Forgotten victims of Indonesia’s new sex outside marriage ban

A group of people caught up in Indonesia’s planned sex ban fear they could be jailed even though they aren’t committing a crime.

Sweeping changes to Indonesia’s laws, which will make sex between unmarried partners illegal, has made headlines around the world.

Much of the global bewilderment has been on how that might affect couples visiting tourist hot spots like Bali.

But there’s another group who are far more fearful of the new criminal code which has been branded “dangerous”.

Especially as it could quietly make an entire community of people in Indonesia effectively illegal – even for doing something that is supposedly legal.

Want to stream your news? Flash lets you stream 25+ news channels in 1 place. New to Flash? Try 1 month free. Offer available for a limited time only >

Foreign tourists in Seminyak, Bali. Picture: Sonny Tumbelaka/AFP

Last week the Indonesian parliament approved a swath of new laws which are due to come into force in three years’ time.

These will replace the country’s current criminal code which is derived from colonial laws from when the country of 275 million was under Dutch rule.

Among the 624 articles in the new code are laws which criminalise those who don’t abide by “the honour and dignity” of the President, ban “humiliation” of state institutions and protest without prior notification.

Then there is the criminalisation of partners cohabiting before marriage and the risk of a year in jail if a couple has sex before marriage.

A rattled Indonesian Government, concerned the severe new laws could drive away tourists with the laws, have been busy claiming tourists won’t be targeted.

“I want to emphasise for foreign tourists, please come to Indonesia because you will not be charged with this article,” human rights minister Edward Omar Sharif Hiariej said on Monday.

Bali’s local governor insisted no checks would be made on the marital status of visitors, of which 1.2 million annually are from Australia.

However it is worth noting that the criminal code, if signed into law as it stands, still technically applies to visitors as well as Indonesian citizens.

Prime Minister Anthony Albanese meets Indonesia’s President Joko Widodo at the G20 in November. Picture: Twitter/@AlboMP

However, there’s one group of Indonesians who feel they’ve been thrown under the bus by all the emphasis on the human rights of titillated tourists.

“We’re worried. News outlets are focusing on the extramarital sex too much but the new law is not only about that,” Indonesian LGBTI organisation Gaya Nusantara’s secretary Purba Widnyana told news.com.au.

Homosexuality is not illegal at the national level in the mostly Muslim nation which constitutionally is secular. Nonetheless, it is mostly frowned upon and in some regions has been made all but illegal at the local level. Either that, or regulations have been put in place which have hampered the lives of gay people.

Bali is relatively relaxed when it comes to diverse sexualities but, in contrast, in the province of Aceh – where sharia law is in place – homosexuality can be punished.

In 2021, two men received 77 lashes in front of a crowd after neighbours accused them of having sex.

Also last year, a US woman was deported from Indonesia simply because, she claimed, she said in a tweet that Bali was “queer friendly”.

A man is caned for breaking sharia rules in Indonesia’s conservative Aceh province where homosexuality is banned. There are fears new laws could effectively outlaw it everywhere. Picture: Chaideer Mahyuddin/AFP

Absurdity in the new law

Mr Widnyana picked one of the key contradictions in the new criminal code.

“The new law could be used to target LGBT people – especially because they cannot be legally married,” he said.

So, while homosexuality is legal, sex will now be banned outside marriage.

That means gay people could be prosecuted not specifically because they are gay but because they haven’t married their partner – which they are legally blocked from doing because they are gay.

US based organisation Human Rights Watch (HRW) said the new criminal code was an “unmitigated disaster”.

“Same-sex couples cannot marry in Indonesia, so this clause also effectively renders all same-sex conduct illegal.

“This is the first time in Indonesia’s history that adult consensual same-sex conduct has been proscribed by law,” it said.

The government has insisted that aspects of the law around relationships can only be enforced if a close family member reports the alleged offences. This has been highlighted in recent days to make tourists feel more at ease with visiting.

But HRW has said this will make little difference to Indonesians themselves.

“[The new laws] will disproportionately impact LGBT people who are more likely to be reported by families for relationships they disapprove of.”

More than one million Aussies visit Bali each year. Picture: Sonny Tumbelaka/AFP

‘Dangerous’ aspect of law

But even this proviso, slight as it is, might mean little because of another part of the new criminal code, said Mr Widnyana.

Talking from Indonesia, he said Gaya Nusantara was particularly concerned by article 2.

This states that some local customs and even unwritten rules, known as “living law,” could be applied to anyone. That raises the prospect for example of sharia law, and its canings, spreading beyond Aceh province.

“This article is dangerous because it’s vague,” he said.

“A person can be punished if they do something that is not liked by the people who live in the area.

“This article opens up possibilities of persecution and vigilantism against anyone who is deemed not in accordance with the prevailing customs in the area, even though the act is not a crime,” he said.

The Indonesian Government has tried to reassure tourists the new laws won’t apply to them. But currently tourists are just as liable as locals.

The new laws include other hurdles for the LGBTI community and organisations.

For instance, outreach work to encourage people to use condoms could be impacted by aspects of the new code that restrict access to birth control.

“It means a setback to our decades of work; a setback in prevention of HIV and sexually transmitted infections; freedom of expression and freedom of speech.”

The new criminal code still needs to be approved by President Joko Widodo.

Mr Widnyana told news.com.au the laws would be challenged in Indonesia’s Constitutional Court.

However, he said it marked a creeping tendency by Indonesia’s supposedly secular politicians to enact stricter and stricter laws.

“Our members of parliament passed this bill despite widespread rejections – they could do the same thing and make being queer [totally] illegal.”