Lentera Hukum, Volume 6 Issue 3 (2019), pp. 431-444
ISSN 2355-4673 (Print) 2621-3710 (Online)
https://doi.org/10.19184/ ejlh.v6i3.14671
Published by the University of Jember, Indonesia
Available online 31 December 2019
Formulating Criminal Liabilities Regarding Online Prostitution
Trio Angga Laksana
University of Jember, Indonesia
trio_angga@yahoo.co.id
Y.A.Triana Ohoiwutun
University of Jember, Indonesia
trianaohoiwutun@unej.ac.id
Fanny Tanuwijaya
University of Jember, Indonesia
fanny.tanuwijaya@unej.ac.id
ABSTRACT
This study aims to obtain similarities and differences regarding legal formulation in online prostitution.
Hitherto, prostitution has remained to exist in Indonesian society. In context, the existing perpetrators
of prostitution do not peddle conventionally but also virtually, in which online prostitution that
gradually increases is a common term that refers to this phenomenon. The current law enforcement
against perpetrators of online prostitution performs as the consequence of the national law in which
national laws have yet remained to accommodate in criminalizing perpetrators of online prostitution.
The criminalization of perpetrators in online prostitution may contrast with the principle of legality so
that national laws should accommodate perpetrators of online prostitution regarding their criminal
liability. In particular, these national laws should address whether to prohibit the attitude that
proliferates online prostitution so that perpetrators of online prostitution should be accountable for their
crimes. Henceforth, this measure intends to avoid the overlap of the principle of legality in criminal law.
KEYWORDS: Online Prostitution, Criminal Liabilities, Principle of Legality.
Copyright © 2019 by Author(s)
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0
International License. All writings published in this journal are personal views
of the authors and do not represent the views of this journal and the author's affiliated institutions.
Submitted: December 03, 2019 Revised: December 07, 2019 Accepted: December 31, 2019
HOW TO CITE:
Laksana, Trio Angga, Y.A. Triana Ohoiwutun & Fanny Tanuwijaya. “Formulating Criminal
Liabilities Regarding Online Prostitution” (2019) 6:3 Lentera Hukum 431–444.
432 | Formulating Criminal Liabilities Regarding Online Prostitution
I. INTRODUCTION
In this globalized world, crimes no longer exist conventionally as their consequences
refer to the Criminal Code but also virtually, using technology, which are beyond the
Criminal Code. A significant and profound development in technology has encouraged
people to use smartphones and computers, which have become common tools to
interact with each other. On the other hand, such tools are pervasively used as
instruments committing to crimes. The rapid development of information and
communication provides a change in human morals and relationships so that many
people may commit crimes using these tools. One of these crimes is prostitution; it
includes a new job to commit various sexual crimes and get a wage.
1
In particular,
prostitution is a form of crime that violates decency in people's lives that has a negative
impact is a form of undesirable action that can cause disunity in the family.
2
Conventional prostitution can be interpreted as an action where someone offers
and sells the body to others leading to sexual exploitation to get wages as a result of
services as promised. Online prostitution is slightly different from conventional
prostitution, referring to the way of offering or selling it through electronic instruments
or other online media, including social media such as WhatsApp, Facebook, Instagram,
and others.
3
While perpetrators of online prostitution have entered into cyberspace,
referring to term online prostitution, they peddle themselves through these online
instruments. The use of online media has become a more accessible means for crimes
because the perpetrators and their customers conduct transactions using online
technological instruments, which can provide convenience for the perpetrators and
users of prostitution services online.
4
The courts have ruled decisions against online prostitution occurred in Indonesia,
under Article 27 (1) of the Act information and Electronic Transaction (UU ITE). First,
the Decision of the Pangkalpinang District Court Number: 228/Pid.B/2015/PN Pgp on
the act of offering several women to men using the Blackberry Messenger (BBM)
facility to have intimate relationships. Secondly, the Sleman District Court Decision
Number: 516/Pid.Sus/2017/PN Smn JP was made a Twitter account with the name
Ricky GIGOLO INDO has posted words offering to find customers for themselves as
perpetrators of prostitution online. Third, based on the Padang IA Class District Court
Decision Number 393/Pid.B/2014/PN.Pdg on the act of DM sent a short message service
(SMS) containing words to have intimate relations with the three victims named NK,
MR, FD.
