Handling Violence Against Women Cases in Litigation Process

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by. Susi Eja Yuarsi

Introduction

Issues related to violence against women have been a major concern of gender research in the past couple of years. There are at least two tendencies can be observed. First, the enlargement of the scale of the violence that place in the society, both in terms of type of violence and actors involved. Second, the degree of intensity of violence which explain the acuteness of the violence practice and impact. Violence against women have been happened in every part of the world and usually have been done by men. Everett Kopp note that in 1989, nine of ten murders in USA were done by men. In Bosnia, at least 20.000 Bosnia’s women were raped by military of Serbia (Jurnal Perempuan, 1999: 25).

In Indonesia, the degree and intensity of violence against women cases is significantly increased. The data from Mitra Perempuan shows that in every 5 hours, there will be 1 case of rape (Arivia, 1998: 7). Although the cases are significantly increased both in degree and in the intensity, the government have not yet give serious attention to the violence against women cases. The punishment for the actor is relatively simple. The low level of punishment cause women feel insecure in their lives.

The concern about violence against women start to be more serious. In Beijing conference 1995, violence against women issue has been filed into one of 12 critical issues. Indonesia response the result of the conference through make a draft of eradication of violence against women. This draft was designed by some Goverment Organizations (GO’s) and Non-Goverment Organizations (NGO’s). The core of the draft National Plan for Elimination of Violence Against Women (RAN PKTP) are: (1) to enhance the responsibility of people to stop and never tolerate violence against women, (2) to increase human rights in order to be able for people, especially women to live safely, and (3) to build collaboration to protect and eradicate violence against women, and (4) to find out the strategy to solve the problem of violence against women and the fairness will be attempted, including to punish the actor and give protection for the victims.

Although RAN PKTP has been available, in the reality an integrative process of violence against women handling has not been applied yet. The lack of gender sensitivity of some apparatus of law institution sometimes cause women who became victims of violence felt that they are not being treated as fair as they hope. Theoretically, violence against women will be reduced automatically when gender sensitivity of society is increased. The increase of gender sensitivity of law institution apparatus will take an important role in the elimination of violence against women.

Conceptual Framework

Johan Galtung explain that the terminology of violence is derived from Latin language; vis mean as power and latus mean as bringing. Textually, violence mean power to bring (Windu, 1992). Violence can be understood as connection between someone who has power (subject) to bring other parts (object). In relation with his terminology, violence significantly correlates with power. Violence against women is understood as the cases which are happened because of inequality of power between men and women.

Patriarchy as an ideology which is based on “male norms” is a source of gender bias (Basin, 1996:1). This behaviour placed women in subordinative and marginal position which is possible to be controlled by men. The control can be appear in the restriction of social space, positioning of women and the norms to behave. Patriarchy basically happened in domestic sphere, but it extent to public sphere where women begin to get access to public sphere. Violence will be happened when women are considered as stepping outside the cultural norms.

Violence against women can be differentiated in two kinds, namely sexual violence and nonsexual violence. Sexual violence is violence which consists of sexual desire of the actor and unwelcome by the victims (Rubenstein, 1992 :2). This kind of violence can appear in many format, both as verbal and nonverbal which is included threaten or intimidation, torture and murder (Brison, 1995:12). Violence against women can also appear in many other formats such as sexual harassment, rape, rape with torture, rape with murder, and women are forced as commercial sexual worker. The understanding of violence against women increasing from times to times and this definition is legitimated internationally.



Handling of Violence Against Women Cases

Violence against women cases tend to be handled by family or community. Only few of the cases are handled by law institution. Usually, people choose law procedure to handle violence against women cases if the cases are considered as serious problem such as rape or torture. The other victims tend to keep the problem and did not bring the cases into law process.

In some provinces, many cases of violence against women were brought into traditional institution (lembaga adat). Cultural aspects became reason cause people to handle violence against women without bringing into law process:

1. In Papua

In this region, violence against women tend to be handled by traditional institutions. These cases are considered as shameful and because of this perception, the experience of violence against women need to be hidden from public. If the victims tell police or process the cases into litigation process, the cases are possible to be published. To avoid from this publishment, people prefer to bring such cases to traditional institution. The traditional institution have regulation to solve the problem and usually the punishment for the actor of violence is giving some amount of money or cattle.

2. In South Sulawesi

Violence against women are considered as breaking siri’ and because of these cases hurt family honor, the problem tend to be solved by traditional institution.

3. In North Sumatera

In this area, there are many ethnics, but the dominant ethnic is Batak. Batak ethnic have such family name (marga). Violence against women will cause problem for at least two family (marga), the marga of the victims, and the marga of actors. The marga of victims will fell loose of their face if one of their member experience rape. In contrary the family of actor will angry and shy when their member did rape. Because the experience of rape cause both family feel loose of their esteem, both family tend to hide the problem.



