https://dinastires.
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DOI: https://doi.
org/10.
38035/jlph.
https://creativecommons.
org/licenses/by/4.
Differentiation of Criminal Sanctions in Cases of Violence Against Children Mirani Febrina1.
Nynda Fatmawati2.
Universitas Narotama Surabaya.
Surabaya.
Indonesia.
Aira.
langit@gmail.
Universitas Narotama Surabaya.
Surabaya.
Indonesia, ninda.
fatmawati@narotama.
Corresponding Author: ninda.
fatmawati@narotama.
Abstract: Violence against children continues to be a pervasive problem in Indonesia, encompassingboth physical and psychological dimensions.
However, current legislation, including LawNo.
35of 2014 on Child Protection, lacks clarity in distinguishing between these two forms of violence.
Thisnormative legal research explores the urgency of distinguishing physical and psychological violence from a legal perspective.
By analyzing existing Indonesian laws, relevant jurisprudence, and international legal frameworks, this paper argues that a legal distinction is necessarytoensure effective legal protection, proportional criminal sanctions, and adequate lawenforcementresponses.
The study recommends legislative reform to explicitly recognize andaddresspsychological violence as a distinct offense, ensuring parity in the legal treatment of all formsof child abuse.
Keyword: Child Protection Law.
Physical and Psychological Violence.
Criminal Sanctions.
INTRODUCTION
Violence, within the legal context in Indonesia whether physical or psychological remains a pressing issue that demands serious attention, particularly intermsofprotecting victims and ensuring justice through the existing legal system.
Todate,Indonesian law has predominantly focused on physical violence, which is visibly evidentthrough injuries or wounds inflicted upon the victim.
Meanwhile, other equally damagingforms of violence, such as psychological abuse, are often neglected.
Psychological violence is inherently more difficult to prove as it leaves no physical traces that canbepresented as evidence in court.
Nevertheless, its impact may be deeper andmoreenduring, significantly affecting the victim's mental and emotional condition.
Therefore,distinguishing between physical and psychological violence within Indonesianlegal provisions is of paramount importance to provide more effective protection for victimsandensure proportionate punishment for perpetrators.
Physical violence refers to acts that cause bodily harm, such as beatings, torture,or other physical acts that leave bruises or This type of violence is moreeasilyidentified and proven through medical examinations, making the prosecutionprocessmore straightforward.
Conversely, psychological violence often 4056 | P a g e https://dinastires.
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manifests in theformofinsults, threats, emotional manipulation, or controlling behavior aimed at degradingdignity, damaging self-esteem, or causing mental trauma.
Although it does not result invisible physical harm, psychological violence may have long-lasting and more challengingconsequences for recovery, ultimately affecting the victimAos overall quality of life(Malik&Rahmat, 2.
In many cases, psychological violence tends to receive insufficient attentionwithinthe Indonesian legal system.
One of the primary reasons for this is the evidentiarydifficulty associated with proving psychological abuse.
Evidence is often indirect andrelies on victim testimony, witness statements, or supporting materials such asrecordedcommunications or expert psychological assessments.
This is in stark contrast tophysical violence, where tangible evidence such as bodily injuries can be morereadilypresented.
The lack of clarity in legal provisions related to psychological violencecreatesprocedural challenges and potentially diminishes the level of legal protection availabletovictims of such abuse.
Although several statutes, such as Law No.
23 of 2004ontheElimination of Domestic Violence (UU PKDRT) and Law No.
35 of 2014 on ChildProtection,have begun to incorporate various forms of violence, psychological violenceremainsinsufficiently regulated or explicitly distinguished from physical violence.
In practice, thisresults in confusion during law enforcement procedures, as there is no clear demarcationin terms of regulation, investigation, or prosecution of these two forms of Psychological violence is frequently treated merely as a consequence of physical abuseand not independently prosecuted.
Differentiating between physical and psychological violence in legislationiscrucial to ensuring more effective legal protection for victims.
Physical violence benefitsfrommore accessible evidence, such as visible injuries or medical records, whichfacilitatelegal proceedings.
On the other hand, psychological violence necessitatesspecificregulatory mechanisms to ensure that victims receive the same level of legal protectionas those suffering physical abuse.
Such differentiation also provides clarity regardingevidentiary requirements, as proof of psychological violence often involves expert testimony or other indirect evidence, which must be supported by moredetailedlegal procedures.
In the international context, psychological violence is already recognizedas equivalent to physical violence.
