Gender Based Violence: The Relationship of Law and Patriarchy in Indonesia
Muhammad
Kholis Hamdy
mkholis.hamdy@uinjkt.ac.id
https://journal.uinjkt.ac.id/index.php/empati/issue/view/1493
Abstract
This article briefly
examines Gender Based Violence (GBV) in Indonesia based on the 2021 and 2022
reports of the National Commission on Violence Against Women / Komnas
Perempuan (NCVAW). It seeks to understand (GBV) and violence against women
(VAW) viewed as a product of patriarchy that socially constructs and defines
gender roles, gender relations, and power relations. Among several arguments,
VAW cases are due to the vulnerable position of women caused by patriarchy that
discriminates and subordinates women, in addition to the unequal power relation
between men and women, children, parents, other family members, friends, and
colleagues. One perspective is selected to understand this violence: policy or
law, providing directions from which this study focuses. Patriarchy or
varieties of patriarchy applied in this work provide a brief theoretical tool
of analysis to scrutinize GBV in Indonesia by assessing regulations and
reports. This study employs a qualitative research approach that focuses on
scrutinizing regulations and 2021 and 2022 reports. The findings suggest that
GBV in Indonesia relates to the defined prescription of the husband and wife
relationship in the marriage regulations. Patriarchal values may have shaped
unequal social arrangements, gender roles, gender relations, and understandings
of power relations at the macro and micro levels. Approaches to studying law
and regulations concerning GBV are varied and complex. Theorising patriarchy
and varieties of patriarchy are still relevant. The limitation of this article
is that it offers broad contexts. Therefore, articulate research based on
specific perspectives and distinct theories on these reports remains widely interesting.
Keywords: Gender Based
Violence, Violence Against Women, Law, Patriarchy.
Introduction
The 2004 Indonesian Law on
The Abolition of Domestic Violence defines domestic violence as
“any action against someone, especially women, which results in physical,
sexual, economic and or psychological miseries or sufferings, including threats
of such act, coercion or unlawful deprivation of liberty, within the scope of
the household,” (GoI, 2004, p. 2). However, VAW or GBV, in Indonesia, have been
consistent as the prevalent occurrent in both the domestic and public sphere. A
general argument of VAW is partly viewed as a product of patriarchy that
socially constructs and defines gender roles, gender relations, and power
relations. In addition, the Women National Commission or Komnas Perempuan
(NCVAW) reports indicate a patriarchal challenge within macro and micro levels
related to GBV. Therefore, it is essential to assess this indication. The
allegation of patriarchy as a crucial cause of GBV may provide a foundation to
comprehend the Commission’s reports. Therefore, this article works under the
influence of the commission report’s statements where violence operates not
solely in the household or domestic but also in public.
There were 299,911 violence
cases against women reported in 2020. This information was gathered from three
sources, including [1] a total of 291,677 cases from the PN/Religious Court.
[2] Eight thousand two hundred thirty-four cases came from Komnas Perempuan's
partner service agency. [3] Two thousand three hundred eighty-nine cases
originated from the Service and Referral Unit (UPR), a unit that Komnas
Perempuan purposefully established to receive direct complaints from victims.
Two thousand one hundred thirty-four cases were gender-based, setting a record;
255 were non-gender-based or non-gender-based. During the pandemic,
non-government service organizations or organizations from civil society have
been visited more frequently than government service organizations (NCVAW,
2021).
According to 8,234
incidents of data gathered through the service agency/data collection form for
Komnas Perempuan, domestic violence (KDRT) and intimate relationships are the
most frequent form of violence against women, accounting for 79% of all cases
(6,480 cases). In 3,221 of these, violence against wives (KTI) occupies the top
rank, followed by violence in dating (1,309 incidents, 20%), which comes in
second. With 954 cases (14%) in third place, violence against girls is followed
by violence against domestic workers and violence by ex-husbands and
ex-girlfriends. The same trajectory as in previous years was observed in
private sphere violence (p. 1).
In the 2022 report, there
were 338,496 GBV cases against women, with Komnas Perempuan reporting 3,838
cases, service agencies reporting 7,029 cases, and BADILAG reporting 327,629
cases. There is an increase of up to 50% in GBV cases for women, from 226,062
cases in 2020 to 338,506 cases in 2021. BADILAG data showed a 52% increase, from
215,694 in 2020 to 327,629 in 2021. The source of complaint data to Komnas
Perempuan also increased by 80%, from 2,134 cases in 2020 to 3,838 cases in
2021. Data from institutions' services reduced by 15%, or 1,205 cases, due to
the Covid-19 pandemic's two years. Many service institutions were no longer in
operation, and inadequate case documentation systems and limited resources (NCVAW,
2022, p. 7).
The data presented displays
an increase from the previous year, but the prevention and treatment have not
significantly changed. Sexual violence is widespread in all domains and ages,
from the young and productive in the real and cyberspace. In the public sphere,
for instance, perpetrators of violence are still the closest people. They are
expected to be protectors and role models such as teachers, lecturers,
religious leaders, Indonesian National Army (TNI), Indonesian Republic Police
(POLRI), State Civil Apparatus, medical personnel, officials public and law
enforcement officials (p.8). 2021 reports a decrease in case of numbers due to
the pandemic. The 2022 report on GBV in Indonesia and the violence against
wives have significantly increased. It might signify at least two arguments;
first, it may mark the raising awareness of women's rights within domestic
spheres, especially on domestic violence issues. Secondly, the number may
represent the tip of the iceberg phenomenon where culture and psychological
pressures still obstruct women from coming forward (NCVAW, 2022). Thus, it is
believed there are still many untold cases of domestic violence.
