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Lentera Hukum, 10:1 (2023), pp. 45-72
ISSN 2355-4673 (Print) 2621-3710 (Online)
Available online 10 May 2023
https://doi.org/10.19184/ejlh.v10i1.37495
* Corresponding author, email: trianaohoiwutun@unej.ac.id
Submitted: 25 January 2023 | Reviewed: 06 April 2023 | Revised: 07 May 2023 | Accepted: 08 May 2023
Published by the University of Jember. © The Author(s), 2023. This is an Open-Access article distributed under the terms of
the Creative Commons Attribution-ShareAlike 4.0 International license (http://creativecommons.org/licenses/by-sa/4.0).
Research Article
Forensic Approach to Optimise Children’s Right to
Opinion in Indonesian Courts
Y.A. Triana Ohoiwutun*
Faculty of Law, University of Jember, Indonesia
Evoryo Carel Prabhata
Faculty of Law, University of Jember, Indonesia
Pyali Chatterjee
School of Law, ICFAI University, Raipur, India
ABSTRACT: Various attempts to accommodate a child's opinion in courts have proven
successful, and this participation has been increasingly regarded as integral to children's
rights. However, the issue remains problematic, particularly in the Global South countries like
Indonesia. This paper examines the legal and regulatory framework of protecting children in
Indonesia to comply with children's right to opinion and how this right is implemented. Then,
it demonstrates the significant role of forensic science in complementing legal inquiry to
consider a child's opinion in court. Using policy-oriented study and doctrinal research with
qualitative analysis and, to some extent, a comparative perspective, this paper elaborates on
Indonesia's experience in protecting children's right to opinion with legislation in India,
particularly dealing with child sexual offences. This study shows that Indonesia's legal and
regulatory framework of children protection had not specified to elucidate children's right to
an opinion, particularly in the Child Protection Law, the primary legal basis for children
protection. Also, Indonesia is yet to have a robust and consistent practice of human rights-
based instruments considered in the court, indicated by a lack of comprehensive understand-
ing in law enforcement to implement this right. While the interpretation in law enforcement
is essential to be optimised toward child-oriented resolution, taking the child's opinion in
court promotes human rights practice in Indonesia. Compared to adults, children are
complex, particularly in a case of a child victim of rape-related pregnancy. The forensic
approach can be an alternative by involving forensic experts in courts to consider a child's
psychology and physical condition.
KEYWORDS: Children's Rights; Forensic Science; Indonesian Courts; Right to Opinion.
I. INTRODUCTION
Hitherto, human rights have still undergone expansion both at the
international and national levels. While human rights may tend to gravitate
toward adults, the term has increasingly embraced children's rights as
Lentera Hukum, 10:1 (2023), pp. 45-72 | 46
integral. For instance, the Convention on the Rights of the Child considers
children's opinions as children have the rights to be heard as indispensable.
The early emergence of children's rights primarily oversees the rights of
nurturance,1 but in the second half of the 20th century, there was a paradigm
shift from nurturance or protection towards the right to self-expression or
self-determination. 2 Article 3 of the 1996 European Convention on the
Exercise of Children's Rights interprets child rights to be heard in a judicial
court. The Norway Constitution also stipulates children's right to be heard
according to age and development.3 In 2016, Singapore initiated a judicial
interview of children during court proceedings.4
The child-related policies taken by governments in the Global South are in
a state of persistent deprivation.5 Following this view, children's rights in
Southeast Asia revealed a grim picture, as such a right in this region is
primarily built upon protection or nurturance.6 For example, Brunei's Sharia
model establishes no child's right to be heard in decision-making.7 In the
meantime, Lao PDR, Myanmar, Malaysia, and Thailand have yet to specify
1 Hanita Kosher, Asher Ben-Arieh, & Yael Hendelsman, Children’s Rights and Social
Work, SpringerBriefs in Rights-Based Approaches to Social Work (Switzerland:
Springer International Publishing, 2016).
2 Ibid.
3 Anna Nylund, “Chapter 11 Children’s Right to Participate in Decision-Making in
Norway: Paternalism and Autonomy” in Children’s Constitutional Rights in the Nordic
Countries Stockholm Studies in Child Law and Children’s Rights (Brill, 2019) at 201-
224.
4 Joyce A Tan & Partners, "Singapore – Hearing The Child's Voice: Interview And
Review," Conventus Law (2 May 2016), online: . Accessed on 26 January 2023.
5 Anna Holzcheiter, “Governing Children’s Rights in Global Social Policy—
International Organizations and the Thin Line Between Child Protection and
Empowerment” in Alexandra, ed, International Organizations in Global Social
Governance (Cham: Springer International Publishing, 2021) at 154.
6 Singapore, Brunei, and Indonesia interpret children's rights as fundamental needs such
as the right to education, healthcare, and social being. See Muhammad Ade Safri
Salampessy, Lucitania Rizky, & Isna Achdyana, “The Effectiveness of The
Convention on the Rights of the Child (CRC) Regime by UNICEF in Encouraging
the Implementation of Child Protection in Southeast Asian Countries” (2022) 2:1
Journal of Advance in Social Sciences and Policy 12–20.
7 Ibid.
47 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
the age of consent.8 These examples reflect cases to evaluate children's rights
in Southeast Asia. 9 Furthermore, few children's rights studies focus on
children's right to be heard in court. This right is linked to a comprehensive
understanding of the judicial process considered crucial, especially in sexual
violence cases.10 Meanwhile, Article 10 of the Indonesia Child Protection
Law 35/2014 implicitly guarantees children's right to be heard in general.
With Indonesia's sharp rise in child abuse cases,11 and how meaningful child
participation in the judicial process is proven to be beneficial12, this calls for
further accentuation. The Child Protection Law 35/2014 regulates
children's perpetrator and victim rights,13 but it has yet to specify measures
for child's opinion,14 further endangering child victim rights. Furthermore,
the right to legal abortion in India provides considerable protection for
women's rights, including rape victims, the mentally ill, and minors.15 India's
8 Mubarak Rahamathulla, "Cyber Safety of Children in the Association of Southeast
Asian Nations (ASEAN) Region: a Critical Review of Legal Frameworks and Policy
Implications" (2021) 4 International Journal on Child Maltreatment: Research, Policy,
and Practice 375–400.
