Problems of Forced Child Marriage: Living Law and Positive Law Perspectives

DOI

10.2991/978-2-38476-325-2_35How to use a DOI?

Keywords

Forced Marriage; Child Sexual Violence; Living Law; Positive Law

Abstract

Law Number 12 of 2022 concerning Sexual Violence Crimes (UU TPKS) aims to prevent all forms of sexual violence, including those against children. One form of sexual violence against children regulated in Article 10 of UU TPKS is forced marriage of children under the guise of cultural practices. This provision creates issues in society when viewed through the lens of living law. The issues continue when the KUHP Nasional (KUHP Nasional) recognizes the principle of material legality and imposes additional penalties in the form of customary obligations. This study aims to explain the problems related to the regulation of forced marriage as a form of sexual violence against children from the perspective of living law and positive law. This research is a normative juridical study using statutory and conceptual approaches. The data used in this study are secondary data collected through a systematic literature study of primary, secondary, and tertiary legal materials, and then analyzed descriptively and qualitatively. The results of the study indicate that the problems with forced marriage as a form of sexual violence against children arise due to differing understandings of “cultural practices” when used as a basis for forced marriage. Cultural practices have a very broad understanding, and one of them includes reactions or customary sanctions encompassed in living law. These reactions or sanctions can include forced marriage, especially in cases of immoral acts or adultery, but positive law does not provide a clear explanation of “cultural practices” as intended as a form of sexual violence against children. Therefore, the regulation of such matters cannot always be considered as sexual violence against children, because forced marriage of children under the guise of cultural practices as a reaction or customary sanction is essentially a form of protecting children from immoral acts or adultery.

Copyright

© 2024 The Author(s)

Open Access

Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), which permits any noncommercial use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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TY  - CONF
AU  - Sahran Hadziq
PY  - 2024
DA  - 2024/12/19
TI  - Problems of Forced Child Marriage: Living Law and Positive Law Perspectives
BT  - Proceedings of the ASEAN Conference on Sexual Exploitation of Children (ACOSEC 2024)
PB  - Atlantis Press
SP  - 305
EP  - 316
SN  - 2352-5398
UR  - https://doi.org/10.2991/978-2-38476-325-2_35
DO  - 10.2991/978-2-38476-325-2_35
ID  - Hadziq2024
ER  -