Indonesia’s Criminalisation Of Sex Outside Marriage Will Unfairly Impact The LGBTIQ+ Community

Under the updated criminal code, sex outside marriage will be illegal.

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You may have heard that Indonesia has made a bunch of sweeping changes to its criminal code.

Under the code, sex outside marriage will be made illegal, as will defamation of the president. As gay marriage is illegal in Indonesia, the laws banning extramarital sex will also unfairly impact the country’s LGBTIQ+ community.

The new legislation is a dramatic step backwards for the third-largest democracy in the world.

Why Was The Criminal Code Changed?

It’s worth noting that Indonesia’s criminal code is a vestige of Dutch colonialism, even though the country became independent in 1945. “Indonesia’s criminal code, the one that’s just been repealed, goes right back to 1918 in some parts, but goes back well before then,” Professor Tim Lindsey from the University of Melbourne’s Law School tells Junkee.

Professor Lindsey, who is a specialist in Indonesian law, says there’s been constant attempts to replace the ancient colonial code with more up-to-date legislation.

“Every attempt until now has failed — because criminal law touches so many areas of life; it’s always going to be controversial when you make changes to it,” he explains.

However, Professor Lindsey stresses that not all the changes under the new criminal code are regressive, adding that there have also been positive developments.

“There’s even some things in there that I think are a step forward,” he says. “Now prisoners on death row, who have good behaviour for ten years, can have their sentence reduced from death to a term of imprisonment.”

What Are The Changes?

Most of the the changes, however, are alined to a very conservative set of values, with The Jakarta Post bemoaning a “new era in which illiberalism and religious conservatism prevail.”

For example, under the new law it will be illegal to insult a sitting president. This makes it extra difficult to organise peaceful protests, particularly protests against this law.

“There are also provisions that allow for law that’s not actually written in the criminal code to be applied. This is the so-called living law,” Professor Lindsay explains.

“This is quite dangerous because it means that judges can decide that there is a local tradition which is not in the criminal code, but is a living law, and that people should be charged and convicted for that.”

“There are new provisions that censor the dissemination of information about contraception and criminalise abortion, which can result in seven years in jail.”

“Laws on blasphemy that allow people who are members of religious minorities to be jailed for offending or insulting or blaspheming against another religion,” he continues.

“Then of course, the big one, which everyone’s been paying attention to in Australia.”


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Who Will Be Impacted By The Ban On Extramarital Sex?

That’s the prohibition on extramarital sex which includes the prohibition on couples living together who aren’t married.

Doing any of the above in Indonesia can now result to a year in prison. But will this impact tourists?

In most cases no, Professor Lindsey reckons. That’s because these particular provisions require a close family member, spouse, parent, or child of the people involved to make a report to the Indonesian police.

This is a real concern from a human rights perspective. It is, if you like, stealth legislation against gay people,” he said.

However, if a tourist from Australia who is involved in a sexual relationship with an Indonesian person, and their family objects to it, they could be reported to the police, he explains.

“These sorts of moral provisions that I’ve just described to you, they’re not really about going for foreigners. What they are about is about politicians asserting their credentials as champions of morality.”

“What this means is that the LGBTIQ+ Indonesians who are having have a sexual relationship, or even if they’re just living together outside marriage, can now be reported by members of their family who don’t approve to the police.”

This is a real concern from a human rights perspective. It is, if you like, stealth legislation against gay people.”

When Will The New Laws Take Effect?

While the bill was passed in Parliament with the support from all political parties, it still needs to go before the constitutional courts.

Professor Lindsey believes that there is a reasonable prospect that these laws could stay as is, because of recent crackdowns on constitutional judges challenging too many laws.

If the proposed reforms pass, they won’t take effect for another three years.

As for why the timing of the laws are of such a concern right now, Professor Lindsey puts it down to the upcoming election, with the country heading into an election period in February 2024.

“Campaigning will be well underway next year, and this will assist those politicians who are looking for support from religious groups, or moral groups and so on. I mean, that’s not an unknown thing anywhere in the world.”