According to Commissioner Subcom Monitoring National Commission on Violence Against Women, Siti Aminah Tardi was harassed sexual is one of form violence sexual . Harassment sexual is the act of committing in form physique or non-physical which is not wanted with method take picture , peek , give signal loaded sexual , asking somebody do such an act on him , showing sexual organs Good in a way direct or use technology , do loaded transmission​ sexual and doing touch physical . [11]

Abuse sexual is behavior sexual that is not desired to be delivered through contact physique and also take profit certain with use nuanced utterances​ sexual , showing materials pornography and desire sexual . Acts the result in humiliation dignity someone and maybe until cause problem health and safety . [12]

Abuse sexual can also be interpreted as all form behavior related behavior​ with sexuality that is not desired by the party his opponent . Like request For do action sexual , giving signal or behavior anything that is sexual , good That in a way oral and also physical , so that make somebody feel offended , intimidated or feel humiliated .

Of the types the above crimes , can shared into five groups big crime to decency that is :

Action criminal striking the sense of decency in the foreground general as regulated in: Article 281, Article 282, Article 283, and Article 283 bis.

Crime decency in matter sexual intercourse regulated in: article 284, article 285, article 286 , article 287, and article 288.

Crime morality about action obscenities regulated in: article 289, article 290, article 292, article 293 , article 294, article 295 and article 296.

Trading women and children , and handed over child For begging namely as regulated in article 297.

Action criminal related morality​ with prevention and abortion pregnancy namely as regulated in article 299. [13]

In general , harassment sexual grouped into 3 components main , including : first , coercion sexual . Coercion sexual is a request in a way the real direct No wanted by one of party or can also interpreted as condition For do action sexual as reward related work , school or others . Second , gender harassment . Gender harassment can interpreted as degradation women who do in a way group . For example , making joke about women , can in the form of post picture a Woman as object sex and others . [14] Third , attention sexual that is not wanted . Attention This done individually , namely to embarrass somebody as object sex , such as send message personal or email that is not appropriate , glance , or even groping or touch with Meaning sexual . [15]

Abuse sexual verbally or catcalling is one of the act crimes committed​ with throw verbal sentences that smell sexual that is not wanted by one of party . If catcalling is allowed , then No close possibility that action This will impact bad for the victims. The victims are seen as if as object sexual by the perpetrator will feel No comfortable , angry , feel annoyed , disturbed , and offended . However they only can be quiet and try ignore the catcallers . Lack of​ proof from abuse verbal sexual abuse experienced by the victim usually make the victim reluctant or even Afraid For report catcalling problem​ the authorities . [16 ]

The fear and worry embedded in the victim's mind is none other than Because think that report to police is not the right way For finish problem or lighten up the burden he faces , but rather will cause more burden​ heavy . They also tend to feel worry if authorities​​ No truly in handle the problem . [17] Because of injustice law this is what is called can cause doubts in the community who are victims of a incident For willing deal with the world of justice . Justice considered only as place for the ruling class just .

Arrangement about a acts that are considered act criminal this is what is meant with policy law . According to Barda Nawawi Arief, the term policy taken from term “ policy ” ( language English ) or “ politician ” (Dutch). Viewed from two meanings said , then term policy law criminal can also be called with term political law criminal . [18] Whereas according to Prof. Sudarto , politics law is :

Efforts to create good rules​ suitable with circumstances and situations development of the times.

Policy from the state through authorized bodies For set desired regulations​ with estimate to be able to used For reach what is aspired to .

Acts of catcalling that have occurred be one of phenomenon symptom social make part public expect attention full from government For take policy so that catcalling can be prevented stopped . Because in reality , what becomes reason catcallers still exist Keep going developing , is lack of awareness for public will applicable law​ Because Not yet the existence of norms or the law which specifically specific arrange action This . Potential catcalling​ as actions that can criminalized , so that catcalling is necessary rule For get certainty law . [14]

Policy or efforts made​ For prevention and handling of catcalling on social media this also includes field policy crime . Policy This No let go from policy social or social politics consisting of from efforts For welfare society (social welfare), and protection society (social defense). With Thus , the policy For handling of catcalling carried out with means of punishment or law criminal This must pay attention to and lead to the achievement objective from policy social said . Policy through means of punishment or law criminal on the problem This that is with implementation of Article 45 Paragraph (1) Jo. Article 27 Paragraph (1) of the Law Number 19 of 2016 concerning Changes to the Law Number 11 of 2008 concerning Information and Electronic Transactions as rule about violation morality that is carried out on social media . With the existence of this norm , the perpetrator catcalling can be an act charged threat criminal . Urgency implementation chapter This solely No only For make perpetrator deterrent , but For realize order in environment public .