The Swedish state has conventionally arranged prostitution as an act that can be
convicted. Since the enactment of the prostitution ban law in Sweden, prostitution has
1
Soejono Soekanto, Sosiologi Suatu Pengantar (Jakarta: Raja Grafido Persada, 2010) at 328.
2
Ibid.
3
Widodo, Hukum Pidana di Bidang Teknologi Informasi (Yogyakarta: Aswaja Pressindo, 2013) at 5.
4
Melinda Arsanti, ―Penggunaan Media Sosial Sebagai Sarana Prostitusi Online‖ (2017) Jurnal Ilmu
Komunikasi at 51.
433 | LENTERA HUKUM
decreased by 50%.
5
Besides, according to Swedish foreign minister Margot Wallström,
since the enactment of the respective act, prostitution in Sweden has declined
compared to some years before the enactment of the Sex Purchase Act.
6
Sweden in
regulating online prostitution can impact on suppressing prostitution, and Indonesia
must adopt the same. According to preceding, the problems arises against a criminal
liability of perpetrators online prostitution. It is essential to analyze problems such as
how liabilities perpetrators online prostitution according to Article 27, paragraph 1 of
UU ITE, and the ideal formulation policy in criminal liability for perpetrators of online
prostitution.
This study aims to obtain similarities and differences regarding legal formulation
in online prostitution. This paper uses legal research by studying and analyzing legal
materials and legal issues related to the problem. This study uses the legislative
approach to examine the legislation relating to prostitution and electronic Acts.
7
This
study also applies the conceptual approach by referring to doctrines
8
and under various
cases that are related to both legal issues.
9
The decisions analyzed are Decision of
Pangkalpinang District Court with Number: 228/Pid.B/2015/PN Pgp., Decision of
Sleman District Court with Number: 516/Pid.Sus/2017/PN Smn., Decision of District
Court of Padang IA Class with case number 393/Pid .B/2014/PN.Pdg. In addition, this
study uses a comparative approach, comparing Sweden, whose legal system is different
from Indonesia, but with similar cases on how the governments regulate and
criminalize prostitution following perpetrators' liabilities regarding online prostitution
both conventionally and virtually.
10
II. CRIMINAL LIABILITIES REGARDING PERPETRATORS OF ONLINE
PROSTITUTION UNDER ARTICLE 27 (1) OF UU ITE
Criminal liability has an extensive scope, according to the international convention of
criminal liability, as Teorekenbaardheid or criminal liability, whose orientation regards the
penalization of crimes. Criminal liability as a final of behavior can justify as crime; a
person can be criminalized:
11
a. A person who takes a behavior against the law, mostly they doing against the
law is an objective element of a criminal requirement;
5
Tempo, ―Swedia Berhasil Atasi Prostitusi, Begini Caranya‖ (2019), online:
.
6
Regeringen, ―Vi Tar Kampen Mot Prostitution‖, (2019), online:
.
7
Peter Mahmud Marzuki, Penelitian Hukum (Jakarta: Kencana Prenada Media Grup, 2016) at 33.
8
Ibid.
9
Made Pasek Diantha, Metodologi Penelitian Hukum Normatif (Jakarta: PT. Kharisma Putra Utama, 2016)
at 165.
10
Peter Mahmud Marzuki, supra note 7 at 167.
11
SR Sianturi, Asas-Asas Hukum Pidana Indonesia dan Penerapannya (Jakarta: Alumni Ahaem-Petehaem,
1996) at 245.
434 | Formulating Criminal Liabilities Regarding Online Prostitution
b. Perpetrators deliberate negligence, whose actions are under criminal liability.
