Uncertainty of Law Regarding
Restitution as Legal Protection for Child Victims of Sexual Violence
Universitas Borobudur,
Indonesia
[email protected]1,[email protected]2
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Abstract |
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This
study examines the legal uncertainty related to the implementation of
restitution as a form of legal protection for child victims of sexual
violence. The issues raised include unclear regulations, complicated
administrative procedures, and lack of support from law enforcement officers
in the process of submitting and fulfilling restitution. These conditions
often prevent victims from obtaining compensation that is their right
according to court decisions that have permanent legal force. This study aims
to analyze the legal uncertainty related to the implementation of restitution
for child victims of sexual violence in Indonesia, identify obstacles in its
implementation, and provide recommendations for improving the existing legal
system to create better legal certainty. This
study uses a normative legal method with a statute approach and a case
approach. The results of the study indicate that legal uncertainty regarding
restitution for child victims of sexual violence is caused by ambiguous
regulations, inconsistencies between applicable regulations, and complicated
administrative procedures. Support from law enforcement officers, especially
public prosecutors, is often less than optimal in facilitating restitution
applications by victims. In addition, limited socialization regarding victim
rights exacerbates uncertainty in the implementation of the law. This
study provides theoretical and practical implications in the development of
criminal law and child protection. Theoretically, this study enriches the
criminal law literature related to victims' rights and the implementation of
restitution. Practically, the results of this study can be a reference for
policy makers in formulating clearer and more implementable regulations. The
proposed recommendations include simplifying administrative procedures,
strengthening the role of prosecutors, and increasing the socialization of
victims' rights to create a more responsive and equitable legal system. Keywords:
Legal uncertainty, restitution, child protection, sexual
violence, administrative procedures, public prosecutor |
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Writer Correspondence : Merry Aryanti
Email:
[email protected]
INTRODUCTION
Phenomenon
violence sexual to child has appear as critical global issues, affecting
millions life in various context socio-economic and cultural
. Although There is convention international and law nationally
designed For protect rights children, many
countries still difficulty in enforcement steps law, especially related
restitution for child victims. Uncertainty law This become challenge big in
reach justice and ensure protection comprehensive for vulnerable children.
Violence
sexual to child is global issues that cross national borders. Convention Union
Nations on the Rights of the Child (UNCRC) requires member states For protect children from all form violence, including
exploitation sexual. However, even though There is framework Work international,
case violence sexual still happen with alarming levels. Interpretation
law that does not consistent and practice weak implementation to worsen
suffering of child victims. Report international show that only part small from
reported cases produce restitution law, highlighting global failure in
to uphold rights child in a way effective.
Indonesia
faces challenge big in handle complexity law related restitution for child
victims from violence sexual. Although Constitution national like Law no. 35 of
2014 concerning Child Protection regulates right restitution, still There is
gap in its implementation Because interpretation fragmented laws and
mechanisms weak enforcement. Verdict court often varies , so that many victims do not get compensation or
adequate support. Studies
Study
about protection law and restitution for child victims from violence sexuality
in Indonesia is quite wide, but still show ongoing challenges ongoing.
More
carry on ,
Handle
uncertainty law in restitution for child victims from violence sexual
urgency Because implications social, psychological, and legal aspects.
Restitution No only functioning as compensation but also as means restore
dignity of victims and promote justice social . Framework failed law
ensure proper restitution time and adequate will perpetuate injustice
systemic and inhibiting progress public.
Need
will study This the more emphasized by research
RESEARCH METHOD
In
research this, method research used is approach law or approach law,
which can also called as study law normative. This
process aiming For identify rule law, principle law,
and doctrine law For overcome problem law related uncertainty law in
implementation restitution as protection for child abuse victim sexual, as well
as obstacles and efforts For create certainty law related restitution as
protection for child abuse victim sexual.
