Careful judgement needed in rape cases

Careful judgement needed in rape cases

By Imanuddin

JAKARTA (JP): Death to rapists!

The long standing demand for the courts to get tougher against
rapists has gathered renewed force following the news of the
brutal gang-rape of a woman and her two teenage daughters at
their home in nearby Bekasi.

The demand was not only echoed by women groups, but also by a
cabinet minister, State Minister of Women Affairs Mien Soegandhi,
and a respected judge, Supreme Court justice Bismar Siregar.

Trial judges and legal practitioners say they are bound by law
and procedures in trying rape cases, which are always complex.

The death sentence has been ruled out for rape in Indonesia,
unless the crime is committed along with murder. Article 285 of
the Criminal Code stipulates a maximum of 12 years in prison for
rapists.

There is also the complexity of delivering evidence of rape in
court, including asking the victims to relive every detail of the
horrendous moments.

But even if a court manages to prove that rape has been
committed, Indonesian judges appear reluctant to hand down the
maximum sentences, a fact that angers women's groups.

There have been many instances of convicted rapists receiving
prison terms of only a few months or a few years. Rarely has a
rapist been sentenced to the maximum 12 year term permitted by
law.

Judges and prosecutors, however, have warned against
generalization.

"We should approach the issue case by case," Ali Budiarto,
deputy chief of the West Jakarta District Court, told The Jakarta
Post yesterday.

Budiarto said he has tried many rape cases during his career,
and recalled once sentencing a man to seven years in prison.

"Judges must retain their independence and not be influenced
by outside factors in passing sentences. They must also have
strong conviction in passing the verdict," he said.

Budiarto admitted that sentences for rape still vary greatly
from one case to another, but said that the judges are working on
the matter.

While insisting that judges should not be influenced by public
opinion when reaching their verdict, Budiarto concurred that they
should take into account the people's demand for justice.

He felt that some rape sentences should have been stiffer
because of the suffering inflicted on the victims.

Budiarto disagreed with the opinion that judges have been
lenient in punishing rapists because of a lack of evidence
presented during trials.

He said a judge must consider many factors, including what
factors mitigate the crime, in reaching a verdict. A guilty plea
and a show of remorse, he pointed out, were always considered in
the judges' decisions.

A long time prosecutor, Basrief Arief, told The Post said that
limited evidence in court often prevented prosecutors from
demanding the maximum 12 year prison term for rapists.

"We have to base our legal charges on facts and information
revealed during the trial," Basrief, who is now the chief
spokesman of the Attorney General's Office, said.

A lack of witnesses often forced prosecutors to go for lighter
sentences, he said.

"We also have to consider other factors beside the legal
aspects in presenting our demands for the appropriate sentence,"
he said.

Basrief revealed some of the difficulties commonly found in
prosecuting rape cases in court.

Sometimes, the evidence presented in court is different from
that collected during investigation, he said. "Often, the
witnesses or the defendants retract statements they gave to
investigators."

There have also been cases when a doctor's autopsy report
brought before the court differed from what the prosecutors had
obtained.

Asked about the big differences in rape sentences in
Indonesia, Basrief said that this is because the Criminal Code
prescribes the maximum penalty but not a minimum.

He said however that prosecutors will press for the stiffest
sentences possible if the facts and evidence obtained during
investigation and presented at the trial are strong enough.

He agreed with the opinion that an admission of guilt and an
expression of regret expressed by the suspect could mitigate the
judge's sentence. "However, the victim's interests are always the
main consideration for the prosecutors."

Basrief recalled that during his prosecuting days at the
Central Jakarta District Court in the 1980s, he once demanded a
nine-year term for a rapist. The judge decided on seven years.

In a separate interview, Justice Bismar Siregar said that
trial judges should side more with the victims rather than the
defendants when dealing with rape cases.

"Judges have to consider the effect of the rape on the
victims," he said, underlining that victims are virtually scarred
for life.

Siregar, who tried countless rape cases during his days as a
trial judge, rejected the notion that an admission of guilt and
an expression of remorse should be treated as mitigating factors.
"It is an incorrect but conventional practice," he said.

The senior judge agreed that lack of witnesses and
insufficient evidence affect the outcome of rape trials.

He argued that judges should be more sensitive to the public's
demands for justice. "Judges should monitor the trends and the
public's feeling regarding justice matters," he said.

Siregar reiterated his stand that the article on rape in the
Criminal Code should be changed with the maximum sentence raised
to death. "Twelve years is hardly sufficient for a rapist. He
should get death," he insisted.