Van Hemel argues that criminal liability is a reasonable condition of
psychologically and a proficiency that exist in all three abilities, firstly, depending on
the ability to understanding the meaning of the actions by himself. Secondly, the
competences to mindful of if his actions are carried out contradicting the existing order
in society. Thirdly, he has the ability to doing volition.
12
The aim of the statement for the
perpetrators of crime must develop understanding and the ability to criminal liability.
The substantial responsibility is an absolute element of criminal liability because
if someone is unresponsible, it is unlogic that he makes it for himself. Simons argues
that the ability to be responsible is a mental description for the implementation of
punishment, from the general and personal viewpoints. Simons's statement illustrated
the subsistence of perpetrators' ability. The concept of criminal liability is not only
based on the ability to be responsible but also to the existence of the perpetrator's fault.
Based on a foreign language, a malfunction is a mens rea, and it is not on his actions but
the inner attitude of the perpetrators. This principle requires that there are two
elements of guilty feeling to penalize. First, actions are prohibited by criminal law.
Second, there is a despicable inner attitude towards perpetrators.
13
In contrast to Moeljatno, responsibility without error is called Leer van het
materiele feit. It represents in several violations, but since Arrest is milk HR 1916
Nederland, it has not applied against offenses of the type of overtredingen, a principle that
is without error, no crime.
14
Again, in contrast to Moeljatno, liability without mistake is
called Leer van het materiele feit. It exemplifies in several violations, but since Arrest on
HR 1916 Nederland, it has not conducted against offenses of the type of overtredingen, a
principle that is without error, no crime.
15
A person can be blamed on behavior if at the
time of acting a behavior. In particular, it deals with the consequence of the behavior. A
person knows that the consequences come up from a respective behavior so that it can
be called perpetrators motive, interpreted by some experts as a will or desire to bring
up behavior. There are two theories relating to intention. They are the theories of the
will and knowledge. Moeljatno's theory more inclined to the theory of knowledge or
imagine on the occasion that if perpetrators have a motive to do various activities and
knowledge or imagine from consequences obtained.
16
According to Moeljatno, differently from culpa or omission, but it has the same
basis that is equally prohibited by criminal law and threatened with crime can be
justified. There is no forgiving reason.
17
The reasons for forgiveness arise when a
person's actions have value against the law, but some actions can be forgiven.
12
Eddy OS Hiariej, Prinsip-Prinsip Hukum Pidana Edisi Revisi (Yogyakarta: Cahaya Atma Pustaka, 2016) at
37.
13
Mahrus Ali, Dasar-Dasar Hukum Pidana (Jakarta: Sinar Grafika, 2011) at 155.
14
Moeljatno, Asas-asas Hukum Pidana (Jakarta: Bina Aksara, 2009) at 165.
15
Ibid.
16
Moeljatno, Asas-asas Hukum Pidana (Jakarta: Intermasa, 2002) at 165.
17
Ibid.
435 | LENTERA HUKUM
Forgiveness is a subjective reason that a person unconvicted.
18
Roslan Saleh argues that
if a defendant's actions can be accounted for if their actions against the law, then the
firstly, they can be able to ensure the existence of a criminal act after that the elements
can be sentenced was linked to criminal liability.
19
Roslan Saleh's opinion was
providing illustrations if every act can be accounted for by the offender if it has violated
criminal law and associated with the form of liability, then the perpetrators are
accountable for their actions. The offenses using online media are closely related to
electronic information or electronic documents. The uses of these facilities provide
convenience to perpetrators of a crime, carrying out actions which prostitution that
was original manner to do conventionally with their means of electronic information or
electronic documents makes him easy. Currently, prostitution activities with electronic
information facilities or electronic documents refer to online prostitution.
Prostitution comes from Latin, which means "pro-stituere" means to surrender
openly to commit adultery, commit prostitution, sexual immorality, and fornication.
These words are etymologically also associate with Prostate, namely buy and sell. The
Greco-Romans have used these words from ancient times for a woman who sold her
body.
20
Paul Moedikdo Moeliono interprets prostitution as the surrender of a woman's
body accompanied by payment. This act aims to satisfy people's desires.