9 Note that Asian regional's responses inadequately address the establishment of a strong
human rights regime. See Desi Hanara, “Mainstreaming Human Rights in the Asian
Judiciary” (2018) 4:1 Constitutional Review 77–110.
10 In Indonesia, forensic psychology's role is to support victims in coping with their
trauma. See Ni Made Swandari, Anak Agung Sagung Laksmi Dewi, & Luh Putu
Suryani, “Tinjauan Teoritis Psikologi Terhadap Anak yang Menjadi Korban
Kekerasan Seksual” (2022) 3:1 Jurnal Konstruksi Hukum 184–190.
11 Konradus Epa, "Indonesia records sharp rise in child abuse cases," Union of Catholic
Asian News (10 February 2021), online: ; UNICEF, "Up to 56 per cent of
online child sexual exploitation and abuse in Indonesia goes undisclosed and
unreported, according to a new survey", UNICEF (22 July 2022), online: . Accessed on 26 January 2023.
12 Caterina E Tempesta, Legal Representation as a Critical Aspect of the Realisation of the
Child's Right to Be Heard (Master Thesis, Leiden, 2019).
13 Muh Jufri Ahmad, “Perlindungan Anak dalam Sistem Peradilan Di Indonesia” (2011)
7:13 DIH Jurnal Ilmu Hukum 45–56.
14 Francisca Novita Eleanora, “Pidana Penjara dan Hak-Hak Anak” (2020) 4:1 Yure
Humano 58–71.
15 The right to legal abortion can be seen as a child’s opinion in this context. See Bhumika
Saraswati, “India’s top court rules abortions up to 24 weeks legal, regardless of marital
status”, PBS News Hour (29 September 2022), online: ; Nidhi Suresh, “India: Late-term abortion ruling highlights
mothers’ rights”, DW (December 2022), online: .
16 See Case Number 5/Pid.Sus.Anak/2018/PN Mbn.
17 Edith Sibya Muzokura, Petty Makoni, & Tendai Manditsvara, "Rape-related
pregnancy: Concept analysis" (2020) 3:1 International Journal of Advance Research
in Nursing 102–107.
49 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
Finally, it compares India's legal framework concerning legal abortion rights
and its intersection with the Indonesian context.
II. METHODOLOGY
This research was conducted using policy-oriented and doctrinal research
with qualitative analysis. Throughout the investigation, this research also
used a comparative approach by taking into account India's legal and
regulatory frameworks in addressing the issue in the Indonesian context. The
data were obtained from some authoritative sources such as the Convention
on the Rights of the Child, the Indonesian Constitution, the Indian
Constitution, the Indonesian Criminal Code, and Indian Penal Code, India
Protection of Children from Sexual Offences Act/2012, and India Medical
Termination of Pregnancy Act. The secondary data were obtained from
books, journal articles and reports relevant to the issue of children's right to
be heard in courts and, to some extent, its relation to child sexual offences.
III. CHILD’S OPINION ON ABORTION OF CHILD RAPE
VICTIM
Women's Commission reported in 2019 that sexual violence against women,
especially children is the third highest. 18 While sexual violence can take
various forms, like rape-related pregnancy.19 Rape adds further suffering to
the victim since social pressure experienced by the victim and their family
tends to result in abortion.20 Abortion of rape-related pregnancy (RRP) is
18 See Indonesian Women Commission, Fact Sheet and Key Points of the 2019 Indonesian
Women Commission Annual Notes (Indonesian Women Commission, 2019); Joko
Suwandi, Chusniatun, & Kuswardani, “Karakteristik Kekerasan Seksual Terhadap
Anak Perempuan Di Wonogiri Dan Boyolali’” (2019) 29:1 Jurnal Pendidikan dan
Ilmu Sosial.
19 James Hamblin, “How Often Does Rape Lead to Pregnancy?”, The Atlantic (20
August 2012), online: . Accessed on 23 January 2023.
20 Monica Frederico et al., "Factors Influencing Abortion Decision-Making Processes
among Young Women" (2018) 15:2 International Journal of Environmental Research
and Public Health, online: .
Lentera Hukum, 10:1 (2023), pp. 45-72 | 50
strictly legal according to Indonesian law.21 While not final, Court’s decision
No.5/Pid.Sus.Anak/2018/PNMb 22 sentenced a child rape victim to six
months imprisonment with three months of job training for committing
abortion.23 Judicial Case No. 5/Pid.Sus.Anak/2018/PNMbn puts a child in
a double legal stand as a victim24 and perpetrator.25 In this regard, judges do
not consider the child's position as a victim, while abortion through RRP is
a form of the child's opinion. In particular, judges overlook that child's
opinion correlates with the principle of a child's right to life, survival, and
development. While a child's opinion is regulated in the Indonesian
Constitution,26 state law27 and international conventions28, its enforcement
is still far from sufficient.
21 Article 75(2) of the Health Law excludes the act of abortion with several
preconditions: a. Indications of medical emergencies detected at an early age in
pregnancy; or b. Pregnancy as a result of rape can cause psychological trauma for rape
victims.
22 Eventually annulled by the Jambi High Court in Decision Number 6/Pid.Sus-
Anak/2018/PT. JMB by freeing the child from conviction.
23 The court argues under Article 77A of the Child Protection Law.
24 Legal protection for victims of crime is not comparable to protection for perpetrators.
See Rena Yulia, “Mengkaji Kembali Posisi Korban Kejahatan Dalam Sistem Peradilan
Pidana” (2016) 28:1 Jurnal Mimbar Hukum 33–45 at 33.
25 Children in contact with the law are divided into three classifications, namely child
perpetrators, children victims, and children witnesses. The Law on the Juvenile
Criminal Justice System Article 1.2 outlines children conflicting with the law as
victims and witnesses to criminal acts. See Dony Pribadi, “Perlindungan Terhadap
Anak Berhadapan Dengan Hukum” (2018) 3:1 Jurnal Volkgeist at 15.
