There are many feminist theoretical perspectives on equal treatment and special treatment from a maternity and workplace perspective. Some of the theories relevant to this study focus on gender issues in terms of equality and ‘being special’, and its correlation with a judge’s decision making on the basis of Perma No. 3 of 2017, and in an infanticide case in Indonesia. The key elements of the theories used in this paper are discussed below.
3.1. What Is a Perma?
A Perma is a regulation issued by the Indonesian Supreme Court to regulate and to guide judges; in the instance of the particular Perma, it is a guideline for the court when it is handling a case where a woman is the perpetrator, victim or witness. The aim of this Perma is to fill a legal vacuum that existed due to there being no adequate legislation as guidance for judges when examining a gender-based case. Thus, this Perma can be said to be a lex specialis towards the Law on Judicial Power and the Judicial Code of Ethics/Conduct.
Judges’ duties are regulated in the Judicial Power Act No. 48 of 2009. Article 5 states that judges must investigate, follow, be abreast of the Constitution, and understand legal values and a sense of justice that exists in society. Judges must have integrity, be honest, fair, professional, and experienced in the legal field. Article 4(3) states that judges must obey the Judicial Code of Ethics/Conduct. Article 8 states that every person who is suspected, arrested, detained, prosecuted, or being brought before a court must be presumed innocent until the court convicts that person and such judgement has obtained the permanent force of law. In considering the severity of the punishment, the judge must also pay attention to the good and evil characteristics of the defendant (Article 8(2)).
Judicial duties are also regulated in terms of ethical conduct in a Letter of Decision by the Chairman of the Supreme Court and the Chairman of the Republic of Indonesia Judicial Commission Number 047/KMA/SKB/IV/2009 and 02/SKB/P.KY/IV/2009 on the Judicial Code of Ethics and Judicial Code of Conduct.
One of the principles of the Judicial Code of Ethics and Judicial Code of Conduct is to be fair during court proceedings and in decision making. Being fair means that the treatment of persons should be based on the principle that all people are equal before the law. The most basic demand of justice is to provide equal treatment and opportunities to everyone. Therefore, a judge, as the person carrying out a task or their profession in the field of legal issues has a responsibility to act fairly and not discriminate against people. In general, this regulation gives guidance for the application of the law: (1) Judges are obliged to carry out their legal duties with respect to the presumption of innocence, without expecting any reward; (2) Judges are obliged to be impartial, both inside and outside the court, and still maintain and foster the trust of the people who are seeking justice; (3) Judges are obliged to avoid things that may result in the revocation of their rights to adjudicate a case; (4) Judges are prohibited to impress one of the parties or legal advisor, attorney and witnesses as if one has a special position to influence the judge concerned; (5) Judges are prohibited from showing feelings of like or dislike, partisanship, prejudice, harassment of race, sex, religion, national origin, differences in physical or mental ability, age, or socioeconomic status or on the basis of close relationship with justice seekers or parties involved in the judicial process either through words or actions; (6) Judges are obliged to ask for all parties involved in the trial process to apply the standard of behaviour referred to in point (5); (7) Judges are prohibited from behaving, uttering words or taking actions that give the impression of being partial, prejudiced, threatening, or cornering the parties or their proxies, or witnesses, and the judge must also apply the same standards of behaviour to advocates, prosecutors, court employees or parties, and others who are subject to the direction and supervision of the judge concerned; (8) Judges must provide justice to all parties and not solely intend to punish; (9) Judges are prohibited from ordering/allowing court employees or other parties to influence, direct, or control the proceedings of the trial, thus causing differences in treatment of the parties related to the case.
Based on Article 79 of the Supreme Court Act No. 14 of 1985, the Indonesian Supreme Court can regulate further legal matters that it deems necessary to smooth the processes of the judiciary as long as the matters are not yet regulated in such law, that is a
Peraturan Mahkamah Agung (Perma) or Supreme Court Regulation. Perma No. 3 of 2017 on Women in Conflict with the Law was issued to protect women’s rights when they are in conflict with the law because existing legislation did not sufficiently accommodate the needs and the interests of women victims, particularly as the existing legislation did not embody any gender and human rights’ perspectives. For example, in the criminal justice system, the Criminal Procedure Codes do not accommodate the need of victims to be accompanied by a medical or psychological counsellor, nor is there any regulation for the general attorney, when acting as state representation for a victim, to build communication with any victim, their family and counsellors. This omission led to situations where a general attorney treated a victim unfairly by letting the investigator, attorney, judge, or lawyer question in such a way that she felt guilty or made forced (and even false) admissions when put under such pressure. Such situations reflect general gender inequality, and also discrimination against women who are in conflict with the law whose needs are not met in these situations (
Sandiata 2018). It is undeniable that the gender bias in legislation can also have a tremendous effect on legal officers in terms of how they do their duties.