See from matter said , the policy law to catcalling act​ special very important for the future come For reach certainty law in handle case the .

According to Author , in qualification This more specifically if associated with Article 27 A of the Law Number 1 of 2024 concerning Change Secondly , under the Law Number 11 of 2008 concerning Electronic Information and Transactions and Article 310 of the Criminal Code that is :

Passage 27 to UU ITE:

“ Everyone with​ on purpose attack honor or the good name of another person with method accuse a thing , with Meaning so that matter the known general in form Electronic Information and/ or Electronic Documents that are done through Electronic Systems ”

Elements of Article 27 A of the ITE Law:

" What is meant is with " attack" honor or good name " is degrading act​ or to tarnish one 's good name or price other people's selves so that harm the person , including insulting and/ or slander .”

Article 310 of the Criminal Code :

goods Who ;

with on purpose ;

attack honor or good name somebody ;

with accuse something matter ;

with method oral ;

which means so that matter That known general .

Article 27A is very editorially biased , so that Can interpreted more free and wide by the authorities enforcer law . This article Can to ensnare party wherever both individuals​ and also official agency the government feels its good name defiled . The article that gave rise to absence certainty law . So that Can remove right basic perpetrator spread the good name , though allegedly spread defamation​​ But as subject law must also be protected .

If uncertainty law Keep going continuously left , then perception public will appear distrust in law and institutions enforcer law That myself . This is No may left and not may Again occurs in the era of globalization technology information and transactions electronics . Certainty law is inevitability that all attitude act Indonesian citizen​ based on applicable law .​

Article 27A of Law No. 1 of 2024 concerning ITE weapon powerful For silence criticism inhabitant civil , which is always to voice freedom rights civil . The right article silence criticism to government . Vulnerable target activists and groups critical , the public can also threatened If negligent spread the ITE information .

Every person is basically own right basic For convey information with use technology information in various type channel available technology . If the article freedom argue in advance general restrained so will contradictory with law base written in the 1945 Constitution which guarantees right basic man as sound Article 28 F of the 1945 Constitution.

If referring explanation Article 27A of Law No. 1 of 2024 referred to from action attack honor or good name is action to humble or to tarnish one 's good name or price other people's selves so that harm the person , including insulting and/ or slander , in Article 27A of Law No. 1 of 2024 need explained elements defamation​​ as following :

Every person, namely spreader can become suspect / defendant act criminal If spreader can asked for accountability criminal . Must be analyzed in a way deep Who spreader main content the .

With intentionally , namely element This must proven to Who spreader to inform content and with that objective what . is objective made by him content For badmouthing personally or​ For give know existence Allegation a act criminal .

Attack honor or the good name of another person with method make it easier a matter .

With Meaning so that matter the known general in purpose information electronics and/ or documents that are done through system electronics . Elements This Already fulfilled If content the can accessed by various parties and known general .

Defamation​ through ITE is one of the form action oppose law as contrary act​ with regulation written , the fight despicable , deed slander contradictory with a sense of justice or norms of life public . As for the elements from action oppose law in law criminal is action That firm stated violate law , then action it is also done without authority and power as well as an act that violates principles general in field law .

A action can classified as defamation​​ must be clear formulation the crime , no blurred . This means that the Study of Article 27 A of Law No. 1 of 2024 Concerning Change Second Constitution Number 8 of 2008 concerning ITE , the formulation No clear , less clear or same . So cause different interpretations​ between all element enforcer law . Article 27A of Law No. 1 of 2024 expansion defamation​​ become problems in the to drop punishment criminal .

Legal Facts in Conference

12 , 2020, where moment That witness The victim is is at at his house at BTN Cipta Mandai Block C1 No. 2 Kelurahan Bontoa Mandai District, Maros Regency knows existence comments on social media Facebook.

