Sharia and International Law on Chemical Castration Sentence in

Sexual Crime against Children: Conflict and Constraint

Isnawati Rais

, Khamami Zada

, Tresia Elda

and M. Nurul Irfan

Universitas Islam Negeri Syarif Hidayatullah Jakarta

Keywords: Chemical Castration, Sharia, International Law, Sexual Crime

Abstract: Sexual violence crimes against children in Indonesia have not seen a significant decline over time. Although

criminal law has ruled a fitting punishment, pedophile crimes are still rampant in the society. The state then

implemented a harsher punishment for sexual violence perpetrators by using chemical castration. This

chemical castration punishment sparks an unending debate among the people in Indonesia. This study aimed

to analyze the contradictions between the implementation of chemical castration punishment with

international law and sharia law. This study used normative legal research that compares the normativity of

Indonesian criminal law with the normativity of international law and Sharia law. This study found that

international law on Human Rights and Sharia law did not demand physical law that brings damage to the

body so that chemical castration imposed in Indonesia by the Government Regulation in Lieu of Law

(Perppu Number 1 of 2016), which subsequently becomes the second change to the Law on Child Protection

contradicts the international law and Sharia law. This study resulted in a challenge for the policy maker on

criminal law to regulate crimes using humanitarian perspectives and religious values.

1 INTRODUCTION

The rights of children are part of fundamental

human rights that have legal guarantees and

protection, both in the international law and national

law. Ironically, the rights of children are often

violated and, even more, taken away. One of the

deprivations of the rights of children is sexual

violence crime. This sexual crime has become an

extraordinary crime, which is considered as the most

serious crime alongside of the crime of terrorism,

corruption, and illegal drugs.

Children's rights must even be treated

differently from adults, which are specifically

regulated in special conventions. Children's rights

are treated differently than adults because children

since I was in the womb are born, grow, and grow

up to be adults are still in a state dependent on their

families and communities, yet self-contained and

requires special treatment both in nutrition, health,

education, science, religion , skills, jobs, security,

free from fear, free from worries and welfare. The

special treatment in the form of legal protection in

obtaining civil rights, political rights and economic,

social rights and cultural rights are better so that

once the child becomes an adult, he will better

understand and understand the rights they have and

will apply his rights in accordance with stipulated

legal provisions. Thus, adult children will be the

pillar and foundation of a very strong, good for the

family, community, nation and state.

Acts of sexual violence such as rape that

ended the current killings are common in the

community. This action occurs not only the fault of

the perpetrators of sexual violence, but the victim

can also be a trigger for the actions of the

perpetrators of this crime. Today there are many

women who don't take good care of themselves.

They easily provoke crime by using clothes that are

sexy and inappropriate. With the existence of the

castration law, it is hoped that the perpetrators of

sexual violence will lose their desire to return to

their actions. However, the discourse raises the pro

and contradictions of the community. Many support

this castration decision, but many also reject it. For

this reason, arrangements for the protection and

treatment of children have not been able to make the

rights of children protected. This is evident from the

fact that many children's rights have been violated

and they are victims of various forms of violence,

both physically and sexually, exploitation,

discrimination and even inhumane acts. The more

concern is that violations of human rights

Rais, I., Zada, K., Elda, T. and Irfan, M.

Sharia and International Law on Chemical Castration Sentence in Sexual Crime against Children: Conﬂict and Constraint.

DOI: 10.5220/0009944424532458

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 2453-2458

ISBN: 978-989-758-458-9

2453

(hereinafter referred to as HAM) for children are

mostly carried out by parties who should provide

protection and care for children such as parents, the

community or other parties. Children are part of the

community having more special human rights that

must be respected and protected. The state and

society are obliged to make efforts to protect and

fulfill children's rights, because children are the

successors to the existence of creatures with human

species.This is the deposit of the Almighty God to

the adult generation. Continuing human existence

through the protection and fulfillment of children's

rights includes including improving physical,

mental, and spiritual qualities. Thus, the protection

and fulfillment of children's rights is also a

development and improvement of the quality of

future human resources.