Population
in study This covering regulation relevant legislation, such as the TPKS Law,
the Criminal Code, and regulations related protection child. Selected sample
covering decision court, policy government, and reports from institution
related such as LPSK and the Prosecutor's Office. Data is analyzed in a way
qualitative with method analysis content . Data obtained from source primary
and secondary law compared to For identify
inconsistency laws and obstacles in implementation restitution.
Collection
Techniques, Literature Study, Through study about
regulation legislation, books, journals scientific, articles law, and reports
official. Documentation, Using data from decision
courts, policies and reports official institution related. Case Analysis, Examining case law current For understand implementation
restitution in practice law.
RESULTS AND DISCUSSION
Uncertainty
in the Implementation of Restitution as Protection for Child Victims of Sexual
Abuse
Sexual violence against
children is a serious crime, not only because of its harmful physical,
psychological and social effects, but also because it involves human rights
violations. Given its complexity and severe impact, the protection of child
victims of sexual violence must be a top priority, with restitution serving as
an important mechanism in the healing process. Restitution is a form of compensation
given by the perpetrator to the victim or their heirs based on a legally
binding court decision. Restitution plays an important role in providing
protection for child victims of sexual violence, as it not only includes
financial compensation but also acknowledges the suffering experienced by the
victim.
Sexual violence against
children is a very serious problem that involves more than just a criminal act.
The impact of this violence is not only felt physically but also affects the
psychological and social conditions of child victims. Children who experience
sexual violence often face deep trauma, which can affect their mental and
emotional development. In addition, this act also violates human rights,
ignoring the dignity and integrity of children as individuals who deserve
protection. Therefore, the protection of children who are victims of sexual
violence must be prioritized in the legal system and government policies.
Regarding the recovery of child victims, restitution serves as a vital
mechanism. Restitution not only provides financial compensation but also acts
as an official recognition of the suffering experienced by victims. Through
restitution, victims are given the opportunity to receive compensation for the
losses they have experienced, both physically and emotionally. This process
helps child victims feel that efforts are being made to right the wrongs done
to them, which, in turn, can contribute to their healing and recovery.
Restitution is granted
based on a legally binding court decision, providing a strong legal basis for
victims to obtain their rights. Although there are legal provisions governing
restitution, the process of applying for and implementing it is often complicated
and not easily accessible. Therefore, it is imperative to ensure that the
procedures related to restitution are simplified to make them more
understandable and accessible to victims, especially children who may not have
adequate knowledge of their rights. Restitution also reflects the state's
commitment to protecting the rights of children and providing justice for those
who are victims of sexual violence. By strengthening the restitution mechanism,
it is hoped that the state can demonstrate its concern for this issue and
ensure that child victims receive not only the protection but also the justice
they need to restart their lives.
This effort not only
covers the legal aspect, but also involves education and public awareness so
that children feel empowered to report and get the protection they need. To
create a safer environment for children, it is essential for all parties,
including the government, legal institutions, and the community, to work
together to support child victims of sexual violence. Protection, recovery, and
restitution must be an integral part of the legal system and public policy, so
that children who experience sexual violence can undergo a better recovery
process and get the justice they deserve.
In Indonesia, the
provisions for restitution are regulated by Article 184 of the Criminal
Procedure Code, which states that restitution can be given to victims of crime
as compensation for material and/or immaterial losses suffered. The government
has made various efforts to improve the fulfillment of the right to restitution
for child victims of sexual violence, one of which is the enactment of Law
Number 12 of 2022 concerning Criminal Acts of Sexual Violence (UU TPKS), which
regulates restitution more comprehensively. The TPKS Law stipulates that
restitution can be given as compensation for losses suffered by victims,
including the mechanism for confiscation and auction of the perpetrator's
assets as collateral for restitution payments.
If the perpetrator's
assets are insufficient, the TPKS Law also regulates substitute sanctions and
involves the state in providing compensation to victims through aid funds.
Restitution for victims of sexual violence is detailed in Articles 30-37 of the
TPKS Law, which outline the forms, mechanisms, and sources of restitution
payments. Restitution can include: a. Compensation for loss of property or
income b. Compensation for suffering directly related to the crime of sexual
violence c. Reimbursement of medical or psychological care costs d.