For instance, the United Nations ConventionontheElimination of All Forms of Discrimination Against Women (CEDAW) andvariousinternational child rights instruments state that violence against women andchildrenincludes not only physical but also psychological and emotional abuse.
Thisglobal recognition underscores the importance of distinguishing types of violence aspart ofupholding fundamental human rights.
In Indonesia, although legal provisions havebegunto acknowledge the significance of protecting victims of psychological violence, theirpractical implementation remains limited (Andini, 2.
The lack of understanding of psychological violence within the Indonesian judicial systemposes a major barrier to effectively handling such cases.
Many law enforcement officialsincluding investigators, prosecutors, and judges do not fully comprehend theformsofpsychological abuse and the methods for proving it in court.
Additionally, the absenceofclear regulations concerning acceptable evidence, such as psychological reportsorrecordings of communication, prevents many cases of psychological violence frombeinglegally processed.
Consequently, legislative reform is urgently needed to ensurethatpsychological abuse is afforded equal legal recognition and protection as physical This study aims to further explore the urgency of differentiating physical and psychological violence in Indonesian legislation.
A clear and explicit distinction will provide a legal basisfor victims of psychological abuse to receive adequate protection.
Furthermore, thisdifferentiation will ensure that perpetrators of psychological violence can be heldlegallyaccountable through appropriate 4057 | P a g e https://dinastires.
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criminal sanctions, thereby contributing to a reductionin the prevalence of psychological violence, which often remains invisible to the law.
Indoingso, this study seeks to contribute to the reform of IndonesiaAos legal systeminhandlingviolence cases and in strengthening protection for victims of all forms of abuse(Rakia&Hidaya, 2.
METHOD
This study uses a normative juridical method by examining statutory regulations, legal doctrines, and case law.
A comparative approach is also employed to analyzehowotherlegal systems differentiate physical and psychological abuse in their child protectionlaws.
(Peter Mahmud Marzuki.
Penelitian Hukum, (Jakarta: Kencana, 2.
) The primarylegal materials include Indonesian laws, international conventions, and relevant court decisions,supported by secondary literature from legal scholars and child rights RESULTS AND DISCUSSION Criteria of Physical and Psychological Violence Against Children According to Indonesian Legislation Within the Indonesian legal system, violence against children is consideredaserious legal This form of violence is classified into several types, notablyphysical and psychological violence.
Although both forms are equally harmful, theypossess distinct characteristics in terms of form, impact, and evidentiary mechanisms.
Physical violence is generally easier to identify due to the visible traces left on thevictim'sbody.
In contrast, psychological violence is non-physical, more challenging to prove, andyet can yield equally serious long-term consequences.
Physical violence against children encompasses various acts that causepainorinjury to the childAos body.
Such actions include hitting, kicking, pinching, burningwithcigarettes, or even violently shaking a child, all of which are prevalent both indomesticand institutional settings.
In legal practice, physical violence is more easily prosecuteddue to the existence of physical evidence, such as wounds, bruises, or forensicmedical reports.
This is supported by Marlina's view that the Indonesian criminal justicesystemstill heavily relies on material evidence, and physical injuries are perceived as strongproofin court proceedings (Marlina, 2.
Conversely, psychological or emotional violence constitutes an assault onthechildAos mental and emotional well-being.
It may take the form of insults, mockery, threats,degrading treatment, emotional neglect, or manipulative behaviors that consistently erodethe childAos selfesteem and confidence.
This form of violence leaves no physical scars, yetit can severely impair the child's psychological development.
Soedjono Dirdjosisworostates that psychological violence has a deeper destructive capacity becauseit targetsthe victim's identity and inner structure, often occurring repeatedly and systematicallyover time (Dirdjosisworo, 1.
The difficulty in proving psychological violence remains the primary obstacleinitslegal Law enforcement officers often struggle to establish psychological violence due to the absence of objective indicators that can serve as direct evidence.
Inthis context, expert witnesses such as psychologists are essential.
As R.
Soesiloexplains,non-visible violence must be proven through psychological assessments, whichcanbeformally presented in court as legal documentation (Soesilo, 1.
However, to date, the Indonesian legal system has not fully optimized theroleofexpert witnesses in psychological violence cases.
This highlights a normativegapthaturgently requires regulatory implementation or derivative norms with more technical andoperational detail.
Satjipto Rahardjo emphasizes that the law must not be rigidbut shouldtransform in accordance with social developments and the needs of society, includingtheneed to accommodate invisible forms of violence such as psychological abuse(Rahardjo,1.