Although the number is
significant, however, the cause of these violent occurrences remains varied and
complex. According to the latest report of NCVAW, GBV takes place due to
discriminatory and subordinate patriarchal culture, the vulnerable position of
women, and unequal power relations between men and women, husbands and wives,
children and parents, staff and employers, people, teachers, students, state.
In a specific part of the reports, as the object of this article, “patriarchy”
influence and the existence of unequal position and power relations among men
and women are very likely the leading prevalent cause of GBV in this country.
The term patriarchy appears
several occurences in the 2021 report. First, there was domestic violence
(KDRT). The economic impact of the pandemic, in which many male workers were
laid off, resulted in a masculinity crisis and an attempt to reverse the crisis
through domestic violence (p. 12). Second, VAW by Public Officials occurred in
domestic violence, which was initially reported as psychological violence,
namely cheating or polygamy. It demonstrates that patriarchal values regard
women as inferior to men and men's sexual objects (p. 85). Third, different diffable
vulnerabilities are rooted in a culture known as ableism/normalcy and
patriarchy. The intersection must also take into account the socioeconomic
situation and level of education (p. 101). Fourth, in addition to morality,
there are trigger factors related to women's roles in patriarchal social
structures. Women are judged to be incapable of caring for children, unwilling
to care for stepchildren, and incapable of getting up in the morning to cook.
It demonstrates how gender inequality values contribute to the death of women;
femicide (pp. 103 and 124)). Fifth, Women's Leadership and Elections:
Affirmative Action Policy Violations and the Objectification of Women's Bodies.
So far, it is widely assumed that the description of patriarchal values assumes
that leaders are men rather than women, so the inclusion of women as candidates
for regional heads and deputy regional heads has become a joke and a farce
(p.107).
In contrast, in the 2022
report, the word patriarchy is mentioned no more than three times in the
report. One could be recorded in the context of Gender-Based Violence Against
Women by Public Officers /State/ASN/TNI POLRI (NCVAW, 2022, p. 88). In
addition, two are located in part on Sexual Violence against Persons with
Disabilities (p. 90) and in the section on Women's Leadership and Recruitment
of Public Officers (p. 120). However, the lesser mention has no means of
undermining the importance of patriarchy's influence in the data. It could be
indicated by specific recommendations that primarily address government and
high-state institutions where patriarchy operates remains vivid (p. 136-141).
Based on the report to the
commission and service institutions, there has been an increase in cases of GBV
in the public sphere, occurring in various places, including in cyberspace
(online), at residence, in public places, in places of education, at work,
state, and in medical facilities. Data showing GBV for women in the public
sphere throughout 2021 was reported to Komnas Perempuan in views starting from
pages 50-71(NCVAW, 2022), while in 2021, stated on pages 20-30 (NCVAW, 2021). A
distinct is noted in the data presented in the 2022 report, where dating
violence is assessed in a detailed manner (p. 69-71). There is an indication
that Cyber GBV has become an extended field for the Commission to pay attention
to.
The Commission reports
offer extensive data serving as the latest thick description of
the GBV in Indonesia. These reports can be a solid basis for further detailed
research. The data presented can be dissected and analysed according to the
researcher's interests. This article invites academics, researchers, and social
welfare practitioners to use this data for scientific development and social
work practice. This article attempts to understand the reports from a certain
point of view while, at the same time, providing several entry points for
further research.
Although this research
approach has not been new, this article functions as a recollection of
approaches to understanding gender-based violence in Indonesia through the
specific area, which, in this article, is the state, adhering to specific
national policies (Laws) and report documents. Analysing the text and context
of the established documents is crucial to understanding the hidden ideology of
the legislation. Comprehension of specific aspects in the regulations reflects
how the Indonesian government perceives domestic violence and indicates
approaches to addressing domestic violence. It is vital to provide insights on
the nature of these related regulations with GBV and indicate why violence
incidents seemingly keep rising rather than diminishing through patriarchy as
theoretical analysis.
Hunnicutt (2009) defines
varieties of patriarchy mean “social arrangements that privilege males, where
men as a group dominate women as a group, both structurally and
ideologically—hierarchical arrangements that manifest in varieties across
history and social space.” Patriarchy is debated as the cause of gender
inequality rather than an analysis tool. This article argues that theory as a
tool, as Walby (1990) coined as “theorising patriarchy,” is still relevant and
valuable to comprehend GBV. Patriarchy operates at both macro (bureaucracies,
government, law, market, religion) and micro levels (interactions, families,
organizations, patterned behavior between intimates) of patriarchy’s operations
(Hunnicutt, 2009).
Method
This article employs a
qualitative approach to examine selected crucial government policies through
regulations and commission reports. This study uses research synthesis, a
systematic, explicit, and reproducible method for identifying, evaluating, and
synthesising the existing body of completed and recorded work produced by
researchers, scholars, and practitioners (Fink, 2010). A research synthesis,
the collection and qualitative analysis of texts and documents, is considered
the best fit to be utilised by looking at regulations and institution reports
in addition to scholarly works such as books, research reports, and journal
articles. This method embeds a synthesis of previous research and serves as an
evaluative report of information found in the literature related to the area of
study of the research (Onwuegbuzie, Leech, and Collins, 2012). The aims are to
combine empirical research for possible generalisation, highlight relevant
theories, and critical conflict resolves orientation in addition to the
identification of the central issue for further research (Cooper, 2010, Cooper,
Hedges & Valentine, 2009). Through research synthesis, irrelevant works
will be discarded, and primary references will be examined. The use Gender
Based Violence (GBV) and Violence Againts Women (VAW) is utilised
interchangeably although both terms provide specific meanings.
