HumasUPNVJ - Lecturer at the Faculty of Law, Jakarta Veterans National Development University (UPNVJ) Dr. Beniharmoni Harefa, SH, LL.M. expert opinion was heard at the Constitutional Court hearing, Monday (1/11/2021).
This is to provide an explanation regarding case Number 21/PUU-XIX/2021 with the applicant, Mr. Leonardo Siahaan and Fransiscus Arian Sinaga regarding the Request for Review of Article 293 paragraphs 1 and 2 and Article 288 of the Indonesian Criminal Code (KUHP) against Articles 28D and 28G of the 1945 Constitution
In his expert statement, Dr. Beniharmoni explained that sexual crimes against children and women, including obscene acts, sexual intercourse with children, are included in the graviora delicta category or the most serious crimes.
In his statement to the Public Relations team, Dr. Beniharmoni said that there are several parameters for an act, including graviora delicta , namely: 1. The victimization impact of the crime is very broad and lasts a long time (lifetime); 2. The crime is super mala per se (very evil and despicable) and is highly condemned by the people ( people condemnation ) both nationally and internationally; 3. Having specially formed institutions (Komnas Perempuan, KPAI, etc.); 4. Crimes based on International Conventions; 5. There is a special law that regulates these actions (the Child Protection Law).
Beniharmoni also said that Article 293 of the Criminal Code does not clearly provide a statement of age/what age is meant in the immature category, even in several cases as described in the applicant's application, there are still public prosecutors who include immaturity based on Article 330 of the Civil Code where the age is not Adult is 21 years. This of course creates legal uncertainty, as well as multiple interpretations in the application of article 293 of the Criminal Code.
"Article 288 of the Criminal Code phrase "not yet time to marry" has not provided an explanation regarding the age limit "not yet time to marry". So that it is feared that this will lead to debate and multiple interpretations at the level of application of the law as to what is "not yet the time to marry" as referred to in article 288 of the Criminal Code. So it is better to refer to the Marriage Law Number 16 of 2019 concerning Amendments to Law No. 1 of 1974 concerning Marriage in Article 7 paragraph 1 confirms that the age limit for marriage for both men and women is 19 years, "said Dr. Beniharmoni
The Constitutional Court trial was attended by 9 MK Judges, Government Representatives (President's Attorney), the Petitioner, the Attorney General's Office Team with the sole agenda of hearing Expert Statement from Dr. Beniharmoni Lecturer in the Faculty of Law UPNVJ who is also a Child Protection Law Expert.
At the end of the explanation, Dr. Beniharmoni, who is also an alumnus of the Faculty of Law UGM, explained that Article 293 paragraph 1 of the Criminal Code with the phrase "not yet mature" and Article 288 of the Criminal Code with the phrase "not yet time to marry" are provisions that have multiple interpretations.
"With these provisions, it is appropriate to decide that it does not have binding legal force. Article 293 paragraph 2 along with the phrase "prosecution is carried out only on the complaint of the person against whom the crime was committed" (absolute complaint offense), then for the sake of legal certainty, it is changed to an ordinary offense," concluded Dr. Beniharmoni.