This Perma binds judges ‘internally’ and is used as a guide for judges to apply the principles of respecting human dignity, non-discrimination, gender equality, equality before the law, justice, expedience, and legal certainty (Article 2). The aim of the Perma is to give judges an understanding on how to apply such principles, to identify situations of unequal treatment that result in discrimination against women, and to guarantee women’s rights to obtain justice on the basic of equal access (Article 3).
Articles 4 states that judges must consider the principle of gender equality and non-discrimination by identifying the facts that may be before the court, namely: inequality of social status among the litigants, inequality of legal protection that impacts access to justice, discrimination, the psychological effects experienced by a victim, physical and psychological disempowerment of the victim, power relations that contribute to the helplessness of the victims/witnesses, and any history of violence by the perpetrator against the victims/witnesses. A further consideration could be any history of prior violence by a victim of an alleged female perpetrator, particularly if that violence was sustained and serious in nature. It should be recalled that “women in conflict with the law” include perpetrators as well as victims and witnesses.
Furthermore, Article 5 Perma No. 3 of 2017 regulates that during examination of a case of women in conflict with the law, judges may not:
show an attitude or make a derogatory statement, blame and/or intimidate women in conflict with the law;
justify discrimination against women using culture, customary rules,
other traditional practices and gender-biased expert interpretation;
question and/or consider the experiences or the sexual background of the victim as a basis for releasing the perpetrator or reducing the punishment of the perpetrator; and
issue a statement or view that contains gender stereotypes.
The aim of these Supreme Court regulations is to demonstrate that judges have a role to proceed the case fairly and to respect everyone involved in conflict with the law, especially women. It determines explicitly in the Ethics of Conduct and also similarly in Perma No. 3 of 2017, that judges are not allowed to show feelings of like or dislike, partisanship, prejudice, harassment of race, sex, religion, national origin, differences in physical or mental ability, age, or socioeconomic status, or on the basis of closeness, relationships with justice seekers or parties involved in the judicial process either through words or actions, especially for women who have conflict with the law. The Perma is convinced by Indonesian feminists as a legal breakthrough to protect women’s rights to access to justice either in the family or criminal justice system.
3.2. Equal Treatment and Special Treatment
Equality of treatment is a liberal view that has been primarily concerned with the elimination of laws or social practices which treat women and men in a different way because of their gender, especially in regard to pregnancy and childbearing, and where it affects women’s rights in the workplace. The liberal view proposed equal treatment based on two fundamental assumptions. The first is that there is no ‘real’ difference between the sexes, with the ideal situation being one in which no gender stereotypes exist, as this was generally believed to be the result of normative gender stereotypical socialisation (rather than any innate differences, other than those of lesser importance than the person’s common humanity, which should be the foremost consideration). The second assumption is that once the disparate treatment is removed, men and women would achieve equal status through individual freedom of choice and equal competition in the social and economic marketplace (
Krieger and Cooney 1993). However, there are dangers and limitations in the liberal view that comes from these two basic assumptions in terms of special conditions such as pregnancy and childbearing because women are particularly affected by pregnancy, childbirth or related medical conditions and special provision needs to be made for them (for example, maternity leave). Otherwise, if they were treated the same as all employees for all employment-related purposes, it could be to the female employees’ disadvantage, particularly in the perinatal period, yet special provision may make the female employee less attractive to an employer, especially one that is unaware of the generally lower absentee rate of mothers. Similarly, the concept of equal treatment can pose a danger for judges (as for employers) who possess little understanding on this issue. A lack of understanding can lead to their decision making being less just (than might otherwise have been the case) due to their biases and stereotypes about women.