The primary data consists
of the 2021 and 2022 NCVAW reports, Law No.1/1974 on Marriage (GoI, 1974),
Government Regulation no. 9/1975 on the implementation of Law No.1/1974 on
Marriage (GOI 1975), and Presidential Decree on Islamic Law Compilation (GoI,
1991). The Commission consistently provides a regular report with reliable
data. Each year, the NCVAW sends data forms to its partner agencies in October
and November. The agencies fill in the data of VAW cases and then send it back
to the Commission in January or February of the following year. Upon receiving
the data, the Commission then compiles and analyses it. One primary data source
originated from The Directorate General for Religious Courts (Direktorat
Jenderal Badan Peradilan Agama -BADILAG). It is accessible via the BADILAG home
page, providing extensive, timely, and reliable data from almost all-over
religious courts in the districts/ cities in 30 provinces in Indonesia. NCVAW
has a different data analysis approach from Religious Courts to recommend both
Religious Courts and agencies partners.
Findings and
Discussion
The Nature of
Law, Gender Based Violence, and Patriarchy
In Indonesia, research on
law with domestic violence employs different perspectives, for example, using
gender, women’s rights, and politics (Hehanusa, 2014; Sarono & Islamiyati,
2004; Retnowulandari, 2006). Several analysises on its relation to state and
cultural values that exist within the law system (structure, substantive, and
culture), religion, and patriarchal values (Mutiara & Hasmonel, 2013;
Fakhri, 2015; Retnowulandari, 2010; Rismawati, 2013; Halili, 2015; Irianto, 2012;
Sukerti, 2005; Kuntjara, 1997; Mukminto, 2020; Agustina, 2022). Law critics
offered at least two mainstream feminist theories: feminist legal theory
(Fineman & Thomaddesen, 2005) and critical legal theory (Ward, 2004). Both
reject the argument of law objectivity and neutrality because positivist law
only produces sexist and unjust products toward women. One of the influences of
critical legal theory keenly embraced by feminists is the deconstruction
method, a method to critically analyse patriarchal thoughts and institutions
(Fakhri, 2015).
Furthermore, feminist legal
theory suggests that law, as the state’s product, can be perceived as a field
of female advocacy to access substantive justice, including critics in the
elite process of law-making, technocratic, and gender bias (Fakhri, 2015). The
basic assumption of feminist legal theory is based on the argument that men
inform law to strengthen patriarchal social relations, thus ignoring women’s
experience, resulting in sexist and male biases regulations (Irianto et al.,
2007). Therefore, the law is an ideological tool of patriarchy (Mukminto, 2020)
that discriminates against women. This discrimination lies in the reality of
law partiality on women that the oppression of women is due to the value and shared
interests between the state and men (Fakih, 1999). The situation has created a
field of advocacy by women activists to pursue and demand justice and
gender-responsive regulations.
Law is a tool of social
order and hegemony that portrays a relationship between the state and man. In
particular, law mystifies social reality and leans towards a hegemonic tendency
for women's social arrangement, thus creating patriarchal conceptions and
symbols within the formal system (Rifkin, 1980). As a formal system, the law
has the potential to evolve into an ideological mechanism that pervades all of
the community's systems. Social institutions such as family, school, religion,
and state policy can all be used to construct, institutionalize, and
disseminate law. In this regard, the state's role is consistent with Walby's
(1989) assertion that it has a systematic bias towards patriarchal interests in
its policies and actions, where various types of violence may serve as a
hegemonic, social control tool and women's subjugation in this system. Walby
refuted claims that patriarchy is illegitimate, ahistoric, and universalistic. Furthermore,
she proposed a patriarchy system model with six identified structures:
patriarchal mode of production, patriarchal relations in waged labor,
patriarchal state, male violence, patriarchal sexuality, and patriarchal
culture (1990).
From the perspective of
biological essentialism, routine violent experiences of women by men may
consciously be considered natural and legitimate. With hegemonic power
possessed by the state through the law, men legitimately dominate households
and communities. In some instances, the refusal of states to intervene, except
in certain cases, characterises a systematic condoning and legitimation both in
private and public domains. According to Fakhri (2015), this structural form of
female oppression is due to the same values and interests between the state and
men since the center of hegemony (the state, communities, and households) is
still dominated by men. To a certain degree, legislation could transform into a
genuine belief. This ideology builds gender relations based on interests and
the power of influential men condensed in the perpetuation of unjust gender
relationships included in the system.
In this sense, the law may
become a hegemonic ideology (Rifkin, 1980). Patriarchal ideology has been built
by gender relations based on the interests and power of influential men in
perpetuating gender inequality included in the legal context (Fakhri, 2015). Consequently,
law, as the product of a state and human collaboration, may have become a
natural patriarchal product (Retnowulandari, 2010) that imposes difficulties on
women. This argument is in line with Lacan, a thinker of eco-feminism and
post-modernists, who stated that the symbolic rules of men impose difficulties
on women and that these rules are expressed in a language and a way of thinking
of masculinity, causing oppression of women repeatedly or inherently (Beasly,
2005).
In this regard,
understanding feminists' approach to law is crucial. According to Fakhri
(2015), three are three central commitments of feminists concerning the law,
which are: (1) at the political level, striving for equality between men and
women; (2) at the substantive level, the issue of gender as a focus of analysis
to redefine the practice of law that had been ruled out, do not appreciate and
undermines the interests of women; (3) on a methodological level, to prepare a
framework to take into account women's experiences to identify the social
transformations which are fundamental for the achievement of gender equality.