26 Article 28B (2) of the 1945 Constitution states that every child has the right to
survival, growth, and development and is entitled to protection from violence and
discrimination.
27 Despite being protected in the 1945 Constitution, child protection is outlined in
Article 2 of the Child Protection Law refers to the principles of the Convention on
the Rights of the Child; See also laws that strengthen the particular position of a child,
namely: Law 4/1979 concerning Child Welfare, Law 11/2012 on Juvenile Courts,
Law 35/2014 on Child Protection, including Law 39/1999 on Human Rights.
28 There are four principles set out in the Convention on the Rights of the Child: non-
discrimination, the best interest of the child, the rights to life, survival, and
development, and respect for the child’s opinion; see Supriyadi W Eddyono,
Pengantar Konvensi Hak Anak, Bacaan Kursus HAM untuk Pengacara XI Tahun 2007
Materi Konvensi Hak Anak (Lembaga Studi dan Advokasi Masyarakat, 2007) at 2-
3; UN Resolution 44/25 (Convention of the Rights of the Child), UN Resolution No.
40/33 concerning Standard Minimum Rules for the Administration of Juvenile Justice
51 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
Article 12(1) of the Convention on the Rights of the Child sets the child's
opinion, which outlines the government's duties to ensure children can form
opinions and the right to express those views freely. This provision includes
children's opinions given due weight following their age and maturity. In so
doing, the state guarantees freedom for children to express their opinions
and the right to be respected.29 As a result, children have autonomy over
themselves and act independently. They should not be under pressure and
should be free from exploitation and actions demeaning their human dignity.
As children are autonomous individuals with their own experiences, desires,
imaginations, obsessions, and aspirations that are not comparable to adults,30
they should not be regarded as miniature adults.31 Therefore, in respecting a
child's opinion, it should also consider and adjust to the child's age and
maturity level.
Children, as the RRP victims committing to abortion, are considered as the
child in the opposite position in defending their interests.32 They are placed
(The Beijing Rules), UN Resolution No. 45/112 concerning UN Guidelines for the
prevention of Juvenile Delinquency (The Riyadh Guidelines), UN Resolution No.
45/113 concerning the UN Standard of the Protection of Juveniles Deprived of their
Liberty, UN Resolution No. 45/115 concerning UN Standard Minimum Rules for
Custodial Measures 1990 (the Tokyo Rules)
29 Kadek Widya Dharma Putra & I Made Subawa, “Perlindungan Hukum Terhadap
Anak Yang Berkonflik Dengan Hukum Ditinjau Dari Hukum Positif Indonesia’”
(2018) 7:3 Kertha Wicara: Jurnal Ilmu Hukum.h.4.
30 Meilan Lestari, “Hak Anak Untuk Mendapatkan Perlindungan Berdasarkan
Peraturan Perundang-Undangan” 1:2 UIR Law Review 183–190 at 189; compare
with Muhaemin B.'s quote, that form of respect on child's opinion is to respect
children's rights to participate and express their opinions in decision-making,
especially when it comes to matters that will affect their lives Muhaemin B, “Prinsip-
Prinsip Dasar Tentang Hak Perlindungan Anak (Tinjauan Quranik, Hadis, Dan
Hukum Positif)” (2016) 14:1 Jurnal Hukum Diktum 77–87 at 83.
31 Various studies have shown that children and adults are not comparable in behavioural
aspects. See Christopher G Lucas et al., "When children are better (or at least more
open-minded) learners than adults: Developmental differences in learning the forms
of causal relationships" (2014) 131 Cognition 284–299; Emily G Liquin & Alison
Gopnik, "Children are more exploratory and learn more than adults in an approach-
avoid task" (2022) 218 Cognition; Novi Cahya Dewi, "Individual Differences in
Developmental Psychology Early Childhood Mentality" (2021) 4:2 Nazhruna: Jurnal
Pendidikan Islam 447–459.
32 Victims experience secondary victimisation by perpetrators and by the criminal justice
system. In contrast, criminal justice prioritises the interests of perpetrators (offender-
Lentera Hukum, 10:1 (2023), pp. 45-72 | 52
as children in the tug-of-war between certainty, expediency, and justice, or
spannungsverhältnis.33 In spannungsverhältnis, it is necessary to have a priority
for stakeholders in enacting policies, 34 especially for law enforcement
officials. In this case, the child as the RRP victim, as well as the perpetrators
of abortion, require policies that concede the child’s opinion.
A. Child Perpetrator on Formal Justice Process
Indonesian law prohibits abortion. Although the exceptions to abortion
prevail, they are too rigid and cannot interpret differently.35 The Court's
decision No. 5/Pid.Sus.Anak/2018/PN.Mbn becomes the landmark of their
rigidity regarding abortion. The panel of judges overlooked that the
perpetrator was a victim of RRP. The court considers abortion as a standard
abortion offence without any official notes of chances given to the child to
opine. This case indicates that the child's opinion has been violated.36 Even
though criminal processes in the formal justice system37 that are carried out
centred) because the criminal justice system is organised to try suspects and not serve
the victims' interests mainly. See Mudzakkir, “Kedudukan Korban Tindak Pidana
Dalam Sistem Peradilan Pidana Indonesia Berdasarkan KUHP Dan RUU KUHP”
(2011) 14:1 Jurnal Ilmu Hukum 29–30.
33 Spannungsverhältnis is the term used by Gustav Radbruch in describing the tug-of-
war between certainty, expediency, and justice as the three fundamental values of law,
whose positions cannot be equal and collide with each other. See Formal Review and
Material Review of Law 13/2022 on the Second Amendment to Law 12/2011 on the
Formation of Legislation under the 1945 Constitution, 2022 Constitutional Court of
Indonesia at 21.
34 Stakeholder mapping is a technique that can be used to identify and assess the interests
of critical parties, groups, or institutions that can influence the success of a policy.
Damarjati Prabowo & Dewi Rotyaningsih, “Stakeholders Mapping In Overcoming
Child Marriage Problems In Semarang” (2019) 8:4 Journal of Public Policy and
Management Review at 6.
