From Child Rape to Zinā with a Child
From Child Rape to Zinā with a Child: Analysis of Consent to Sexual Intercourse and Minimum Age of Criminal Liability under Acehnese Qanun Jinayat.
Having remained under the jurisdiction of the Indonesian Judicial system, the codified Acehnese Islamic criminal codes (Qanun Jinayat) exemplify the intricacies of incorporating classical Islamic concepts alongside modern and secular government regulations. For an overview of the Acehnese Islamic Criminal Law see Waskito Jati, “The Authority and Jurisdiction of the Acehnese Mahkamah Syar’iyah Within the Indonesian Justice System,” … Continue reading The case being discussed in this essay is one example wherein a child rape allegation turns into an allegation of zinā (adultery) with an underage woman due to a contested understanding of consent and minimum age of criminal liability. Aceh Sharīʿa High Court decision, Case Number 05/JN/2018/MS.ACEH (Mahkamah Syar’iyyah Banda Aceh, May 17, 2018). This essay shall show that the adoption of the Indonesian Juvenile Justice System in Aceh Qanun Jinayat has inadvertently resulted in a possibly skewed definition of the minimum age of consent to sexual intercourse. This understanding could lead to the prosecution of children for committing zinā, or worse, the possible prosecution of rape victims.
Qanun Jinayat does not differentiate zinā based on the marriage status of the perpetrators as traditionally prescribed in Islamic law. Instead, it categorizes zinā related offenses based on the person with whom the perpetrators committed the act of illicit sexual intercourse. Thus, adultery and fornication between two adults are considered simply as zinā. The other two zinā related offenses are zinā with a child and incest. Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 67, Qanun Aceh Nomor 6 Tahun 2014 Tentang Hukum Jinayat, Article 33-35 (2014). One might suggest that zinā with a child resembles that of statutory rape in a modern sense. Indeed, Qanun Jinayat abhors adults who commit such act and prescribes additional punishment of one hundred lashes and/or the payment of 1000 grams of gold and/or ten-month imprisonment aside from the mandatory ḥadd punishment of one hundred lashes. However, in all three zinā related crimes, consent is assumed to have been given by both parties, including children and family members who partake in the act of sexual intercourse. Consequently, all parties are considered as perpetrators of zinā. Does this explanation connote the law’s perception that children can give sexual consent? If it does, how does Qanun Jinayat define the minimum age of consent to sexual intercourse?
To put the law to test, we shall analyze a failed child rape allegation that turned into an allegation of zinā with a child as follows:
The victim, a seventeen-year-old girl living in Meulaboh District, Aceh, Indonesia, reported to the police that she had been raped by her eighteen-year-old boyfriend in December 2017. Upon receiving the report, the police and the prosecutor indicted the alleged rapist with two charges – namely child rape as the primary charge and zinā with a child as the subsidiary charge. This combination is dangerously flawed because, in terms of consent to sexual intercourse, the two charges cancel each other out. The central actus reus of a rape charge is the absence of consent to sexual intercourse, whereas in zinā with a child consent is irrelevant since both parties are assumed to have given one. A guilty verdict for the charge of zinā with a child means the quashing of the allegation that there has been a violation of consent to sexual intercourse. And since the actus reus of zinā crime is the illicit sexual intercourse itself, both the alleged rapist and the victim are considered as perpetrators of zinā and could potentially be indicted and punished for the same crime.
To a certain extent, both the Sharīʿa district court in Meulaboh and the Sharīʿa high court in Aceh interpreted the case as predicted in the previous paragraph. Both courts refused to believe that the rape had occurred because both the victim and the alleged rapist confessed that they were in a relationship and that they have had sexual intercourse several times before the incident. The fact that the victim suffered severe bleeding and injury as proven by the forensic analysis was entirely neglected by both courts and consequently, the district court found the defendant not guilty of child rape but is guilty of zinā with a child. The punishment meted out for the defendant was a hundred lashes in public and an additional twelve month of imprisonment. Despite the district court verdict that partly acceded to the prosecutor’s indictment, the prosecutor filed an appeal disagreeing with the first court’s decision that essentially disproves the committing of rape towards the victim. The appeal effort was in vain after the Sharīʿa high court affirmed the district court’s verdict in its entirety.
