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.