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139

A JURIDICAL ANALYSIS OF REGULATIONS AND POLEMICS IN A

REGULATION CONCERNING HIGHER EDUCATION’S SEXUAL

HARASSMENT

Abraham Ethan Martupa Sahat Marune

Pelita Harapan University, Indonesia

am80203@student.uph.edu

Abstract

This research aims to analyze the rule of law and polemics in Permendikbudristek No. 30 of 2021 on

Prevention and Handling of Sexual Violence in the College Environment. So, this study examined the first,

how is the urgency of the issuance of Permendikbudristek No. 30 of 2021 on Handling Sexual Violence?

Second, What are the arrangements and polemics in Permendikbudristek No. 30 of 2021? This research uses

normative juridical research methods and is qualitative. From the results of the study, it can be concluded

that the establishment of regulations on the prevention of handling sexual violence in a college environment

is very important given the high number of sexual harassments. Permendikbudristek 30/2021 regulates the

prevention of sexual violence from learning, strengthening governance and culture & regulates the handling

of sexual violence from mentoring to the recovery of victims. There are several polemics that arise from this

rule. However, existing rejections and polemics tend to be based on a misguided understanding of context as

straightened out in this study. It is expected that Permendikbudristek Number 30 of 2021 can be earnestly

applied by universities throughout Indonesia and in its implementation needs supervision from the relevant

ministries.

Keywords: Sexual harassment, higher education, Permendikbudristek 30/2021

This work is licensed under CC BY-SA 4.0

INTRODUCTION

The survey from Lentera Sintas Indonesia and Magdalene.co through Change.org stated that

93% of people who have experienced sexual violence do not report to law enforcement

authorities. Campus is a place to study inseparable from the threat of sexual violence.

Confessions from survivors quoted from the Tirto.id news portal stated that the perpetrators of

sexual violence were committed by various individuals on campus, ranging from lecturers,

fellow students, campus staff, professors, residents at the KKN location, even campus doctors

(Adiyanto, 2020).

Sexual violence can occur due to inequality of power relations, gender relations and rape

culture (Soejoeti & Susanti, 2020). The problem of sexual harassment is something that is not easily

revealed but many experience, not least in the campus environment. Sexual violence can occur

due to abuse of power that positions the perpetrator in a higher power relationship until it is

felt to be in control with his superior position (Suyanto, 2013).

The handling of sexual assault cases on campus is quite complex, not only related to the

rules of sexual violence prevention and countermeasure mechanisms, but also with

bureaucratic systems and the quality of human resources. Conducive bureaucracy will support

the creation of a gender-friendly and non-sexually violent campus environment, while a

complicated and convoluted bureaucracy will lead to the abandonment of victims of sexual

violence in the name of good campus (Nikmatullah, 2020). As a form of seriousness handling

sexual violence in the government village through the Minister of Education recently issued

the Regulation of the Minister of Education, Culture, Research and Technology

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140 Vol. 1, No. 3, December 2021

(Permendikbudristek) Number 30 of 2021 on Prevention and Handling of Sexual Violence

(PPKS). But until now the regulation is still a debate that reaps the pros and cons of various

parties. Although reaping the pros and cons of the regulation is expected to provide certainty

to the handling of sexual violence cases in the village.

Based on the above explanation, the author is interested in discussing in the study with

the title "A Juridical Analysis of Regulations and Polemics in a Regulation Concerning Higher

Education’s Sexual Harassment " with the first problem is the urgency of the issuance of

Permendikbudristek No. 30 of 2021 on Handling Sexual Violence, and secondly, the

arrangements and polemics in Permendikbudristek No. 30 of 2021.

METHOD

The research method that the author uses in compiling this paper is Normative Juridical

Research as the author mentioned above. Normative Juridical Research Method is a literature

law study conducted by examining library materials or mere secondary data (Sunggono, 2003).

Also, the author uses the Method of Deductive Thinking, which is a way of thinking used when

drawing a conclusion from something that is general and has been proven to be true and then

the conclusion is intended for something special (Sedarmayanti & Hidayat, 2002).

Because of the things that the author has explained above, thus the object analyzed with

qualitative research is a research method that refers to legal norms and provisions contained in

the Laws and Regulations (Soekanto & Mahmudhi, 2003).