35 ICJR, “Amicus Curiae: Jangan Hukum Korban Perkosaan”, Institute for Criminal
Justice Reform (7 August 2018), online: . Accessed on 10 January 2023.
36 Even though Case Number 5/Pid.Sus.Anak/2018/PN Mbn was annulled by the
Jambi High Court in Decision Number 6/Pid.Sus- Anak/2018/PT. JMB freed
children from punishment by applying the principle of the child's best interests but
not elaborating on the essence of the child’s opinion tried for abortion.
37 The criminal justice system includes the investigation sub-system, the prosecution
sub-system, the justice sub-system, and the criminal execution sub-system, where a
53 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
on children endanger their future. 38 The Court's Decision No.
5/Pid.Sus.Anak/2018/PN.Mbn is carried out through the stages of arrest,
detention, examination in court, and imposition of sanctions imprisonment.
Formal justice for child rape victims who committed abortions potentially
sets a bad precedent for similar cases in the future. Prioritising the protection
of child victims by applying the applicable principles is far more critical than
a judicial process that is punishment centred.39
B Child-Oriented Law Enforcement
Child victims of rape should not be criminalised. Criminalising only results
in doubling child experience as victims, which harms physical, mental, and
social conditions.40 Criminalising rape victims and forcing them to continue
pregnancies without adequate mental preparation can cause psychological
disturbances and even depression. It has the potential to create an
environment that is not supportive of the growth and development of future
child who conflicts with the law fulfils the requirements to be detained, tried, and
sentenced to imprisonment in the crime of abortion of RRP. In some cases, the
criminal justice system is related to formal justice against children, which results in
trauma and endangers a child's future. Therefore resolving children's problems using
formal processes should be avoided. As a comparison, Article 11 of the Beijing Rules
states: (1) If necessary, consideration must be given to officials authorised to deal with
children who commit crimes without following the formal justice process; (2) Police,
prosecutors, or other institutions that handle cases of delinquent children must be
authorised to handle such cases at their discretion without going through a formal
trial, following the criteria stated in the objectives of the applicable legal system and
by the principles in this provision; (3) any diversion that involves handing over to the
community or other services deemed necessary, requires the consent of the child, or
their parents/guardians. The decision to divert the case should be subject to the review
of the competent authorities in practice
38 Ilham Wahyudi, “Penyelesaian Perkara Anak Secara Restorasi Dalam Penerapan
Sistem Peradilan Anak” (2017) 4:2 Salam: Jurnal Sosial dan Budaya Syar-i at 233.
39 Provision of restitution, medical assistance, and psychosocial rehabilitation assistance
need to be prioritised in dealing with cases of abortion on RRP child victims, as well
as rights mentioned in Article 5 Act No. 13 of 2006 on Protection of Witnesses and
Victims as amended according to Act No. 31 of 2014 on Amendments to Act No. 13
of 2006.
40 Problem Aturan Aborsi: Ancaman Kriminalisasi Tenaga Kesehatan, Korban Perkosaan,
dan Ibu Hamil dalam RKUHP, by Frenia Nababan et al (Jakarta Selatan: Perkumpulan
Keluarga Berencana Indonesia (PKBI), 2017) at 21.
Lentera Hukum, 10:1 (2023), pp. 45-72 | 54
children.41. The refusal of an RRP on a child by having an abortion reflects
the child's opinion to refuse its role as a mother. In this case, respect for a
child's opinion expressed by abortion should be protected by not
incorporating it into the formal criminal justice system.42
Children are vulnerable and in need of protection, especially under the law.43
This is shown by legal principles that give privileges to children as the next
generation of people who conflict with the law. In applying the law regarding
children who conflicted with the law, the court should not be a 'mouthpiece
of the law,' but the court should be able to function as a mirror of justice and
expediency in applying the rule of law. The application of the law by judges44
can be carried out using the principle of criminal individualisation45. The use
of sanctions in criminal law must be adapted to the offender's characteristics
and personal circumstances. There must be leeway/flexibility for the judge in
choosing the appropriate sanction or even freeing the child from criminal
responsibility. The application of criminal individualisation in abortion cases
to child victims of RRP is by prioritising the victim rather than the abortion
41 Jennifer Scott et al., "A qualitative analysis of psychosocial outcomes among women
with sexual violence-related pregnancies in eastern Democratic Republic of Congo"
(2017) 11:64 International Journal of Mental Health Systems.
42 Adverse effects are related to the act of abortion and the processes that children go
through in the formal criminal justice system. Apart from being directly related to the
principle of respect for a child's opinion, it relates to the child's best interest and, most
importantly, the principle of the right to life, continuity, and development. The right
to life of an aborted fetus can contradict the principle of the right to life. However, in
this context, the option of abortion for a child victim of RRP has become an
alternative preferred.
43 Laurensius Arliman S, “Perlindungan Anak Oleh Masyarakat Ditinjau Dari Mazhab
Sejarah Di Dalam Penerapan Prinsip The Best Interest Of The Child Pada
Kehidupan Anak Di Indonesia” 2:1 Jurnal Era Hukum.
44 In criminal law enforcement, the adjudication phase is the stage of examining a case
by a judge. In contrast, the stages of investigation, investigation, and prosecution are
qualified as the pre-trial phase, and the implementation of criminal sanctions is
qualified as the post-trial phase. The adjudication phase can only be carried out if the
pre-trial phase fails to carry out its mission of overcoming the problem of abortion by
child victims of RRP.
45 The principle of criminal individualisation departs from the importance of protecting
individuals (perpetrators of criminal acts) in the criminal law system. See Tri Wahyu
Widiastuti, “Prinsip Individualisasi Pidana Dalam Hukum Pidana Dan Hukum
Pidana Islam Di Indonesia” (2010) 9:2 Wacana Hukum at 46-47.
55 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
committed. Thus, if the judge imposes sanctions, it is not solely for
retaliation but is more prospective and oriented toward the child's future.46
In this case, the application of criminal individualisation is in line with the
paradigm shift in sentencing. 47 There is compatibility between the
imposition of a judge's decision and the nature of the child as a victim and
an offender.