Initially on October 12 , 2020, where moment That witness The victim is is at at his house at BTN Cipta Mandai Block C1 No. 2 Kelurahan Bontoa Mandai District, Maros Regency, the victim's witness made a status with install Photo witness Victim and child Victim's witness on his Facebook on behalf of Alfanita Almunawarah ( in Arabic ) , after That about 1 hour later witness The victim saw There is comments written by the account with the name " alfanita" almunafikun "who wears Photo Victim witness as Photo his profile , whose comments according to Victim's witness said insults . After Victim witness checks and opens account the witness The victim saw link from Acebook the is account owned by Defendant namely https://www.facebook.com/irwan.iskan.1, so that witness victim guess that account the is The defendant who made and commented . The comment was written by the account " alfanita almunafikun "who wears Photo Victim witness as Photo his profile , said commented “ Amazing , a stressed and crazy mother at a time craftsman have an affair Can to grow up child ( sign thumb )".

Then Photo victim witness used as Photo profile account Arfanita Almunafikun is Correct Photo witness of the victim that the witness of the victim took at the time witness The victim is still status as wife The defendant . However after incident that , the Defendant replace Photo profile facebook the with picture dog . Consequences comment from Defendant the The victim's witness felt angry and ashamed Because many people see his comments the Because account The victim's witness is public. Then the victim reported Defendant Because comments on facebook status the .

What makes Facebook account under the name Arfanita Almunafikun is The accused and the former wife Defendant that is witness victim at the time Still status husband and wife , next change the Facebook name become Arfanita Almunafikun is Defendant including change Photo previous profile​ Victim's photo becomes Photo dog . The defendant change the name and picture Because Defendant assume that The victim's witness is a hypocrite , and changes Photo profile with Photo dog Because he often say Defendant with designation dog .

After Defendant divorce with witness Victim, Defendant Still often monitor account facebook Victim and Defendant witnesses observe status , see there is a status made that offends the Defendant so that Defendant become emotion .

Defendant aware words No yes , but Defendant say That Because Defendant emotion Because Defendant No Once given chance For meet with child The accused . Moreover Defendant hear story that child Defendant harassed , Defendant lost in court right foster child , Defendant to school child Defendant But No meet and the Defendant know if the child's name Defendant Already replaced , that's why Defendant make account and replace it his name but The victim's witness also did not Once object if the Facebook name is Defendant fox , Defendant Once report the victim to police but rather The accused who was reported back . so that Defendant feel No fair and make comment the .

Defendant for comments on October 12 , 2020 when is at BTN Parantambung and the Defendant aware That No Correct but Defendant do That Because reaction Defendant to action or behavior witness Victim during This .

In the case of This Defendant has charged by the Public Prosecutor with indictment alternative that is :

a. First

Actions defendant as regulated and threatened criminal in Article 45 paragraph (3) of the Republic of Indonesia Law Number 19 of 2016 concerning Amendments to Law of the Republic of Indonesia Number 11 of 2008 concerning Information and Electronic Transactions in conjunction with Article 27 paragraph (3) of the Republic of Indonesia Law Number 11 of 2008 concerning Information and Electronic Transactions .

or

b. Second

Actions defendant the as regulated and threatened criminal in Article 310 paragraph (1) of the Criminal Code.

2. Judge's Legal Considerations

Based on fact law in front trial has it turns out incident that resulted in Defendant stuck problem law in case this , therefore existence comments written by the account with the name " alfanita" almunafikun "who wears Photo witness Victim as Photo his profile , whose comments according to Victim's witness said insults . After Victim witness checks and opens account the witness The victim saw link from facebook the is account namely https://www.facebook.com/irwan.iskan.1, and if fact law This associated with the Article charged . According to The Panel of Judges is more appropriate apply indictment alternative first , thing This it turns out also in accordance with demands of the Public Prosecutor. In connection with that , the Panel of Judges will review whether Correct The indictment Alternative first the has can proven in a way shah according to law and convincing by the Public Prosecutor or No .

