Fachri Bey, SH, MM.
Dosen Fakultas Hukum
Universitas Esa Unggul
Victimology belives that in criminal
offenses, the victims are those who mast suffered among all who took
part in the offense. In exiting criminal justice system, if there is a
criminal offense, ussually both the police, the prosecutor, and the
judge pay attention only to the accused. What about the victim? Highly
likely, nobody pys adequate attention to them. The victim must take care
of them selves; they have to pay all treatment expenses, medical and
all hospital cost including counseling charge and health rehabilitation.
The victims who become as witnesses must come to investigation place on
tehir own, while the accused are provided with special transportation.
In the investigation place the accused is given as separate resting
place while the victims and witnesses, sadly, must look after them
anywhere else.
The needs of introducing and implementing
victimology as a subject, which deeply concern with victim of criminal
offense’s matters began to be discussed in Indonesia in the early
1980’s. This subject, later on well known as victimology, has been
taught in Indonesia since 1982 in various universities all over
Indonesia and also in police academy, police science academy and in the
attorney / prosecutor and judges (both civil and military) training
throughout Indonesia.
Following this initial development,
victimology has been taught in any universities out of Jakarta area.
Afterward, a series of seminars were conducted to enrich and develop the
subject. In 1986, the lecturers of victimology have adopted some
related regulation concerning protection to the victim of crime, such as
UN Declaration.
Victimology believes that in criminal
offenses, the victims are those who most suffered among all who took
part in the offense. In existing criminal justice system, if there is a
criminal offense, usually both the police, the prosecutor, and the judge
pay attention only to the accused. What about the victims? Highly
likely, nobody pays adequate attention to them. The victims must take
care of themselves. Instead, after the occurrence of criminal offenses
such as rape, the victims must go to the hospital by themselves; they
have to pay all treatment expenses, medical and all hospital cost
including counseling charge and health rehabilitation. The victims who
become as witnesses must come to investigation place on their own, while
the accused are provided with special transportation. In the
investigation place the accused is given a separate resting place while
the victims and witnesses, sadly, must look after them anywhere else.
During the testimony, an investigator explores all the facts without
considering the feelings of the victims. This is often a traumatic
experience, which exacerbates the trauma caused by the criminal offenses
encountered by the victim. The same things also occur when the
prosecutor questions the witness in a court that bluntly treats the
victim as if he/she is guilty in the criminal offense.
The definition of victims in UN 1985 Declaration regarding the Justice
Basic Principles for the Victim of A Criminal Offenses and Abuse of
Power is that each person, both individually and collectively, has
suffered from physical and mental damages in their property due to a
criminal offense that has legal basis to be categorized as a criminal
offense.
The normative definition of a crime:
Offenses that are against a provision of the criminal law and are
sanctioned with criminal law penalty. While the social definition is:
Any act that damages other people and is given social sanction from the
people. The definition of violence itself is according to the
statistical data issued by the police and includes nine types of crime
such as robbery, holdup, hijacking, motor vehicle stealing,
blackmailing, torture and rape.
Warnings from sociologist and criminologist alert us that economic gloom
will cause increasing number of crime. In a preliminary survey, it
seems that such an increase has been dramatic during the past four years
and certainly the victims has also increased. Not included is the “dark
figure” which is the crimes not reported by the victims or witnesses or
unidentified by the official at all. According to an opinion delivered
by the United States National Crime Commission in 1965, the dark figure
is very high compared to previous estimates.
In Indonesia criminal statistic there are
six major crimes such as conventional crime which inflict victims e.g.
crime against human body, including murder, crime against decency
including adultery, rape, and gambling, theft, including burglary and
robbery, narcotic, embezzlement, and criminal assault. These six crimes
highly disturb the security and comfort of many people because they
threaten their property, life and dignity.
Instead of crimes mentioned above, there
is also unconventional crime e.g. crime against women and children,
trafficking, prostitution, domestic violence, sodomy, incest, children
pornography, kidnapping, forced migration, crime against environmental
& ecological, white collar crime, crime in public services, racial
riot, religious conflict, ethnic conflict, military crime, police crime,
traffic violence and crime against consumer rights.