Both first and second inter-relatedly influence this report where political
context and regulations as the product of the law under examination.
In addition, from a legal
and cultural perspective, Friedman (1984), as cited by Retnowulandatri, 2010),
stated that three values influence how the law operates: structure, substance,
and culture. Structure means a set of institutions within the framework of the
legal system to ensure the workings of the law, such as legislators, police and
attorney general institutions, and any institutions that possess the authority
to implement and enforce the law. Substance refers to the law as the product of
a law system, and culture as social values that bind the function of a legal
system. Cultural value means beliefs, values, ideas, thoughts, and expectations
espoused by humans. She further explains that culture may also mean a human
attitude toward law and the legal system through beliefs, values, thoughts, and
hopes. Thus, it can be concluded that the culture from a legal culture
perspective is the whole fabric of social values relating to the law and their
attitudes that affect legal acts (Retnowulandatri, 2010).
The understanding of
culture’s role in regulations, according to Retnowulandari (2010), as referred
to Gibson and Calder, is through “moving outside the legal system per se to
focus more directly on the values of a broader mass public” (p. 21). It emphasises
analysing society’s cultural values in developing a legal system. This means
that culture may play a significant role in every aspect of the law, not only
in making the law, product, and implementation but also as an ideology, a
driving force embedded within the creation of law and law implementation. In
many cases, the prominent influence of culture in law has somehow blurred the
differentiation between law and culture (Rifkin, 1980).
Therefore, the relationship
between domestic violence and law is determined by textual, contextual, and
ideological aspects within those regulations that have the inevitable
imposition of biased gender roles and gender. For example, the fall of Soeharto
created a chance for democratic advocacy of human rights. Indonesian feminists
have fruitfully managed this opening space to influence the state through
policy perspectives. Many regulations have been established under human rights
since the regime's fall. Among those regulations that permeate the notion of
women's rights, to mention a few, are law no. 39 1999 on Human Rights,
Presidential Regulation no. 81, 1998 on National Commission on Violence Against
Women (GoI, 1998) which was updated with Presidential Regulation no. 65, 2005
(GoI, 2005), Presidential Instruction No.9/2000 on Gender Mainstreaming, Law
no. 44/2008 on Pornography, Law no. 23/2004 on Elimination of Domestic
Violence, Law No 21/2007 on Human Trafficking, and 30% allocation of women in
regular general election law.
The law could strongly be
considered a product of human rights advocacy, especially women’s rights,
meaning that context and ideology play an essential role in the text. On the
other hand, the regulations discussed in the following are products of the
Soeharto regime, such as Marriage law and its implementation regulation and
Islamic compilation law, with an ideological philosophy influenced by
patriarchal values or specific ethnic groups' philosophies.
To conclude, the nature and
the relationship between law and GBV offer various relations. On certain
levels, the law may be perceived as a form of structural violence towards
women, depending on the element of the legal system. Law's impact on society is
intermingled with cultural values espoused by society. Law is strongly
perceived as having the strong influence of patriarchy as a cultural value,
thus claimed to be a tool of female discrimination and hegemony that is
institutionalized by the state through the legal system, especially legal
products. The influence of law on domestic violence may infer contextual
conditions where the state, through its regime, influences legal products. Most
of the research discussed above still perceives violence towards women because
of state and male collaboration, positioning women as the victims, excluding
the possibility of the law’s potential negative impact on men. Thus, these
approaches to scrutinising the NCVAW reports are available to researchers,
academicians, and practitioners to dissect every part of the reports
comprehensively and rigorously.
The Construction of Gender and Domestic Violence Concept
The notion of GBV in
Indonesia is mainly related to the construction of the husband and wife
relationship. The regulated relationship within marriage manifests the unequal
social arrangements prescribed by the law. In addition, the construction of
gender roles and gender relations stated in the regulation that governs the
relationship between husbands and wives are biased toward gender and strongly
mainstreamed by the ideology of patriarchy where law functions as an
ideological tool of patriarchy and patriarchal law as systemic violence
(Mukminto, 2020). Regulations may contain a discriminate and subordinate
patriarchy and unequal power relation. Philosophically, men and women are considered
equal in the marriage concept as one entity. However, the articulate
prescription of gender roles and gender relations among husbands and wives
within regulations seems problematic from human rights perspective (Agustina,
2022).
The later research
concludes that gender construction in Indonesia is primarily influenced by the
dogma of the interpretation of the ulama towards women. Religious and cultural
diversity is the critical element that distinguishes between the Western and
Eastern concepts of gender. Furthermore, the concept is driven by the spirit of
the state manifested in the law. The Islamic study approach, which prioritizes
true justice for women as a core principle and bases its knowledge of nash and
women's reality on women's actual experiences as individuals, adherents of the
religion, and citizens, is always in conversation with gender in Indonesia
(Agustina, 2022).
Law no.1/1974, Chapter VI
on Rights and Duties of Husband and Wife, article 31, states that the husband
is the head of a household and the wife is the housewife. In addition, in
Article 34, paragraph (1), The husband shall protect his wife and provide every
necessity of home life according to his ability. (2) A wife is obliged to
manage the household's affairs as well as possible. The first paragraph in
article 34 clearly states the function of a husband as a protector and
breadwinner in the family. The gender relation between husband and wife are
reinforced in Islamic compilation Presidential Decree or Law No. 1/1991, article
77, paragraph 1-5. First, a husband and wife bear a noble obligation to develop
a sakinah, mawaddah, and rahmah mutually household,
and this is generally understood as the basic principle of the fabric of
society. Secondly, the husband and wife ought to mutually love, respect, be
loyal, and provide physical and mental assistance. Thirdly, a husband and a
wife assume the obligation to care for and nurture their children, including
physical growth, spiritual as well as intellectual and religious education.