The judge should consider child victims of RPP that commit abortion as a
special case. The judge is not supposed to impose criminal sanctions48, but
deciding not guilty as an alternative. The judge's job in law enforcement is
more than just applying the law49, because for law enforcement officials, the
law is an interpretive concept. There is room for law enforcement officials,
namely investigators, prosecutors, and judges to make interpretations in
selecting, placing, and applying the law.50 The judge's task is not only to
apply the law and the existence of an interpretive concept in the examination
of criminal cases but to represent the absolute power of a judge. 51 The
46 Marjuanda Sinambela, “Vonis Penjara oleh Hakim Terhadap Kasus Pelecehan
Seksual yang DIlakukan Anak dalam Perspektif Keadilan Restoratif (Studi Kasus
Putusan Nomor: 98/Pid.Sus-Anak/2014/PN.SAG)” (2017) 4:4 Nestor Tanjungpura
Journal of Law, online: .
47 Hadibah Zachra Wadjo, “Pemidanaan Anak Dalam Perspektif Keadilan Restoratif”
(2016) 22:1 Jurnal Sasi at 79.
48 Article 191(2) of the Criminal Procedure Code of Indonesia states that if the court
believes that the act charged against the defendant is proven. However, the act does
not constitute a crime, and the defendant is acquitted of all charges.
49 Ifrani, “Kajian Filsafat Hukum Tentang Kedudukan Hukum Dalam Negara Ditinjau
Dari Perspektif Keadilan” (2012) 1:1 Jurnal Konstitusi at 79.
50 Aulia A Rachman, “Strategi Penegakan Hukum Mengatasi Mafia dan Korupsi” 6:35
Jurnal Intelijen dan Kontra Intelijen at 49.
51 Compare Dworkin's argument, which distinguishes between the arguments of
principles and policies, called a policy argument when judges try to account for
decisions by demonstrating benefits for the political community. In contrast, the
principle argument is the judge's argument that justifies the decision based on respect
or protection of individual or group rights. Each case is unique, so it requires a new
legal interpretation. In other words, there are never two completely similar cases. See
Michel Rosenfeld, “Dworkin and the One Law Principle: A Pluralist Critique” (2005)
233:3 Revue internationale de philosophie 363–392.
Lentera Hukum, 10:1 (2023), pp. 45-72 | 56
absolute power of judges52 provides full opportunity for subjective discretion
in law enforcement.53 Thus, the judge's task is not only to apply the law but
to his subjective discretion.54 The judge has the authority and full power to
free the child against all charges. In addition, the judge should reflect on the
child's position as an RRP victim. Therefore, the child decides to have an
abortion based on the child's opinion, which essentially also contains the
application of the principle of the child's best interests and the principle of
the right to life55, survival, and development. 56
52 The absolute power of the judge is a reflection of the freedom of the judge to decide
every case. In this case, the judge's freedom is part of the judicial power, and the
judiciary possesses the independence or independence to create an objective and
impartial decision. See Firman Floranta Adonara, "Prinsip Kebebasan Hakim dalam
Memutus Perkara Sebagai Amanat Konstitusi" (2015) 12:2 Jurnal Konstitusi at 217.
53 Wayne LaFavre states that law enforcement is a process, in essence, the application of
discretion, which involves making decisions that are not strictly regulated by the rule
of law but have an element of personal judgment. According to Wayne La Favre,
discretion in law enforcement is critical because of no perfect legislation and delays in
adapting laws and regulations to societal developments that give rise to uncertainty. In
addition, the reason covers the lack of funds to implement legislation as legislators
desired and individual cases requiring special treatment. See I Wayan Juliartha Suda
& I Wayan Suwanda, “Kajian Tugas Dan Fungsi Polri Dalam Penegakan Hukum”
(2022) 16:1 Jurnal Ganec Swara at 1337.
54 According to the Law Dictionary, discretion is a policy that must be taken by law
enforcement because of the field urgency. M Marwan & Jimmy P, Kamus Hukum
(Surabaya: Reality Publisher, 2009) at 173.
55 The right to life of a child must be interpreted narrowly. In this case, sacrificing
'prospective children' who are aborted by prioritising the lives of child victims of RRP
can be justified using a philosophical approach. Ethical reasons can be put forward as
justification for committing it. Fokky Fuad, “Aborsi Sebuah Perdebatan Filsafat
Hukum’” (2014) 11:1 Lex Jurnalica at 2.
56 Judges are not legislators because their job is to adjudicate or examine and adjudicate.
The task of making laws lies within the realm of legislation. However, in the end, the
judge determines what the law requires. As Satjipto Rahardjo quoted Dworkin's
argument, Judges also "make laws" at a higher level. This is because the judge decides
that the law is not carried out by reading the text (textual reading) but by exploring the
moral behind it (moral reading). See Muhammad Akib, “Refleksi Pemikiran Hukum
Modern Suatu Orientasi Menuju Paradigma Deep Ecologi dalam Pengkajian Ilmu
Hukum” (2009) 27:2 Jurnal Hukum Pro Justitia 155–167.
57 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
IV. THE CHILD BASED ON FORENSIC SCIENCE
INTERVENTION
The children as RRP victims committing to abortion are in a dual position
in the Indonesian criminal system as they are victims and perpetrators. As
this may result in a paradoxical situation, a child's RRP abortion is treated
with a standard criminal justice process. 57 H. L. Packer, a professor of law
from Stanford University, warned that the general and coercive use of
criminal sanctions would cause the criminal facility to become a "prime
threat." 58 Criminal sanctions constitute the best guarantor when used
sparingly, carefully, and humanely, and once a 'main threat' when used
indiscriminately and forcibly.59 By referring to Packer's opinion, the use of
criminal law in the case of children as RRP victims committing to abortion
should be carried out sparingly, carefully, and humanely. A comprehensive
approach towards a victim's predicaments or a comprehensive victim's
mental state should be one of the determining factors in the court process.
Therefore, a humanistic approach is needed by prioritising the scientific
crime investigation approach.60
At the same time, child perpetrators of abortion require the assistance of
other disciplines in supporting the urgency of applying the principle of
57 Reko D Salfutra, “Hak Asasi Manusia Dalam Perspektif Filsafat Hukum” (2018) 12:2
Jurnal Hukum Progresifi 2146–2158.
