Legal Protection of Victims of Domestic Violence

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Published on International Journal of Law
Publication Date: March, 2020

Huda Febriant Nafasha & Rastra Samudra Perdana
Faculty of Law, University of Jember
Jember, East Java, Indonesia

Journal Full Text PDF: Legal Protection of Victims of Domestic Violence.

Abstract
The purpose of this research is to find out how the legal protection of victims of domestic violence in this case is closely related to Law No. 23 of 2004 concerning the Elimination of Domestic Violence, as well as the implementation of Law No. 23 of 2004 in an effort to provide protection for victims of domestic violence in the judicial process and what are the obstacles to law enforcement in implementing protection for victims of domestic violence, where by using normative legal research methods it is concluded that: 1. Legal protection against victims of domestic violence according to Law Number 23 of 2004 concerning the Elimination of Domestic Violence is needed because all forms of violence, especially domestic violence, are violations of human rights and crimes against human dignity as well as forms of discrimination. 2. In its implementation, the PKDRT law actually criminalizes victims of violence, especially because law enforcement officials do not consider the relationship between husband and wife and children, or other family members as victims in implementing this law. As a result, victims of domestic violence do not get their rights. Victims’ efforts to seek justice face various obstacles. 3. Constraints on Law Enforcement in the Implementation of Protection Against Victims of Domestic Violence, namely: a. Domestic violence is often not reported to the police, because victims feel ashamed to open up household problems to other parties; b. If a case already has a complaint, the victim often withdraws the complaint and intends to settle the case in a family way; c. The handling of cases of domestic violence has not proceeded in accordance with the laws and regulations as a result of the process of examining cases on the part of the police that has not gone well..

Keywords: Legal protection of victims, domestic violence, laws and regulations.

1. Introduction
Violence has become a phenomenon in people’s lives in Indonesia. Violence occurs not only in public areas, but also rife in domestic areas that give birth to domestic violence. Ironically in various cases of domestic violence, women, especially wives are victims. Husband and wife relations are ideally built in an atmosphere of harmony and happiness, but many wives experience violence from their husbands, both physical, psychological, sexual and economic violence.
In its development, victims of domestic violence find it difficult to bring the suffering they experience to law enforcement, due to the strong view that the abusive treatment of husbands to wives is part of private events (domestic affairs), and cannot be reported to the police. So that the suffering of victims of domestic violence (wife) prolonged without protection. Legal protection for victims of domestic violence is very important given the physical and psychological suffering suffered by victims due to the perpetrators’ actions. The implementation of legal protection needs to involve the government, community, social institutions, legal aid institutions to provide security for victims and free from the threat of physical and psychological violence during their recovery. Crimes of domestic violence can cause victims either due to physical, psychological, sexual violence or neglect, so that efforts are needed to protect victims, including physical and psychological health recovery. For perpetrators of domestic violence, law enforcement efforts are needed in resolving cases of violence through the judicial process. Formulation of the problem;
a. How is the legal protection for victims of domestic violence according to Law Number 23 of 2004?
b. How is the implementation of Law Number 23 of 2004 in an effort to provide protection for victims of domestic violence in the judicial process?
c. What are the obstacles to law enforcement in implementing protection for victims of domestic violence?
Purpose;
a. To find out the legal protection of victims of domestic violence according to Law Number 23 of 2004.
b. Knowing the implementation of Law Number 23 of 2004 in an effort to provide protection for victims of domestic violence in the judicial process.
c. Knowing the obstacles of law enforcement in implementing protection for victims of domestic violence.