Fourthly, the husband and wife are required to maintain their husband's honor.
Fifthly, if a husband or a wife has a dereliction of duty, each can file a
lawsuit to the Religious Court.
In addition, gender roles
are reinforced by the Islamic compilation law (GOI, 1991), where the husband's
role is articulated in article 80 while the wife is in article 83 states. In
article 80 of the Islamic compilation, a husband must provide guidance and
supervision to his wife. Furthermore, a husband functions as a protector and
sustainer (breadwinner) for the household's needs to the best of his ability.
The husband must provide religious education to his wife and give her a chance
to learn valuable knowledge. A husband must also provide his children with a
dwelling, household expenses, health coverage, and education (p. 13).
Meanwhile, a wife shall be dutiful to her husband physically and mentally
within Islamic law boundaries and organize and arrange household chores at her
best (p. 14).
Under both cultural and
religious influences, the law partly socialises patriarchal perceptions of who
men are and their roles in the family. Research finds a positive relationship
between perceptions of patriarchal culture and sexual violence behavior against
women in early adult men. Conversely, the more negative the perception of
patriarchal culture, the more early adult men will judge the patriarchal
culture prevailing in society as an inappropriate social system where it should
be the position and status between women and men are equal (Pangestika,
Purnamasari & Kurniawan, 2022). Thus, it is crucial to assess gender roles
prescribed for men.
According to Retnowulandari
(2018), identifying the head of the family based on national and religious law
and customs is plural, particularly in communities. However, the term
patriarchy as it imposes explicitly on men and husbands. The head of the family
is followed by the role of a breadwinner (Agustina, 2022). It is worth noting
that data from BADILAG indicate that economy is the second cause of divorce,
with 115,639 in 2020 (NCVAW, 2021) and 113.343 (NCVAW, 2021). However, the 2022
report excludes economy due to considering the dimensions of gender with the
subordinate position of women, although still recognising economy as part of
KDRT cases. These two concepts should not be dichotomous. There is a strong
relationship between the head of the family and the role of breadwinner. BPS
data shows that females as heads of families are rising yearly in urban and rural
areas of 34 Indonesian provinces (BPS, 2017).
Although BADILAG shows the
most cases due to continuous disputes and quarrels, the commission report
suggests that all divorce cases are viewed under domestic violence categories (NCVAW,
2021). It is supported by Law no. 23/2004 on the Elimination of Domestic
Violence articulately prescribes types of domestic violence in article 5
consisting of physical abuse, psychological violence, sexual violence, and
household negligence. Therefore, to analyse data from religious courts
prescribed in regulations, the Commission follows a human rights perspective,
thus categorising those cases into three types: physical, economic, and
psychological. Thus, disputes and quarrels very likely fall into these
categories.
From a different
perspective, a protectionist approach, as embedded in the law, positions men as
having more privilege in physical attribution, whereas women lack this feature.
Thus, women are labeled ideologically as constantly in need of protection. Although
this view indicates women cannot be victimized by any possible threats, at the
same time, women seem the position powerless beings. In this sense, the
protective characteristic of patriarchy is a legitimation of norms, and actions
of protection can also be inferred as an instrument of repression. The
protectionist paradigm labels women as vulnerable and weak, while men are more
potent in completing heavier work than women (Eleanora & Supriyanto, 2020).
The differentiation indicates that women's vulnerability correlates to unequal
power relations (Hunnicutt, 2009). This powerlessness caused by women's
vulnerability is occasionally reinforced by ineffective law enforcement in
dealing with domestic violence cases. Furthermore, in the report, a sense of powerlessness
also tends to relate to violence existing for other specific categories such as
LGBT, people with HIV/AIDS, diffable, dating victims, trafficking syndicates
victims, and, about customary law, female domestic workers, migrant female
workers, and women from minority groups: sexual minority, ethnicity, religion,
and belief (NCVAW, 2022).
The protection concept
could also mean men should position women as subordinate unit in the family. In
the report, the word subordination is entangled with patriarchy. By utilising
ethnographic work on gender and gangs, this subordinate measure is noted in
Miller & Decker’ (2001) work. The study reveals that gender is both a risk
factor and a protective factor for girls in gangs. In specific modes, girls are
sexually exploited for their subordinated status, particularly when sexed into
gang membership. Their sexual identities as girls protect them from dangerous
gang activities, especially when they might result in fatal consequences.
On the other hand, one
study claims that the protection of women is viewed as a respected status. An
example of women’s worthiness status can be indicated through the Purdah
practice in some Muslim and Hindu cultures, where the practice exists to
seclude women from the sight of strangers through restrictions on women’s dress
and mobility. In the research, although women are under the constant label of
protection, they are denied participation in the freedom of everyday life
(Cain, Khanam, & Nahar, 1979), as cited by Hunnicutt (2009). In this
cultural norm, not every woman can afford a protective status when they violate
the normative standards of female behavior; thus, women’s privileges of male
protection are discarded.
The victimisation of women
is bound up with a protective element in patriarchal relations. Thus, women’s
physical space is violated through physical and sexual violence. In addition,
violation of personal space refers to women’s experiences of restrained
movement in society compared to those of males (Chatha, Ahmad, and Sheikh,
2014). Different women experience degrees of vulnerability under patriarchal
systems. (Hunnicutt, 2014, p. 566). Chavez & Dworkin argue, as cited by
Hunnicutt (2009) that the protectionist value embraced is challenging to discuss
because they are typically central to antifeminist while paradox in meanings.