58 Vernon B Fox, Paul M Whisenand, & Neil C Chamelin, Introduction to Criminal
Justice, Prentice-Hall (New Jersey: Prentice-Hall, 1979) at 26.
59 Herbert L Packer, The Limits of the Criminals Sanctions (California: Stanford
University Press, 1968) at 366.
60 Scientific Crime Investigation is an effort to research, investigate, search, examine,
and collect data, information, and findings to prove a fact's truth or even falsity. These
findings then present conclusions based on science that has been proven scientifically
correct by applying forensic science. Riza Sativa, “Scientific Investigation dalam
Penyidikan Tindak Pidana Pembunuhan” (2021) 15:1 Jurnal Ilmu Kepolisian at 59.
Forensic science is scientific knowledge used to reveal the occurrence of scientific
events as a tool to objectively reveal criminal events because scientific knowledge is
obtained through scientific research so that scientific truth can be guaranteed.
Muhammad Mustofa, “Peran Ilmu-ilmu Forensik dalam Penegakan Hukum di
Indonesia (Suatu Tinjauan dari Sudut Pandang Kriminologi)” (2010) 73 Jurnal Studi
Kepolisian at 110.
Lentera Hukum, 10:1 (2023), pp. 45-72 | 58
respect for the child's opinion.61 The act of abortion is potentially related to
the victim's mental state. Forensic science can explore and support the
assessment of respect for a child's opinion.62 Law enforcement officials may
take specific policies and not even continue the legal process dealing with the
children as the RRP victims, particularly if they refuse to have a pregnancy.63
The empowerment of forensic sciences in dealing with child victims of RRP
includes examining forensic medical experts64, forensic psychiatrists, forensic
psychologists, and forensic social worker experts.65
Forensic psychologists play a crucial role in cases of children who are victims
and witnesses of RRP. 66 Psychology can help diagnose victims, provide
61 Applying the principle of respect for the child's opinion implies applying the principle
of the child's best interests.
62 Forensic science is used to apply Scientific Crime Investigation to support proof of
legal (criminal) cases based on scientific truth. The urgency of applying forensic
science cannot be separated from the objective of finding material or actual truth in
examining criminal cases. The branches of forensic science include forensic medicine,
forensic psychiatry, forensic psychology, forensic anthropology, forensic social
workers, forensic sociology, forensic odontology, digital forensics, forensic ballistics,
forensic toxicology, and so on.
63 In this case, it prioritises the opinion of the child victim in choosing to continue the
pregnancy or end the pregnancy by utilising an abortion. Decision-making based on
the recommendations of forensic experts is based on the assessment given after
examining the child. The forensic expert team plays a vital role in exploring the child's
opinion and deciding to have an abortion. The expert team's assessment is used as a
basis for law enforcement officials and all stakeholders to make the best decision for
the child by respecting the child's opinion in continuing or terminating the pregnancy.
64 Marchel R Maramis, “Peran Ilmu Forensik Dalam Penyelesaian Kasus Kejahatan
Seksual Dalam Dunia Maya (Internet” (2015) 2:7 Jurnal Ilmu Hukum at 42; Ratna
Dewi P et al, Buku Ajar Pemeriksaan Fisik Dan Aspek Medikolegal Kekerasan Seksual
Pada Anak Dan Remaja (Lampung: Bagian Obstetri Dan Ginekologi Fakultas
Kedokteran Universitas Lampung, 2017) at 7.
65 However, the term forensic social worker is yet to be widespread in Indonesia, even
though in America, social workers who deal with legal issues are called forensic social
workers. Oktaviani, Forensic Social Worker Studi Kasus Peran Pekerja Sosial dalam Proses
Diversi pada Sistem Peradilan Pidana di Kabupaten Sleman Universitas Islam Negeri
Sunan Kalijaga Yogyakarta, 2016).
66 See Amelia Pingky Nadia Tita Suwito & Putri Pusvitasari, “Peran Psikolog Forensik
Pada Anak Yang Menjadi Korban Sekaligus Saksi Pelecehan Seksual” (2022) 8:13
Buletin Konsorsium Psikologi Ilmiah Nusantara, online: .
59 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
justice for victims, prevent recurring incidents and have a more significant
impact on victims, and provide policy recommendations under laws and
regulations. Forensic psychologists are needed to help cope with crimes that
cause victims to themselves, help victims carry out their functions in the
ongoing judicial process, and fulfil victims' rights. Forensic science reports
may provide information that triggers a comprehensive understanding of the
law enforcement process. Forensic psychologist involvement may enlighten
the intricate characteristic of abortion of a child victim.
For child victims, abortion is a traumatic experience that already shook their
overall mental state. The involvement of children in the legal process or
dealing with the law can potentially affect emotional and psychosexual
development67, even psychosocial68. Therefore, forensic psychologists can
play a role in helping child victims overcome and recover from their trauma.69
Abortions by RRP victims must receive legal protection considering the
suffering they experience physically and psychologically. 70 Child victim
recovery from trauma must be a top priority that all parties must carry out.
Physical trauma can be recovered with the help of a doctor through a forensic
medical examination. Physically the doctor can determine the condition of
67 Psychosexual term meaning is to describe sexual pleasure. During childhood, the parts
of the body have a psychological meaning that stands out as a source of new pleasures,
and new conflicts gradually shift from one part of the body to another at certain stages
of development; See Donna L Wong, Buku Ajar Keperawatan Pediatrik, 6th ed
(Jakarta: EGC, 2009) at 117; See Andi Nur Andriani, “Peran Orang Tua Terhadap
Pengetahuan Seks Pada Anak Usia Dini” (2016) 4:2 Jurnal Equilibrium Pendidikan
Sosiologi at 225.
68 Psychiatric and social problems that have a reciprocal influence as a result of social
change and or social turmoil in society, which can lead to mental disorders; Ernalinda
Rosya, Modul Psikososial Dan Budaya Dalam Keperawatan (Jakarta: Universitas Esa
Unggul, 2019) at 13.
