Protection of the human rights of a child and a woman is a big challenge for all countries, including Indonesia. This is because Indonesia is a country that adheres to democratic principles, where one of the essential things contained in the principles of democracy is about freedom. This freedom is fundamental in fulfilling the human rights of a child and woman, especially in terms of security and respect for self-dignity. Regarding the right to security, children and women are more vulnerable than other parties in respect of losing their right to live in safety from all forms of violence, whether in the form of physical violence or psychological violence. Meanwhile, regarding respect for self-dignity, children and women are vulnerable parties to experiencing humiliation of their identity and even their own dignity.
This is one indicator of the violation of the right to security and respect for the dignity of children and women, because of the rooted patriarchal culture. Whereas the patriarchal culture in practice places the position of adult men as head of the family in an unequal degree when compared to the position of children and women in the family. In fact, this patriarchal culture extends to everyday social life, where often in certain societies, the position of men is considered to have a higher degree than that of a woman.
This patriarchal culture was institutionalized for decades, creating an inferiority in the position of children and women. Talking about the vulnerability of children and women in being the parties who experience violence due to this patriarchal culture, positive legal practices and social norms have not been maximally implemented. This refers to the provisions for prosecution of violence against children and women which refer to the Criminal Code (KUHP), Law Number 23 of 2004 concerning the Elimination of Domestic Violence (PKDRT Law), to the Law on Protection.
Referring to the provisions of Article 7 Paragraph (1) of Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage, a person reaches judicial maturity, at the age of 19 for both men and women. So it can be concluded that according to Indonesian positive law, a person can be classified as a child if they are under 19 years of age. However, although the legal maturity limit for a child has been determined based on the law, the provisions of Article 7 Paragraph (2), (3), and (4) of Law Number 16 Year 2019 regarding Amendments to Law Number 1 Year 1974 concerning Marriage provide space for someone who has not reached the age of 19 to marry so that it will indirectly be aligned with those who have reached the age of 19 or legal maturity. So that children in Indonesian positive law are those who have not reached the age of 19 years and are not bound by a legal marriage bond according to religious law and beliefs and have been recorded according to Indonesian positive law.
Therefore, the position of children becomes very vulnerable to violence from third parties because the position of children who are not yet mature, both physically and psychologically, will make the determination made by a child is not work optimally. In addition, if it refers to the side of legal protection for children from violence, it cannot be separated from the legal protection of a woman who is either married or not. The lack of maximum legal protection against violence experienced by children and women then initiated the National Legislation Program (Prolegnas) to draft a Bill on the Elimination of Sexual Violence (RUU PKS).
Initially, in the deliberation process, the Draft Law on the Elimination of Sexual Violence triggered divisions in society. Where the community groups that support the Draft Law on the Elimination of Sexual Violence state that the Draft Law on the Elimination of Sexual Violence is considered to be one of the legal norms that will maximize legal protection for children and women from violence that is possible. In addition, the Draft for the Elimination of Sexual Violence provides a clear legal construction regarding both physical and psychological violence.
Meanwhile, the group that rejected the Draft Law on the Elimination of Sexual Violence argued that the Draft Law on the Elimination of Sexual Violence was laden with liberal values and contradicts the values contained in Pancasila. But in the midst of this debate, it is necessary to underline several things from the Draft Law on the Elimination of Sexual Violence. There are at least three fundamental things that can be underlined regarding the Draft Law on the Elimination of Sexual Violence.
The first thing is when we understand that the Draft Law on the Elimination of Sexual Violence still uses the pattern of applying criminal sanctions to perpetrators as the main method of prosecuting perpetrators. In fact, in certain cases related to the case of children, the perpetrators have given additional punishment by carrying out chemical castration sentences. However, what needs to be understood is that in practice the actors themselves also have two classifications. The first classification is where the perpetrator is purely the perpetrator and the second classification is the perpetrator who is a victim of similar violence in the past. The two classifications actually show that although there are two different perpetrators of criminal acts of sexual violence against children and women with similar characteristics of acts, it requires taking action against the perpetrators using different methods. Where it is not wise to carry out a uniform form of punishment on two actors who have different classifications especially if the perpetrator is a victim in the past. This further confirms that legal norms have not worked optimally in restoring the condition of the perpetrator concerned when the perpetrator was a victim in the past.
The second thing is the protection mechanism for victims and families of victims of violence, both in terms of sexual violence and other forms of violence. In some factual cases that have occurred in the field, the safe house managers have even misused the safety of the victim and the psychological recovery of the victim. This shows that the regulation regarding victim protection mechanisms is still weak. In addition, generally, recovery is only aimed at victims and victims 'families, but this does not answer the problem in the community where the victims and victims families, do not share the same thoughts as in regards to heal the victim psychologically. This means after going through the recovery phase, the victim will fall back into a situation that places him as a separate part of society in general. The legal norm must be progressive to ensure that the law touches the community environment where the victim himself lives.
The third thing is the weak political communication of the authorities in conveying to the public about the Draft Law on the Elimination of Sexual Violence, which is currently being excluded from the list of the Prolegnas This shows the need for simple communication to the public to get the sociological binding power of a statutory regulation. Based on these three things, the Draft Law on the Elimination of Sexual Violence is a step to reform existing laws and strengthen legal protection for children and women in particular against forms of violence both in households and from third parties. However, it is also necessary to revisit these three fundamental things to be used as constructive suggestions in the substance of the Draft Bill on the Elimination of Sexual Violence in the future.