THE CONTESTATION OF CANING AND IMPRISONMENT FOR SEXUAL HARASSMENT: TRACING THE ROOTS OF JUDGES’ LEGAL CONSIDERATIONS IN ACEH, INDONESIA

Abstract

Qanun Jinayat or the Islamic Criminal Code in Aceh responds to sexual violence by stipulating norms for caning, imprisonment, and fines for offenders of these types of crimes. This is a positive effort in combating sexual crime which has become a global problem. However, at the technical level, especially in court, the ideals of justice for victims, offenders, and the community, are "disturbed" by the emergence of normative contestations between caning and imprisonment. This paper, thus, dissects the reality of the contestation referred to the judge’s decision in the Court of Appeals, the factors that influence the judge’s verdict and its implications for the protection of victims. Primary data is the decisions of the Mahkamah Shar`iyah (Religious Court) at the first level, appeals and cassation for 2016-2020, while secondary data is in the Qanun Jinayat and other Aceh local qanuns. The data is tabulated in such a way as to find the dominant form of punishment, including all offenses regulated by the Qanun Jinayat and forms of caning and imprisonment which are continued at the Court of Appeal to find possible changes in the form of punishment from the Court of First Instance. Data were analyzed using the concepts of norm contestation, judges' legal considerations, and legal protection for victims of sexual violence. The findings revealed that the contestation occurred due to legal, extra legal and regulatory dualism scenarios. This has further triggered latent contestation of authority. As a result, victims of sexual violence crimes, especially children, have not received proper protection. Hence, further studies and specific stakeholder policies are needed.