Child Consent in Child Sexual Intercourse Crimes Linked to Marriage Dispensation Policy

Abstract

Through the reform of the 2023 Criminal Code, the government has demonstrated its commitment to child protection by categorizing sexual intercourse with a child as an expansion of the offense of rape. However, neither the 2023 Criminal Code nor other applicable regulations provides adequate clarification regarding the element of consent, thereby creating ambiguity in law enforcement. In addition, Indonesia recognizes marriage dispensation, which indirectly legalizes sexual intercourse with children within the marital relationship. This study aims to examine the criminal offense of sexual intercourse with a child and analyze the resulting legal disharmony. The methods employed were a literature review and interviews with several parties to strengthen the analysis. The findings indicate that the criminal offense of sexual intercourse with a child under Article 473 of the 2023 Criminal Code has evolved alongside the expansion of the offense of rape. However, the lack of clarification and understanding regarding a child's consent to sexual intercourse often creates legal uncertainty, as demonstrated in Decision No. 172/Pid.Sus./2020/PN Prp. Furthermore, the existence of overlapping regulations concerning marriage dispensation creates legal dualism and is frequently exploited as a loophole to avoid criminal liability. Therefore, the government needs to enforce and clarify the concept of child consent in cases of sexual intercourse and review the regulations governing marriage dispensation to achieve maximum protection for children.