East Timor Legal Information Site
Court Issues Light Sentences for Rape of Minor
JSMP Press Release 30 April 2008
On 11 March 2008 the Baucau District Court issued its final decision in a case involving two defendants charged with rape. The defendants were the uncle and step-father of the victim.
The second defendant was absent on the day of the hearing and the presiding judge therefore decided to try the two defendants separately. The court had the discretion to do so under Article 25 (c) of the Criminal Procedure Code.
The sexual assaults occurred in 2002. The final decisions, announced on separate occasions, were only issued by the court in March 2008.
The charges made by the Prosecutor
The prosecution, represented by Maria Ivonia, made the following indictments:
a) The first defendant violated Article 285 of the Indonesian Penal Code when he committed two
acts of sexual assault against his step-daughter, accompanied by the use of force and threats to kill the victim if she reported the defendant’s actions to her mother or to another person.
b) The second defendant also violated Article 285 when he committed four acts of sexual assault against his niece, accompanied by the use of force and threats to kill the victim if she refused to have sexual intercourse with him.
The Court’s Decision
The panel of judges that decided this case comprised international judge Frederico Magno and national judges Ana Paula Fonseca and Edite Palmira dos Reis. They found both defendants guilty of violating Article 285 of the Indonesian Penal Code. They also found the first defendant guilty of violating Article 89 of the Code, which proscribes violence committed against a helpless or unconscious person.
In making their decision, the judges considered the compensation paid by the defendants to the victim through a traditional process of reconciliation (customary law). The first defendant had provided one buffalo, one sheep and one bottle of palm wine. The second defendant had provided five pieces of traditional cloth (Tais Timor), one pig and one bottle of palm wine. They also considered that the victim had declared her case had been resolved through traditional means.
The court also had regard to other factors. In respect of both defendants, the court considered that the victim was a minor and that force and threats had been used against her during the commission of the assaults. In considering the sentence to be given to the first defendant, the court considered the fact that the victim was a virgin when the assaults occurred. The court also weighed the fact that the second defendant had assaulted the victim four times.
After considering the above factors and having regard to the length of time between the assaults, in 2002, and the issuing of the decisions, in 2008, the court issued the following sentences: the first defendant was sentenced to five years and six months imprisonment and the second defendant was sentenced to four years imprisonment.
Legal Analysis
In this section, JSMP will consider the basis of the charges and the reasoning behind the decision issued by the Baucau District Court. This analysis is an examination of the applicable law only and is not intended to interfere with the decision of the Baucau District Court.
The court considered Articles 285 and 89 of the Indonesian Penal Code:
Article 285 states, “Any person who, by using force or threat of force, forces a woman to have sexual intercourse with him out of marriage, shall, being guilty of rape, be punished by a maximum imprisonment of twelve years”. It is clear to JSMP that the actions of both defendants in this case fulfilled the elements contained in this article.
Article 89 of the Code states, “the commission of violence is identified with bringing a person in a state of unconsciousness or helplessness”. It is also clear that this charge was relevant, because, as the court found, the victim was assaulted while she was powerless.
JSMP believes there are other relevant articles of the Indonesian Penal Code that were not considered by the Prosecution or the Court in this case, as follows:
Article 286 states, ‘Any person who out of marriage has carnal knowledge of a woman of whom he knows that she is unconscious of helpless, shall be punished by a maximum imprisonment of nine years’. This article could have also been applied in this case where, as the court observed when discussing Article 89, the victim was powerless when the assaults were committed.
In this case the defendants could also have been charged and convicted pursuant to Article 294, which refers to the commission of obscene acts with underage children, especially where the perpetrator is related to the victim or is in a relationship of influence with the victim. This article could have been applied against the defendants, who were the step-father and uncle of the victim respectively, as they sexually assaulted a minor who was in their care and who was 15 years old when the assaults took place.
JSMP considers that Articles 286 and 294 of the Indonesian Penal Code are both highly relevant to the facts of this case and both defendants could have been charged and found guilty under these provisions. Including them in an indictment and in the court’s reasoning would have further highlighted the extremely serious nature of the assaults committed.
Recommendations and Conclusion
The court faced a difficult task in this case of issuing appropriate sentences for crimes so long after they occurred in a situation where the defendants and the victim were claiming they were successfully reconciled after a traditional justice process.
JSMP commends the court for processing its significant number of pending cases and recognises the difficulties in conducting trials for crimes long after the occurrence of the acts.
JSMP believes, however, that the sentences handed down by the court against the defendants in the above cases are not proportionate with their actions considering the aggravating factors of misuse of authority and trust, the young age of the victim, the use of force and threats and the number of times the victim was raped. JSMP believes that, in light of these factors, as well as the fact that the defendants’ actions also violated Articles 286 and 294 of the Indonesian Penal Code, the sentences given by the court could have been closer to the 12 year maximum sentence for rape under s 285 of the Code.
JSMP is concerned that because the sentences issued in this case do not reflect the seriousness of the crimes committed, there is a danger that the community may conclude the crime of rape in the family sphere is not considered a serious offence.
JSMP recommends that when the court is faced with similar cases in the future it should place more emphasis during sentencing on aggravating factors accompanying crimes against women as well as the impact of the crime (both physical and psychological) on the victim.
It is challenging for judges to know whether to recognise traditional reconciliation measures as a sentencing factor. JSMP believes it would be a positive step if judicial policy and guidelines were developed around this issue. These should accord with the principles of justice and the rule of law and provide direction about judicial consideration of traditional justice mechanisms. Such direction would result in less confusion and more consistent practice in the courts. JSMP recommends, if traditional justice mechanisms are to be considered by courts, they are not regarded by judges as a sentencing factor in gender based violence cases. This will reduce the possibility of minimizing the gravity of these crimes.
JSMP hopes that all courts will continue to work through their respective backlogs. New cases must also be processed in a timely manner, to avoid situations such as this case and to deliver prompt justice for victims of gender based violence.
For further information please contact : Flora Soriano Menezes WJU, Legal Researcher Email : lola@jsmp.minihub.org
Or Contact directly to Timotio de Deus, Director JSMP Email : timotio@jsmp.minihub.org No Contact : 3323883