69 Forensic psychologists can assist in telling stories and giving testimony by paying
attention to the psychological condition of the victim's child. In proving legal cases,
the law regulates that children can give testimony in criminal cases for investigation,
prosecution, and examination. In practice, all parties must consider the child's best
interests. See Fitri Melati Sopyani & Triana Noor Edwina, “Peranan Psikologi
Forensik dalam Hukum di Indonesia” (2021) 1:1 Jurnal Psikologi Forensik Indonesia
46–49.
70 Rinna Dwi Lestari, “Perlindungan Hukum Perempuan Pelaku Aborsi Dari Korban
Perkosaan Terhadap Ancaman Tindak Pidana Aborsi” (2020) 1:1 Magistra Law
Review at 1.
Lentera Hukum, 10:1 (2023), pp. 45-72 | 60
the victim's child in determining the appropriateness of choices to abort or
continue the child's pregnancy based on medical science that has been
scientifically proven. In contrast, psychological trauma through forensic
psychologist insight and intervention plays a vital role in recovering
traumatic conditions and assisting children in expressing children's opinions
regarding their condition. Through a psychological approach, respect for
children's opinions can be broken down and used as material for
consideration by all parties in making policies.
Victims of RRP experience tremendous losses as one of the heaviest forms
of violence against women. According to Abdul Wahid and Muhammad
Irfan, the women victims of rape should be placed in a broader social context,
where it is socially defined and controlled since crime often occurs in this
pattern of relations. 71 Rape has hurt and destroyed the life of the victim and
also his family. Moreover, the child of the victim and his family must bear
the burden of 'accepting' the pregnancy, which incidentally results from the
crime. 72 Prohibiting abortion of child victims RRP and 'forcing' them to
continue their pregnancies has an impact on all aspects of life, be it economic,
social, cultural, or legal. 73
Almost every cultural environment shows that being a mother is a highly
respected role74, but under certain conditions, it is often stigmatised. The
obligation of women in the reproductive cycle as the owner of the uterus to
continue the next generation has not been followed by fulfilling their sexual
rights and reproductive health75. Victims of RRP who have not recovered
71 Andika Legesan, “Korban Kejahatan Sebagai Salah Satu Faktor Terjadinya Tindak
Pidana Pemerkosaan” (2012) 1:4 Lex Crimen at 12.
72 Most of the reasons for abortion are non-medical. For example, they do not want to
have children. They fear disrupting their careers, disturbing their school, and being
financially unable to raise children. They do not want to raise children without the
presence of a father, and pregnancies outside of marriage, or to maintain family
honour. See Rumelda Silalahi & Rasmita Luciana, “Pandangan Hukum Kesehatan
Terhadap Abortus Provocatus Berdasarkan Undang-Undang Nomor 36 Tahun 2009’”
27:3 Jurnal Darma Agung at 1082.
73 The legal impact is mainly related to civil administration registration concerning a
child's identity due to crime.
74 Frenia Nababan et al, supra note 31 at 3.
75 Ibid.
61 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
from the trauma are then threatened by law and 'forced' to continue with
unwanted pregnancies, meaning that their body rights have been deprived76,
in addition to other accompanying rights. Even though the law guarantees
that someone is in an 'overmacht',77 a condition that cannot be prosecuted
and sentenced.
The condition of psychological trauma due to RRP may create an
environment of pressure from the family and society, indicating the existence
of a coercive situation or 'overmacht,' which should have eliminated
prosecution and punishment. In criminal law, forensic psychiatrists play an
essential role in determining and proving whether or not there is a capacity
to be responsible.78, including determining the size of responsibility in terms
of the psychological condition of an alleged perpetrator of a crime, while
forensic social worker experts play a dominant role as enablers, namely
assisting clients in accessing resource systems, identifying problems,
increasing self-capacity in overcoming problems, so that child victims of
RRP can return to functioning socially. 79
The involvement of forensic experts80 in providing an assessment of child
victims of RRP should involve the family, both parents and guardians, where
the victim's child lives within the scope of a family. However, traditional
values in Indian and Indonesian societies will likely intervene with forensic
experts' assessment since child rights are foreign to each patriarchal society.
76 Ibid.
77 Coercive power can be accepted as the reason for abolishing a sentence originating
from a greater power, namely power that generally cannot be resisted, including
absolute coercion, relative coercion, and emergencies. See Thomas Chandra,
“Overmacht (Daya Paksa) dalam Hukum Pidana”, Lembaga Bantuan Hukum
Pengayoman Universitas Katolik Parahyangan (1 June 2021), online:
. Accessed on 19 January 2023.
78 Muhammad Farhan Abdillah & Iman Santoso, “Psikiater Dalam Ranah Hukum
Peradilan Pidana” 10:1 Jurnal Pendidikan Kewarganegaraan Undiksha at 98.
79 Rifdah Arifah Kurniawan, R Nunung Nurwati, & Hetty Krisnani, “Peran Pekerja
Sosial Dalam Menangani Anak Korban Kekerasan Seksual” (2019) 6:1 Prosiding
Penelitian & Pengabdian Kepada Masyarakat at 21.
80 Forensic medical expert, forensic psychologist, forensic psychiatrist and forensic social
worker expert.
Lentera Hukum, 10:1 (2023), pp. 45-72 | 62
Family involvement in accompanying children psychologically 81 may be
beneficial. Child collaboration with a competent guardian and parents may
help in every stage of forensic experts' examination, especially in supporting
the application of the principle of respect for children's opinions. Law
enforcement in dealing with child victims of RRP must be carried out
carefully, thoroughly, and carefully based on the assessment of the relevant
forensic experts. A thorough psychological examination may result in a
comprehensive court process. Therefore, prioritising respect for the child's
opinion must be the most crucial part of solving the problem of abortions by
child victims of RRP, primarily based on the assessment of forensic experts.
V. LAW RELATING TO CHILD SEXUAL VIOLENCE AND
ABORTION IN INDIA
India has enacted the Protection of Children from Sexual Offences
(POCSO) Act 2012 to tackle the increasing sexual offences against children.