This paradox of protection means chivalry renders women powerless because
accepting protection implies neediness and vulnerability; meanwhile, the threat
of being victimized requires acquiescence to the protection men offer. In
short, women are subject to varying amounts of risk, protection, and,
ultimately, GBV.
To conclude, the gender
construction of men and women in marriage is influenced by patriarchal values
where the husband as the head of the household, the breadwinner, the protector,
and the women as a housewife are standard features. The housewife position of
women constructed by the law is problematic. The view always tends to place
women into second class and vulnerable in society. This view is in line with
the report where the vulnerable position of women is strongly related to the
occurrence of violence against wives in Indonesia (NCVAW, 2021).
Patriarchy, Law, and Culture
The practice of patriarchal
culture, as embodied in legal logic, has become ingrained in the dominant daily
cultural practice. Inequality in a society is a symptom or manifestation of
systemic violence that occurs naturally and unintentionally in everyday life
(Mukminto, 2020). Therefore, the general view of feminists is a belief that
society and legal order are patriarchal. The rule of law, which is said to be
neutral and objective, has been just a cover against political and social
considerations driven by the ideology of the decision maker, and ideology is
not for the benefit of women. As gently portrayed in the Commission report,
violence against women in Indonesia is due to a patriarchal culture that
subordinates and discriminates against women. One element of how law functions
in a culture where social values bind the function of law. To understand law
culture, as Retnowulandari (2010) cited Gibson and Calder’s law mapping
analysis, is through “moving outside legal system per se to focus more directly
on the values of the broader mass public,” which emphasises the analysis of
social, cultural values in the development of a legal system. Examining
respective regulations and their social context or cultural values underpinning
them may offer a better understanding of the relationship between law and
patriarchy concerning domestic violence.
The patriarchal nature of
society and law is firmly attributed to the cause of women's injustice,
domination, and subordination and, consequently, claims against gender
equality. Domestic violence as part of gender inequality could not be
eradicated in the institutional structure of the current patriarchal ideology.
As cited by Fakhri (2015), Cain similarly portrays the conditions of women who
are still considered inferior to allow women to define themselves. In this
study context, the existing law in Indonesia, as discussed, could be considered
a legal gendered social arrangement that males create for females. However,
through varieties of patriarchy, an assessment of law by analysing the social
context surrounding the establishment of regulations, especially those related
to gender roles and gender relations among husbands and wives in Indonesia,
might provide comprehension of law as a subtle or indirect instrument of power
over men as well. It holds meaning that the state, through the law, contributes
to the conceptual prescription of masculinity bound to follow, especially by
those who are part of the legal system, such as religious courts and law
officers. Both views could be scrutinized within specific political history
conditions where patriarchy strongly influenced regulations in the Soeharto
era.
The argument of law as
power over women is a social construction of masculine and feminine roles and
identities. Rakodi (2012) suggests putting women into disadvantaged positions
characterized by patriarchy as a social system where men are the primary
authority figures who define power relations over women, children, and
property; thus privileged, in contrast to women’s subordinate position.
Although this claim is not necessarily a direct cause of domestic violence
practices, the ideological value behind their establishments contains the same
oppression doctrine, especially to women through human rights (NCVAW, 2022) and
feminist perspectives (Fakih, 1999). In this regard, the oppression
of women is due to the common interests between the state and men. Through the
law, men dominate households and communities; consequently, the oppression of
women may persist in both public and domestic contexts.
In Indonesia, the general
understanding is that men inform law, aiming to strengthen the patriarchal
social relations, so that the law ignores the female experience, resulting in
sexist or biased law (Irianto et al., 2007). The most significant phase of
patriarchal influences through policy is during the Soeharto regime. During his
thirty-two years of reign, the law regulated women's social arrangements in
public and private. Patriarchal policies had a significant impact nationally.
They were structurally and publicly promoted, for example, through the
government's office network (Dharma Wanita), wives of military officers (Persit
Kartika Chandra Kirana), the Family Welfare Program (PKK), and films and media
(Lan, Susetiawan, and Abrar, 2001). Even though these policies are not
officially socialized currently, the policy, such as Women Association called
Dharma Wanita and Persit Kartika Chandra Kirana, is active in every government
and military office department. At the same time, the PKK program still exists
in the lowest government structure in Indonesia. The former two organisations
confirm the position of females as male companions. Their existence, status,
and honor portray women as under the shadows of their husbands' identities. The
structure of the organizations follows men's structural positions in
bureaucracy (Yuliani, 2010).
Regulations in this era
were not only used as a tool of social engineering to maintain power stability
in general but also to articulately regulate family matters, for example, the
1974 law on marriage and government regulation no 9, 1975, and Islamic
compilation law. These legal prescriptions suggest that both men and women
behave in distinctive ways influenced by cultural norms or religious teaching,
especially in the relationships between husbands and wives. The two concepts of
motherhood and fatherhood were under the framework of family planning
(Blackburn, 1999). Indonesian feminists argue that ibuisme concept
broadly means “motherhood.” Therefore, it refers to biological and natural
attribution to women having a reproductive role, raising children, domestic
chores, and taking care of their spouses, commonly known as konco
wingking, a concept strongly influenced by Javanese philosophy from
Indonesia’s majority ethnicity. Consequently, the conception of ibuisme has
led to bapakisme, or a concept of fatherhood, attributing to
leadership and authority in the domestic sphere where protection and
breadwinning are the leading features. Detailed research on “ibuisme” as a
social construction in the New Order era is available from the work of
Suryakusuma (2011).