Sexual violence crime against children has

become a serious problem in Indonesia. Sexual

crimes against children in Indonesia even have a

tendency to increase over time. In 2017, the

Indonesian Child Protection Commission (ICPC)

found 116 cases of sexual violence against children.

This number increased sharply in the period of

January-March 2018 where the ICPC found 223

cases of sexual violence against children. The

increase in the number of sexual crimes indicates

that the safety and security of children in Indonesia

still poses a serious threat. Sexual crimes against

children not only violate the rights of children, but

also have a negative impact on children both

physically and psychologically, which is feared to

interfere with the child's development and life for a

better future.

Most studies have investigated the effectiveness

of “treatment” of sexual crime which argued that

chemical castration reduces recidivism effectively.

Nevertheless, this paper presents a conflict between

chemical castration in criminal law in Indonesia with

international law on Human Rights and Sharia law.

This study uses a normative legal research method

with comparative approach by tracing the norms of

human rights in international law and national law as

well as the norms of Sharia law which are then

compared with the use of chemical castration as a

punishment in Indonesian criminal law

2 PUNISHMENT FOR SEXUAL

CRIME

Crime for perpetrators of crimes against sexual

violence against children in the presence of a

castration law, which can be reviewed through the

Child Protection Act. Number 23 of 2002, and also

related to Law Number 39 of 1999 concerning

Human Rights in the enactment of the castration law

which aims to protect human rights from victims and

provide deterrent effects to perpetrators of crimes.

By using a normative juridical method, we can see

the legal relevance of castration against perpetrators

of sexual crimes in minors can we see a balance

between human rights and basic obligations,

especially for criminals (convicts).

Various cases of sexual crimes against children

have become a polemic regarding the effectiveness

of Indonesian criminal law. A number of

institutions, such as the ICPC, the Ministry of Social

Affairs, and the Ministry of Health have proposed to

increase the severity of the punishment for

pedophiles because these crimes are included in the

category of extraordinary crime. They propose

severe punishment as an addition in the form of

death sentence and castration to cause a deterrent

effect on pedophiles. The push from these various

institutions resulted in the proposition of the

Government Regulation in Lieu of Law Number 1 of

2016), which was later known as Castration Act.

This act subsequently became the second

amendment to the Law on Child Protection in

Article 81 (7) concerning additional punishment in

the form of chemical castration.

Castration is defined as any action, surgical,

chemical, or otherwise, by which a male loses the

functions of the testes or a female loses the functions

of the ovaries. In the implementation, it can also be

accompanied by cutting the penis together with the

testicles. The purpose of this castration is to

eliminate lust and make it sterile and barren at the

same time. This castration can be done through a

surgical process by cutting or binding the testes

producing testosterone, or through an injection

process. There are two types of injection method:

First, injecting drugs that can suppress the

production of testosterone, and; Second, injecting

estrogen hormone, so that the person who is

castrated will physically resemble a woman.

Castration is not a new practice to human and animal

life, except for a modern castration known as

chemical castration that involves injecting chemicals

into the body of the person that is to be castrated.

Castration as a punishment is not only done in

Indonesia. Some European Union countries

(Norway, Poland, and Russia) and Asian countries

(India and Taiwan) also impose castration for sexual

violence perpetrators against children, while some of

ICRI 2018 - International Conference Recent Innovation

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the states in the United States such as Louisiana and

Iowa include castration sentence as a treatment.

Castration as a punishment in European,

American and Asian countries is considered an

effective way to reduce the number of sexual crimes

against Children.With the existence of the Castration

Act, castration becomes a new type of punishment in

the criminal system and contributes to the renewal of

criminal law in Indonesia by including castration as

the type of criminal punishment. This punishment

aims to protect the victims' human rights and give a

deterrent effect to the perpetrators. In other words,

chemical castration as punishment was intended as a

balancing weight between human rights and

obligations, especially for the criminals.

