KEADILAN RESTORATIF DALAM KEBIJAKAN PENANGGULANGAN KEKERASAN RUMAH TANGGA DENGAN HUKUM PIDANA

Widiartana, G. (2012) KEADILAN RESTORATIF DALAM KEBIJAKAN PENANGGULANGAN KEKERASAN RUMAH TANGGA DENGAN HUKUM PIDANA. Phd thesis, UAJY.

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Abstract

Domestic violence has been a social phenomenon frequently taking place. According to the National Commission on Women, the number of domestic violence (between the year of 2001 and 2005) steadily increased. One of the instruments chosen by the government to tackle domestic violence was criminal law. The dissertation research was aimed at: 1) analyse of restorative justice and providing argumentation on the importance of restorative justice as a basis for criminal policy in handling domestic violence in Indonesia; 2) thoroughly and comprehensively understanding the formulation policy of criminal law in handling domestic violence in Indonesia; 3) formulating criminal policy containing restorative justice as an alternative in solving domestic violence cases in Indonesia. The normative legal research approach was applied in this dissertation research, and it was also associated with comparative research. The main data of this research was secondary data consisting of primary and secondary legal materials, that were, regulations and experts' legal opinions related to the handling of domestic violence. The data collected were then qualitatively analyzed, and the conclusion was drawn based upon deductive method. The conclusions based upon the legal analysis were as follow: 1) restorative justice was important to be the policy's basis for tackling domestic violence by using criminal law based on the following argumentations: a) the conformity of restorative justice idea with Pancasila as the highest legal basis of Indonesian people, b) domestic violence took place among people having specific relation due to marriage or blood relationship, c) victims or the victims' family of domestic violence did not prefer criminal process, d) fine as criminal sanction may give economic or financial burden to the victims or victims' family, e) the tendency of international development to pay more attention to the victims in criminal process, f) the draft criminal code itself began to pay consideration to the victims in criminal sentencing; 2) criminal policy in handling domestic violence as stipulated in the Criminal Code, the Act number 23 of 2002 on Child Protection, the Act number 23 of 2004 on the elimination of domestic violence; and the Act number 8 of 1981 on Criminal Procedure did not reflect restorative justice yet; the formulation of criminal law policy in handling domestic violence was conducted by underlining: a) criminal sanction oriented to both pushing personal responsibility of the offenders and proving recovery to the victims, b) rehabilitative actions by the offenders after committing the crime constituted alleviating factor for a sentence, c) reaching a settlement in mediation as a basis for dropping the charges, d) mediation as a model of dispute settlement for certain domestic violence.

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