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The lack of clarity in distinguishing physical and psychological violence alsoresultsin biased legal protection for child victims.
In many instances, psychological violenceistreated merely as a complement to physical abuse, rather than as an independent formofviolence.
According to Sudikno Mertokusumo, a sound legal systemmust ensureequal justice without discrimination toward different forms of victim suffering (Mertokusumo,1.
Psychological violence thus deserves equal consideration in termsof legal protection and the imposition of sanctions on perpetrators.
A reformulation of legal policy is required, through the clear separation of physical and psychological violence both in legal definitions and in law enforcement approaches.
As suggested by Muladi and Barda Nawawi Arief, criminal law serves a social protectionfunction that must continuously adapt to evolving forms of crime and victimization,including new manifestations of violence that have yet to be adequately addressed(Muladi & Arief, 1.
The Influence of Violence Criteria on Legal Sanctions for Perpetrators The criteria of violence applied during the judicial process play a decisiveroleindetermining the type and severity of criminal sanctions imposed on perpetrators.
Whenthe violence falls within the physical category and is supported by forensic reportsoreyewitness testimony, perpetrators are more likely to be prosecuted.
In contrast, whenthe violence is psychological and cannot be directly evidenced, perpetrators oftenescapecriminal liability.
Barda Nawawi Arief notes that the Indonesian criminal justicesystemtends to be materialistic, thereby rendering non-physical evidence as juridically weak(Arief, 2.
From a victimological perspective, the psychological impact of emotional abuseonchildren may in fact be more detrimental in the long term than physical Childrensubjected to prolonged psychological pressure are prone to personality disorders, trauma,and a tendency to become abusers themselves in adulthood.
In this regard.
MariaFaridaIndrati stresses the need for a legal orientation focused on the protection and recoveryofvictims, rather than merely on the punishment of offenders (Indrati, 2.
Unfortunately, there is currently no standardized guideline in the Indonesiancriminal justice system for assessing the extent of psychological damage sufferedbyvictims.
As a result, judges often impose light sentences or even acquit perpetratorsofpsychological abuse due to perceived insufficiency of criminal elements.
Peter MahmudMarzuki asserts that the absence of objective standards in evaluating psychological harmcauses judicial decisions to be biased and inconsistent (Marzuki, 2.
Consequently, derivative regulations are needed to outline the indicatorsofpsychological violence and the types of admissible evidence.
Forensic psychological reports should be formally recognized as legitimate evidence in juvenilecriminal procedure.
Abdul Wahid also emphasizes the need for a reformation in lawenforcementthat is grounded in victim rights protection, especially for victims of psychological violencewho have long been marginalized (Wahid, 2.
Thus, the system of criminal sanctions for perpetrators of violence against childrenmust not rely solely on the classification of violence based on physical forms.
Amoreprogressive and responsive legal approach is required.
As Hans Kelsen posits, alegal system must ensure substantive justice and not merely adhere to procedural formalities(Kelsen, 1.
Protecting childrenAiwhether from physical or psychological abuseAimustbe a top priority in the national legal framework to uphold their rights in a comprehensiveand holistic manner.
CONCLUSION
Violence against children, both physical and psychological, constitutes aviolationof children's human rights that is explicitly prohibited and regulated under Indonesianlaw,particularly in Law Number 35 of 2014 concerning Child Protection.
Physical 4059 | P a g e https://dinastires.
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violenceencompasses all forms of actions that cause injury or harm to a child's body, suchashitting, kicking, or other acts of physical abuse.
In contrast, psychological violenceincludes acts that degrade the dignity, self-worth, or emotional stability of the child, suchas humiliation, threats, emotional neglect, and repeated verbal abuse.
Althoughthesetwo forms of violence differ in manifestation, they both have serious consequencesfor thechild's growth and development, in both the short and long term.
Under Indonesian positive law, the criteria for violence against childrenconsist ofthe elements of action, perpetrator, consequence, as well as the intentionor motivebehind the act.
The severity of physical injury or psychological disturbance servesasakeydeterminant in the imposition of sanctions against perpetrators, which may includeimprisonment and/or fines, along with mandatory rehabilitation or counseling.
Whilethestate has established a sufficient legal framework to protect children fromviolence,significant challenges remain in the areas of implementation and oversight.
Many casesof child abuse occur within domestic settings and are perpetrated by individualsclosest tothe child, which often hinders case disclosure due to power relations and thechild'slimited access to report such incidents.
REFERENCE