In terms of the existing objective
conditions and the preliminary survey that the writer conducted, and
observation of data provided by officials, there is a lack of attention
upon the victims of the crimes. The attention is focused on heavier
punishment for the accused, with more attention being paid to the rights
of the accused, and treatment of the accused in the correctional
institutions. In several cases, such as in the survey that has been
conducted, there is more attention to the role played by the victim in
the occurrence of legal action, relationship between the victims and the
accused of the crime, the nature of vulnerability of the victim, the
possibility of becoming “recidivist”, the role of victim in the criminal
court system, the fear of the victim, his attitudes on regulation and
law enforcement. There is almost no attention given to service of
regulation for the victims of violence. The most frequent response or
reaction of the people, which is as if it has become the culture among
them, is a very severe treatment to the accused itself without giving
assistance to the victims. For example, the devastating response and
reaction of the people towards robbers where he is immediately put on
trial by the mob often set on fire and killed on the spot. When a
suspected rapist is found he will be beaten by the mob and even burned
it death.
Most discouraging situation is when the
victims of the crime are women and children or senior citizens. They are
physically and mentally weak. Women, children victims, old peoples, are
called latent victims. The women, old people, and children often find
difficulties in telling the criminal what they have experienced, what
the accused has done to them. For example, the women and children who
are raped or are the victims of sodomy suffer in their heart because
they do not have the courage to tell of their experience because of the
threat of the accused. Of course, the women and children will suffer for
a long time from the traumatic experience of the crime itself. At the
same time, the parents or the people do not know how to respond or react
to the criminal offenses. Even it is more ironic because the women
often become physical victims of the crime of their own husband.
Likewise, the children often become the victims of crime from other
family members. Several countries have made some efforts to give
protection to the women and children with “zero tolerance policy”
regarding the criminal offenses to women and children. This is in line
with the UN Human Rights Declaration 1948 and UN Children Rights
Convention 1989. In some cases, the court gives light sentences to those
found guilty of rape of women and children, while the victims will
suffer from traumatic experience for their entire lives.
The response and reaction to distributors
of narcotics, gambling and prostitution in several Asian countries have
recently have become very serious. They have burnt the houses of
suspect, burnt hotels which are being suspected as places of
prostitution, gambling and distributing of narcotics and have beaten the
owners to death. This is, most likely, because they have become
nauseated by the crime and that they have lost patience with waitng for
appropriate offenses by officials. However, the people have only the
sadness for the victims but without further follow-up. At present, there
is clearly a lack of attention and political will, both from
legislative and executive bodies.
Similarly, the state officials almost do
nothing for the sake of the victims. The weakness in the service of the
state officials is due to the lack of understanding and perception
regarding the victims handling because since they had become officials
there is no training how to help the victims, and the unavailability of
the system and procedures regarding the victims handling, the
unavailability of facilities and infrastructure, the no-fund allocation
for handling the victims in the short term and long term budgets.
Likewise, the people have not received information regarding the
rules/regulations regarding in the rights of victims, what should be
done if someone becomes a victim in criminal offenses. How to keep the
evidence remain valuable in crimes such as rape, where the victim tends
to clean herself, while the evidence such as sperm, hair or body cell
that are scratched should be maintained to be taken by the police.
The UN Convention concerned the victim’s
rights of criminal offenses regarding damages, compensation, restitution
and assistance for rehabilitation of the victims. Until now, many
countries that ratified the convention have not enacted the provision of
the ordinance as a follow-up obliged by convention’s ratification.
There are only a few people who know the convention very well, since it
has not disseminated to academic groups, legislative, executive and
judicial bodies.
There are only a small number of judges
that are courageous enough to sentence the accused of criminal offenses
in such way that directly fixes the remedies, compensation, restitution
or rehabilitation cost for the victim of crime. This is because the
lack of ordinances regarding the victims to be used by the court judge
or other officials.
The concern of criminology towards the
victims of the crime did not start as early as their concern about the
criminal offenses itself. The criminology bibliography indicates that
since 1940 there are criminology experts that have written about victims
such as Von Hentig, Mendelssohn and Schaffer. In Indonesia, a couple of
experts such as J.E. Sahetapy, Mardjono Reksodiputro and Arif Gosita
have been the initiators of the study of victims. These experts have the
opinion that, to date, the attention has been more focused on the role
of the accused and efforts to relieve their suffering and protecting
their rights without paying attention to the victims of the crimes
themselves.