21
WA Bonger,
from his article Maatschappelijke Darsaken Des Prostitutie, prostitution is considered a
symptom in a society where a woman sells herself to do sexual crime to gain profit as
her livelihood.
22
Prostitution indicates a sexual relationship between a woman and a man without
any marital status. Women and men can do prostitution, so it is considered the same
between women and men who have sex outside of legal marriages.
23
In this study, the
types of prostitution in question are called prostitution and covert prostitution.
Prostitution has a widespread impact than street prostitution or brothel prostitution
from buy and sell transactions on-call prostitution and covert prostitution
unconventionally but virtually in every single day. The meaning of virtual is a place to
share information via the internet; according to Dedik Kurniawan, online indicates an
activity that uses internet networking for several activities such as business,
communication, others.
24
In particular, prostitution is an undesirable action as a form of crime in people's
lives. Islamic law also prohibits the existence of prostitution in Surah Al Isra 'verse 32.
18
Widhiana Suarda, Hukum Pidana: Materi Penghapus, Peringan dan Pemberat Pidana (Malang:
Bayumedia Publishing, 2012) at 121.
19
Roeslan Saleh, Pikiran Pikiran Tentang Pertnaggungjawaban Pidana (Jakarta: Ghalis Indonesia, 1982)
at 54.
20
B Simandjuntak, Pengantar Kriminologi dan Patologi Sosial (Bandung: Tarsito, 1981) at 280.
21
Yesmil Anwar dan Adang, Kriminologi (Bandung: PT. Refika Aditama, 2013) at 363.
22
Kartono Kartini, Patologi Sosial (Jakarta: Raja Grafindo Press, 2005) at 214.
23
Mulia TSG, Seks, Uang dan Kekuasaan, Ter. Ade Armando (Jakarta: LP3ES: Anggota Ikapi, tt) at 15.
24
Dedik Kurniawan, Membangun Bisnis Sekolah Online (Jakarta: PT. Alek Media Komputindo, 2013)
at 168.
436 | Formulating Criminal Liabilities Regarding Online Prostitution
For Muslims, religious adultery is strongly opposed to adultery committed on
prostitution to explain if the action of prostitution undesirable by society; it qualified
as a form of crime that can be convicted. In connection with crimes that can be
convicted according to Piers Beire and James W. Messerschmidt argues that if the
crime called a legal definition of crime can be distinguished as mala in se and mala
prohibita. Mala in se can be called a crime because the action was beginning as an evil
act because it is contrary to the rules and a norm was living in society before they
stipulated in a law as crimes that can be convicted. Malum prohibition can be identified
as a violation of the applicable law.
25
The concept of criminology, mala in se is a crime from sociological sense, which is
an act that was considered to be generally reprehensible in the view of society, although
it has not included in the legislation. In contrast, mala prohibita is a crime in the
juridical regulated in statutory laws.
26
Prostitution is a despicable deed that was
contrary to law and norms, which developing in society so that prostitution can be
qualified as a form of crime in society. Therefore it can be categorized as mala in se.
Cases in Indonesia, which can include crimes of online prostitution, are in the
Pangkalpinang District Court, Sleman District Court, and the Padang IA Class District
Court. The three cases from tribunal decisions using the provisions of Article 27
paragraph 1 of UU ITE. The elements of Article 27 paragraph 1 of UU ITE cannot
include criminalizing perpetrators of online prostitution due to the absence of the
Online Prostitution Act. If Article 27 paragraph 1 of UU ITE is applied to online
prostitution, it may result in obscurity and for which the legal conflict will be
unavoidable. Besides, the application of the provisions of Article 27 paragraph 1 of UU
ITE on three cases above, which is due to violation decency by three perpetrators, was
distributing content. The perpetrators in the three cases above are very under the act of
online prostitution because hitherto, it has not yet been regulated the provisions
prohibiting online prostitution perpetrators.