2. Legal Protection of Victims of Domestic Violence according to Law Number 23 of 2004
Legal protection according to Satijipto Raharjo, Legal protection is “providing protection for human rights harmed by others and that protection is given to the public so that they can enjoy all the rights granted by law”. Victims of domestic violence receive legal protection from a preventive aspect as in article 351 of the Criminal Code (KUHP) and the PKDRT Law. Preventively, victims of legal protection can take legal action by reporting perpetrators of criminal acts within the household environment to be followed up as perpetrators of criminal acts in domestic violence.
In broad outline, it can be stated that legal protection can be distinguished in 2 (two) terms, namely:
1. Juridical protection which includes protection in:
a. The field of public law;
b. Civil law field;
2. Non-juridical protection includes;
a. Social sector;
b. Health;
c. Field of education.
A said as an action or action, if the action has been formulated in advance as a criminal act. This is regulated in Article 1 paragraph (1) of the Criminal Code which stipulates “no act may be punished, but on the strength of criminal provisions in the law, which existed earlier than that act”, known as the principle of legality. The provisions of Article 1 paragraph (1) of the Criminal Code contain:
An act can be convicted if it includes criminal provisions according to the law. Therefore, punishment based on unwritten law is not possible;
1. Criminal provisions must first exist from the act. in other words, the criminal provisions must have been valid when the act was committed.
Law Number 23 of 2004 concerning the Elimination of Domestic Violence, states the protection of victims’ rights, as stipulated in Article 10, victims are entitled to:
a. Protection from family, police, attorney’s office, court, advocate, social institution, or other party either temporarily or based on stipulation of protection order from court;
b. Health services according to medical needs;
c. Handling specifically related to the confidentiality of the victim;
d. Assistance by social workers and legal assistance at every level of the inspection process in accordance with statutory provisions; and
e. Spiritual guidance service.
In the context of protection of victims of crime, there are preventive and repressive measures carried out, both by the community and the government (through law enforcement officials), such as providing protection or supervision from various threats that can endanger the lives of victims, providing adequate medical assistance, or the law. The fair trial and trial process of the perpetrators of crimes is basically one of the manifestations of the protection of human rights and a balancing instrument. Here is the philosophical basis behind the importance of protection for victims of crime or their families. The importance of victims receiving recovery as an effort to balance the condition of victims who have been disturbed, Muladi explained more broadly, that victims of crime need to be protected because:
First; Society is considered as a form of institutionalized belief system (system of institutionalized turst). This trust is integrated through norms that are expressed in institutional structures, such as the police, prosecutors, courts, and so on. The occurrence of crime against the victim will mean the destruction of the belief system, so that the regulation of criminal law and other penalties concerning victims as a means of controlling the belief system earlier.
Second; The existence of social contract arguments and social solidarity because the state can be said to monopolize all social reactions to crime and prohibit acts of a personal nature. Therefore, if there are victims of crime, the state must pay attention to the needs of victims by improving services and regulating rights.
Third; Victim protection is usually associated with one of the goals of punishment, namely conflict resolution. By resolving conflicts caused by criminal acts, it will restore balance and bring peace to the community.
Criminal law not only provides an understanding of acts prohibited by a rule of law, which prohibitions are accompanied by threats (sanctions) in the form of certain penalties for anyone who violates the prohibition, but also includes matters relating to the imposition of a criminal and the way in which the crime can be carried out. The prohibition is aimed at his actions, which is a condition or event that is caused by someone’s behavior or actions, while the threat of criminal or sanctions is directed at the perpetrators who commit criminal acts which are usually referred to as “whosoever” namely the perpetrators of criminal acts as legal subjects, that are supporters of the right and legal obligations.
In the science of criminal law, knowing several types of offenses that are important in the teachings of causality are the differences between formal offenses and material offenses. The formal offense in question is an offense that has been deemed full of acts committed which are prohibited and threatened with a sentence.

3. Implementation of Law Number 23 of 2004 in an Effort to Provide Protection for Victims of Domestic Violence in the Judicial Process
In its implementation, the PKDRT law actually criminalizes victims of violence, especially because law enforcement officials do not consider the relationship between husband and wife and children, or other family members as victims in implementing this law. As a result, victims of domestic violence do not get their rights. Victims’ efforts to seek justice face various obstacles. Law enforcement officials have also not been able to provide optimal protection and assistance for victims in implementing the PKDRT Law. Safe houses and legal aid are still scarce and most are difficult for victims to access. The handling unit for women and children who are victims of violence is not equipped with adequate infrastructure.
With the Domestic Violence Law in force so far and its implementation has not been able to protect victims of domestic violence in the trial process, the intended legal protection is legal protection through regulations, and legal protection through law enforcement agencies. In the implementation of things that have not protected victims of domestic violence such as the absence of a temporary protection warrant or the stipulation of protection orders for victims of domestic violence received by NGOs, the handling of domestic violence is often resolved by family, when entering into law enforcement officials such as the police. The police tried to emphasize that the problem did not reach the court because the family problem was aimed at giving space for the victim to rethink by giving consideration and input. if the victim is truly solid in exercising his rights, then the police will proceed to the Court. Constraints on Law Enforcement in the Implementation of Protection of Victims of Domestic Violence
In general, the phenomenon of cases of domestic violence has its own specifications, including the following:
1. Violence is more commonly known by the perpetrators and victims, so that there is a lack of witnesses or other evidence that meets Article 183 and 184 of the Criminal Procedure Code;
2. The victim does not want to report the case because he feels taboo and thinks he will open his own family’s disgrace, especially for cases relating to sex;
3. For victims who want to report and the case meets both formal and material requirements, it is not uncommon to try to revoke because they feel they really need a future for their children and still want their household to be rebuilt;
4. Late reports from victims of cases of domestic violence will affect the level of difficulty of investigators in conducting the investigation process, especially the collection of witnesses of evidence.
Law No. 23/2004 concerning the Elimination of Domestic Violence, Article 51: The crime of physical violence as referred to in Article 44 paragraph (4) is a complaint offense. Article 52: The criminal act of psychological violence as referred to in Article 45 paragraph (2) constitutes a complaint offense. Article 53: The crime of sexual violence as referred to in Article 46 committed by the husband against his wife or vice versa constitutes a complaint offense.
To realize the principles of the rule of law, both legal norms, or laws and regulations, as well as professional, integrity and disciplinary apparatus and law enforcement officials are supported by legal facilities and infrastructure as well as community legal behavior. Therefore, ideally every state of law, including the State of Indonesia, must have such qualified institutions / institutions / law enforcement agencies. One of them is the Attorney General’s Office of the Republic of Indonesia, in addition to the Indonesian National Police, the Supreme Court, and even Advocates / Legal Counsels / Lawyers / Legal Consultants, who universally carry out law enforcement.