According to this act, a child means any person under 18. This act, along
with the provisions of the Indian Penal Code of 1882, helps the executive
body of India tackle sexual offences against children. Even under the
POCSO Act 2012, a special court for trial has been formed to deal with the
cases of sexual offences related to minors. Accordingly, the government's
response should ensure that the investigation process is child-friendly and
that the case is disposed of within one year from the date of the report.
Indian law, from the very beginning, has considered the rape victim's right
to abortion under the Medical Termination of Pregnancy Act, 1971 (MTP
Act), irrespective of the victim's age. Sec. 3(2), Explanation 2 of the MTP
Act deals with humanitarian conditions, where rape victims are given the
right to go for an abortion, which is also protected under the right to life
with dignity and the right to privacy under Article 21 of the Indian
81 The family plays a significant role in moral and material development in adapting to
the social environment. When sexual crimes occur, family is a factor that significantly
influences the development of the victim's psychological recovery; Muhammad Haviz
Burahman, “Peran Keluarga Dalam Pendampingan Dan Pemulihan Kepada Anak
Yang Menjadi Korban Kekerasan Seksual di Kota Dumai” (2022) 2:2 Educational
Journal: General and Specific Research at 285.
63 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
Constitution. If the victim is a minor, then in such cases, guardian consent
for abortion is required under the MTP Act. The lawmakers of India have
considered the judgement passed in Rex versus Bourne, ALL ER 615,
where, for the first time, a girl of 14 years who was a rape victim had an
abortion, irrespective of the fact that at the time, abortion was not legal. In
this case, the court determined that therapeutic abortion is legal when
performed for the mother's mental and physical protection. Forcing a rape
victim to continue her pregnancy is dangerous for the mother and the child.
Thus, Indian legislation and the judiciary have repeatedly demonstrated that
rape victims should be permitted to have abortions.
In Chandrakant Jayantilal Suthar & Another v. State of Gujarat, 2016 (4) RCR
(Criminal) 876, a minor rape victim was expressively distraught and bodily
weak to bear a child after being raped by her doctor. The medical team
doctors told them that this pregnancy due to rape posed a severe threat to
her life and that termination at 24 weeks of pregnancy was a much better
option than not terminating it. Also, such termination would cause no
mental or physical harm to the victim's health. After considering the medical
opinion, the Supreme Court allowed the termination of pregnancy if the girl
consented to do so.
Even in international forums like the case of LMR versus Argentina, UN Doc.
CCPR/C/101/D/1608/2007, the Human Rights Committee held that "the
denial of legal abortion for a rape victim inflicted physical and mental
suffering, violating the woman's right to be free from torture or cruel,
inhuman, or degrading treatment, and her right to privacy". In this case, the
court has been convinced that denying an abortion right to a rape victim will
amount to cruelty and is against their right to privacy.
In the State of Rajasthan v S, the Rajasthan High Court concluded that a
woman's “reproductive choice” is a fundamental right and that a child rape
victim has a fundamental right to an abortion. In such a case, guardian
consent will be sufficient.82 As per Indian law, identifying the rape victim
82 Apoorva Mandhani, “Minor rape victim’s right to abort outweighs foetus’ right to be
born: Rajasthan High Court”, The Print (2 May 2020), online: . Accessed on 10th February 2023.
Lentera Hukum, 10:1 (2023), pp. 45-72 | 64
should not be disclosed. Indonesian law failed to understand the mental and
bodily trauma of the rape victim, irrespective of the victim's age. Indonesian
law has to understand that rape is more than just a physical assault; it usually
ruins the victim's entire psyche. A murderer destroys the victim's human
body, while a rapist ravages the hapless woman's entire soul. Charging a rape
victim for RRP is against humanity. The law, particularly in cases of sexual
violence against minors, should be protective towards the victim. In this
regard, the government is obliged to provide therapeutic abortion to a rape
victim on humanitarian grounds. It is a well-accepted fact that a rape victim's
physical scar may diminish over time, but the psychological scar will never
go away. Convicting and punishing a child rape victim for abortion in RRP
will cause her and her family double mental trauma.
The denial of abortion rights to a rape victim is a violation of women's
reproductive rights, too, which is again and well-accepted right at the
international level and under CEDAW. Woman's reproductive rights
include the right to equality, the right to privacy, the right to education, the
right to liberty, the right to safe access to health care, the right to be free
from any violence, the right to abortion and reproductive health information
and services.
VI. CONCLUSION
The study concludes that rules on a child's opinion, especially its role in
courts, are vital for re-evaluation. Indonesian legislation in this matter
appears ambiguous in law enforcement and in interpreting child victim
rights, often failing in legal practice in child protection. Court's Decision No.
5/Pid.Sus.Anak/2018/PN Mbn addresses that child's opinion in courts is
ignored, while a lack of child perspective is shown in dealing with a child
victim of RRP. In addition, the lack of clear policing of child-oriented law
can be seen as determining factor of poor law enforcement. The study shows
a dire need for forensic science intervention to deal with such matters.
Hence, Indonesia's policy-making may consider abortion as a form of child's
opinion by considering India, which stipulates legal abortion right
established as a form of child's opinion. In doing so, the Indonesian
65 | Forensic Approach to Optimise Children’s Right to Opinion in Indonesian Courts
government can involve forensic experts to address this shortcoming, as
particularly the existing Indonesian legal framework has provided experts to
be involved in courts. This involvement of forensic experts will be a way to
optimise child-oriented courts in Indonesia.
ACKNOWLEDGMENTS
None.
CONFLICT OF INTEREST
The authors declare no competing interests.
ETHICS APPROVAL
The corresponding author states that no human participants or animals are
involved in this research.
INFORMED CONSENT
On behalf of all authors, the corresponding author states that no human
participants are involved in this research, therefore, informed consent is not
required by them.
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Cite this article: Ohoiwutun, Y.A. Triana, et al., “Forensic Approach to Optimise Children’s Right to Opinion
in Indonesian Courts” (2023) 10:1 Lentera Hukum 45-72, DOI: .
Lentera Hukum, 10:1 (2023), pp. 45-72 | 72
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