Rape and the State -By Dr. Tomy Michael

Many countries oppose rape because it is a despicable act. Rape is sometimes joked about when a man is the victim and forced to enjoy it from a woman. Meanwhile, women are also sometimes the subject of jokes, with the question, “Why didn’t you resist when the rape occurred? So it made you feel comfortable?”. Such statements are unacceptable because they make someone feel justified in rape, even though there is an unchallenged power relationship or deep trauma. Rape is an important part of fulfilling human rights because it is synonymous with a new attitude from the state. The state cannot make rape a priority while other crimes are still considered risks that individuals accept.

Referring to Law of the Republic of Indonesia Number 12 of 2022 concerning Crimes of Sexual Violence, fulfilling victims’ rights is a priority. The establishment of restitution as the primary punishment, not merely an additional punishment, requires perpetrators to provide compensation to victims. Furthermore, this law expressly excludes the possibility of resolving sexual violence cases outside the courts, except for child perpetrators. This affirms that the state will not tolerate compromise or forced peace in cases of sexual violence, which often harm victims. However, if we reflect on the essence of the state, we must address issues that hinder its development. This means imposing sanctions and changing regulations regarding rape.

After the national revolution of 1821, which ultimately led to the formation of the Greek state, in the transitional legislation (1824) rape was not actually defined as a crime but rather considered in the context of “abduction” and “deflowering.” The severity of the punishment ranged depending on the magnitude of the offense inflicted on a woman’s male relatives. If a widow was “abducted,” the perpetrator faced one year in prison. If a virgin was abducted, the sentence could reach five years’ imprisonment, and six years in the case of the “abduction” of a married woman. Thus, the women protected by the law were mostly those who were under the custody of their husbands (married) or fathers (virgins). The orientation of this law can be understood if we take into consideration that, according to many historians and ethnographers of Greece, virginity and motherhood represented the quintessence of feminine virtue.

There’s a pattern worth noting: rape is no longer skin-to-skin contact, but in a more modern way, where it used to be a joke, it’s now considered a form of rape. As a child, when someone told a friend that they had brown hair, the response was simply laughter, not a taunt. However, when that happens today, it can be criminalized, although mediation is often necessary. This concept demonstrates a shift in response, and it’s not a painful experience, but rather an increase in public awareness and a better understanding of human rights. This means the state also supports various forms of rape. But what punishments are given to perpetrators of rape? Some countries require perpetrators to apologize to the victim, and if an apology is not given, the sentence will continue.

Others impose caning as a deterrent, as it’s considered contrary to other universal norms, and even death or life imprisonment. From the victim’s perspective, such a concept doesn’t heal trauma, but can heal only in a small way. Trauma isn’t the state’s domain, as it can develop based on the treatment received. In other understandings, religious punishments are sometimes more just in rape cases. In the Book of Deuteronomy Chapter 22 verses 25 to 26 it is written that the Word of God says that “But if the man finds the betrothed woman in the field and forces her to lie with him, only the man who lies with her shall die; but do not do anything to the girl. She has not committed any sin worthy of the death penalty, for this is the same as someone who attacks his fellow human being and kills him.” Such a concept will feel fair. This means that the state must provide a punishment that is swift but still through the judicial process, meaning that no blame is placed on the perpetrator, meaning the wrong person while the real perpetrator is unknown.

The state must provide a fair punishment because the victim is not just a party but there are people around him who also feel it, for example family, coworkers, children, even known parties who become compassionate. The formulation of rape in the era of artificial intelligence must be an important part of a person because everyone has the right to have protection for themselves.

Dr. Tomy Michael, Lecturer at Universitas 17 Agustus 1945 Surabaya