Furthermore The Panel of Judges will consider whether action Defendant contain elements as intended​ in Actions defendant as regulated and threatened criminal in Article 45 paragraph (3) of the Republic of Indonesia Law Number 19 of 2016 concerning Amendments to Law of the Republic of Indonesia Number 11 of 2008 concerning Information and Electronic Transactions in conjunction with Article 27 paragraph (3) of the Republic of Indonesia Law Number 11 of 2008 concerning Electronic Information and Transactions , the elements of which are is as following :

Each person

With intentionally and without right distribute and/ or transmit and/ or make can accessible Information electronics and/ or document electronics that have load insults and/ or defamation .​​

For to explain The Panel of Judges will to describe elements the as following with notice all fact the law revealed in front of trial as well as things that have been explained by the Defendant in front of trial or in his defense ( plea note ). Consideration law The Panel of Judges as following :

1. Element Everyone​

Considering , that according to The Panel of Judges in question as the “ everyone ” element complies jurisprudence decision Supreme Court of the Republic of Indonesia No. 1398 K/Pid/1994 dated 30 June 1995 the word " every person" is The same with terminology of the word " goods" who ". So what is meant with “ everyone ” here is every person or personal which is subject the law that does a action criminal or subject perpetrator from a​ action criminal offences that can be asked for accountability on all his actions . In the case of this , in advance trial has faced with a Defendant named IRWAN ISKANDAR Bin ISKANDAR whose identity is complete loaded in beginning file cases and minutes of examination by investigators , which during trial can present , able listen and follow the way trial as well as can give response to information witnesses , and give answers on question Panel of Judges with good and smooth so that No there is things that can make consideration For to erase criminal like things that are arranged in Article 44 of the Criminal Code or No There is One fact the law is in front the trial which stated Defendant including in condition not enough perfect his mind ( verstandelijke) vermogens ) or Sick soul ( zeekelijke storing der verstandelijke vermogens ).

Considering , that will but For set whether Correct Defendant subject perpetrator from a​ action criminal in case This Still need proven whether Defendant the Correct has do a series behavior in demand action as alleged . If true . defendant do a series behavior in demand act of fulfilling all elements from chapter Constitution law the crime charged , then with by itself the element of “ Every Person ” has fulfilled that Defendant is perpetrator from action criminal in case This .

2. Elements With intentionally and without right distribute and/ or transmit and/ or make can accessible Information electronics and/ or document electronics that have load insults and/ or defamation​​

Considering , that element from the article charged as mentioned above​ contains elements that are alternative , then The Panel of Judges will consider one of the elements of element those that can proven in advance trial .

Considering , that before The panel of judges proved whether Correct action Defendant fulfil elements mentioned above​ as outlined​ in law positive . Moreover formerly Assembly will to describe Understanding regarding “ with intentionally " in in element second this and what is meant with intentional according to memory The explanation (Memorie van Toelichting ) is :

" willing and realizing " the occurrence a action along with the result It means someone who does a action with on purpose must to climb as well as realize action and or​ as a result , with another word for intention intended to a action (SR Sianturi , Principles of Criminal Law in Indonesia and its Application , 164:1996). Considering , that definition other things that are needed outlined more carry on in case This For to clarify about the occurrence act criminal as following :

Distribute is send and/ or spread Electronic Information and/ or Electronic Documents to many people or various party through Electronic System . Then what is meant by “ transmitting ” is send Electronic Information and/ or Electronic Documents addressed to One other parties through Electronic Systems , as well as what is meant with “ make can accessed ” is all other actions besides distribute and transmit through Electronic systems that cause Electronic Information and/ or Electronic Documents can known other party or public (vide explanation of Article 27 paragraph (1) of the Law Number 19 of 2016 concerning Changes to the Law Number 11 of 2008 concerning Information and Electronic Transactions ).

Electronic Information is One or a collection of electronic data , incl but No limited to writing, sound , images , maps , designs , photos , electronic data interchange (EDI), letters electronic (electronic mail ), telegram , telex , telecopy or similar , letters , signs , numbers , codes access,symbol , or perforation that has been processed which has meaning or can understood by those who are able understand it . (vide Article 1 point 1 of the Republic of Indonesia Law Number 19 of 2016 concerning Change on Constitution Number 11 of 2008 concerning Information and Electronic Transactions ).