Castration as punishment is not without serious

risks. Chemical castration can cause disruption of

reproductive organs functions and other problems

that are difficult to predict. Chemical castration also

raises the effect of brutalization, which stimulates

multiple acts of crime. The target is not only limited

to children; everyone can potentially be a victim.

These reasons make a number of people reject the

implementation of chemical castration sentences.

3 NORMATIVITY IN SHARIA

LAW

Sexual crime against children (Pedophilia) in

Indonesia has been regulated in the Criminal Code

and the Child Protection Act, both regarding

criminal acts, as well as the provisions of

punishment against the perpetrators. However, the

provisions of this law have little effect on the

prevention of sexual crimes against children. Child

predators are constantly searching for their prey,

without fear. From time to time sexual crimes

against children are increasingly increasing in

quantity and increasingly violent. Many cases of

pedophilia that have killed victims have occurred in

various regions in Indonesia. In 2010 for example,

according to KPAI data from 171 cases of violence

against children, 45.7% were cases of sexual

violence. One of the cases that most caught the

public's attention in 2010 was that carried out by

Baiquni, known as Babeh, who had sodomized

dozens of street singers in Jakarta. The number of

cases recorded in that year was 2335 cases, which

was far increased from the previous year which was

only 1998. .In 2017 the KPAI found 116 cases of

sexual violence against children. In the January to

March 2018 Period, the KPAI indicated that there

had been 223 cases of sexual violence against

children. Previously, there were also many similar

cases which had claimed many casualties. According

to data from the KPAI reported by wikipedia, from

2010 to 2014 there were 21,869,797 cases of

violations of the rights of children, 42-58% of which

were sexual crimes against children. Various cases

of sexual crimes against children have caused fear to

parents and children and made people angry and

angry, so that various parties proposed to aggravate

punishment for pedophile perpetrators.

The emergency condition of sexual violence

against children which is called an extraordinary

crime then prompted relevant agencies, such as the

Child Protection Commission, Ministry of Social

Affairs and the Ministry of Health, to offer severe

penalties as additional punishments in the form of

capital punishment and castration to cause deterrent

effects on Pedophile perpetrators. The pressure from

various parties is the reason for the birth of the Law

Substitution Government Regulation (Perppu No 1

of 2016), which became known as the Kebiri Perppu

which subsequently became the second change to

the Child Protection Law, which in article 81

paragraph (7) concerning additional criminal acts in

the form of chemical castration. which became

known as the Kebiri Law.

Castration (al-ikhsha ', castration) is the cutting

of the testis or two dzakar (al-khushsyatain). In its

implementation it could be possible to cut the testis

along with cutting the penis (dzakar). The purpose of

this castration is to eliminate lust and at the same

time make it barren. The implementation of this

castration can be done through a surgical process by

cutting or binding the testicles that produce

testosterone, and can also be through the injection

process. There are two kinds of this injection

method; First inject drugs that can suppress

testosterone production. The second injection is to

enter the hormone estrogen, so that the physical

person who is castrated will resemble a woman.

The problem of castration is not a new problem

in human and animal life, except for castration in a

modern way, known as chemical castration, which is

to enter chemicals into the body of a person who

will be castrated through injection. In the early days

of Islam the problem of this castration had been

questioned and questioned by the Prophet (peace be

upon him). Therefore, because the majority of

Indonesians were Muslims, the issue of punishment

for chemical castration needed to be studied in the

perspective of Islamic law, whether or not Islam

permitted this castration.