Criminal liability against perpetrators of online prostitution cannot be accounted
for and held liable as a crime. Furthermore, the criminal liability system on UU ITE
would not be applied. While the provisions of liability in UU ITE are enforced against
online prostitution crimes, it contradicts the principle of criminal law, the principle of
legality. The principle of legality contains in Article 1 paragraph (1) of the Criminal
Code, according to its formulation in the Dutch language: "Geen feit I strafbaar and uit
kracht van een daaran voorafgegane wettelijke strafbepaling." Zainal Abidin Farid
translates it as: "No event can be convicted other than the strength of the provisions of
the criminal law that preceded it."
27
Nevertheless, in his book "Indonesian Criminal Law," written together with Andi
Hamzah, the formulation of Article 1 paragraph (1) is translated as: "no act that can be
25
Eddy OS Hiariej, supra note 13 at 101-102.
26
Deni SB Yuherawan, "Kritik Ideologis Terhadap Dasar Kefilsafatan Asas Legalitas Dalam Hukum
Pidana" (2012) 12 JDH at 222.
27
HA Zainal Abidin Farid, Hukum Pidana 1 (Jakarta: Sinar Grafika, 2007) at 130.
437 | LENTERA HUKUM
convicted other than based on the provisions of criminal legislation that preceded it."
28
It means that all forms of crimes that have not been regulated in the provisions of
criminal law; such actions cannot be qualified as crimes. If they are associated with
online prostitution wherein Indonesian legal rules are still unclear to accommodate,
online prostitution, according to the principle of legality is not a crime. However, these
actions include actions that are contrary to the law that develops in people's lives or
norms in society. In connection with conventional and prostitution offenders online in
the 2018 Draft Criminal Code, there is still no precise regulation related to online
prostitution offenders. They are regulated only by pimps or intermediaries from
prostitution, even though Indonesia needs this regulation on the prohibition of
prostitution online. Given the crime of perpetrators, online prostitution is increasingly
prevalent in some regions, and perpetrators of online prostitution cannot be accounted
for a crime.
Indonesia still has unclear progress in regulating online prostitution. In contrast,
in 1999, Sweden regulated the act of prostitution in the provisions of criminal code,
which included explicitly in the Sex Purchase Act Swedish. The Sweden regulations
have a positive impact on the suppression of prostitution since the enactment of
regulation in prostitution activities experienced a rapid decline, comparing to before
the formulation of prostitution regulation in Swedish law.
The application of the rule of law regulation against online prostitution must be
precise. If the rule of law regulation is unclear and vague, it is contrary to legal
certainty. Legal certainty is a definite, not obscure, clear, stipulated, and statutory
condition. The law entity must be fair and specific so as not to cause multiple
interpretations, the definite meaning as a guide for behavior. In contrast, the fair
meaning of the behavior must prioritize a fair value order, if the provisions of Article 27
paragraph 1 of UU ITE applied to online prostitution would certainly be vague, and its
application would be vague, and it is not clear then, of course, this is contrary to legal
certainty. Besides, Indonesian criminal law adheres to the principle of law that is the
principle of legality in every rule of law. It asserts impossibility for a person to be
convicted unless the rules are included in a criminal code as it refers to the principle of
legality is contained in article 1, paragraph 1 of the Criminal Code. If it is related to
prostitution crime online, because online prostitution is still not regulated in the
Indonesian criminal code both in the Criminal Code and in the special law, namely UU
ITE, it is clear that prostitution crime online is not a crime. If the provisions in both in
UU ITE and the Criminal Code are forced to ensnare perpetrators of online
prostitution, it is certainly contrary to the principle of legality in criminal law.
28
HA Zainal Abidin Farid & Andi Hamzah, Hukum Pidana Indonesia (Jakarta: PT. Yarsif Watampone,
2010) at 53.
438 | Formulating Criminal Liabilities Regarding Online Prostitution
III. FORMULATING LIABILITIES IN ONLINE PROSTITUTION
A legislator formulated the law enforcement of the nation. The implementation and
application to better determine and accountability. It is often interpreted as the
legislative stage. According to Barda Nawawi Arief, legislative policy is a plan or
program of legislators regarding works with specific problems and how to implement
something planned or programmed for the future. Errors in the formulation policy stage
are mistakes that can hinder the law enforcement process.
