Fornication and Homosexual Conduct: Who Does It Harm?

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Debates on the Draft Criminal Code is hot as always, including (and especially on) the plans to criminalize fornication and homosexual conduct. Of all the debates concerning the matter, one of the critics towards the criminalization is on the rights to privacy. According to this critic, consensual fornication or homosexual conducts cannot be criminalized despite it being immoral because there is no harm caused to others. Having that said, no state intervention can be justified.


How do we perceive this critic?

To start with, actually, whether harm is a necessary element of criminalization is still subject to debate among legal scholars. Some legal instrumentalists do require harm to justify criminalization, such as the German scholar Claus Roxin. Under this school of legal thought, an immoral but harmless act may not be criminalized. H. L. A. Hart reaffirmed this position. Further, some scholars such as A.P. Simester and Andreas von Hirsch particularly mentioned homosexual conducts as an immoral but harmless act.


However, there are also scholars who are legal moralists. Joel Feinberg, for example, said that it is possible to criminalize some acts which are extremely immoral despite being harmless. Patrick Devlin even emphasized that an act violating the society’s morality must be criminalized even when they are not committed in public space. He says that this is to preserve the fabric of the society.


What is the position of Indonesia’s legal system? A general observation is that it is hard to find scholars who are totally only on one side of the extreme. As for Indonesian law, it seems to integrate both sides.


Pancasila, as the state ideology and source of all the sources of law, puts “Ketuhanan Yang Maha Esa” (the Oneness of God) and “Kemanusiaan Yang Adil dan Beradab” (Just and Civilized Humanity) as the first and second principle. It is clear that Indonesia’s law cannot be divorced from the values embedded within the fabric of the Indonesian peoples.


However, this does not mean that the removal of harm is irrelevant. It is probably similar to Islamic law: on one hand, law reflects morality because Allah owns the Asmaul Husna (the Best Names), and Allah is the only true standard of objective morality. On the other hand, Islamic law has its objectives known as the Maqashid Shari’ah in order to protect the five fundaments of man: deen, life, intellect, lineage, and wealth. As M. Safiullah Rohman argued, Islam has a strong influence over the making of Pancasila.


This is why then an integrative approach can be found in the opinions of the Indonesian legal scholars. For example, Sudarto does require harm to justify criminalization. However, he emphasized that this harm is not only material ones but also spiritual and considering Pancasila. Muladi also explained how criminal law aims to protect the society, and its implementation must reflect the values of the society.


From a morality perspective, it is clear that fornication and homosexual conduct stands against the values in the Indonesian society. There are opposing arguments too but based on a Western secular human rights concept. This secularism is more than just a political statement to separate the church and state, rather it is a worldview which’s epistemology is purely materialistic and absent spirituality and religiosity. Such a worldview has no place in a religio-magis society with Pancasila as state ideology like Indonesia.


However, even from a pragmatic perspective, something may have slipped the minds of the Western legal instrumentalist. This issue of sexuality cannot be seen as an isolated problem. Rather, it must be seen from a wider picture (i.e. society and civilization) to assess its potential harm. A civilization will be strong when it is supported by a strong society (madani society). A strong society is the largest social unit, which must be supported by strong families as the smallest social unit. This is supported inter alia through the institution of marriage.


Homosexual conduct is a clear problem. Even setting aside the major problem of sexually transmitted diseases, a homosexual couple cannot form a family within a marital institution to support the civilization of a madani society. Ronald Bayer and Jeffery Satinover emphasized that the ‘normalization’ of homosexuality was nothing scientific but rather it was an ideological political pressure towards the academia. If that is the case, there is nothing wrong with making political pressure to advocate otherwise.


With regards to fornication, the limitation of sexual relations to only marriage is one of the factors to strengthen the marriage itself. Imam Al-Qurthubi said that a man who never avoids zina (either through the eyes or in other means) will tend to have less sexual excitement upon marriage, as they can be ‘desensitized’. Realistically, sexual dissatisfaction has become one of the big causes of marriage failures. This can either directly cause divorces, or indirectly so by triggering all sorts of other problems. A research conducted by Joan R. Kahn and Kathryn A. London in 1991 confirms this link between pre-marital sex and increased divorces. On a macro level, this affects the society.


The problem can snowball to more problems. In the USA, a 2015 statistics show 40% babies were born to single parents. Clearly, one of the main factors is the lower rates of marriage and preference to fornicate. Fornication gives the benefits of enjoying sexual relations but without too much commitment, making it easier to leave upon boredom. Not to mention how Kahn and London’s research shows how more divorces happens because of this. This is not to suggest that all single parents would fail or all married couples would succeed. However, numerous researches inter alia by Sarah McLanahan and Gary Sandefur indicate that children born to single parents have much greater risk of drug abuse, involvement in crime, failure in education and work and many more. This will affect a nation’s crime rate which causes much more problems.


This is not to add Wendy Shalit’s research indicating that pre-marital sex is among the major causes of numerous psychological problems towards women. This includes depression, eating disorder, suicidal thoughts, low self worth, and so many others. She argues that this is due to a new kind of oppression towards women by a highly sexualized society as a direct result of the ‘sexual revolution’.


Surely this cannot be overreacted upon. Criminalizing fornication and homosexual conduct will not suddenly create a happy and solid family (sakinah, mawaddah, warahmah), a madani society, and a zero crime rate. There are numerous other factors, such as: religious and moral education, management of domestic conflicts within the family, economic equality, and so many others. The institution of marriage does require a holistic strengthening, and the criminalization of fornication and homosexual conduct is one of the means –despite not the only means—necessary towards that aim.


The Indonesian Ulama Council (Majelis Ulama Indonesia) has criticized the Western concept of human rights, being too focused on individual rights but lack attention to collective rights of the society. It is not a surprise that the Westerners do not see this harm caused by fornication and homosexual conducts. Surely, the Indonesian society is better than that.


(Indonesian version can be found here)