Sharia and International Law on Chemical Castration Sentence in Sexual Crime against Children: Conﬂict and Constraint

2455

In Islam, castration is not justified, either by

surgical process, drug injections or by other means,

because castration will cut off offspring and reduce

the number of descendants. This contradicts the

teaching of Islam that encourages the proliferation of

offspring, and producing descendants is one of the

goals of marriage. Islamic Sharia Law forbids

castration done to human. This opinion was agreed

by Islamic law scholars (fuqaha) without any

differences of opinion between them. This

agreement (ijmak) is based on several Hadits that

explain the prohibition said by Muhammad SAW to

his companions to do tabattul (leaving worldly

pleasures for worship) and prohibits castration.

Historically, Muhammad SAW rejected the

wishes of Utsman ibn Mazh’un to do tabattul, which

was deciding not to marry because he wanted to

focus on worshiping Allah SWT. The Companions

of the Prophet (Sahaba) commented on the Prophet's

rejection by saying: If the Prophet permitted Utsman

to do tabattul, we would have castrated ourselves to

be able to withstand our biological desires so that we

could focus on the worship. If castration was

prohibited by the Prophet even for the reason of

wanting to focus on worship alone, it is certainly not

justified as well for any other reason. The Prophet

also forbade castration and gave dispensation to do

mut’ah marriage to the troops who went to war in

exchange for the castration they asked to overcome

their biological desires. For this reason, the Prophet

strongly stated that anyone who commits castration

does not belong to his people. This all confirms that

castration is strictly prohibited in Islam. In this

position, Ibn Hajar asserted, without any differences

of opinion, that the prohibition on castration shows

the illegitimacy (Haram) of doing castration to

human. If this provision is associated with the 2016

Castration Act that stipulates additional criminal

punishment for pedophiles in the form of chemical

castration, then the problem is not only limited to the

illegitimacy of doing castration to human, but also

related to the prohibition to impose penalties that are

not in accordance with the provisions stipulated by

Sharia Law. Therefore, there is no room for any

person to set another provision aside of those

decreed by Allah and the Prophet.

In Islamic criminal law it is explained that sexual

crimes against children can be divided into three

forms, adultery (sexual intercourse without

marriage), liwath (anal sexual intercourse), and

sihaq (homosexual/lesbian), each of whom has a

clear sentence in Sharia Law. If the crime was

categorized as adultery, then the punishment is jilid

(whipping) for those who are not married and

stoning if they have been married. If it was

categorized as liwath and sihaq, then the punishment

is in accordance with the differences of opinion of

the ulama, namely stoning, or even death sentence.

If the act is in the category of sexual abuse, then the

punishment is ta'zir.

Moreover, the implementation of chemical

castration is carried out with two stages of

Inspection. The first injection is done to reduce and

even eliminate testosterone, which causes a person

to become impotent. Then in the second stage the

injection is carried out to enter the estrogen hormone

which causes castrated men to have physical

characteristics resemble those of women. However,

Islam forbids men to resemble women or vice versa.

Allah and the Prophet would not curse the

perpetrator of an act unless it is something that is

forbidden and categorized as major sin, which is

threatened with punishment in the world or in the

hereafter. Even besides cursing, the Prophet ordered

to expel them.

4 HUMAN RIGHTS

FRAMEWORK

The doctrine of human rights (HAM) has now been

accepted as moral, political and legal guidelines in

building a peaceful world free from oppression. In

regard to the state of law, the guarantee to protect

human rights is an absolute feature that must exist in

every country referred to as rechtsstaat. The

Universal Declaration of Human Rights and a

number of Covenants/Conventions have become

international law on Human Rights in which

countries are subjected to the provisions of the

protection of human rights. In fact, norms regarding

human rights have been included within the

constitution in modern countries.

Chemical castration in Indonesian criminal law is

a provision that has the potential to violate human

rights, especially the right not to be tortured as

stipulated in Article 28G (2) which reads: "Everyone

has the right to be free from torture or acts that

reduce human dignity and are entitled to political

asylum from the state.” In this provision, the

punishment of chemical castration seen from a

medical perspective will adversely affect the

biological survival of individuals in the form of

damaged and impaired organ functions, such as

muscle shrinking, bone loss, reduced blood cells,

and impaired cognitive function that will bring

difficulties to the life of someone affected by

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chemical castration. In addition, chemical castration

is also seen as a cruel, inhuman and degrading

method of punishment that clearly violates human

rights. Chemical castration is also a punishment that

attacks human nature to produce offspring as stated

in Article 28B of the 1945 Constitution of the

Republic of Indonesia.