RESULTS AND DISCUSSION

Urgency Issued Permendikbudristek No. 30 of 2021 Concerning the Prevention and

Handling of Sexual Violence in the College Environment

Today it is undeniable, the evil of decency is increasingly and diverse, humans sometimes

fail to prevent themselves from deviative and evil tendencies due to the interests of biological

demands, prestige competition, status and self-esteem (Ethan & Hartanto, 2021). Women's

sexuality is vulnerable to discriminatory treatment and violence is almost unbelievable that the

perpetrator of violence is the closest person, this harassment of women is highest in the

personal sphere. This means that the perpetrator is a person who has a blood relationship

(Father, grandfather, sister, uncle, grandfather), kinship, marriage (husband) and intimate

relationship (Courtship) with the victim (National Commission for Women, 2020).

In addition to the family or relatives as outlined above, sexual violence can also occur in

academic environments, based on an independent survey by the Ministry of Education and

Technology in 2020 which in this case was delivered by Nadim Makarim recorded as many as

77% of lecturers admitted that non-sexual violence occurred on campus. Of these 77%, only

63% chose not to report criminal acts of sexual violence, this is due to concerns about negative

assumptions from the public that will be pinned on the victim (CNN Indonesia, 2021).

The majority of victims of sexual violence are women. Permendikbudristek Number 30 of

2021 is a step forward. The birth of Permendikbudristek No. 30 of 2021 is expected to realize

the fight against sexual violence with an institutional and sustainable approach and provide

legal certainty for college leaders to take decisive steps against sexual violence cases that occur

in the campus environment. The Coalition of Civil Society Against Sexual Violence

(KOMPAKS) assesses Permendikbudristek No. 30 of 2021 to fill the legal void in the

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prevention, handling, and protection of victims of sexual violence that prioritizes needs and

justice for victims.

Cases of sexual violence and harassment on campus have not been revealed because of the

strong power of attorney relations of the perpetrators and the absence of a legal umbrella.

Komnas Perempuan data throughout 2015-2020 shows, of the overall sexual violence

complaints originating from educational institutions, as many as 27 percent of cases occurred

in universities. This data is reinforced by a Survey of the Coalition of Safe Public Spaces in

2019 which showed school and campus environments ranked third in the location of sexual

violence (15%) below the streets (33 percent) and public transportation (19 percent) (Tempo,

2021).

Minister of Education, Culture, Research, and Technology (Mendikbudristek) Nadiem

Makarim officially authorized Permendikbudristek No. 30 of 2021 on Prevention and Handling

of Sexual Violence in Higher Education Environment (Permendikbudristek Number 30 of

2021). The regulation received public support because it answered public unrest related to the

rampant practice of sexual violence, especially in the scope of universities. On the other hand,

rejection also comes because it considers the existence of Permendikbudristek precisely as if

legalizing sexual relations outside the institution of marriage or adultery (Center for Law and

Policy Studies, 2021).

The cross-opinion about Permendikbudristek is a positive signal that public dialectics in

response to the policy is underway. However, existing rejection tends to be based on a mistaken

understanding of context. However, it can be grateful that the majority of both parties both pros

and cons remain in one understanding and goal that is to agree with the importance of the birth

of this Permendikbudristek and the importance of preventing and dealing with sexual violence

in the college environment.

It should be understood that the spirit of the formation of Permendikbudristek from the

beginning is to protect all academic community in the college environment from the threat of

sexual violence. The urgency of the establishment is also clearly stated in the consideration of

Permendikbudristek 30/2021, which reads:

1) Every citizen is entitled to protection from all forms of violence including sexual

violence in accordance with Pancasila and the Constitution of the Republic of

Indonesia of 1945;

2) The increasing number of sexual violence that occurs in the community including

universities directly or indirectly will have an impact on the less-than-optimal

implementation of the Tridharma of Higher Education and reduce the quality of higher

education;

3) To prevent and address sexual violence in college, it is necessary to provide

arrangements that ensure legal certainty in the prevention and handling of sexual

violence in college;

4) Based on the considerations referred to in the first, second, and third points, it is

necessary to establish the Regulation of the Minister of Education, Culture, Research,

and Technology on the Prevention and Handling of Sexual Violence in the College

Environment.

