Hukuman Tindak Pidana Perkosaan Terhadap Mahram (Perspektif Qanun Jinayat Pasal 49 Dan Pasal 285 KUHP)

Abstract

This research is entitled Punishment for the Crime of Rape Against Mahram (Perspective of Qanun Jinayat Articles 49 and Article 285 of the Criminal Code) which has two formulations of the problem, namely: what is the punishment for the perpetrators of rape against their mahram in Qanun Jinayat Articles 49 and Article 285 of the Criminal Code, and what are the factors causes that encourage a person to rape his mahram. This study aims to examine how the sanctions for the crime of rape against mahram according to Qanun Jinayat Article 49 and Article 285 of the Criminal Code. In this study, the authors used a comparative descriptive method, which compared the sanctions contained in the Qanun Jinayat with the sanctions contained in the Criminal Code for the perpetrators of rape who were the mahrams of the victims themselves. The results of the study show that the punishment for rape perpetrators in Qanun jinayat is as explained and regulated in Article 49 “Any person who intentionally commits rape against someone who has a mahram with him, is threatened with 'uqubah ta'zir flogging at least 150 times, a maximum of 200 times or a fine of at least 1,500 grams of pure gold, a maximum of 2,000 grams of pure gold or imprisonment for a minimum of 150 months, a maximum of 200 months. Whereas in the Criminal Code it is clear that rape is regulated, namely article 285, "Anyone who by force or threats of violence forces a woman to have sex with him outside of marriage, is threatened with committing rape with a maximum imprisonment of 12 years in prison". The causal factors that encourage a father to rape his biological child are seen from internal factors and external factors. Internal factors include a) household conditions that are not harmonious, frequent quarrels, the wife often refuses/is unable to serve her husband's biological needs, b) family economic factors, for example the perpetrator does not have a permanent job/is unemployed, c) educational factor, the perpetrator tends to have low education, d) religious/moral factors, lack of knowledge, religious/moral education and understanding of carrying out religious orders/teachings, e) environmental factors that are not good, so that the mental personality is not good. While external factors include: a) macroeconomic factors, b) drug use factors, c) the development of science and technology, d) the opportunity to be able to commit the crime of rape in the family.