Indonesia as a country that has ratified the

International Covenant on Civil and Political Rights

(ICCPR) is subject to the concept of the non-

derogable rights of this covenant. In Article 28I, the

ICCPR states on rights that must not be reduced at

all cost because they are fundamentals, including the

right to be free from torture. Indonesia has also

ratified the Convention against Torture and Other

Cruel, Inhuman, and Degrading Treatment or

Punishment. This provision was further strengthened

by the European Convention on Human Rights and

the American Convention on Human Rights which

affirmed the right to be free from torture and

inhuman or degrading treatment or other punishment

as one of the core of rights of non-derogables rights.

Chemical castration should not be assumed as a

penalty but be part of the sexual offender treatment

so that consent of the person is required. It means

that the application of chemical castration without

their consent violate the international human rights

law. It constitutes cruel, inhumane and degrading

punishment. This opinion is justified by the Art. 7 of

the International Convention on Civil and Political

Rights: “No one shall be subjected to torture or to

cruel, inhuman or degrading treatment or

punishment. Moreover, chemical castration without

consent is incompatible with the International

Convention against Torture and Other Cruel

Inhuman or Degrading Treatment or Punishment.

Art. 1: “Any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted

on a person for such purposes as punishing him for

an act he or a third person has committed or is

suspected of having committed, when such pain or

suffering is inflicted by or at the instigation of or

with the consent or acquiescence of a public official

or other person acting in an official capacity.” It also

violate the Art. 5 of the Universal Declaration of

Human Rights which states that “No one shall be

subjected to torture or to cruel, inhuman or

degrading treatment or punishment.” In addition,

UNESCO’S Universal Declaration on Bioethics and

Human Rights and the WMA Declaration of

Helsinki protect the right to informed consent of

chemical castration.

This means that punishment that is considered as

torture and vile contradicts the international law and

national law. Thus, chemical castration without

consent as punishment in Indonesia contradicts the

law on human rights both in international and

national law. For this reason, sentences imposed on

sexual violence perpetrators must consider a

recovery-oriented approach through comprehensive

medical, psychological and social rehabilitation.

Providing severe punishment for sexual crimes

perpetrators is certainly intended to protect victims

and society at large, but this form of punishment will

certainly have the potential to violate the rights of

the perpetrators as human. Ideally, the protection of

individual rights and community rights should

complement each other and not be contradicted.

5 CONCLUSION

Indonesia is a country with a majority of Muslims,

so that Sharia law is considered as a principle

teaching in social life. Likewise, Indonesia is a part

of the world community which is incorporated in the

United Nations which is bound by international law

on Human Rights. Therefore, the chemical castration

as a form of punishment cannot be separated fromm

the provisions of Sharia law and international law on

Human Rights.

In the perspective of Shari'a law, chemical

castration sentence contradicts the punishment

already established by the Sharia law, namely

adultery (sexual intercourse without marriage),

liwath (anal sexual intercourse), and sihaq

(homosexual/lesbian). This means that the

punishment for sexual violence needs to be adjusted

according to the actions whether they fulfill the

category of adultery, liwath, or sihaq. Not only

contradicts the Sharia law, chemical castration also

contradicts international law on human rights

because it contains elements of torture that

undermine human dignity. In this context, the use of

chemical castration as punishment for sexual

violence perpetrators against children contradicts the

Sharia law and international law. Thus, the

punishment for the perpetrators of sexual violence

against children is expected to be based on providing

mental and psychological recovery so that the

perpetrator will not repeat his crimes over time.

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