Special treatment proponents argue that equal treatment is wrong in arguing that women’s right to maternity leave is granted on account of their being treated for a medical condition, a situation similar to sick leave taken for physical pain and injury. Special treatment proponents argue that pregnancy occurs because of biological specificity that women possess; therefore, providing maternity leave is a form of preferential treatment, not a form of equal treatment (same treatment) (
Finley 1993). Finley argues that both principles (equal treatment and special treatment) do not entirely escape from the male norm. The special treatment approach tends to define the problem by framing it as how the needs of females must be accommodated by the male workplace. By being incorporated into the male workplace, women will be better able to compete with men according to the existing value structures (
Finley 1993). The tensions between the equal treatment and special treatment is caused by the male norm in equality theory. The focus of equality theory—its use of the male norm as the ‘measuring stick’ against which all others are measured and subsidiary to it—makes it well-suited for perpetuating existing distributions of power, as through this power, the (male) norms are the key to the attribution of difference. The male norms are seen as normal and everyone else is ‘other’. The consequence predicted that equal treatment has sometimes been used to legitimate discrimination against women rather than to successfully eradicate it.
Finley (
1993) quotes Wolgast’s approach approvingly:
[W]e need two kinds of rights: equal rights and special rights. Special rights are rights based on human differences, taking them into account so that the ultimate outcome between different individuals can be the same…
In her book,
Equality and the Rights of Women, Elizabeth Wolgast proposed a ‘bivalent’ view to address debate on the paradigm of sexual equality. Her view differs from the liberal view and rejects the two primary tenets of the liberal feminist view: that sex differences are “illusory”, and that equal treatment of the sexes will result in functional equality. She insists that “the differences between men and women are substantial and that sexual equality will result only if society deals with sex differences respectfully and fairly by developing accommodating institutions which permit equality of effect” (
Finley 1993). She acknowledges that the conditions of the sexes are asymmetrical or heterogeneous, at least in some respect. Therefore, this condition sets out to devise a conception of equality that takes this asymmetry into account.
Wolgast asserts the work of two types of rights: ‘equal’ rights and ‘special’ rights through her illustration:
Within our society, every individual is deemed to have an ‘equal’ right of access to public building. That this right is an ‘equal right’ means that with respect to that right, any or a person is interchangeable with any other. The right adheres to every individual. But, the effect of no ramp is a denial of the equal right. In such a circumstance, equality is effectuated only if the disabled person is granted a ‘special’ right to a ramp.
Wolgast’s illustration demonstrates that the failure to provide a ‘special’ right to members of a disadvantaged group because they deviate from the norms have denied them an ‘equal’ right to which they are entitled (
Finley 1993, pp. 168–69). Wolgast’s model acknowledges the fact of heterogeneity with the theoretical construct of interchangeability underlying traditional egalitarian thinking. She acknowledges the fact that institutions and policies, such as employment policies, building access and legal policies were designed in accordance with a normative standard to which some groups within society do not conform. By affording those individuals a special right, it means their difference is accommodated, and institutions are modified so that the principle of interchangeability is restored: “So long as the building has a ramp, the walker and a wheelchair user can be substituted one for the other,” she maintains. Therefore, women do not have to be proven homogeneous with men in order to gain admission to the ‘society of equals’ because the bivalent view provides for changes in societal institutions to accommodate differences (
Finley 1993, p. 170).
The illustration given by Wolgast is appropriate to the case of Perma No. 3 of 2017 versus the Act of Judicial Power and the Judicial Code of Ethics/Conduct, so the critique that judges will face a dilemma because of the need to accommodate two non-equivalent or mutually contradictory content of the principles of equal treatment and special treatment, can be diminished. The next question is whether judges understand this policy as a special treatment and have applied this when they handle court proceedings, as well as how does the implementation of this treatment affect women in conflict with the law to obtain justice.
Llyod (
1970) argues that there is a gap between formal and substantial justice because justice requires equality of treatment in accordance with the classifications laid down by the rules, but it says nothing about how people should or should not be treated.