29
From the criminal law
policy at the stage, formulations must be calculated in detail. So that in the application
to enforce the law to be good and there are no obstacles, if it is wrong in the stage
formulation, then it will arise are obstacles in the process of law enforcement. It will
undoubtedly affect the accountability of system criminal offense. Efforts to establish
proper legal regulations will never be separated from the goal of criminal prosecution. It
means that criminal law policy is synonymous with crime prevention by using criminal
law.
30
Furthermore, the formation of legislation at this stage of formulation is also a
basic form of protecting the public, so it is very natural to say that criminal law politics
is an integral part of social policy. The stage formulation is part of the criminal law
policy on the penal policy. Accordingly to Barda Nawawi Arif, criminal law policy is a
science that can also be categorized as an art that has a practical purpose to be able to
formulate excellent regulation and to provide a guide not only making laws and
regulations but also to executors in tribunal decision.
31
It means that criminal law
policy is not only the responsibility of legislators but also for every implementer of the
law, and to make great laws requires some other knowledge.
Online prostitution is a crime that can be detrimental to the order of a society, a
lot of the impact of prostitution crimes online to people's lives in developing norms in
public life clear categorize crimes prostitution online is a disgraceful act.
Accountability to perpetrators of online prostitution is not only enough to categorize
online prostitution crimes as crimes in society but must be formulated in the form of
laws and regulations so that the law enforcement becomes clear. The strong points of
the policy formulation of criminal law consist of several things. First, formulating a
criminal act is an act that can be carried out against the perpetrators. The formulation
of a conviction must have to elements of a person who does a correction, and in essence,
who can commit a criminal offense, namely a person or human being. Crimes that can
be convicted are crimes against the law, which must meet the elements of the offense
formula contained in the provisions of the law. These actions can be interpreted as
29
Ridwan, Kebijakan Formulasi Hukum Pidana Dalam Penanggulangan Tindak Pidana Korupsi, 1
(2013) at 204.
30
Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana, Edisi Kedua Cetakan ke-4 (Jakarta:
Kencana, 2014) at 251.
31
Ibid.
439 | LENTERA HUKUM
doing or not doing something. In addition to the element of unlawful conduct, there
must be a loss regarding the victim of the act.
32
Second, the formulation of criminal liability. A person who commits a criminal
act may not necessarily be subject to criminal conduct, but the convicted data must
meet two conditions, namely. First. The act must be a criminal offense. Second, the
perpetrators must be accountable. Determining the first condition is closely related to
the principle of legality, while for the second condition is a mistake, it is related to the
person who is doing and the inner attitude of the criminal or related to criminal liability
— knowing the element of mistakes is determine the existence of criminal liability
based on the principle of mistake. Another word of the principle of fault that is not
convicted if there is no error, Principles, Culpabilitas Principle straf zonder geen
Schuld.
33
Third, the formulation of Sanctions. The system of mitigation in imposing
criminal sanctions by using criminal legal means, namely with criminal formulation
sanctions. Criminal sanctions are tough sanctions in the form of punishment to
someone rather than civil sanctions and administrative sanctions. Roeslan argues that a
crime is a reaction to the offense in the form of a misery deliberately, given by the state
to the perpetrators.
34
Roeslan's statement is under Van Bemmelen's statement.