The regulatory content in Permendikbudristek is also believed to be able to handle the

current sexual violence emergency, especially in the educational environment. It is evident

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from the inclusion of important principles formulated to protect the rights of victims. For

example, Article 3 mentions progressive principles, such as the best interests of victims, justice

and gender equality, and there is also equal rights and accessibility for persons with disabilities.

In addition, Permendikbudristek can also be directly implemented by universities because it

has included provisions in the field of prevention, handling, protection, and administrative

sanctions. So, victims can be more courageous and feel safer when complaining about the

incident to the university organizers (Center for Law and Policy Studies, 2021).

Through this Permendikbudristek, opportunities to include sexual education, including

from customary and religious perspectives, can be more open with the obligation for

universities to take precautions, one of which is in the form of learning. And in terms of

expediency, however, the existence of Permendikbudristek is much better in order to encourage

the elimination of sexual violence that is reported to be rife, rather than having no rules at all.

Some recent cases show how victims bear a double burden due to the absence of clear legal

protection.

Based on these arguments, the Indonesian Center for Legal and Policy Studies (PSHK)

stated that the provisions in Permendikbudristek No. 30 of 2021 are appropriate in an effort to

protect everyone from sexual violence that occurs in the college environment. Similar

arrangements need to be established and applied in various other sectors, such as employment

and staffing. In the midst of the poor alignment of the state on victims of sexual violence,

Permendikbudristek No. 30 of 2021 shows the political direction of government law that is

important, especially considering the discussion of the Sexual Violence Criminal Bill until now

has not been completed and its substance continues to experience reduction of partisanship in

victims.

Regulation & Polemic Permendikbudristek No. 30 of 2021 on Prevention and Handling

of Sexual Violence in the College Environment

Article 1 paragraph (1) Permendikbudristek No. 30 of 2021 states that sexual violence is

any act of degrading, insulting, harassing, and/or attacking one's body, and/or reproductive

function, due to inequality of power relations and/or gender, which results in or can result in

psychological and/or physical suffering including those that interfere with one's reproductive

health and miss the opportunity to carry out higher education safely and optimally.

In addition to the definition as outlined above, in the decree there are also types of sexual

harassment, among others, stipulated in Article 5 Paragraph (1) and (2) as follows:

1) Sexual violence includes actions performed verbally, non-physically, physically,

and/or through information and communication technology.

2) Sexual Violence as referred to in paragraph (1) includes:

a) Delivering speeches that discriminate or harass the physical appearance, condition

of the body, and/or gender identity of the victim;

b) Showing his genitals intentionally without the victim's consent;

c) Delivering remarks that contain sexual seduction, jokes, and/or whistling to the

victim;

d) Staring at the victim with sexual and/or uncomfortable nuances;

e) Sending sexually nuanced messages, jokes, pictures, photos, audio, and/or videos

to the victim even though it is prohibited by the victim;

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f) Taking, recording, and/or distributing sexually nuanced photos and/or audio and/or

visual recordings of victims without consent;

g) Uploading photos of victims's body and/or personal information that are sexually

nuanced without the victim's consent;

h) Disseminate information related to sexually nuanced body and/or personal victims

without consent victims;

i) Peeking at or intentionally looking at the victim who is doing activities in person

and / or in a private space;

j) Persuading, promising, offering something, or threatening the victims to conduct

sexual transactions or activities that are not approved by the victims;

k) Giving sexual punishments or sanctions;

l) Touching, rubbing, groping, holding, hugging, kissing and/or rubbing parts of his

body on the body of victims without the consent of victims;

m) Undressing victims without victims’ consent;

n) Forcing victims to conduct sexual transactions or activities;

o) Practicing the culture of the community students, teachers, and educators nuancing

sexual harassments;

p) Attempted rape, but penetration does not occur;

q) Performing rape including penetration with objects or body parts other than the

genitals;

r) Forcing or tricking victims to have an abortion;

s) Forcing or tricking victims to get pregnant;

t) Allow intentional occurrence of sexual violence; and/or

u) Doing other sexual acts.

Broadly speaking, Permendikbudristek 30/2021 regulates the prevention and handling of

sexual violence in the college environment. Prevention of Sexual Violence in the college

environment as stipulated in Article 6 paragraph (1) includes learning, strengthening

governance, and strengthening the culture of the community students, teachers, and educators.