Electronic Documents are every Electronic Information that is created , forwarded , sent , received , or saved in analog , digital, electromagnetic , optical , or the like , which can viewed , displayed , and/ or heard through Computer or Electronic Systems , including but No limited to writing, sound , images , maps , designs , photos or similar , letters , signs , numbers , Access Codes, symbols or perforation that has meaning or meaning or can understood by those who are able understand it (Article 1 point 4 of the Law Number 19 of 2016 concerning Changes to the Law Number 11 of 2008 concerning Information and Electronic Transactions ).

Considering , that if understanding the connected with facts revealed in front​ trial statements of witnesses , as well as goods evidence supported by information​ The accused . Revealed fact law that there is incidents reported by witnesses​ Arfanita who on October 12 , 2020, where moment That witness The victim is is at at his house at BTN Cipta Mandai Block C1 No. 2 Kelurahan Bontoa Mandai District, Maros Regency knows existence comments on social media Facebook. At first October 12 , 2020, where moment That witness The victim is is at in her home the The victim witness made a status with install Photo witness Victim and child Victim's witness on his Facebook on behalf of Alfanita Almunawarah ( in Arabic ) , after That about 1 hour later witness The victim saw There is comments written by the account with the name " alfanita" almunafikun "who wears Photo witness Victim as Photo his profile , whose comments according to Victim's witness said insults . After Victim witness checks and opens account the witness The victim saw link from facebook the is account owned by Defendant namely https://www.facebook.com/irwan.iskan.1. Comments written by the account " alfanita almunafikun "who wears Photo witness Victim as Photo his profile , said commented “ Amazing , a stressed and crazy mother at a time craftsman have an affair Can to grow up child ( sign thumbs up )”. That Photo victim witness used as Photo profile account Arfanita Almunafikun is Correct Photo witness of the victim that the witness of the victim took at the time witness The victim is still status as wife The defendant . However after incident that , the Defendant replace Photo profile facebook the with picture dog .

Considering , that consequence comment from Defendant the The victim's witness felt angry and ashamed Because many people see his comments the Because account The victim's witness is public and the victim's witness reports Defendant Because comments on facebook status The party that makes the Facebook account under the name Arfanita Almunafikun is The accused and the former wife Defendant that is witness victim at the time Still status husband and wife . Next Defendant change the Facebook name become Arfanita Almunafikun , including change the previous Profile Photo Victim's photo becomes Dog Photo. The Defendant change the name and picture Because Defendant assume that The victim's witness is a hypocrite , and changes Photo profile with Photo dog Because according to Defendant , witness Victim often say Defendant dog .

Considering , that after Defendant divorce with witness Victim, Defendant Still often monitor account facebook Victim and Defendant witnesses observe status , see there is a status made that offends the Defendant so that Defendant become emotion . The defendant aware words That No yes , but Defendant say That Because Defendant emotion Because Defendant No Once given chance For meet with child The accused . Moreover Defendant hear story that child Defendant harassed , Defendant lost in court right foster child , Defendant to school child Defendant But No meet and the Defendant know if the child's name Defendant Already replaced , that's why Defendant make account and replace it his name but The victim's witness also did not Once object if the Facebook name is Defendant fox , Defendant Once report the victim to police but rather The accused who was reported back . so that Defendant feel treated No fair and make comment and the Defendant for comments on October 12 , 2020 when is at BTN Parantambung . The defendant aware That No Correct but Defendant do That Because reaction Defendant to action or behavior witness Victim during This .

Considering , that based on fact law that and for to obtain belief to a incident act criminal , Judge is obliged guided by the minimum limit of proof as required by Article 183 of the Criminal Procedure Code in conjunction with Article 184 of the Criminal Procedure Code and Article 185 paragraph (1) and (2) of the Criminal Procedure Code, then according to belief Panel of Judges after notice fact law as broken down above . According to The Panel of Judges is there action The defendant who has send or spread information via social media ( system electronics ) namely Facebook with link account owned by Defendant that is account " arfanita almunafikun "who wears Photo witness Victim as Photo his profile account https://www.facebook.com/irwan.iskan.1. Fill in the information that is in the form of writing or Comments written by the Defendant , commenting " Amazing , a stressed and crazy mother at a time craftsman have an affair Can to grow up child ( sign thumbs up )”. According to Panel of Judges comments with giving the words “stress”, the word “ crazy ” and the word “ handyman” cheating ” the series the sentence intended to witness Victim is a word that has become knowledge general can interpreted through interpretation in a way grammatical or based on Indonesian grammar contains negative connotation / meaning if