Compensation for other losses. The mechanism for providing restitution is
explained in Article 31 of the TPKS Law, which states that a request for
restitution can be submitted by the victim to the investigator, prosecutor, or
judge.
Article 10 of the Child
Protection Law (UU SPPA) regulates compensation through a diversion mechanism
for cases with a criminal threat of less than 7 years, excluding repeated
violations as explained in Article 7 Paragraph (2). Article 69 Paragraph (2) of
the Child Protection Law states that perpetrators of child crimes can be
subject to two types of sanctions, namely acts for perpetrators under 14 years
of age and criminal penalties for perpetrators aged 15 years and over. Although
this law does not specifically outline the granting of restitution rights to
victims, the rights of victims are mentioned in the context of reconciliation
through diversion, with the consent of the victim and/or his/her family,
including an assessment of the losses suffered. According to Article 81
Paragraph (2) of the Child Protection Law, children can face a maximum prison
sentence of half the prison sentence applicable to adults.
Thus, for sexual
violence crimes committed by child defendants, the maximum prison sentence can
reach 7.5 years. This exceeds the threshold that allows the application of
diversion. Therefore, diversion cannot be applied to child perpetrators who
have violated Article 76D of Law Number 35 of 2014 concerning Child Protection
because they do not meet the first requirement set out in Article 7 Paragraph
(2) of the Child Protection Law. If the diversion mechanism cannot be
implemented, imprisonment is the last option in handling cases of child sexual
violence perpetrators through the trial process. However, judges will try to
avoid imposing prison sentences on children, and as an alternative, can impose
sanctions in accordance with the provisions of Article 82 Paragraph (1) of the
Child Protection Law.
In Government Regulation
Number 7 of 2018 concerning Compensation, Restitution, and Assistance to
Witnesses and Victims, it is stipulated that the application for restitution is
made by the victim or a representative representing the victim. This submission
process must be carried out by the victim themselves by completing various
documents that are rather complicated in terms of administration and require
costs. With this provision, the victim or their representative is required to
play an active role. Meanwhile, in the Attorney General's Guidelines Number 1
of 2021 concerning Access to Justice for Women and Children in Criminal Cases,
there is no guarantee that the prosecutor will actively assist in completing
the administration of the restitution application; it only mentions the
components of the required documents, along with the consequences for the
victim or their representative if the required documents are not completed
within the specified time period. In addition, there are no clear provisions regarding
the procedure for calculating immaterial losses experienced by the victim,
making it difficult for the public prosecutor to determine it. Ideally, the
calculation procedure should be publicly accessible to ensure accountability in
determining the victim's losses.
Article 35 Paragraph (1)
of the TPKS Law states that if the property confiscated from the convict is
insufficient to cover the cost of restitution, the state will provide
compensation to the victim in accordance with the court's decision. However,
currently there is no clarity regarding the parties who are actively applying
for compensation for victims from the Victim Assistance Fund. Therefore, in the
government regulation on the Victim Assistance Fund, it is necessary to clarify
the technical aspects related to who can apply, the application requirements,
and the purpose of applying for compensation, which is restitution that has not
been paid by the perpetrator. Based on Article 33 Paragraph (3) of the TPKS
Law, the execution process still burdens the victim to report to the court if
the perpetrator does not immediately and voluntarily comply with the legally
binding court order to pay restitution.
The perpetrator is still
given time to fulfill his/her obligations after receiving a copy of the court
order for payment of restitution that has legal force. The process of
confiscation of restitution and auction awaits the issuance of a court warning
letter to the perpetrator, and this stage takes more than 30 days. Given the
weaknesses in this regulation, the TPKS Law is expected to make it easier for
victims to obtain restitution immediately, where the Public Prosecutor is
responsible and authorized to carry out the execution. Thus, it is hoped that
victims can receive payment without experiencing additional burdens. This
obligation must be the responsibility of the Public Prosecutor's Office or the
Victim Protection Agency (LPSK), ensuring that the fulfillment of restitution
does not solely depend on the victim but also involves proactive actions from
the Law Enforcement Agency and/ or LPSK.
