The sprawling Pacific island nation of Indonesia recently passed a new law that’s already creating considerable controversy. The country’s penal code has been revised to criminalize extramarital sex. Sex outside of marriage will be punishable by one year in jail, while cohabitating without being married can bring six months behind bars. The legislation notes that the longer sentence is only applicable if an adultery charge is “based on police reports lodged by their spouse, parents or children.” On top of that, the “promotion” of contraception will be illegal, as will “religious blasphemy.”
Keep in mind that Indonesia is a majority Muslim nation. Many of the provisions in the new penal code (which won’t go into effect for two or possibly even three years) appear to have been lifted straight out of Sharia law. Abortion is illegal in almost all instances. They have also brought back a ban on “insulting a sitting president and vice president, state institutions and national ideology.” But the infidelity laws seem to be attracting the most criticism. (Associated Press)
Indonesia’s Parliament has passed a long-awaited and controversial revision of its penal code that criminalizes extramarital sex and applies to citizens and visiting foreigners alike. A parliamentary taskforce finalized the bill in November and lawmakers unanimously approved it Tuesday.
After ratification, the new criminal code must be signed by the president, according to Deputy Minister of Law and Human Rights Edward Hiariej. The criminal code will not apply immediately, but takes a maximum of three years to transition from the old code to the new one.
“That (the new Criminal Code) has a lot of implementing regulations that must be worked out, so it’s impossible in one year, but remember the maximum (transition period) is three years,” Hiariej said.
Seeing these sorts of laws enacted in a Muslim nation probably doesn’t come as all that much of a surprise, but the law against infidelity really raises questions about the line between how much private activity can be controlled by any nation’s government. Particularly in more western societies, how any given person feels about a law criminalizing infidelity probably depends heavily on whether you’re the person doing the cheating or the one being cheated on.
At least in the United States, when couples marry, they generally (though not always) take a vow to be faithful to each other “til death do us part.” Even if they are having an entirely secular wedding officiated by a Justice of the Peace, there tends to be some sort of similar vow involved. But that’s really the main point I’m making here. It’s a vow. The government generally doesn’t prosecute people for breaking a vow unless it involves the release of classified information that could harm national security after being sworn to keep such secrets.
If you cheat on your spouse you’re not breaking a law enacted by the government. You’re breaking the promise you made to him or her. So should the government really be punishing you? Of course, as soon as your wronged partner gets you into court, they will be punishing you more than enough.
That’s one side of the argument. The other side might involve a recognition that America has until fairly recently, had many laws that came from religious foundations. In fact, adultery is still a crime in sixteen states, though prosecutions are virtually nonexistent in the modern era. This is particularly true since the 2003 Supreme Court ruling in Lawrence vs Texas. Although that case dealt with a Texas sodomy law, it has been construed to mean that all similar laws involving private, consensual, sexual behavior are unconstitutional.
But should they be? As I’ve argued in completely unrelated cases in the past, the government shouldn’t be passing laws limiting the actions of people unless they can demonstrate that harm or loss has been caused by the perpetrator. It’s the reason I’ve long felt that the government should be out of the marriage business if the marriage in question involves two consenting adults. But in the case of adultery, there is arguably harm taking place, even if it’s emotional harm.
This is where we can circle back to the Lawrence case linked above. In that ruling, the court found that the state can’t outlaw consensual sexual acts between adults. So in the case of a cheating spouse, it’s not the sex itself that runs afoul of the law. But that case made no reference to any marital partners of the people involved. So the “victim” in an adultery case is not the person that the spouse is sleeping around with. It’s the other spouse who is being betrayed.
Can you demonstrate damages in court based on a feeling of betrayal or some sort of emotional abuse? I haven’t found a case yet where that’s addressed. I’m not saying we should turn into a Muslim nation under Sharia law. Nor am I suggesting that we start locking people up right and left if they have an affair. You’d wind up locking up at least one partner in 20% of all marriages, at least according to one survey. (The number could be far higher because those surveys all rely on self-reporting.) But I find myself feeling a bit nostalgic for a time when we, as a society, took marriage and marital fidelity a lot more seriously. Then again, I’m probably just a leftover from a bygone era.
