Adultery and Cohabitation Laws Challenged at Constitutional Court; Government States Position
Provisions regarding adultery and cohabitation outside marriage in the Criminal Code (KUHP) have been challenged at the Constitutional Court (MK). Amid criticism that the state has overreached into private matters, the government has affirmed that these provisions are designed with strict limitations to prevent easy criminalisation of citizens.
Deputy Justice Minister Edward Omar Sharif Hiariej stated this position during a judicial review hearing of Law Number 1 of 2023 on the Criminal Code at the Constitutional Court on Monday, 9 March.
He emphasised that provisions concerning adultery and cohabitation without marriage constitute absolute complaint offences, meaning legal proceedings can only proceed if a complaint is filed by a family member with direct interest.
“Articles 411 and 412 are absolute complaint offences. This means law enforcement can only be pursued if there is a complaint from a party with direct interest,” Hiariej said before the constitutional judges.
According to Hiariej, Article 411 defines adultery as sexual relations between a person and someone who is not their spouse, making the definition in the new Criminal Code clearer by directly defining adultery within the legal text. He explained that not all individuals can file such complaints.
“Those entitled to lodge complaints are the spouse for those already married, and parents or children for those unmarried,” he stated.
This provision also expands those who can file complaints compared to the previous law, which only granted such rights to spouses.
Additionally, complainants retain the opportunity to withdraw their complaint before proceedings reach trial. The government cited this mechanism as providing space for family-based resolution and preventing personal disputes from escalating into criminal proceedings.
Article 412 concerns cohabitation as husband and wife outside lawful marriage, commonly referred to by the public as “kumpul kebo”.
Hiariej stated this provision represents a new norm in Indonesian criminal law intended to respond to evolving moral values in society.
“Prosecution can only occur if there is a complaint from the lawful spouse or from parents and children, so not everyone can file a report,” he said.
He added that discussion of these two articles was among the longest during the Criminal Code’s drafting process. The government acknowledged finding sharply divergent views during socialisation activities in various regions.
In West Sumatra, for instance, some Andalas University students actually requested that adultery be classified as a regular offence because they believed it contravened religious values. Conversely, during socialisation in North Sulawesi, criticism emerged that the regulation overstepped into citizens’ private affairs.
“The debate was very intense and even extended to inter-factional lobbying at parliament,” Hiariej said.
Based on this, the government and parliament ultimately chose a middle path by maintaining the prohibition while limiting law enforcement through the absolute complaint offence mechanism.
After the Criminal Code was passed on 6 December 2022, this issue also attracted international attention. Hiariej noted that several foreign ambassadors sought clarification from the government regarding the morality-related provisions in the Criminal Code.
Previously, the judicial review application was submitted by ten law students from Open University. They argued that Articles 411 and 412 could be misused because they provide no mechanism for the accused to reject complaints motivated by revenge or abuse of authority.
The provisions in Articles 411 and 412 function as absolute complaint offences, which restrict reporting rights to immediate family members only.