4. Conclusion
a. Legal Protection of Victims of Domestic Violence
In the context of protection of victims of crime, there are preventive and repressive measures carried out, both by the community and the government (through law enforcement officials), such as providing protection or supervision from various threats that can endanger the lives of victims, providing adequate medical assistance, or the law. The fair trial and trial process of the perpetrators of crimes is basically one of the manifestations of the protection of human rights and a balancing instrument. Criminal law not only provides an understanding of acts prohibited by a rule of law, which prohibitions are accompanied by threats (sanctions) in the form of certain penalties for anyone who violates the prohibition, but also includes matters relating to the imposition of a criminal and the way in which the crime can be carried out.
b. Implementation of Law Number 23 of 2004 in an Effort to Provide Protection for Victims of Domestic Violence in the Judicial Process
With the Domestic Violence Law in force so far and its implementation has not been able to protect victims of domestic violence in the trial process, the intended legal protection is legal protection through regulations, and legal protection through law enforcement agencies. In the implementation of things that have not protected victims of domestic violence such as the absence of a temporary protection warrant or the stipulation of protection orders for victims of domestic violence received by NGOs, the handling of domestic violence is often resolved by family, when entering into law enforcement officials such as the police. The police tried to emphasize that the problem did not reach the court because the family problem was aimed at giving space for the victim to rethink by giving consideration and input. if the victim is truly solid in exercising his rights, then the police will proceed to the Court.

c. Constraints on Law Enforcement in the Implementation of Protection of Victims of Domestic Violence
a. Violence is more commonly known by the perpetrators and victims, so there is a lack of witnesses and other evidence that meets Article 183 and 184 of the Criminal Procedure Code;
b. The victim did not want to report the case because he felt taboo and thought he would open his family’s disgrace, especially for cases related to sex;
d. Suggestion
In this case, it is better for the implementation of law enforcement in the resolution of cases of domestic violence requiring cooperation between the government and the community to disseminate the implementation of the law on domestic violence, so that there is an increase in legal awareness for victims to report incidents of domestic violence for processing in accordance with applicable judicial procedures.

5. References
Hamzah, Andi. 2013. Indonesian Criminal Procedure Law. Jakarta: Arikha Media Cipta.
In Indonesian Criminal Law. Jurnal Cita Hukum, Vol. I No. December 2, 2014. https://www.neliti.com/crime-violence-in-household-. (accessed 05-10-2018)
Jamaa, La. 2014. Protection of Victims of Domestic Violence
Pinem, Jepri Atmaja. 2015. Implementation of Law Number 23 of 2004 concerning Elimination of Domestic Violence in Providing Protection Law Against Victims of Domestic Violence in the Judicial Process. Yogyakarta: http://e-journal.uajy.ac.id/9061/. (accessed 05-05-2018).
Teguh Prasetyo. 2012. Criminal Law Revised Edition. Jakarta: Raja Grafido Persada.
Wati, Emy Rosna. 2017. Protection Against Victims of Violence in the Home Stairs in Sidoarjo Regency After the enactment of Law Number 23 Year 2004. Volume 1 Issue 1, March 2017. http://ojs.uho.ac.id/index.php/holrev/article/view/2352/3129. (accessed 10-05-2018).