Theo Huijbers argues that the role of the court is to resolve cases where citizens have different perceptions on an issue. The court must resolve the case on the basis of the principle of justice. For this reason, the court is required to treat the parties equally (
Huijbers 1990). It can be said that legal certainty can be attained if the Criminal Procedure Code is applied to cases involving women. In such cases, the judges’ decision making is based on the indictment by the Public Prosecutor (the details of which are compiled through an investigation report prepared by the Police) and the evidence that is proven during trial examination. In addition, during the proceedings, the judge must adhere to the principle of the presumption of innocence. Judges must not assume the defendant is guilty before all stages of the examination have been completed. Thus, judges must be neutral and apply the principle of equal treatment to women who are in conflict with the law. However, when the Code of Criminal Procedure exhibits gender bias (as mentioned above), it will affect those women because judges will apply it as if it were just. Therefore, special treatment or special arrangements in favour of the poorer or the vulnerable in the community (such as women) are needed to enable them to seek justice on an equal footing with those who possess natural, social, or economic advantages.
3.3. The Causes of Infanticide in Indonesia
In Indonesian culture of having a baby outside of marriage is seen as shameful and immoral conduct (
Isnawan 2018). Society generally regards giving birth to a baby conceived in a relationship with a man outside of marriage embarrassing, a terrible event and a despicable occurrence. When a woman is involved in such conduct, she will try and keep her pregnancy a secret for as long as possible, sometimes, even until the baby is delivered.
The commission of the crime of infanticide by the biological mother has been usually caused by a number of factors. First is the fear of being caught giving birth to a child outside of marriage, which has occurred because the mother has been involved in an illicit relationship, which means having sexual intercourse outside of marriage (which includes either with her consent or without it, such as due to sexual violence) (
Isnawan 2018;
Erika et al. 2019).
A second factor can be a lack of knowledge and support. She may not initially recognise that she is pregnant. She may lack basic knowledge regarding conception and pregnancy and may interpret an interruption in the menstrual cycle as within her normal range (depending on her own personal experience), and movement or pains in the abdomen as indigestion; or she may be reluctant to acknowledge her pregnancy. The woman who is pregnant and gives birth to a baby outside of marriage, especially a woman for whom it is her first pregnancy, does not have any experience of being pregnant, nor does she have any experience in delivering a baby. The entire process brings her feelings of anxiety and fear because of her uncertain life in terms of her pregnancy and her future baby. These feelings are worse if the woman faces pregnancy and enters labour (and all situations that may occur during that time) without support or a companion, either a partner or family member. Furthermore, if the pregnant woman is a high school student, she will attempt to keep her pregnancy hidden because she can be expelled from the school and forced to discontinue her education.
The third factor that affects such women is the social and legal punishment norm. In the legal aspect, she has no marriage bond that gives her and the child status in society. Instead, the birth of a child out of wedlock creates shame for her because the baby does not have a father through a legal marriage and the child may have no father acknowledged on their birth certificate, giving him or her the dubious status of illegitimacy. Besides that, the woman who became pregnant outside of marriage feels ashamed because it seems that everyone knows about her actions that violate legal, religious and social norms. When the norms of a society are not followed and obeyed, sanctions follow. These sanctions can be in the form of ridicule, ostracism by society generally, as well as family and friends. A woman may be sent away by her family. The basis for the fear of being known to give birth to an illegitimate baby is rooted in the societally-agreed reprehensible nature of such births. The act of pregnancy outside of marriage has long been regarded negatively by society, and many find it difficult to accept a pregnant woman outside of marriage (
Istiana 2020). This violation of societal, family, religious and legal norms, and the response of society to it, creates multiple burdens of guilt. In some instances, this can lead a woman to access abortion (
Uyun and Saputra 2012;
Firdausita 2017). Others, however, feel constrained not to do so, seeing this as a worse option or perhaps as an option not available to them. Based on this description, it is undeniable that Indonesian society (not merely the biological mother) also has a significant role through its norms in the occurrence of infanticide (
Firdausita 2017;
Brennan 2018).
Fourthly, the psychological and emotional state of the mother comprises the last factor. The time at which the crime is undertaken is associated with a highly emotional mental state from the mother with emotions such as shame, fear, hatred, and confusion, together with the pain of childbirth, all mixed together. Therefore, at the time of delivery of the baby, the mother is not in a calm, conscious, and measured mental state. The feelings of fear and shame during pregnancy have grown over time and have emerged an impulse inside her to kill what she sees as the source of her intense, overwhelming distress. This is regarded as a mental disorder that may arise in new mothers, particularly those without any support or with pre-existing mental health difficulties, or who have themselves been abused or neglected. Such negative feelings may arise and then explode into aggression or other psychotic behaviour, and the impulse to take her baby’s life, a thought that may not have originally been her intention (therefore, unplanned), while for others, it is a planned act of desperation (
Isnawan 2018;
Kartono 1998).