The uncertainty in
implementing restitution as protection for child victims of sexual abuse is a
serious challenge in the existing legal system. Although there are regulations
governing restitution, such as Law Number 12 of 2022 concerning Criminal Acts of
Sexual Violence (UU TPKS), many provisions in this regulation are still
ambiguous and unclear. This raises doubts in its implementation, both for
victims who wish to apply for restitution and for law enforcement officers
tasked with enforcing this regulation.
Lack of clarity
regarding the mechanisms, procedures, and timeframes required to obtain
restitution often leaves victims feeling hopeless and helpless. This
uncertainty is further exacerbated by the lack of public outreach and
understanding of their rights. Many victims, especially children, are unaware
that they are entitled to restitution, let alone the procedures they must
follow to file a claim. Without adequate knowledge, victims tend to be
reluctant to report or file for restitution, which negates their right to
compensation for the losses they have suffered. This suggests that not only
clear regulations but also accessible information are essential to ensure
effective implementation of restitution.
The uncertainty of
restitution implementation is also caused by complicated administrative and
bureaucratic factors. The restitution application process, which involves many
documents and complicated procedures, often becomes a barrier for victims
seeking their rights. In some cases, victims or their representatives have to
spend significant costs to fulfill administrative requirements, adding to their
psychological burden. In this context, the legal system must be able to respond
by providing simpler and more accessible procedures so that restitution can be
implemented effectively. Support from public prosecutors and related
institutions is essential to ensure the smooth running of the restitution
process.
Unfortunately, in many
cases, public prosecutors are not always proactive in assisting victims in
applying for restitution, which can result in delays and uncertainty in the
process. Without adequate support, many victims feel trapped in an inadequate
system, reinforcing their feelings of hopelessness and helplessness. The
uncertainty in implementing restitution as a protection for child victims of
sexual abuse underscores the urgent need to revise existing regulations,
simplify administrative procedures, and increase support from public
prosecutors and related institutions. Only through these steps can victims hope
to experience the justice and protection they deserve, and their rights as
victims of sexual violence be effectively fulfilled.
Obstacles and
Efforts in Creating Legal Certainty for Restitution as Protection for Child
Victims of Sexual Abuse
One of the main
challenges in creating legal certainty for restitution for child victims of
sexual abuse is the ambiguity of existing regulations. Many provisions in the
law do not provide sufficient details regarding the procedures and mechanisms
for restitution. This includes the lack of clear operational guidelines on how
victims can apply for restitution, as well as the steps that need to be taken
to ensure that their rights are recognized and protected. This ambiguity often
causes confusion for victims and related parties, including law enforcement
officers and child protection agencies. Without clear procedures, the process
of applying for restitution becomes complicated and can result in delays in
fulfilling victims' rights. Victims who should be able to quickly obtain
restitution for their losses are instead faced with unnecessary bureaucratic
obstacles. This not only reduces victims' trust in the legal system, but can
also add to the psychological burden they already face due to their traumatic
experiences.
The lack of clarity in
the regulations also hampers the efforts of public prosecutors and law
enforcement officers in carrying out their duties. They may feel that they do
not have adequate guidelines to effectively assess restitution cases, leading
to inconsistencies in the application of the law. As a result, despite having a
legal basis for granting restitution, its implementation is inconsistent and
highly dependent on individual interpretation, potentially resulting in
injustice to victims.
One significant barrier
to ensuring fair access to restitution for child victims of sexual abuse is the
administrative difficulties that often arise during the application process.