Except the cultural reason, in general, violence against women cases tend to be handled without using law procedures because of some reasons i.e: (1) there was a perception that violence against women experience is shameful experience. This perception cause the victim tend to hide the experience from public, (2) most victims did not understand how and where they can report their case, (3) there was a doubt that the cases will not be proceed as fair as victims want.

The research finding in 4 provinces (Papua, South Sulawesi, Yogyakarta Special Region, and North Sumatera) indicated that there are at least three main problem related with barriers and opportunities in handling violence against women cases in litigation procedure: (1) Law Construct (2) Law Apparatus (3) Perception of the Victims and Society.



Law Construct

In law rules or KUHP (Kitab Undang-undang Hukum Pidana), violence against women tend to be considered as a moral breach. Such infringement can disturb individual or society. Because violence against women mostly are considered as a moral breach, the punishment which give to the actors are vary since the understanding of moral or ethical are vary.

Law construct which is only use the maximum punishment disadvantage for the victims. In many cases, judge tend to give punishment far less than the maximum punishment. In rape case which the maximum punishment is 12 years putting in prison, but in the reality, the judge only give punishment for one or two years or several months. The judge can give the light punishment to the actor of violence against women because there was no minimum the length of punishment. Except there were no minimum regulation of punishment for the actor, the absent of specific regulation for violence against women case can cause the low punishment for the actor of violence. It is because in many cases, unsuccessful rape is considered as ethical infringement, so the actor is only snared with light punishment.

The condition is less favorable for women as the victims of violence since there is no regulation which can protect the victims from psychological burden during investigation or in trial.



Law Apparatus (Law Institution Personnel)

The doubtness that the cases will not be proceed fairly (as the victims want) is one point that need to be noted. The number of cases which were being proceed in litigation process is less than the number of violence against women cases. The law institution personnel take important role in this tendency. The lack of gender sensitivity caused the victims were more suffer when they had to process the cases in litigation procedures. In the reality, some victim of violence against women became the victims for twice when they proceed the cases in law process. The lack of gender sensitivity of law apparatus caused the victims did not get empathy, but they were being harassed when they were interviewed in the process of filing complaint to the police and also when they were in court. Research finding indicated that some law institution personnel did not treat the victims respectfully. In the interviews, some law apparatus tend to blame the victim by explain the how the victim wearing dress. Implicitly, the personnel had perception that the victims take important role in emerging the cases. Some questions such as: “who undress your pants?” or “do you enjoy that sex right?” indicated that such perception were available. The empathy that such questions will cause the victims felt worse and unsatisfied sometimes were neglected by the personnels.

The light punishment giving to the actor of violence against women is also one cause why women reluctant to proceed their cases through law institution. In one case, an old man who rape his step granddaughter was only sentenced to jail for 4 years. The reasons was because the actor was quite old and the purpose of punishment was only to deter the actor.



Perception of Victims and Society

The experience of being harassed or being raped for many people are considered as a shameful experience. Because of such perception, many victims tried to hide this experience from public, even from their family. At least, there are three problem caused the victims tend not to report to police: first, the experience of violence against women are considered as individual problems. Because of this consideration, family or community tend to handle this problem, second, most people did not aware that they have rights to be protected by law, and third, a shameful feeling when their cases will be known by public. In violence against women, there were a dilemma. If the victims tell the complaint to the policy, they have to take some consequences, (1) public will know about the cases and it will cause the victims and their family loose face, (2) the procedures usually is relatively complicated in the procedure may be cause women more suffer. When women did not tell to the police, the actor will continue to find other victims.

Some law apparatus tried to suggest women to withdraw their cases when the cases are due to domestic violence. They tend to give awareness to women that if the actor (husband) sentenced to jail, their family will be suffer. They suggest that it will be better if women forgive their husband. A part of society also tend to perceive that the problem of domestic violence should be solve by the family. The worry that the case will being published, social pressure, and the suggestion of law apparatus caused some women withdraw their cases. They did not continue to proceed the cases into law procedures.



Conclusion

Litigation process is being used rarely to handle violence against women cases. The victims and society tend to handle the cases by using traditional institution or handle by themselves. There are many reasons causes this tendencies. The doubtness to access litigation system is one of the causes. The victims doubt that the process will not satisfied because of lack of gender sensitivity of the law personnel which causes the victims suffer caused by indecent questions. A long procedure and the possibility that their cases will be known by public is other reasons why the victims are reluctant to take law process. For many victims, the experience of violence against women are considered as a shameful experience. Because of that reason, the victims tend to hide it from public. Another reason which cause victims did not know how to process their cases. Gender mainstream need to be socialized in law institution in order to help victims in getting better treatment in law procedure.



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