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 being 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? . . .

Read the commentary.