that word No can verified the truth . Considering , that during the trial process case This , the Panel of Judges did not find One tool the proof like Decision The court that has powerful law fixed and letter information the doctor who showed or can verified the truth that Victim witness proven suffer stress , crazy and proven has convicted Because action adultery . During matter That No can verified the truth , then according to The Panel of Judges uses the word or sentence which is intended to The victim's witness is contain element insult or defamation and proven​​ Victim witness reports to party Police

comment Defendant the Because feel shame and feelings Embarrassed or description negative That apparently also confirmed by witness Imran and the witness Cholid Tambaru . Considering , that according to Panel of Judges, with accusation Defendant to witness victim pregnant understanding negative , then defendant realize about possibility the emergence a a result other than the desired result on the words that have been he said , namely can touch on other people's feelings or makes other people who hear it , deep matter This The victim's witness felt insulted , Opinion The Panel of Judges at once answer the defense note Defendant as well as tool proof written submission​ The defendant who only show statement unilateral from party certain without checked in front of trial and without existence decision The court that has prove existence act criminal adultery proven has happened and the victim was the witness the perpetrator with thus the defense note Defendant legally appropriate​ put aside or rejected .

Considering , that according to Panel of Judges, comments Defendant through link system electronics , based on facts in advance trial can publicly accessible​ or public or can accessed either by Friends or No Friend from account fake (fake) Facebook Arfanita Almunafikun . The victim's Facebook account is "Open", meaning posts on the Facebook account can seen by others without must become friend (friend) and proven Posts That can widespread , which is likely No can is lost from the virtual world ( electronic data ) which results in to embarrass someone whose name has been defamed .

That based on Decision Panel of Judges No. No.14/ Pid.Sus /2023/ Pn.Mrs which stated defendant has proven do action Action Criminal on comment “ Amazing , stressed and crazy mother at a time craftsman have an affair Can to grow up child ( sign thumbs up )”. After Writer researching Decision said , Author have views and opinions that based on fact trial and some information witnesses who become tool evidence and made as judge's consideration and has convince the judge to evaluate action defendant has fulfil element from the Article charged to Defendant namely Article 45 paragraph (3) Republic of Indonesia Law Number 19 of 2016 concerning Amendments to Law of the Republic of Indonesia Number 11 of 2008 concerning Information and Electronic Transactions in conjunction with Article 27 paragraph (3) of the Republic of Indonesia Law Number 11 of 2008 concerning Electronic Information and Transactions have fulfilled .

That the considerations main from The Panel of Judges , namely : During the trial process case This , the Panel of Judges did not find One tool the proof like Decision The court that has powerful law fixed and letter information the doctor who showed or can verified the truth that Victim witness proven suffer stress , crazy and proven has convicted Because action adultery . During matter That No can verified the truth , then according to The Panel of Judges uses the word or sentence which is intended to The victim's witness is contain element insult or defamation and proven​​ Victim witness reports to party Police .

With accusation Defendant to witness victim pregnant understanding negative , then defendant realize about possibility the emergence a a result other than the desired result on the words that have been he said , namely can touch on other people's feelings or makes other people who hear it , deep matter This , the witness , the victim felt insulted , Opinion The Panel of Judges at once answer the defense note Defendant as well as tool proof written submission​ The defendant who only show statement unilateral from party certain without checked in front of trial and without existence decision The court that has prove existence act criminal adultery proven has happened and the victim was the witness the perpetrator with thus the defense note Defendant legally appropriate​ put aside or rejected .

That according to Panel of Judges, comments Defendant through link system electronics , based on facts in advance trial can publicly accessible​ or public or can accessed either by Friends or No Friend from account fake (fake) Facebook Arfanita Almunafikun . The victim's Facebook account is "Open", meaning posts on the Facebook account can seen by others without must become friend and proven Posts That can widespread , which is likely No can is lost from the virtual world ( electronic data ) which results in to embarrass someone whose name has been defamed .