Handling sexual violence in the college environment through Permendikbudristek is done

by means of assistance, protection, imposition of administrative sanctions, and recovery of

victims.

In addition to handling, the regulation also regulates the imposition of sanctions against

universities that do not implement the regulation. The provisions are contained in article 19

which states that Universities that do not conduct Prevention and Handling of Sexual Violence

are subject to administrative sanctions in the form of termination of financial assistance or

assistance of facilities and infrastructure for universities and / or decreased accreditation levels

for universities.

One of the polemics discussed is whether a minister can make regulations that do not yet

have their laws, in this case there is already Permendikbudristek on Prevention and Handling

of Sexual Violence, even though the PKS Bill has not been passed. May, because there is a

regulation that is delegate, in the sense that there is already a law, then the minister's regulation

becomes a technical derivative regulation of the Law. And now Indonesia actually has legal

bases such as the ratification of CEDAW (Convention on the Elimination of All Forms of

Discrimination against Women) in Law No. 7 of 1984, as well as other laws on sexual violence

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such as Law No. 23 of 2004 on the Elimination of Domestic Violence, Law No. 21 of 2007 on

Combating the Crime of Trafficking in Persons, etc. But in fact, not all cases of sexual violence

that occur in the campus / college environment can be reached by the law mentioned earlier.

Hence, there is a legal vacuum where the state must also be able to reach because of the rise of

this phenomenon.

In addition to the rules that are delegates, there are also attribution properties. Hence, this

Ministerial Regulation was made on the basis because the College is the jurisdiction of the

Ministry of Education and Technology. So here the Ministry of Education fills the legal void

regarding the handling and prevention of sexual violence, but only regulates what is under its

authority, namely the college environment. It should be underlined, Permendikbudristek does

not make provisions for criminal acts of sexual violence, therefore the level is the law not the

Minister's Regulation. Referring to Article 15 paragraph (1) of Law No. 12 of 2011 concerning

the Establishment of Laws and Regulations, that the content material regarding criminal

provisions can only be contained in the Law, Provincial Regulation, and/or District/City

Regional Regulation. Also, although no one has ever regulated the definition of sexual violence

before, then Permendikbudristek is not a problem to create a new definition because every

regulation must have a definition of what is regulated in it. Provided that the

Permendikbudristek does not form a new criminal act for example, which is the level must be

in law and currently Indonesia does not have the law.

In the article as described above there is a phrase without the consent of the victim. This

caused polemics because it received a response from various parties such as the Indonesian

Ulema Council (MUI) which asked the government to revoke or revise the Permendikbudristek

because it objected to the phrase related to victim consent or also known as consent. In addition

to Partai Keadilan Sejahtera (Prosperous Justice Party) (PKS) Politician Mardani Ali Sera also

stated through his Twitter account, that the phrase "without the consent of the victim" is

interpreted as "the legalization of sex freedom". Then a similar opinion was also conveyed by

one of the largest Islamic organizations in Indonesia, Muhammadiyah which stated that this

regulation "contains elements of legalization of immoral acts and free sex based on consent"

(BBC Indonesia, 2021). Actually, in the Permendikbudristek has explained the purpose of the

phrase of approval, namely in Article 5 Paragraph (3) which states that the consent of the victim

as referred to in Article 5 paragraph (2) letter b, letter f, letter g, letter h, letter l, and letter m,

is considered invalid in the case of victims:

1) Have an immature age in accordance with the provisions of the laws and regulations;

2) Experiencing situations in which the perpetrator threatens, coerces, and/or abuses his

position;

3) Experiencing conditions under the influence of drugs, alcohol, and/or drugs;

4) Experiencing pain, unconsciousness, or falling asleep;

5) Have a vulnerable physical and/or psychological condition;

6) Experiencing temporary paralysis (Tonic Immobility); and/or

7) Experiencing a shaken state.

Based on the polemic as outlined above Regarding the article that invites the rejection of

this Permendikbudristek, namely Article 5 paragraph (2) letters l and m which include the terms

"consent" or "consent of the victim"; That condition is an element that is indeed used in the

construction of acts of violence. It is reiterated very clearly in Article 5 paragraph (3) which

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states that the elements of "victim consent" include "not under pressure, conscious, and not

vulnerable". In law, the existence of this aspect of consent is related to the proficiency and

maturity of learners. By law, an adult can judge the legal consequences of each choice of his

or her legal actions. However, the recognition of autonomy does not mean ruling out the

enactment of other values that also live in society, such as morality, decency, local customs,

and religion.