35
Criminal law
determines sanctions against violations of prohibition rules. The sanction is, in essence,
an increase of suffering done deliberately. Determine the composition of the type of
punishment of severe and light punishment but must also be considered the reasons
contained in criminal law and the purpose of punishment. The formulation of sanctions
must adjust to the needs of the community. The limits must also be adjusted to the
interests and values in community life. On the other hand, giving sanctions to
perpetrators of crime must also provide awareness of the perpetrators of crimes as in
the purpose of criminal law. Concerning online prostitution crime, sanctions in the
form of punishment for perpetrators based on the theory of criminal law are not merely
as a final goal but as the closest objective, namely to provide retaliation to online
prostitution perpetrators to realize that punishment is a result of their actions. On the
other hand, criminal prosecution of perpetrators of online prostitution aims to create
order in people's lives, online prostitution in people's lives has a terrible impact not
only that, prostitution online in people's lives is considered as a despicable act and
contrary to norms existing in people's lives. The absence of proper legal rules in the
Criminal Code and UU ITE relating to online prostitution crimes as a crime makes a
situation in society chaotic resulting in online prostitution becoming rampant in
32
Dey Revana & Kristian, Kebijakan Kriminal Criminal Policy (Jakarta: Kencana Prenada Media Group,
2017) at 148.
33
Sudarto, Hukum Pidana I (Semarang: Badan Penyedia Bahan-bahan Kuliah Undip, 1987) at 85.
34
Roeslan Saleh, supra note 20.
35
Van Bemmelen, Hukum Pidana I Hukum Pidana Material Bagian Umum Cet. 2 (Bandung: Bina Cipta
Bandung, 1987) at 17.
440 | Formulating Criminal Liabilities Regarding Online Prostitution
various regions in Indonesia, the chaos is under the theory of criminology namely the
anomie theory.
Anomie theory is a term that was introduced by Emile Durkheim, to describe a
chaotic situation, without rules. This word comes from Greek "without" and "Nomos":
"law" or "regulation." The term was also put forward by Robert K. Merton, whose
purpose was to describe the state of deregulation in his society. This situation means
that the rules contained in the community are not obeyed, and people do not know
what is expected by that person, the condition of this normless society, which causes
deviant behavior. For example of this theory is the case of a beast who is punished for
abusing authority in tax revenue.
36
Furthermore that if there are no criminal regulations
against an act that is considered a criminal offense, it will cause some irregularities in
people's lives. It is following the current state of Indonesia because no Online
prostitution is regulated, resulting in several regions becoming epidemic. However,
prostitution is conventionally carried out in the form of a closure of a localization site,
but the perpetrators used another method, namely, through online prostitution.
The Theory was forward by Durkheim, who stated that in modern society,
traditional standards and norms are in vain and without a substitute for new ones,
which results in the collapse of the norms that govern each person in behavior. This
condition explained without rules is called anomie, where there are no norms that
regulate people's lives, so what happens next is tension in society.
37
This anomie theory according to Emile Durkheim has three views, viz., (a)
humans are social creatures; (b) humans its existence is considered a social creature;
and (c) in a society, people tend to live, and humans always depend on the community
as a group.
38
Online prostitution, which is still not regulated provides norms deviation
in the life of the community, which is usually the norms in the community obeyed but
because of the absence of these rules makes the norms in the community not
enforceable so that the result that will cause is tension in the community. Accordingly,
Anomie's theory is a condition wherein a society, there is no opportunity, and there are
differences in the structure of opportunities to achieve a goal (ideals). Both of these
factors cause people to become frustrated, become conflicted, the dissatisfaction of
fellow individuals, the closer they are to conditions that are not based on prevailing
norms.
39
Accordingly, the anomical theory, the crime will arise due to the absence of legal
rules in the community, so it can be interpreted that online prostitution exists and
continues to develop in people's lives because of the absence of norms governing online
prostitution crimes, to protect the public from online prostitution requires the
criminalization of the crime by regulating it in the rule of law. Formulating the
36
J Sahalessy, "Jurnal Ilmiah Fakultas Hukum Universitas Pattimura Ambon" (2015) 21 SASI at 42.
37
Feryna Nur Rosyidah & M Fadhil Nurdin, "Perilaku Menyimpang: Media Sosial Sebagai Ruang Baru
Dalam Tindak Pelecehan Seksual Remaja" (2018) 2 JP&PS at 44.
38
Lilik Mulyadi, Bunga Rampai Hukum Pidana Perspektif, Teoretis, dan Praktik (Bandung: PT. Alumni,
2008) at 325.
