This article is an English translation of Apakah Homoseksual Bisa Dipidana?, written by Dian Dwi Jayanti, S.H. and published on Monday, 14 August 2023.

This article is the second update of the article with the same title, written by  Tri Jata Ayu Pramesti, S.H. and was first published on Thursday, 16 April 2015.

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 information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

The Law on Same-Sex Marriage in Indonesia

Before answering your question, what is a homosexual recognized? According to Kamus Besar Bahasa Indonesia (“KBBI”) a.k.a. the official dictionary of the Indonesian language, homoseksual or homosexuality is being attracted to people of the same sex.

Homosexuality is one type of sexual orientation. Sexual orientation is a feeling of sexual and emotional attraction to another person, either female or male. So homosexuality can be defined as a sexual attraction that occurs in the same sex.[1]

You are correct that homosexuals are acknowledged in the United States. This is based on the decision of the United States Supreme Court on 26 June 2016 which legally legalized same-sex marriage in all 50 states of the United States on the basis of human rights.[2]

Meanwhile in Indonesia, same-sex marriage or homosexual marriage is not recognized by Indonesian law. According to Article 1 Marriage Law, marriage is an emotional and physical bond between a man and a woman as husband and wife with the aim of establishing a happy and eternal family (household) based on Belief in God Almighty.

This means that the state only recognizes marriage between a woman and a man. You can read more about this in the article entitled The Law of Same-Sex Marriage in Indonesia.

Can Homosexuality be Criminalized?

Provisions regarding criminal charges for perpetrators of homosexuality can be found in Article 292 Criminal Code. However, this provision does not explicitly prohibit homosexuality between adults.

The provisions in Article 292 Criminal Code regulate the prohibition of homosexual acts against minors, which reads as follows.

Any adult who commits any obscene act with a minor of the same sex whose minority he knows or reasonably should presume, shall be punished by a maximum imprisonment of five years.

R. Soesilo in his book Kitab Undang-Undang Hukum Pidana (KUHP) serta Komentar-Komentarnya Lengkap Pasal Demi Pasal explains that:

1. Adult = 21 years old or not yet 21 years old, but has been married.
2. Same sex = male to male or female to female.
3. Obscene act = any act that violates decency (modesty) or an abominable act, all of which are within the sphere of sexual lust, for example: kissing, groping the private parts, groping the breasts, and so on. Obscene acts also include masturbation.
4. Two persons, all of whom are minors, or two persons, all of whom are adults, jointly committing obscene acts, shall not be punishable under this Article, because the punishment is the obscene act of an adult on a minor.
5. In order to be punishable under this article, the adult must know or at least reasonably suspect that his/her companion in the obscene act is a minor.

So, can same-sex obscene acts be criminalized? According to Law 1/2023, which will entry into force 3 years from the date of its promulgation,[3] which is in 2026, regarding homosexuality is regulated in Article 414 section (1), namely:

Any Person who commits obscene acts toward other persons of the same or different sex:

1. in public, shall be sentenced with imprisonment for a maximum of 1 year and 6 (six) months or a maximum criminal fine of category III, that is IDR50 million.[4]
2. by force with violence or threats of violence, shall be sentenced with imprisonment for a maximum of 9 years; or
3. which are published as pornographic content, shall be sentenced with imprisonment for a maximum of 9 years.

From Article 292 Criminal Code and Article 414 section (1) Law 1/2023 above, it can be seen that criminal charges for perpetrators of homosexuality do exist, but if followed by obscene acts, accompanied by violence or published as pornographic content, then the perpetrators can be convicted. However, having a crush or interest in someone of the same sex is not punishable.

Case Example

As an example of a case we can see in the Decision of the High Court of Palu Number 135/Pid.Sus/2021/PT Pal. The 17-year-old victim came to the defendant’s house and asked her to cut her hair. After cutting her hair, the defendant offered to drink coffee while waiting for the rain to stop (p. 2).

Then, the defendant asked the victim to go into the bedroom and asked the victim to massage the defendant's calf. After the defendant's massage, the victim was asked to lie down in a prone position and the defendant massaged the victim. Then, the defendant asked the victim to turn over onto her back and massaged the victim's thighs. Slowly the defendant removed the victim's trousers and grabbed the victim's genitals and performed masturbation on the victim (p. 3).

Due to the defendant's actions, the panel of appeal judges canceled the Poso District Court Decision No. 63/Pid.Sus/2021/PN. Pso (p. 14). The decision of the Poso District Court stated that the defendant was legally and convincingly proven guilty of committing the crime of "inducing a child to commit obscene acts" based on Article 82 section (1) jo. Article 76 E Law 17/2016 and was sentenced to imprisonment for 5 years and a fine of IDR5 billion with the provision that if the fine is not paid, it will be replaced by 3 months imprisonment (p. 5).

By the panel of appeal judges, the defendant was found legally and convincingly guilty of committing a criminal offense under Article 292 Criminal Code "committing obscene acts against a minor of the same sex" as in the second charge, and sentenced the defendant to 4 years imprisonment (p. 14).

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 Number 16 of 2018 on the Amendment to Law Number 1 of 1974 on Marriage;
3. Law Number 1 of 2023 on the Criminal Code.

Court Decision:

Decision of the High Court of Palu Number 135/Pid.Sus/2021/PT Pal.

References:

1. Agus Hamzah and Septiana Dwiputri Maharani. LGBT dalam Perspektif Deontologi Immanuel Kant. Jurnal Filsafat Indonesia, Vol. 4, No. 1, 2021;
2. Nanang Khosim Azhari, Herni Susanti, Ice Yulia Susanti. Persepsi Gay Terhadap Penyebab Homoseksual. Jurnal Keperawatan Jiwa, Vol. 7, No. 1, May 2019;
3. R. Soesilo. Kitab Undang-Undang Hukum Pidana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal. Bogor: Politeia, 1991;
4. Homoseksual (homosexual), accessed on Monday, 14 August 2023, at 15.03 West Indonesian Time (zone).