The relationship between
respect and obligation in the family parallels official Suharto-era state
definitions of leadership. Mulder (1994, p. 61), as cited by Adamson (2007),
argues that the official notion of leadership, beginning under Indonesia’s
first president Sukarno but elaborated during the Suharto period, is one of
patronage. The hierarchical nature of patronage is such that it ties people
together in personal bonds of unequal moral and material value. Adamson (2007)
further cited Reid (2007). The latter similarly characterises the history of
patronage relationships in Southeast Asia as a system of unequal relationships
in which the client is bound to the patron through moral and material ties. The
acceptance of inequality conforms to the relationship between debt and
obligation that members hold within a hierarchy. To disrespect or not honor
such a debt would be to go against what the government emphasized as a
grounding social and moral principle. Nevertheless, in addition to a hierarchy
of elders, Suharto-era social programs and bureaucratic organizations for
women, such as the Family Welfare Program (PKK) and Dharma Wanita, a mandatory
organization for the wives of civil servants, may have also reinforced a
gendered hierarchy of patriarchal leadership (Adamson, 2004).
As a result, the New Order
regime may have supported hegemonic masculinity, which engaged in structural
violence and domination, particularly against women. According to a study of
spouses aged forty to sixty who married between twenty and forty years ago,
marriage is a social, cultural, and religious obligation. With a few
exceptions, women have a strong tendency to regard sexual relations in marriage
as an obligation and a right of their husbands. This anthropological research
concludes that religious and cultural discourses justify and support this
viewpoint, and rejecting it is considered a sin (dosa) or taboo (pamali). Both
discourses emphasize marital obedience to the husband (Nurlaelawati, 2020). As
ideological domination works through a symbol that engineers consent and
docility, in this case, patriarchy, hegemony may be perceived as a consensus.
In other words, once loosely propagated by the state, patriarchal ideology
positions men and women with ideas that cast their unequal status as usual and
are taken for granted (Darwin, 1999).
The influence of patriarchy
through religious norms shapes male ideological hegemonic males in both
national and Islamic regulations, such as the notion that men are leaders of
women. A male Muslim feminist, Asghar Ali Engineer, argues that "men are
leaders" is not a normative statement but a contextual one. This sentence
does not mean that men must be leaders. The Qur'an only states that men are
leaders. He argues that the superiority of men and women is not the superiority
of sex but rather the superiority of the social functions of both sexes as
referred by Arifin, Yudani, & Aziza (2022). Men (husbands) earn a living,
and women (wives) do domestic work, not as an obligation but as a division of
labor, complementing each other (Wahid, 2001).
It has been debated how
gendered social arrangements of the law indicate the dominant conception of
husbands upon their wives. These dominant conceptions of males through
legislation, as Gramsci (1972), as referred by Hunnicutt (2009) explained,
dominance is possible without direct coercion, and violence could only occur
when these sets of hegemonic break down or are challenged. From a broader
perspective, an example of challenging the hegemonic institution during the
Soeharto regime was the violence against Marsinah, an "insubordinate"
factory worker who was abducted, tortured, raped, and murdered. However, it is
probably military-connected elements as a lesson to other female workers who
might think of asserting their rights (Balckburn, 1999).
Several studies support the
argument that contesting a cultural husband’s hegemonic authority and dominance
may have implications for domestic violence (Hayati et al., 2014, Nilan, et.,
al, 2014, Aisyah & Parker, 2014, Rowe, Sutan & Dulka, 2006, Chatha,
Ahmad & Syeikh, (2014), Margunani, et., al, 2021, Mshweshwe, 2022). From
these researches, most arguments raise the justification of domestic violence
derived from cultural and religious dogma rather than regulation. Thus,
domestic violence could be inferred to be a consequence of patriarchy, not
legislation and law, which are manifestations of patriarchal values already
engrained in society. However, men rarely use such violence to maintain gender
hierarchies consciously. In this sense, there is a genuine contradiction
between those interested groups, the dominant, with subordinate groups
concerning domestic violence practice. In this regard, patriarchal ideology
could be viewed as a guarantor of social cohesion and cooperation. Otherwise,
conflict will emerge (Pyke, 1996). This condition may indicate whether any
significant changes in the contested Law may significantly impact the elimination
of domestic violence.
The influence of cultural
value in domestic violence during the pandemic indicates the rising number of
cases. State institutions such as BADILAG receive fewer cases due to public
contact restrictions. However, most cases are filed through NCVAW and its
partner agencies. The restriction forced the family to stay mostly at home,
where interaction among family members has been intense—only 34% of
institutions that returned questionnaires reported increased case complaints
during the pandemic. Data on complaints to Komnas Perempuan also experienced a
drastic increase of 60% from 1,413 cases in 2019 to 2,389 cases in 2020. It was
observed that an increase in the intensity of violence against women in the
personal sphere, especially in sexual violence form. In the past decade,
violence in the private sphere has consistently been the most reported case.
In 2020, 79% or 6,480 of
the complete 8,234 case reports were collected by 120 violence service
institutions in the personal sphere. It indicates an increase of 4% from the
reporting composition in 2019. There is also a 6% increase in the composition
of sexual violence in the personal sphere. A total of 1,983 of the 6,480 cases
of violence in the private sphere were sexual violence, including 57 cases of
marital rape between 1,309 cases of violence against wives and 215 cases of
incest among 954 cases of violence against girls. Notably, a sharp increase in
cases of sexual violence committed mainly by ex-boyfriends and ex-husbands, from
35 cases in 2019 to 329 cases in 2020. Both offline and daring violence is
closely related to the pandemic situation, which causes the duration of being
together at home and the use of gadgets to become longer and the economic
impact that must be borne by the family (NCVAW, 2021).