39
Yesmil Anwar & Adang, Kriminologi (Bandung: Refika Aditama, 2010) at 88.
441 | LENTERA HUKUM
accountability of perpetrators of online prostitution must be determined in advance by
the system of criminal liability and its penalties. Therefore, there is a need an effort to
reformulate criminal liability of perpetrators regarding online prostitution in the future.
The formulation of online prostitution provisions must be strictly regulated so that
perpetrators of online prostitution can be criminally accountable. Based on the
explanation above, the formulation policy is a strategic stage because if it is wrong in
the formulation stage, it will harm the next stage, namely the application stage and the
execution stage. The most critical point in the formulation stage is to formulate an
excellent regulation, meaning that the formulation of the rule of law must be taken into
account so that in its implementation, there are no unwanted obstacles.
Under the theory of the purpose of criminal law, the formulation of sanctions
must provide awareness for the perpetrators of a crime. The perpetrators' awareness is
the most crucial element in the theory of criminal law objectives, while punishment is a
form of awareness for the offender that the punishment is the result of his actions so
that with an awareness of perpetrators will no longer commit a crime. Also,
punishment is considered as a protection of the interests of the community. Crimes
will arise when there are no rules that govern them. If the regulation is clear and
specific, crime will not potentially develop in society. Where crime arises as a result of
the absence of legal rules are clearly and govern it under one of the criminological
theories, namely the anomie theory. Anomie's theory, according to Durkheim, is a
condition without norms that creates chaos that gives birth to a crime, meaning that
crime arises because there is no legal rule governing it. This study justifies that online
prostitution still exists in people's lives because no regulation to address online
prostitution.
The legal formulation must pay attention to the excellent formulation and can be
carried out at the next stage, namely application and execution. The legal formulation
of online prostitution will produce a new legal product regarding the prohibition of
online prostitution perpetrators, of course, the prohibition must contain elements of
online prostitution crime, namely first, crimes to surrender themselves to the general
public. Second, sexual intercourse, and third, there are personal benefits by using
online means to carry out the transaction. However, the provisions do not apply to a
prostitute who is in a state of helplessness so that by formulating the provisions of the
online prostitution law, online prostitution can be accounted for a crime.
IV. CONCLUSION
The criminal liability of perpetrators of online prostitution in Article 27 paragraph 1 of
UU ITE cannot be accounted for a crime because there is an unclear accommodation to
criminalize perpetrators of online prostitution under UU ITE. The absence of online
prostitution legal rules makes these actions can not be declared a criminal offense, and
if forced by UU ITE to ensnare perpetrators of online prostitution, it will be contrary to
442 | Formulating Criminal Liabilities Regarding Online Prostitution
the principle of legality. Indonesia can adopt the Swedish law provisions on the
prohibition of prostitution beside Indonesia regulates the prohibition of online
prostitution perpetrators. The actions of the perpetrators of online prostitution can be
accounted for a crime, and this will minimize online prostitution in Indonesia.
The legal formulation for perpetrators of online prostitution crimes includes
paying attention to the proper formulation, and it should be carried out for law
enforcement. Indeed, the prohibition must contain elements of online prostitution,
namely, first, the act of surrendering itself to the general public. Second, sexual
intercourse and third, there are personal benefits by using online means to carry out
their transactions, and criminal liability can be applied to perpetrators of online
prostitution. However, if it happens to someone helpless, then these provisions cannot
be applied, as the formulation of the perpetrator's policies. Online prostitution will not
occur violations of the principle of legality in its future application.
Indonesian law currently still has limitations on the criminal liability of
perpetrators of online and conventionally prostitution, because the rule of law of
Indonesia until now did not accommodate it. Therefore there is a need for renewal in
the national legal rules, namely, in the Criminal Code and UU ITE relating to criminal
liability of perpetrators of online prostitution. Also, there needs to be a change in the
Criminal Code and UU ITE so that the criminal liability of online prostitution
perpetrators is formulated in detail so that later online prostitution perpetrators can be
criminally accounted for otherwise. The formulation will protect people's lives.
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