The feeling of shame and guilt does not diminish the act of the biological mother who has killed her baby. Judges who handle such a case (even if it has mitigating reasons) tend to exhibit a gender bias by making a judgement that incorporates an assumption of a mother’s greater responsibility and instinct to care for a child. For example, “The defendant’s act was inhuman because she killed her own child or her flesh and blood”. As a biological mother of this baby, she should care for and protect her child, and care for it with great affection. A mother is assumed to instinctively be full of compassion, gentleness and patience; whatever is sacrificed for the sake of the child. Mothers have an instinct to protect their children and their children’s rights so that they can live, grow, develop and participate optimally according to their dignity and human dignity, as well as protecting children from violence and discrimination. Therefore, a mother who commits infanticide must not have such characteristics (
Isnawan 2018).
Judges, by concentrating on the act alone, sometimes do not consider the psychological and sociological impacts that the biological mother has suffered due to the unwanted pregnancy. Elsewhere in the world, it is recognised that infanticide may occur due to a specific mental condition called ‘postpartum psychosis’ which may occur in mothers up to about 12 months or even longer after a baby’s birth. In such circumstances, expert witnesses are called to testify to the mental state of the mother. Although access to recent research may be lacking, access to expert witnesses uncertain, and understanding and implementation in terms of sentencing may be inconsistent in some areas, an attempt is made to distinguish clearly between ‘premeditated murder’ and infanticide attributed to post-partum psychosis or an exacerbation of pre-existing mental illness, or coercion (
Spinelli 2004). In Indonesia, the judge must not only have intellectual ability, morality and integrity, but also the courage to be released from the ‘words’ of legal norms because the content of the law can actually become a barrier to the woman who wishes to seek justice (
Dhofiyah 2019;
Hoesein 2016). Due to gender bias in courts, Indonesian feminists have encouraged the Indonesian government to improve the legal system in dealing with court proceedings and judges’ perspective. This demand has been responded to in Perma No. 3 of 2017. Indonesian feminists welcomed its provision as a step forward for the world of the justice system in Indonesia.
Below is the Case Study, where the extent of implementation of equal treatment and special treatment in criminal cases, where a woman is the alleged perpetrator, is examined since the introduction of Perma No. 3 of 2017.
3.4. The Case: Court Verdict No. 37/Pid.B/2020/PN.Pwd
A woman was accused of having delivered a baby and killing her baby at birth. The case initially went to the State Court in Purwodadi district. The defendant was K, a 21-year-old Muslim woman and employee who lived in Penawangan village. She was interviewed and the case proceeded on the basis of an accusation that she had allegedly acted in a manner that caused the infant’s death, having done so because of her fear of being revealed as having delivered a baby, the alleged murder having been committed at the time the baby was born or shortly thereafter. She was threatened with a charge of “murder by design” that is, premediated murder—having intentionally caused the death of a person, not manslaughter (having unintentionally caused the death of a person).
The origin of the case dated back to when a friend introduced her to a man, RZ, in the beginning of May 2019. She said that she did not like him actually, but the man continued to contact her through WhatsApp messages, in which he said that he wanted to get to know her further and asked her to “hang out”. One day she was picked up by RZ, and they went out and wandered around Purwodadi city. After that, she was taken to a small hotel (She did not know its name because she was unaware of the hotel). According to K, the man checked into the hotel, but then grabbed her, taking her into the hotel room. She maintained that she had tried to run away but that she could not do that because RZ had hidden the room key. RZ had sexual intercourse with her without her consent. This occurred only once. When he had finished, he took her back to the home of her grandparents’ house with whom she was living. A week later, RZ could not be contacted and RZ had even blocked her phone number.