The existence of the element "victim consent" also does not mean Article 5 paragraph (2)

legalizes adultery. The focus of the provisions of Article 5 is to formulate the scope of acts of

sexual violence. And logically, it is a misguided thought that the negation of the formulation

of the rule is interpreted as justifying adultery as long as there is consent. If observed, there is

no article in this Permendikbudristek that in writing shows the ability to commit adultery. In

the Indonesian legal system, the principle of legality is known "Nullum delictum noela poena

sine praevia lege poenali" which means an act cannot be punished, except based on the strength

of existing laws and regulations. Therefore, the logic of thinking that should not mean this

Permendikbudristek allows & legalizing adultery, but has not been regulated and therefore the

perpetrator cannot be punished based on this Permendikbudristek. Contrary to the tradition of

the common law legal system there is a well-known principle that says "anything that is not

prohibited is permitted", anything that is not prohibited means it is allowed. Maybe this is what

motivates the wrong interpretation and cannot be applied in the country of Indonesia which is

a civil law.

In addition, the legal norm does not stand alone. William Graham Summer in the book SR

Sianturi divides the norms that exist in the society in 4 categories namely religious norms,

decency norms, norms of decency and legal norms (Sianturi, 2012). Therefore, if adultery is

not regulated in law, it does not mean that adultery automatically becomes true in religion,

decency, and decency. Instead, through this Permendikbudristek, the opportunity to include

sexual education, including from the perspective of customs, religion, decency, and decency

can be more open with the obligation for universities to do prevention, one of which is in the

form of learning. And in terms of expediency, however, the existence of Permendikbudristek

is much better in order to encourage the elimination of sexual violence that is reported to be

rife, rather than having no rules at all. Some recent cases show how victims bear a double

burden due to the lack of clear legal protections.

Key Points in Permendikbudristek No. 30 of 2021

The focus of Permendikbudristek No. 30 of 2021 is Sexual Violence

The focus of Permendikbudristek Number 30 of 2021 is on one type of violence. The

regulation does not address activities that are contrary to religious and ethical norms beyond

acts of sexual violence. Permendikbudristek only targets one type of violence, namely sexual

violence with a very clear definition. Referring to Article 1, the definition of sexual violence is

any act of degrading, insulting, harassing, and/or attacking one's body, and/or reproductive

function, due to inequality of power and/or gender relations, which results in or can result in

psychological and/or physical suffering including those that interfere with one's reproductive

health and miss the opportunity to carry out higher education safely and optimally.

Therefore, there is no need for understanding or regulation regarding adultery or free sex,

because the focus of the discussion is in accordance with the title of Prevention and Handling

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of Sexual Violence, not Prevention and Handling of adultery / free sex. So, it is appropriate

that this Permendikbudristek includes the understanding of sexual violence and any kind of

action, because regulating adultery or free sex can be out of context from the regulation. And

it is fitting that there is a phrase "without the consent of the victim" because violence is not

consent, certainly without the consent of the victim.

Prioritize Victims' Rights

Reporting of criminal acts of sexual harassment against women in the media technology

and information is currently constrained by various factors, one of which is that the victim will

receive a harsher sneer than the perpetrator then questioned the way of dress and behavior,

these two things justify the reason the woman received sexual harassment, with women who

spoke up for what they experienced considered only seeking attention and considered to be

catapulting. Lies and every incident of sexual harassment not a few women and men who feel

the victim does not need to share his story (Fitria, 2019). Protection and rights of victims are

the top priority in Permendikbudristek Number 30 of 2021. The target of this

Permendikbudristek is to protect tens of thousands or even hundreds of thousands of victims

and to prevent continuity of victims. The prevention and treatment of sexual violence is carried

out in the principle of the best interests of the victim,justice and gender equality, equal rights

and accessibility for persons with disabilities, accountability, independence, prudence,

consistency, and guarantee of non-existence.

Permendikbudristek Target Number 30 of 2021

The targets of Permendikbudristek Number 30 of 2021 as stated in Article 4 include

students, teachers, educators, and those who stay the campus, and general society that

interacts with students, educators, and education personnel in the implementation of

Tridharma.

