

[6] Law 79 section (1) letter b Law 1/2023.

[7] Article 5 Law 12/2022.

[8] Elucidation to Article 5 Law 12/2022.

[9] Article 15 section (1) letter a to letter l Law 12/2022.

[10] Article 16 section (2) Law 12/2022.