In June and July 2019, K did not menstruate. She bought a pregnancy test at a chemist warehouse and then tested her urine. The result was positive. She did not tell anybody about her pregnancy. She attempted to keep her pregnancy hidden because she was afraid of being expelled from the house by her family. Moreover, she did not have a permanent job at the moment. Then, on 9 January 2020 at 3.00 a.m., she felt extreme pain in her stomach due to being in labour. She went to the bathroom and then, in a semi-squatting position, delivered the baby. The baby was delivered with its placenta; however, K observed that the baby did not cry. Then, she cleaned the baby and wrapped it with a plastic bag and put it into a basket. She took the baby out from the plastic bag and then threw the baby into a fish pond and placed the placenta in water waste pipe.
Two days later, the body that had been thrown into the fish pond rose in the water and it was found by her uncle and grandfather. Based on what they had found, they reported to the head of the village and a police officer. Police then investigated the scene with the help of a midwife from the village community health centre. Based on their investigation, K was the only woman in that house who had the symptoms of a woman who had delivered a baby. Therefore, the police detained her on suspicion of killing the baby under Articles 341 and 342 (which, if she were found guilty, would have resulted in prison sentences of up seven or nine years, respectively). The prosecutor, in this case, the general attorney, asked for her (if convicted) to serve two years in prison under Article 341 and 342 of the Criminal Code.
The Articles cited by the prosecutor were:
341—the mother who… with deliberate intent takes the life of her child at or soon after its birth, shall, being guilty of infant-manslaughter, be punished by a maximum imprisonment of seven years.
342—the mother who… with deliberate intent [and premeditation] takes the life of her child at or soon after its birth, shall, being guilty of infanticide, be punished by a maximum imprisonment of nine years.
3.5. Judges’ Decision
The Panel of Judges rejected the charge laid by the general attorney on the basis of Articles 341 and 342 of the Criminal Code because they found that the charge and Articles applied were irrelevant to the facts revealed in the court proceedings. Therefore, the panel of judges made their own deliberation and made their own consideration, and argued that the defendant’s act fell under Article 181 of the Criminal Code rather than Articles 341 and 342 of the Criminal Code. Article 181 states:
Any person who buries, hides, take away or removes a corpse with the intention of concealing his death or birth, shall be punished by a maximum imprisonment of nine months or a maximum fine of four thousand five hundred rupiah.
The considerations of the panel of judges were: First, the baby’s body was only examined externally and without an autopsy being conducted. Based on the results of the visum et repertum, the exact cause of death cannot be determined. Second, testimony from the experts as witnesses convinced the judges that the cause of the death could not be known exactly because no autopsy had been undertaken. Judges were not convinced about when and why the baby died because according to the expert witness, the baby was probably already dead before it was born because the contractions in the process of delivering the baby was faster than that for a baby who is born alive, so the baby slid out suddenly and then hit the bathroom floor.
Third, judges determined that the defendant’s conduct from labour to throwing the baby’s body into the fish pond showed her panic, fear and the effort taken to hide her pregnancy and the birth of the baby. Based on this fact in the court hearing, the judges were convinced that the defendant must be declared legally guilty and was convincingly proven to have committed the crime of hiding her baby after the baby was born.
Fourth, the judges rejected the defence offered by the defendant’s legal advisor who requested the defendant be not legally proven guilty and not be convincingly found to have committed a criminal act as accused by the general attorney as public prosecutor under charges derived from Articles 341 and 342 of the Criminal Code, and subsequently released the defendant from the Public Prosecutor’s indictment. The judges argued that the defendant’s actions were not proven to have violated the Articles named in the charge, but declared that is was proven that the defendant’s actions did constitute a criminal act as they violated Article 181 of the Criminal Code.
Fifth, judges had considerations which were burdensome and relieved the defendant. According to judges, the circumstances were aggravating as the defendant’s actions did not reflect a love of a mother for her child. On the other hand, the mitigating circumstances were: (1) The defendant has never been convicted, she admitted her deed, and was honest and polite during the trial proceedings; (2) The defendant showed remorse, felt sorry and promised that she would not repeat her actions; (3) The defendant was a victim from a perpetrator who did not want to take any responsibility for a pregnancy that he initiated; (4) The village community still accepted the defendant because the defendant was well known as a good member of the community and had never committed any crimes before.
Based on the evidence witnesses provided in the court hearing and proceedings, the Judges rejected the charge that had been laid by the general attorney and decided to sentence her to only nine months imprisonment on the basis of Article 181 of the Criminal Code rather than Articles 341 and 342 of the Criminal Code.