Taking the reproductive health of rape survivors seriously: The case of a 15-year-old Jambi girl jailed for abortion after rape by brother
By: Arung Samudra Adam
Despite pleas from women’s and children’s rights activists, a 6-month jail sentence was given in August 2018 to a 15-year-old girl who aborted her pregnancy in Jambi, Indonesia. The girl, referred to by ‘WA’, was pregnant after she was raped repeatedly by her 18-year-old brother. Her mother was also arrested and were facing separate charges for assisting her abortion. The girl had been raped eight times starting in September 2017. She then had her abortion six months after getting pregnant. The siblings and their mother was then taken by the police after a male foetus was discovered by authorities at a local palm plantation field.
Indonesia’s law on abortion has been internationally regarded as a draconian one that does not respect women’s reproductive choice and dignity. In general it is, as dictated by Undang-Undang No 36 Tahun 2009 tentang Kesehatan (UU Kesehatan), almost always illegal for a woman to abort her pregnancy. Limited exceptions exist, however, and that there are two pre-conditions that have to be met for a woman to legally have abortion: first, the pregnancy needs to pose significant risk to the mother and/or the foetus itself which would then constitute a case of medical emergency; second, the pregnancy is a result of a psychologically damaging act of rape.
Indonesia’s reputation for having puritanical female reproductive laws is further cemented in 2014. That year, the government installed Peraturan Pemerintah No 61 Tahun 2014 (PP 61/2014) which reinforces the illegal nature of seeking or carrying out abortions and also further stipulates the circumstances under which exceptions may be granted. In particular, abortion may be performed legally under two conditions: first, the pregnancy is under 40 days as proven by medical records issued by a physician; second, the pregnancy is a result of rape as proven by formal statement issued by a forensic investigator, psychologist or another related expert.
Additionally, PP 61/2014 also stated that women seeking abortions will need to undergo pre-procedure as well as post-procedure counseling sessions to ensure that they are physically and psychologically prepared before the procedure and well-adjusted afterwards.
Another important legal piece to have in mind in assessing this case is Undang Undang No. 35 Tahun 2014 tentang Perlindungan Anak (UU Perlindungan Anak). Specifically in Pasal 69A, the UU Perlindungan Anak explicitly calls for survivors of sexual violence to be granted special protection and assistance through every step of the legal process.
Considering the legal materials available, there is questionable grounds for the judge to sentence WA or any other survivors of similar repeated sexual violence committed by their family members to any period of jailtime.
Under the UU Kesehatan itself, it is abundantly evident that WA has fully satisfied the necessary conditions to seek and undergo abortion legally. The pregnancy is indeed a result of multiple incidences of nonconsensual sexual intercourse committed by her brother, who has plead guilty and been sentenced to two years in prison. If it was ever necessary for her to prove the “psychologically damaging” aspect of that provision, a court-appointed psychologist or any mental health expert would most likely have no problem confirming such damages suffered by her during the repeated instances of abuse.
Another conditions here defence has to meet under the UU Kesehatan, was to prove that her pregnancy directly puts her or her foetus in a medical emergency. Multiple research has shown that minors under the age of 18 is at increased risk of in-birth mortality. More tellingly, those aged 15 or younger have been found to be five times more likely to die while giving birth. This most definitely strongly constitutes the “medical emergency” given the very real risks to the mother associated with giving birth at such a young age. Given that the foetus is also one conceived of incestuous nature, it is at heightened risk of suffering from various conditions that severely impair his life if he were to be born. These would mean that another condition for exception was actually satisfied for WA to be allowed to terminate her pregnancy.
WA was presumably only found guilty under the provisions of PP 61/2014 because she had abortions beyond the 40 days allowed. This provision itself has been widely criticized as unrealistic by women’s rights activists and health experts alike because the signs of a pregnancy can take as long as 10-12 weeks (in other words, 70 to 84 days) after conception to be noticeable, by which time it is no longer legal for a woman to seek abortion. The other PP 61/2014 provision was to reasonably demonstrate rape using an expert’s statement, which again can be safely assumed to be have been more than sufficiently proven in WA’s case because of her brother’s guilty plea and two-year sentence for it.
The requirement for a woman seeking abortion to undergo pre-procedure and post-procedure counselings also implies that these laws are intended to protect women who have to get abortion, not criminalize them. Additionally, given the weak health infrastructure and nonexistent sexual education on this in rural areas of Indonesia including Jambi, it is unreasonable to punish women who have undergone abortions on the premise that they do not seek such counselings.
If anything, the six-month sentence handed to WA violates the governement’s children protection laws specifically in the handling of rape survivors. Pasal 69A poin (d) specifically orders that minors who are also sexual violence survivors be given ‘special protection’ and assistance in every stage of the legal process they go through.
The six-month sentence demonstrates that the court did not treat WA as a survivor nor give her her constitutionally granted special protection against prosecution.
The case surrounding WA has attracted national as well as international uproar for its questionable handling of 15-year-old rape survivor and her eventual abortion. This analysis shows that it appears to be incorrectly decided, even under Indonesia’s strict laws regulating abortions, and largely neglects women’s reproductive health rights even in the most dire situations that are explicitly exempted from punishments under the law. To the human rights activists’ collective relief and to the credit of the court which delivered such a deeply flawed decision, WA’s sentence is subsequently and rightly reversed the next month after nationwide and global outcries. It still, however, highlights how broadly flawed anti-abortion laws in Indonesia are both in text and in their enforcement as they still fail to honor women’s reproductive health rights.