Another example of how
patriarchy as a cultural value was profound in this regime can be depicted
through media. Through values and meanings in society, media constructed or
socialised unbalanced relations between men and women through symbols and
myths, thus creating a gloomy representation or reality of women to society and
gender-biased practices of journalism have several causes in a patriarchal
society such as in Indonesia (Lan, Susetiawan, & Abrar, 2001).
As varieties of patriarchy,
the cultural value such as patriarchy penetrates throughout history. Even
though the fall of Soeharto has opened up human rights perspectives in the
making of legislation, the present patriarchy has still succeeded apparently in
other areas post-Soeharto. For example, through progressive gender roles
theory, Utomo et al.’s (2009) research suggest that textbooks from Year 1 to
Year 12 are heavily gender-biased. In this research, children’s activities are
also intensely segregated by gender, where boys tend to be active in sports and
play with mechanical toys. Girls, in contrast, are represented as playing with
dolls and teddy bears, celebrating birthday parties, and liking art and music.
Overwhelmingly, those girls are rarely illustrated as leading figures in
science and technology. This illustration signifies girls as having a lack of
intellectual capacity. The analysis found that public and domestic stereotypes
are commonly discovered in the textbooks of Bahasa Indonesia, English Language,
Science, Social Sciences, Islamic Religion and Sport, and Healthy Living books
(p. 11). The research concludes that these stereotypical gender roles can be
unlearned. Girls and women can be taught to be more autonomous if social
institutions, especially the family environment, schools, religious
institutions, the state, and political climate, are socialising progressive
gender norms.
Soeharto’s leadership had
been evaluated to have close relation with his ethnic philosophy. According to
Adamson (2007), Javanese philosophy persists were a moral hierarchy of gender
relations, mimetically extended from family to nation, dovetails with religious
interpretations to resolve anxieties about social change and security through
the control of women. She further states that a moral hierarchy mediates
contradictions between the individual and the community in culturally specific
ways that have consequences for gender relations and speaking about women’s
rights. Javanese culture discourages individualism and focuses on the central
values of family and community. Javanese is also a hierarchical society where
status and positions are not merely cultural categories but are reinforced
through specific language - use (p. 7), for example, 3 UR : sumur,
dapur dan kasur (well, kitchen and bed), or 3 M, macak, manak,
and masak (makeup, give birth, and cooking), and wadon; a
term used to call women in the Javanese language which means abdi
Laki (servant of man) (Retnowulandari, 2010).
Furthermore, the
contemporary Javanese family structure contains patriarchal elements. Another
common cultural justification for women's subordination at many advocacy
programs was that Javanese culture defined women as konco
wingking (domestic-related chores) or the "friend in the
back." Based on Adamson's research (2009), the informants often explained
that this pretext reminded them about the role of sitting behind their husbands
(both a literal and figurative custom) and supporting them as needed. Both men
and women are often referenced in combination with Surah An-Nisa '34, meaning
that if women could not perform this obligation, men had the authority to
discipline her physically. An NGO called Rifka Annisa, a Yogyakarta women's
crisis center in Central Java, regularly faces this combination of religious
and cultural justification from abusers and victims (Adamson, 2004). This
patriarchal understanding of gender roles exists at the familial level. It thus
coincided with the national-level ideology of dominance and subordination in
such a way as to directly impact women's lives and bodies.
Based on the above
discussions, it seems that patriarchal socialisation, either through state or
cultural norms, is a crucial element as it is the process by which individuals
acquire the beliefs, values, and behaviors considered desirable and appropriate
by their culture (Usta, Farver & Hamieh 2016). In this sense, domestic
violence may be perceived as a never-ending phenomenon when few men regard
their violent acts in a household as average or acceptable as part functioning
society.
Conclusion
The conception of domestic
violence within the Indonesian legal framework relates to the ideas of husband
and wife relationships, manifested and prescribed within regulations such as
Law on Marriage and its implementation regulation in addition to Islamic
compilation law. In general, these regulations indicate unequal social
arrangements within domestic spheres and a narrative of biased gender on gender
roles and gender relations of which is strongly influenced by patriarchal
ideology. Additionally, it could be suggested that these laws may not stimulate
violence against a wife in such a direct way. However, the articulate
prescription of gender roles and gender relations among husbands and wives
seems to be problematic from a human rights perspective.
It is clearly shown in the
reports that both macro (bureaucracies, government, law, market, religion) and
micro level (interactions, families, organizations, patterned behavior between
intimates) of patriarchy’s operations are still prevalent. Theorising
patriarchy and varieties of patriarchy remain helpful to explore and analyse
GBV and its dimensions and to resolute justice in the gendered relation between
male and female in the macro-micro or public and private sphere. Patriarchy is
“a concept too useful to lose.”
Indonesia’s regulations are
likely to contain a patriarchal character, thus, represent the character of the
state" that has been structurally constructed together with religious
influence, of political manifestation and institutionalization driven and
fabricated by masculinity.
The study indicates that
the most significant relationship of domestic violence can be further assessed
through structural perspectives of the law of those who implement the law, especially
religious courts where legal decisions are primarily based on the established
patriarchal legislation which, according to the commission report, are far
removed from a human rights perspective, especially with reference to the
reasons of divorce lawsuits, indicating a severe challenge in terms of finding
out the reason of divorce cases. Furthermore, a future investigation is likely
required to understand more how these patriarchal regulations affect
decision-making in courts and how these juxtapose with human rights-based
regulations. The limitation of this article is that it offers broad contexts.
Therefore, further specific researches on particular perspectives and distinct
theories based on these reports remain widely stimulating.
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