This process often involves gathering a variety of complex and sometimes costly
documents, which can be a major barrier to victims seeking to access their
rights. Documents required to apply for restitution typically include police
reports, medical evidence, and other supporting documentation that can prove
the harm suffered by the victim. For children, especially those from
economically disadvantaged backgrounds or families with little understanding of
the legal system, gathering these documents can be a particularly challenging
task. A lack of understanding of the legal procedures and documents required
can leave victims feeling discouraged and ultimately choosing not to pursue the
restitution application process.
The costs associated
with filing for restitution�such as administrative fees, legal fees, and even
transportation costs to court or related institutions�can be an additional
burden for victims and their families. In many cases, children may lack the
financial resources to cover these costs, leaving them powerless to assert
their rights. This exacerbates the injustices faced by child victims, who
should receive protection and redress but instead face barriers that add to
their psychological and emotional burden.
Another significant
obstacle in the process of filing for restitution for child victims of sexual
abuse is the lack of active support from public prosecutors. Although public
prosecutors play an important role in the justice system in protecting the
rights of victims, there is often no guarantee that they will be actively
involved in helping victims complete the necessary administrative tasks. This
situation can cause delays in the restitution filing process and ultimately
hinder victims' recovery. In many cases, victims who try to file for
restitution are faced with a variety of complicated administrative
requirements. When public prosecutors do not provide adequate support, victims
are left to struggle alone to understand the complex legal process.
Uncertainty about what
documents need to be prepared and what procedures to follow can lead to
confusion and frustration, especially for children who may lack knowledge or
experience in these matters. This can potentially leave victims feeling
overwhelmed and giving up on pursuing justice. Without adequate support from
the public prosecutor, the risk of delays in the legal process increases.
Victims may be forced to wait a long time to receive a decision regarding their
restitution, which can worsen their psychological condition after experiencing
trauma. These delays can also be detrimental to victims in terms of financial
recovery, as restitution is designed to compensate them for their losses.
Therefore, it is crucial for the public prosecutor to act not only as an
enforcer of the law but also as a facilitator who helps victims navigate the
legal process to obtain their rights.
The restitution
execution process for victims of sexual abuse, especially children, often adds
to the psychological burden they already face due to trauma. In many cases,
victims are required to report to the court if the perpetrator fails to fulfill
their obligation to pay restitution. This obligation not only requires victims
to be further involved in the legal process, but also forces them to face the
perpetrator directly or indirectly, which can trigger a recurrence of their
trauma. This situation creates a highly undesirable situation for victims, who
should be focused on recovering from their traumatic experiences. Requiring
victims to take active steps in reporting violations of court orders can
increase the stress and anxiety they already experience.
This process often
requires not only courage and mental strength, but can also foster a sense of
injustice for victims, as if they must continue to fight for their rights even
after experiencing painful experiences. The uncertainty in the execution process
can worsen the psychological condition of victims. If the perpetrator fails to
pay restitution promptly, victims may feel abandoned by the legal system that
is supposed to protect them. Feelings of hopelessness and frustration can make
them doubt the efficacy of the legal process and reduce their trust in legal
institutions. As a result, many victims may choose not to report the
perpetrator's non-compliance, which in turn will hinder the fulfillment of
their rights. right restitution they .
Regulatory improvements
are an important step in creating legal certainty for victims of sexual
violence, especially children. In the context of Law Number 12 of 2022
concerning Criminal Acts of Sexual Violence (UU TPKS) and Law Number 11 of 2012
concerning the Juvenile Justice System (UU SPPA), revisions are needed to
provide a more detailed explanation of victims' rights and restitution
mechanisms. Clear and comprehensive regulations will make it easier for victims
to understand their rights and simplify the process of submitting and
disbursing restitution. One focus of regulatory improvements is to ensure that
victims' rights are explicitly stated in the law.
Including regulations on
restitution application procedures, requirements that must be met, and steps
that must be taken by authorities to support victims in obtaining their rights.
With clearer guidelines, it is hoped that victims will find it easier to
navigate the legal process and feel more protected in dealing with difficult
situations. The revised regulations should include provisions on the active
role of public prosecutors in assisting victims. Currently, there is no
guarantee that public prosecutors will provide administrative support in
restitution applications.