This guilty verdict has put the rape victim in limbo. Since the child rape charge was rejected and the defendant was pronounced guilty of zinā with a child, the court does not perceive the child as a victim of child rape but as a child perpetrator of zinā. This is partly because Qanun Jinayat maintains the definition of child perpetrators as written in the Indonesian Law Number 11/2012 on Juvenile Justice System. Both the Indonesian law and Qanun Jinayat state that child perpetrators are children between the age of twelve and eighteen years old who are involved in criminal acts. Dewan Perwakilan Rakyat Republik Indonesia, Undang-Undang Republik Indonesia Nomor 11 Tahun 2012 Tentang Sistem Peradilan Pidana Anak, Article 1 (3) (2012). Based on this case, Qanun Jinayat defines the minimum age of criminal liability at twelve years of age.
Qanun Aceh Nomor 6 Tahun 2014, Article 67. The Indonesian Law on the juvenile justice system, however, was never intended to prosecute children who commit zinā since zinā is not a crime under the Indonesian penal codes in the first place. But the adoption of this definition of child perpetrator in Aceh has inadvertently influenced the definition of a minimum age of consent to sexual intercourse. This case shows that the court considers a sixteen-year-old woman capable of giving sexual consent. If the definition of child perpetrators mentioned in the previous paragraph stands, would the court also consider a 13-year-old girl able to give sexual consent? This essay is based only on one verdict of zinā with a child case and the record shows that there have been eight cases of zinā with a child since the promulgation of Qanun Jinayat.  See Summary of Zinā Related Offences Verdicts (Illicit sexual intercourse) 2016-2019, Aceh Qanun Jinayat (Islamic Criminal Law), Aceh, Indonesia. In order to answer this question, further analysis of the other cases is necessary.
In regard to the punishment for child perpetrators, Qanun Jinayat promulgated that, if proven guilty, child perpetrators could receive a maximum of a third of the designated punishment for adult and/or rehabilitation. This provision opens up the possibility for children to receive lashings as punishment even though such practice has not been found. In the case currently in discussion, the record shows that the child rape victim is not prosecuted for committing zinā despite the court’s conclusion that zinā has occurred between her and the alleged rapist instead of rape. Whether the child will be prosecuted for zinā or not seems to be at the discretion of the prosecutor. On this one case, the prosecutor may have decided not to pursue the case any further.
This case exemplifies the friction between the changing discourse on women and the justice system in a modern era with the codification of Islamic criminal law. The national or so-called “secular law” remains influential in how Aceh Islamic criminal justice system perceives a crime. One might even argue that Aceh Islamic criminal law is merely a substitution of nomenclature from Indonesian to classical Arabic terms. Further analysis of other types of offences is necessary to draw a better and more educated generalization on this issue.
|↑1||For an overview of the Acehnese Islamic Criminal Law see Waskito Jati, “The Authority and Jurisdiction of the Acehnese Mahkamah Syar’iyah Within the Indonesian Justice System,” Shariasource.com, April 5, 2018, https://beta.shariasource.com/documents/3170.|
|↑2||Aceh Sharīʿa High Court decision, Case Number 05/JN/2018/MS.ACEH (Mahkamah Syar’iyyah Banda Aceh, May 17, 2018).|
|↑3||Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 67, Qanun Aceh Nomor 6 Tahun 2014 Tentang Hukum Jinayat, Article 33-35 (2014).|
|↑4||Dewan Perwakilan Rakyat Republik Indonesia, Undang-Undang Republik Indonesia Nomor 11 Tahun 2012 Tentang Sistem Peradilan Pidana Anak, Article 1 (3) (2012).|
|↑5||Qanun Aceh Nomor 6 Tahun 2014, Article 67.|
|↑6||See Summary of Zinā Related Offences Verdicts (Illicit sexual intercourse) 2016-2019, Aceh Qanun Jinayat (Islamic Criminal Law), Aceh, Indonesia.|