Unequal Power Makes Women Brunt of Cyber Law

International Women’s Day commemoration is just around the corner. Unfortunately, several Indonesian women are facing law suits or still recovering from unfair legal suits placed against them through the problematic Information and Electronic Transaction Law (UU ITE) that was amended last year.

Take, for example, the case of Ira Simatupang. She was a doctor at Tangerang District Hospital that experienced rape attempt by her colleague. She reported the experience to the police, but due to insufficient evidence, investigation stopped in 2009 and she was fired from the hospital. Ira reported the rape attempt and unfair treatment she received to her supervisor and colleagues via email, but her email then used a base for her former supervisor to take her to court. She was sentenced five months in jail by Tangerang State Court for defamation.

Similarly, in 2014 Wisni Yetti that reported her husband for a domestic violence case in the time of their divorce process was also reported to court using UU ITE. Wisni ex-husband reported her on the ground of her private message on a social media platform that he considers pornographic. The ex-husband accessed Wisni’s social media unauthorised and printed the chat, which became an evidence in court. This is contradictory with the UU ITE spirit that was formulated to protect online privacy. Bandung State Court sentenced her five month in jail, although the High Court annulled the verdict.

Another example of woman brought to court using UU ITE is Ibu Yusniar in Makassar. She is a house wife that is accused of defamation due to her social media post complaining that her parents’ were disturbed by a group of people. In her post, Ibu Yusniar did not mention a specific name, but her post was reported to the police by a local parliamentarian, Sudirman Sijaya, accusing her of slander. Ibu Yusniar was jailed for 30 days and currently waiting for verdict. If she is proven guilty she will need to spend another eight month in jail.

Feminist legal theory, also known as feminist jurisprudence, considers that the law has historically been used to subordinate women. Martha Fineman (2005), one of the supporters of feminist jurisprudence, argues that the legal field is traditionally dominated by men, making the law and the court bias in privileging men.

Similarly, Lynn Schafran (1993) states that “the law is male”, meaning that perspective and life experiences of men regarded as the norm, while women experience is often side-lined. Rape laws, for exampe, are codified of men’s fear of false accusations. In Indonesia, the law only consider rape as penis penetration to vagina with physical evidence relating to such action, while other form of sexual abuses experienced are dismissed.

The ‘maleness of the law’ is also expressed in many ways, including regulations and the practice of the court. Those include the cases the lawyer take or refuse; and how investigators, judges and decision makers interpret, decide and execute the law. Women often placed in disadvantaged position due to imbalance of power they have in a patriarchal society. This imbalance power relation generally manifested in women’s weaker position in social, economic and political roles, making them vulnerable to victimisation.

In UU ITE, there is no article that explicitly puts women in a position of disbenefit. As with most legal products and practices, the ITE Law appears neutral but it is unable to see how the pre-existing conditions of patriarchal society impacts differently on men and women. Gender inequality in society tends to place women at a weaker position makes them more vulnerable to structural violence and poverty. Women’s limited economic resources restrains them in accessing legal aid, with only a limited number of women were able to hire private lawyers, while the rest had to rely on the availability of pro bono legal aiders’ time.

Women victims of rape, attempted rape, domestic violence, as well as structural violence would face difficulties in defending herself in court, especially when the court inquires about the traumatic experience she went through. For the case of domestic violence, it is arguably even harder to ask the court to side with women, as the majority of Indonesian society still consider such violence as the ‘reasonable fate’ experienced by women (Lily Munir, 2005).

In addition, in patriarchal society, exist misogynist perception that trust women less because they seemed less credible. For example when at court women have problem answering questions about their traumatic experience, this makes the judges and lawyers difficult trust what the women are saying. As reflected in the case of Wisni and Ira, their experience of abuse was not useful in avoiding negative verdict they received.

Within 2008 to 2016, SafeNet data on UU ITE allegations recorded out of a total of 177 cases of the law, 33 (or 18.6 percent) people reported were women. While there were only 22 women (or 12.4 percent) filed legal case using UU ITE. Judging from the composition of Indonesian internet user, which is 51% women and 49% men (Asosiasi Penyelenggara Jasa Internet Indonesia, 2015), it can be said that although more women use the internet, they do not choose to settle online conflicts using UU ITE. In fact, more women were reported, rather than being complainants. This may be caused by the lack of information regarding online interaction norms, and lack of socialisation of UU ITE toward women. In addition, women’s relatively lower economic power and network may deter them taking legal action to resolve electronics disputes.

Taking note of the profession of women reported using UU ITE, majority of them were housewives. From these data it can be said that the majority of UU ITE cases ensnare women that work in the domestic sphere. In this regard, Kate Millet’s Sexual Politics (1990) book still rings true, that there is a reflective relationship between private and public sphere. Where inequality that took place within the house, such as cases of domestic abuse in forms of degrading treatment, exploitation and oppression of women through insults and physical violence, if left unchecked will be reflected into the public domain. The UU ITE is an example of Millet hypothesis, where unresolved private violence is taken into state law, making it state violence.

One reason the law exist is its usefulness in creating happiness in the society, as social order and good governance exist (Bentham, 1789). To ensure that the law provide protection and welfare for the society, and not otherwise, it needs clarity of the rule of law. This makes the UU ITE, which contains contradictions, becomes problematic, especially the article on defamation that is used to silence reporting of gender-based violence. Hence, the law needs to be reviewed and public legal education need to be done. Most importantly, law enforcement agencies need to assess, in advance, whether there are elements of the imbalance of power relation and prior gender violence in the reporting of UU ITE they receive, and to make that information part of their legal considerations.

Fitri Bintang Timur
Researcher at Centre for Strategic and International Studies

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