Commentary :: Arbitrariness and the Burden of Proof in New Acehnese Cases of “Moral Crimes”

This post, by Waskito Jati, examines the litigation process and sentencing regime for a new type of moral crime in Aceh: khalwat (when an unmarried man and woman are secluded). This act is criminalized under the new Acehnese Islamic Criminal Law (Aceh Qanun Jinayat No. 6 of 2014). The classification of khalwat as a moral crime entails vague provisions and risks arbitrary prosecution. Police officers can choose to exonerate or prosecute alleged offenders without clear reasoning. And judges can punish convicts in many forms, ranging from fining to public lashing, also on unclear reasoning.

The inclusion of moral crimes in the newly codified Acehnese Islamic Criminal Law (Aceh Qanun Jinayat) has resulted in a severely vague measures of due process and punitive measures.[1] These problems are rooted in the difficulty of determining the actus reus of the new crimes, which are often victimless crimes. In the case of Aceh, so-called lewd and lascivious acts, such as khalwat (Ar. khalwa: an unmarried man and a woman being together in a secluded place), are now considered crimes (jarimah, Ar. jarīma). The act itself does not result in injuries to other people, but Acehnese law insists on imposing legal liability nonetheless in the forms of fines, imprisonment, and even public lashings.[2] This insistence begs the question: How does one prove moral crimes and determine proportional punishment for perpetrators? This post will compare several cases of khalwat in Indonesia to show ways in which the new Acehnese Islamic Criminal Procedure Law[3] fails to provide guarantees for fair litigation of moral crimes.

Khalwat consists of four elements: (1) being in a secluded place, (2) the presence of a man and a woman unrelated by blood or marriage, (3) the consent of both parties, and (4) the possibility of the act leading to adultery.[4] If proven, such act is punishable by either ten lashes in public, the payment of one hundred grams of gold, or ten months’ imprisonment.[5]

The last element of khalwat is particularly prone to arbitrary interpretation by the police because it is difficult to assess. How do the sharīʿa police determine that an act could lead to adultery? How is it possible to prosecute for conduct that may or may not happen in the future? Young people on a date in a park, the beach, or the side of the road are frequent arrestees on charges of khalwat. The sharīʿa police understand the vagueness of these provisions and have stated that the underlying act may be addressed by means other than prosecution, such as giving lectures on the danger of khalwat to the perpetrators or sending them to their parents without making any formal arrest or formal filing before a sharīʿa court.[6]

However, the inconsistency of the sharīʿa police in dealing with khalwat cases is apparent. A raid on 23 young people accused of khalwat in the Acehnese town of Sabang in January 2017 demonstrates this point.[7] The raid occurred after residents in the neighborhood surrounding the hotels where 23 young people stayed the night (to celebrate the end of the school semester) reported them to the sharīʿa police. The students were apprehended in five different hotels.[8] Out of these 23 people, only 17 were formally charged with khalwat and brought to the mahkamah syar’iyah (sharīʿa court) in Sabang. There is no record of the release of the other six that can be accessed online, but if their case was simply dismissed, that poses a major issue as the police could determine the viability of each case. The rest were convicted for khalwat and ordered to pay fines ranging from 10 to 30 grams of gold, that is, 10 to 30 million rupiah (equivalent to 10 to 30 times a month’s salary in Aceh), or two to three months of imprisonment if unable/unwilling to pay the fine.[9]

The evidence submitted by the prosecutors to the court in all 17 cases consisted of several articles of clothing such as t-shirts, jeans, and head scarves (ḥijābs).[10] It is unclear how this evidence was sufficient to prove that the youths’ actions could have led to adultery (or fornication). One possible explanation for this would be the youths’ confession of an intention to commit fornication or adultery, as confession is considered one of the primary types of evidence in Acehnese Islamic criminal law.[11] However, nowhere does the indictment or the verdict indicate a confession.

In fact, even when those accused of khalwat were known to have refuted the notion that their being together in a secluded place could lead to adultery, records show that the police have often dismissed their refutation. This scenario occurred in a case involving “M.S.” and “M.A.,” who insisted that they were only sitting together without intending to commit fornication when the sharīʿa police apprehended them in Banda Aceh.[12] The judge pronounced M.S. and M.A. guilty of khalwat and punished them with seven public lashings.[13]

The punishment imposed by the court in the cases mentioned above signifies the arbitrariness of punishment khalwat cases. Out of 23 people apprehended in Sabang, 6 people were released, whereas 17 were subjected to payment of a fine. In the case of M.S. and M.A., those convicted of khalwat were lashed in public despite the lack of a confession. Comparing these cases, the punishments raise an important question: On what basis did the judges impose this widely differing types of punishment?

In conclusion, the criminalization of khalwat in Aceh is rife with procedural problems. Police officials have the sole authority to construct the narrative of khalwat cases without the responsibility to produce credible and sufficient evidence to prove the act, or that it could lead to adultery. The sharīʿa courts also get the same far-reaching authority to impose sentences for perpetrators of khalwat. Considering the severe punishment associated with khalwat cases, even if the laws were to stay in place, the provisions regulating this type of “moral crime” must be reevaluated to ensure they result in a legal system that is certain and just for the people of Aceh.

[1] Dewan Perwakilan Rakyat Aceh [Acehnese Criminal Code], Tambahan Lembaran Aceh Nomor 67, Qanun Aceh Nomor 6 Tahun 2014 Tentang Hukum Jinayat (2014).

[2] Qanun Aceh Nomor 6 Tahun 2014, Article 23 (1).

[3] Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 7, Qanun Aceh Nomor 7 Tentang Hukum Acara Jinayat (2013).

[4] Qanun Aceh Nomor 6 Tahun 2014, Article 1 (23).

[5] Qanun Aceh Nomor 6 Tahun 2014, Article 23 (1).

[6] R. Michael Feener, Sharia, and Social Engineering: The Implementation of Islamic Law in Contemporary Aceh, Indonesia (Oxford: Oxford University Press, 2014), 229.

[7] Opinion, Case No. 1/JN/2017/MS.Sab to No. 17/JN/2017/MS.Sab (Mahkamah Syar’iyah Sabang [Sabang Sharīʿa Court], February 16, 2017).

[8] Irwan Saputra, “Libur Semester, 11 Pasang Muda-mudi Digaruk WH di Sejumlah Hotel di Sabang,” Beritakini, December 27, 2016, available at (accessed October 2, 2017).

[9] Case No. 1/JN/2017/MS.Sab to No. 17/JN/2017/MS.Sab.

[10] Case No. 1/JN/2017/MS.Sab to No. 17/JN/2017/MS.Sab.

[11] Qanun Aceh Nomor 7 Tahun 2013, Article 181.

[12] Indictment, Case No. 49/JN/2016/MS.Bna (Mahkamah Syar’iyah Banda Aceh [Banda Aceh Sharīʿa Court], October 14, 2016).

[13] Opinion, Case No. 49/JN/2016/MS.Bna (Mahkamah Syar’iyah Banda Aceh, October 14, 2016).