This article is a guide, and not to be taken as legal advice. Click here for more on sex and consent laws.

The changes not only apply to citizens of Indonesia but visiting foreigners such as Australians who visit on holidays.

The new laws prescribe a penalty of up to one year in jail for sex outside marriage. It foes further to also prohibit cohabitation between unmarried couples by imposing a penalty of up to 6 months imprisonment or a maximum fine of 10 million rupiahs ($1,046) for those found living together.

The new Bill also imposes a possible 12-month jail term for adultery.

“This prohibition applies to intercourse with someone who is not one’s husband or wife, so it appears to apply to any people who are unmarried or those who are married but have sex with someone who is not their spouse.” Professor Butt said.

Importantly, police may only prosecute and charge a person if the allegation is based on a police report made by a spouse, child or parent.

How can this apply to a tourist? If a tourist is in breach of these laws in Bali, for example, has consensual sex with an Indonesian national, the tourist can be arrested and imprisonment if it was reported to police by the Indonesian’s child or parent. These laws will also have a significant impact on the LGBTO+ communities in the country.

Other changes include the criminalisation of black magic, the promotion of contraception and extends upon laws relating to religious blasphemy.

The bill reinstates a ban on insulting a sitting president and vice president, state institutions and national ideology.

Under this, citizens found to be associating with organisations that follow Marxist-Leninist ideology could face a penalty of up to a 10-years imprisonment.

Citizens found to be spreading communism could also be imposed a penalty of up to 4 years imprisonment.

Any insults reported to the police towards the sitting president can now be punishable by up to 3 years imprisonment.

Under the new amendments, abortion remains a crime punishable by up to 4 years if it doesn’t satisfy the new exceptions.

These exceptions to allow abortion include women with life-threatening medical conditions and rape survivors if the foetus is within the first trimester (12 weeks).

Despite human rights recommendations concerning capital punishment, the revised criminal code still preserves the death penalty for criminal justice, however, offers a probationary period.

This probationary period provides that an individual has a 10-year period to determine if capital punishment is applicable.

The death penalty will be changed to either life imprisonment or 20 years imprisonment based on the good behaviour of the convict.


The Impact On Australians

The outlawing of pre-marital sex in Indonesia also applies to foreigners.

With many tourists that travel to Indonesia and specifically Bali, being predominately Australian, these new amendments must be followed, or individuals may be prosecuted.

According to Indonesia’s bureau of statistics, more than 1 million Australians visited Bali in 2021.

To be prosecuted for this now criminal offence in Indonesia, individuals and unmarried couples can only be prosecuted if a spouse, parent, or their children report the crime to Indonesian police.

“It is unlikely, in practice, to affect tourists travelling to Indonesia, provided that no such complaints are made to Indonesian police,” said Professor Butt.


Criticisms and Concerns of the New Changes

The changes to the law have sparked conversations of concern over the harm and violation of human rights that the new code facilitates.

“The state cannot manage morality. The government’s duty is not as an umpire between conservative and liberal Indonesia,” Law expert Bivitri Susanti said.

With most of Indonesia’s economy being driven by tourism, especially in Bali, individuals are concerned that the changes to the penal code will ultimately reduce visitors and therefore the economy will suffer greatly.

The national tourism board has depicted the code as “totally counterproductive” especially when Indonesia is still trying to recover following the pandemic.

There are concerns about social welfare for everyone, especially for minorities in the community.

“Indonesia’s draft criminal code is disastrous not only for women and religious and gender minorities but for all Indonesians,” Andreas Harsono, senior Indonesia researcher at Human Rights Watch, expressed in a statement.

The revised code has been condemned for infringing upon civil and political freedoms.

“We are going backward… repressive laws should have been abolished but the bill shows that the arguments of scholars abroad are true, that our democracy is indisputably in decline,” Usman Hamid, Amnesty International Indonesia director told the AFP.


Why the Code Has Been Revised

Since declaring independence from the Dutch n 1945, Indonesia has been considering the revision of its criminal code.

“The old code belongs to Dutch heritage… and is no longer relevant now” The head of the parliamentary commission, Bambang Wuryanto, communicated to politicians.

Recently in Indonesia, there has been an increase in religious conservatism with the predominant population being Muslim.

Albert Aries, the spokesperson of the Law and Human Rights Ministry’s criminal code bill dissemination team said the revised code allows for greater protection of marriage institutions.

In 2019, a similar bill was composed, and parliament had plans to ratify the new code however, President Joko Widodo advised parliament to postpone a vote due to the nationwide protests and public criticism.

The new revised criminal code will not take effect immediately, granting a three-year period to allow for the preparation of implementing regulations.

The court will still be able to challenge the changes in the revised code.


What Happens If You Commit a Crime In Another Country?

If you are found to have committed a crime in another country, 3 things can occur.

Firstly, you could be prosecuted under the law of the foreign country, subject to their legal system and the laws of the country in which the offence occurred.

This raises concerns about other countries’ legal systems that may inadequately provide protection of human rights as well as language barriers which can lead to miscommunication.

Secondly, if you have left the country you committed the offence, you may be extradited back to the country to be prosecuted.

Extradition is the process of preventing people accused of crimes from evading justice by leaving the country or jurisdiction where the crime is alleged to have been committed.

One country may request the other country to surrender a person residing in the other country so that the first country can charge that person to be dealt with according to their law.

In Australia, the law that governs this is the Extradition Act 1988 (Cth).

Australia has extradition treaties with many countries, whereby if a person meets the requirements, they will then be surrendered and sent to the country the crime was committed to face their criminal justice system.

Australia may refuse to allow extradition for the following reasons

  • The alleged offence is not recognised as an offence under Australian legislation
  • The offences in question are of political or military nature
  • If the individual has already been punished, pardoned, or acquitted for the same offence
  • If prejudice is likely to occur
  • If the extradition request is to punish due to factors such as religion, race, gender, sexual orientation, or political opinion.

Lastly, you may be prosecuted in Australia for the crimes you have committed elsewhere.

The Criminal Code Act 1995 (Cth) outlines various offences that are applicable to Australians even when you are not in the country.

It is crucial that individuals are aware of the laws of the country they visit to ensure they do not commit an offence.

By Alyssa Maschmedt and Jimmy Singh.

Published on 12/12/2022

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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