In this context, there
needs to be a provision that requires public prosecutors to actively
participate in the restitution application process, so that the administrative
burden does not fall entirely on the victim. This will reduce the challenges
faced by victims and ensure that their rights are met. Improvements must also
be made regarding the restitution execution procedure. Existing regulations
must consider the psychological needs of victims by providing more humane
alternatives in the execution process. For example, involving child protection
agencies or other agencies in the restitution execution process could be a
positive step. Thus, law enforcement is not solely the responsibility of the
victim, but also involves various stakeholders, creating a system that is more
responsive to the needs of victims.
Simplifying
administrative procedures for restitution applications is an important step to
ensure accessibility and efficiency for victims of sexual violence, especially
children. Complicated and bureaucratic application processes often act as
barriers for victims in obtaining their rights. Therefore, developing simpler
and clearer procedures can reduce the barriers faced by victims and their
representatives in obtaining restitution. The first step in simplifying these
procedures is to identify and reduce the number of documents required for
restitution applications. The current administrative process that requires
extensive documentation can often prove challenging, especially for victims who
may have experienced trauma or limited resources. By minimizing the required
documents, the application process can be expedited, making it easier for
victims to exercise their rights without feeling burdened by complicated
requirements. It is also important to provide clear and easy-to-understand
guidance on the steps involved in applying for restitution.
This can be achieved by
offering comprehensive information through various channels such as the
official website of the relevant agency, brochures, or help centers. Clear and
accessible information will help victims and their representatives understand the
procedures that need to be followed, allowing them to navigate the legal
process with more confidence. The use of technology can also be an effective
tool in streamlining administrative procedures. By utilizing digital platforms,
restitution applications can be submitted online, reducing the need to
physically visit legal institutions. This not only makes the process faster and
more efficient but also provides comfort for victims who may feel anxious or
uncomfortable about going to court or place law other .
Awareness campaigns and
legal education on victims� rights and restitution mechanisms are essential in
raising public awareness. Many victims of sexual violence, especially children,
do not understand their rights in the legal system. This lack of knowledge
often makes them hesitant to report or seek justice. By conducting
comprehensive outreach programs, including seminars, workshops, and the use of
social media, the public can be more clearly informed about their rights and
the steps required to obtain restitution.
Legal education can also
be conducted in schools and communities. By involving children and adolescents
in human rights education, they will become more aware of the importance of
protecting themselves from violence and abuse. In addition, they will also be
better prepared to report if they or their peers become victims of sexual
violence. These programs should be designed with an approach that is
appropriate to the age and cultural context to ensure that the message is well
received. Socialization campaigns can also involve parents, teachers, and
community leaders to create a supportive and safe environment for children. By
creating a safe space where children feel comfortable discussing their
experiences, we can encourage more victims to come forward. Increasing public
awareness of victims' rights and restitution mechanisms can also encourage
community support, thereby building a better network of protection for
children.
CONCLUSION
The importance of
improving regulations and simplifying administrative procedures is crucial in
ensuring legal certainty for child victims of sexual abuse in the restitution
process. The lack of clarity in regulations and complicated administrative
obstacles pose significant challenges for victims in asserting their rights,
which has the potential to worsen their psychological and emotional conditions.
Therefore, a revision of the Law on Sexual Violence Crimes and the Juvenile
Justice System is needed to provide a clear explanation of victims' rights and
restitution mechanisms, as well as to ensure the active involvement of public
prosecutors in supporting the application process. In addition, simplifying
application procedures and utilizing digital technology in administration can
increase accessibility for victims. Awareness campaigns and legal education on
victims' rights are also important steps to raise public awareness and create a
supportive environment, allowing children to feel safe and empowered to report
the violations they have experienced. With these steps, it is hoped that the
restitution system will be more responsive, fair, and effective in fulfilling
the rights of child victims of sexual violence, while also helping them in the
process of recovering from the trauma they have experienced.
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