Forms of Sexual Violence

Sexual violence referred to in this rule includes actions performed verbally, non-

physically, physically, and/or through information communication technology. Verbal and

online acts included in consideration of this type of sexual violence are often considered trivial

when it has an impact on the psychology of the victim and limits the right to education or

academic work. Specifically, there are 21 forms of sexual violence in Permendikbudristek

Number 30 of 2021 as stated in Article 5.

Handling that Must Be Done by The College

If there are reports of sexual violence, the college is obliged to handle that includes

assistance, protection, the imposition of administrative sanctions, and the recovery of victims.

This provision is set out in Articles 10 to 19.

1) Mentoring in the form of counseling, health services, legal assistance, advocacy, and/or

social and spiritual guidance.

2) The sustainability of education or employment, the provision of safe houses, and

victims or witnesses are free from threats related to the testimony given.

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3) Administrative imposition. Sanctions consist of three groups, namely mild, moderate,

and severe. The form of sanctions imposed is carried out proportionately and fairly in

accordance with the recommendations of the task force. In addition, the sanctions

imposed do not override other regulations.

4) The recovery of victims is based on psychologists, medical personnel, religious leaders,

and victim companion organizations. The recovery period does not reduce the right of

learning and/or staffing.

Sanctions are not oriented towards the perpetrators.

Sanctions imposed on perpetrators must be based on the impact of the actions committed

on the condition of the victim and the campus environment, not oriented to the perpetrator

(Article 14).

Compulsory College Form Task Force

As a follow-up to Permendikbudristek Number 30 of 2021, all universities are obliged to

form a Task Force (Task Force) based on the predetermined time. All universities are obliged

to create such task forces, there is a process, there is a list of sanctions, there is protection to

victims,there are responsibilities. So, this is a complete ministerial regulation.

The task force was first formed through an ad-hocselectioncommittee. Based on the rules

of Article 27, the task force consists of elements of educators, education personnel, and students

with regard to the representation of female membership, at least two-thirds of the number of

members.

If within the period of formation of the Task Force there is an act of sexual violence, the

university can report the case through the LAPOR platform. Later, the ministry will provide

recommendations related to the steps that must be done through the portal.

Reports Are Conducted Every Semester

Rectors and directors of universities are required to conduct regular monitoring and

evaluation (Monev) of all sexual violence prevention and handling activities and task force

performance on campus. Based on Article 54 of Permendikbudristek No. 30 of 2021, monev

results are reported every semester in the form of sexual violence prevention activities, survey

results conducted by the task force, data on reporting sexual violence, sexual violence handling

activities, and sexual violence prevention activities. To avoid administrative burdens, reporting

systems for the prevention and handling of sexual violence can be done online.

CONCLUSION

The establishment of regulations on the handling of sexual violence is very important in

the campus environment considering the high number of sexual harassments which is as much

as 77% of lecturers have admitted that sexual violence does occur on campus. Of these 77%

only 63% chose not to report acts of sexual violence, this is because worried about negative

assumptions from the community that will be pinned to the victim. Permendikbudristek

30/2021 regulates the prevention of sexual violence from learning, strengthening governance

and culture, and regulating the handling of sexual violence from mentoring to recovery victim.

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There are several polemics that arise from this regulation such as the absence of criminal

provisions and the phrase "without the consent of the victim" which is considered to legalize

adultery. However, rejection and existing polemics tend to be based on a misguided

understanding of context as straightened out in this study. Precisely, with this regulation the

opportunity to include sexual education, including from a customary and religious perspective,

can be more open with the obligation for universities to do prevention, one of which is in the

form of learning. In terms of expediency, however, the existence of Permendikbudristek is

much better in order to encourage the elimination of sexual violence that is reported to be rife,

rather than having no rules at all. Some recent cases show how victims bear a double burden

due to the absence of clear legal protection.

Universities are expected to be earnest in implementing Permendikbudristek No. 30 of

2021 and in its implementation need supervision from the relevant ministries and to provide

strict sanctions if there is a campus that is violating or not complying with these rules. Then,

similar measures are expected to be formed and applied in various other sectors, such as

employment and staffing. Students with this regulation are expected to be more active in the

prevention and handling of sexual assault cases in the campus environment with the attitude of

reporting every incident that is under these rules it can be categorized as a violation and can be

processed legally.

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