Can You Be Imprisoned for Having Sexual Intercourse with Your Boyfriend/Girlfriend?

PERTANYAAN

Can someone be sentenced to jail for having sex with their boyfriend/girlfriend? Meanwhile, it is a mutual decision to have sex with.

INTISARI JAWABAN

Premarital sex may be subject to adultery and is regulated under the previous Indonesian Criminal Code and the new Criminal Code, namely Law 1/2023. However, the two provisions are regulated differently regarding the criminal act of adultery.

So, what is the regulation on consensual sex with your partner?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Bisakah Dipenjara karena Berhubungan Seks dengan Pacar? which was written by Dian Dwi Jayanti and was published on Thursday, 5 January 2023.

This article below is the third update which was written by Liza Elfitri and was first published on Tuesday, 2 July 2013. It was first updated on Thursday, 20 September 2018, and secondly updated on Thursday, 27 February 2020 by Tri Jata Ayu Pramesti.

This article is written according to the previous Indonesian Criminal Code and Law 1/2023 on the Criminal Code, which was promulgated on 2 January 2023.

All legal informations which are available through Klinik hukumonline.com have been prepared for educational purposes only and are general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Sex between men and women is basically legal if it is carried out within the scope of marriage institutions. In addition, marriage is permitted for both men and women who have reached the age of 19 years.[1]

Thus, premarital sex with a partner is of course contrary to the moral values that are held in society. Therefore, it should be avoided because it could cause inner peace issues, and health issues as well.

In order to answer your question as to whether premarital sex is criminalized, we will explain the provisions of the previous Criminal Code, which are still applicable at the time this article was published, as well as the new Criminal Code, Law 1/2023, which will entry into force 3 years after its promulgation.[2]

However, first of all, since you did not mention the ages of you or your partner, we should note that having sexual intercourse with children who are under the age of 18 is prohibited. This is regulated under the Law on Child Protection and its amendment.

Although sexual intercourse is conducted 'consensually', the provisions of the Law on Child Protection and its amendment prohibit any person who intentionally commits a ruse, lies, or induces a child to have sexual intercourse either with him or her or other people. These acts are subject to imprisonment for a minimum of 5 years and a maximum of 15 years and a maximum fine of IDR 5 billion.[3]

Furthermore, if you and your partner are not categorized as children or are older than 18 years, under the previous Criminal Code, sexual intercourse that could be criminalized is the sexual intercourse which is conducted by persons, whom one of them is bound by marriage and which is carried out by coercion or rape.

Since you have mentioned that the sexual intercourse is carried out consensually or based on mutual decisions, then we will explain about sexual intercourse between men and women, whom one of them or both are bound by marriage. This act is known as adultery. Perpetrators of adultery may be convicted according to Article 284 Criminal Code with a maximum imprisonment of 9 months. You can read more about the crime of adultery under the article entitled Risks of Being Mistress According to the Law.

In contrast to Article 284 Criminal Code, which required the criminal act of adultery to be committed by married men and women,[4] the new Criminal Code allows unmarried men and women to be charged with adultery.

According to Article 411 Law 1/2023, adultery or sexual intercourse which is committed by persons who are not their husbands or wives are liable to a maximum of 1 year in prison or a maximum of IDR 10 million in fines.[5]

This is affirmed in the Elucidation of Article 411 Section (1) Law 1/2023 that “not their husband or wife” means:

1. a man who is in a marriage bond has sexual intercourse with a woman who is not his wife;
2. a woman who is in a marriage bond has sexual intercourse with a man who is not her husband;
3. a man who is not in a marriage bond has sexual intercourse with a woman, even though it is known that the woman is in a marriage bond;
4. a woman who is not in a marriage bond has sexual intercourse with a man, even though it is known that the man is in a marriage bond; or
5. a man and a woman who are not bound by marriage have sexual intercourse.       

However, it should be noted that both Law 1/2023 and the previous Criminal Code stipulate that the criminal act of adultery can only be prosecuted if a denunciation is made. Under the previous Criminal Code, denunciation is made by husband/wife[6] while under Law 1/2023, adultery could only be prosecuted if there is a denunciation from the husband/wife who is bound by marriage or parents/children for who are not bound by marriage.[7]

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Indonesian Criminal Code;
2. Law Number 1 of 1974 on Marriage as amended by Law 16 of 2019 on Amendment to Law Number 1 of 1974 on Marriage;
3. Law Number 23 of 2002 on Child Protection as amended by Law Number 35 of 2014 on Amendment to Law Number 23 of 2002 on Child Protection as amended for the second time by Government Regulations in Lieu of Laws Number 1 of 2016 on Second Amendment to Law Number 23 of 2002 on Child Protection as determined as a law by Law Number 17 of 2016 on the Determination of Government Regulations in Lieu of Laws Number 1 of 2016 on the Second Amendment of Law Number 23 on 2002 on Child Protection to Become a Law;
4. Law Number 1 of 2023 on the Criminal Code.

Reference:

1. Nisrina Irbah Sati. Ketetapan MPR dalam Tata Urutan Peraturan Perundang-undangan di Indonesia, Jurnal Hukum & Pembangunan 49 No. 4, 2019.

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[1] Article 7 Section (1) Law 16 of 2019 on Amendment to Law Number 1 of 1974 on Marriage (“Law 16/2019”).

[2] Article 624 Law Number 1 of 2023 on the Criminal Code (“Law 1/2023”).

[3] Article 81 Section (2) jo. Section (1) Government Regulations in Lieu of Laws Number 1 of 2016 on Second Amendment to Law Number 23 of 2002 on Child Protection (“Government Regulation in Lieu of Laws 1/2016”).

[4] Article 284 Section (1) number 1 letter a and b Indonesian Criminal Code (“Criminal Code”).

[5] Article 411 Section (1) jo. Article 79 Section (1) letter b Law 1/2023.

[6] Article 284 Section (2) Criminal Code.

[7] Article 411 Section (2) Law 1/2023.