Development of regulation concerning victimology in Indonesia
In the provisions of ordinance in
Indonesia there are several provisions that protect the victim from
becoming the victim of criminal offenses and abuse of power. They are
damaged in physical or emotional terms, or oppressed in terms of sexual
and avoid inappropriate offenses, have become negligent or helpless in
supervision, protection appropriately over the victimization of children
(?) In the criminal law regulation Indonesia, there are many sections
with severe punishment for the adult offender who sexually harasses
children. But no section talks about compensation to the victim. They
talk only about punishment to the offender. Above all, in Indonesia
people are discussing the Victim and Eyewitness Bill which is highly
expected to protect and help victims and eyewitness. But also, the same
problem is that no section talks about victim compensation.
Compensation in Indonesia, currently, is
available only for the offender who suffers from wrongful arrest and
wrongful conviction.
The ordinance protection and legal
guarantee for the victims of criminal offenses in Indonesia regarding
the political will of the legislature to propose the Draft in the
Parliament process it into ordinance and its implementation in the State
policy in that aspect?
The socialization of regulations,
regulation protection and guarantee of the regulation for the victims to
the community that the people know regarding the rights of victims, and
implementation of judge decision in the court. The government provides
funds and include in the State Budget Plan.
How so the effectiveness of the system and
procedure preparation of legal protection and enforcement service of
the laws for the victims of the criminal offenses and how is the
effectiveness of provision of infrastructures and facilities of its
enforcement; it depends on the political will of the Government.
The most importance of the extent of
effectiveness to which provision for such things as police officials,
social workers employee, health employees, children protection employees
that have understanding and perception and provide good protection and
service of the laws and obtain the rights of criminal offenses in
Indonesia.
In Indonesia anti terrorism law, and also
in Government Decree concerning the protection for the witness and
victim, the protections are as follows:
Protection for private security for victim is provided in every stages,
initiated by government official, confidential of private identity or
new private identity, providing information before the court where the
victim should not meet face to face with the offender and the right to
obtain compensation, restitution, assistance and rehabilitation.
In current regulation, there are no
provision about money damages compensation in exact amount, but it will
be enacted in another provision. The compensation will paid by
insurance, government budget and from the other sources.
Referensi:
Cartis, Sarah. Juvenile Offending, Prevention through Intermediate Treatment, B.T. Batsford Ltd. London, 1989.
Cobley, Cathy. Child Abuse & the Law. London, Cavendish Publishing Limited, 1995.
Cox, Steven. M & Conrad, John J. Juvenile Justice, Wm.C. Brown Publisher Iowa, 1987.
Gosita, Arif, Dr. Problems of Criminal Victims. Jakarta: PT. Bhuana Ilmu Populer, Kelompok Gramedia, 2004.
Human Rights and Human Obligations to Serve the Children Victims of Crime (Notes). Delivered in the Victims Seminar in the
University of Brawijaya, Malang, 1986.
Relevancy of Victims to the Service of Rape Victims, Jakarta: Ind Hill-Co, 1987.
Victims and KUHAP (Criminal Law of Procedures Code) that regulates
the Compensation for Victims, Jakarta: Akademikia Pressindo, 1986.
Reksodiputro, Reksodiputro. Criminology and Criminal Justice System.
Jakarta: Center for Legal Service and Legal Assistance (former
Criminology Institute) University of Indonesia, 1994.
Human Rights in Criminal Justice System. Jakarta: Center for Justice Service and Legal Aids, 1994.
Growing economic development and Crime. Jakarta: Center for Justice Service and Legal Aids, 1994.
Krause, D. Harry. Family Law in a nutshell, West Publishing Co. St.Paul Minn. 1995.
Morris, Allison & Giller, Henri. Understanding Juvenile Justice, Croom Helm London, 1987.
Sahetapy, J.E. Victimology an Anthology. Jakarta: Sinar Harapan, 1987.
Sahetapy, J.E, et al. Victimization Anthology. Bandung: Eresco, 1995.
Strak, James and Howard W. Goldenstein. The Rights of Crime Victims, New York, Bantam Books, 1985.
Santoso, Topo. Sexuality and Criminal Law. Jakarta Hill-Co, 1997.
Crisis and Criminality after Reformation. Jakarta: Pustaka Sinar Harapan, 1999.
Silver, Don. Parent’s Guide to wills & trust, Adam Hall Publishing, Los Angeles, 1992.
Waters, Robert Craig. Kids the Law and You, Self Counsel Press Inc, Washington, 1994.
White, Richard & Lowe, Nigel. A guide to Children Act 1989, Butterworth, London, 1990.
