The Politics of Criminal Law on The Protection of Rape Victims Based on the Qanun of Jinayah in Aceh Kanun Jurnal Ilmu Hukum

A country must protect its citizens, including the rape victims. Unfortunately, the protection is not clearly regulated in the form of restitution and compensation in the Criminal Code (KUHP) and Law Procedures Code (KUHAP). The issuance of Qanun Number 6 the Year 2014 about Jinayah Law has contributed significant changes and progress to the protection of rape victims. The study focused on how the politics of criminal law protects rape victims based on the Qanun of Jinayah law in Aceh. The research applied the normative juridical method, specifically analytical descriptive research. The data sources were primary and secondary legal sources. The data analysis was conducted qualitatively. The result indicated that there are two types of protection in the politics of criminal law on the protection of rape victims based on the qanun of jinayah law. First, the ta'zir penalty or fines in the form of gold to the perpetrators. Second, the payment of uqubat restitution from the perpetrators to the rape victims, a maximum of 750 grams of pure gold.


INTRODUCTION
The fourth paragraph of the Preamble of 1945 Constitution explained that "The state of Indonesia that shall protect the whole people of Indonesia and the entire homeland of Indonesia, and in order to advance general prosperity, to develop the nation's intellectual life, and to contribute to the implementation of a world order based on freedom, lasting peace and social justice...".

Kanun Jurnal Ilmu Hukum
The Politics of Criminal Law on The Protection of Rape Victims Based on the Qanun of Jinayah in Aceh Vol. 23, Issue 2, (August, 2021), pp. 247-256. Muhammad Nur, Muhammad Salda, Hamdani 248 The above provision asserted that the state must protect its citizens, including protecting the crime victims. The protection of the crime victims is not only National but also an international issue. Thus, this problem needs serious concern (Mansur & Gultom, 2007). The protection to the crime victims gains serious attention from International Community through the Declaration of Basic Principles of Justice for Victims of Crime and Abuses of Power by the United Nations. One of the recommendations is that the perpetrators or those responsible for an unlawful act must restitution to the victims, family's victims, or the guardian. The victims are those who suffer physically and spiritually as a result of others' actions in fulfilling their own or other interests that are contrary to the human rights interest of the harmed party.

The protection to the crime victims in Indonesia is based on the Constitution Number 7 the
Year 1984 about the legalization of the Convention on the Elimination of All Forms of Discrimination against Women-CEDAW. The protection to the victims is regulated explicitly in the KUHAP in the form of compensation by merging the civil and criminal law. This provision is difficult to be implemented; even the merger of the compensation lawsuit in the rape crime case is very complicated and time-consuming since it has to merge criminal and civil cases. Accordingly, the protection of the victims, including the rape victims, is not clearly regulated in the national Constitution both in the form of restitution and compensation ( Nairazi & Aidil, 2020;Tania, 2020).
The protection of the rape victims through the criminal justice process and certain social service facilities is an absolute part of the criminal law policy. To achieve equality and general welfare, the rights of rape victims must be protected as it is an inseparable part of human rights concerning social security (Syaufi & Haiti, 2018;Poernomo, 1998;Sudarto, 1979).
Therefore, protecting the rape victims needs rational efforts from society, namely the politics of criminal law. Barda Nawawi Arief claimed that implementing the politics of criminal law means carrying out an election to achieve the proper results of criminal law that fulfill the justice and efficiency (Arief, 2002;Priyatno, 2009). Sudarto asserted that implementing the politics of law 249 criminal means creating the criminal law which suits the condition and situation to a certain time and future (Sudarto. 1983). The criminal law should not be oriented to the human deed (daad straf recht) as it might become inhumane and prioritize retaliation. In contrast, the criminal law should not concern with the perpetrators only (daderstrafrecht) because the implementation of criminal law will ease them instead of considering various interests: the community, country, and victims, specifically the rape victims (Rothe & Mullins, 2010;Wantu & Wiwoho, 2020). The criminal law aimed to protect and maintain various interests, namely the community, the country, the perpetrators, and the victims. Thus, the criminal system formulation should consider the interest of the victims to create justice equality so the rights of rape victims can be protected (Jati, Khalid, & Endri, 2021;Syaufi, Ahmad, & Haiti, 2018).
The issuance of Qanun Number 6 the Year 2014 about Jinayah Law has contributed significant protection to the rape victims. Qanun Jinayah Aceh has created a breakthrough, particularly the presence of the qanun that regulates the protection of the rights of rape victims.
Based on the explanation, the protection of the rape victims is extremely important, as stated in the fourth paragraph of the Preamble of the 1945 Constitution. Therefore, this study problem focused on how the politics of criminal law protects rape victims based on the Qanun of Jinayah law in Aceh.

RESEARCH METHODS
The method used in this research is normative legal research. Primary legal materials are authoritative legal materials (Tripa, 2019;Sulaiman, 2018

1) Protection of Rape Victims in Indonesia
The role of law in society is to provide legal protection to community members whose interests are disturbed. Crimes that occur in society must be resolved according to applicable law to prevent vigilante behavior. The law's main purpose as the protection of human interests is to create an orderly social order so that a balanced life can be realized. Legal protection can be interpreted as a guarantee or certainty that someone will get what has become his/her rights and obligations so that person feels safe. Legal protection is a protection given to legal subjects according to the rule of law, both preventive and repressive, written or unwritten, to enforce legal regulations. Legal subjects are part of legal protection, meaning everything that can obtain rights and obligations from the law consists of humans (rechtpersoon) (Salim & Nurbani, 2013).
According to Philipus M. Hadjon, Indonesia, as a state based on Pancasila, must provide legal protection to its citizens in accordance with Pancasila. Therefore, legal protection based on Pancasila means legal recognition and protection of human dignity based on the values of divinity, humanity, unity, deliberation, and social justice. These values give birth to the recognition and protection of human rights in a unitary state that upholds the spirit of kinship in achieving mutual prosperity (Hadjon, 1987).
Victims are those who suffer physically and spiritually due to the actions of others who seek the fulfillment of their interests or those of others that are contrary to the human rights interests of the injured party. According to Muladi, victims are people who, individually or collectively, have suffered harm, including physical or mental harm, emotional, economic, or substantial disruption to their fundamental rights, through acts or commissions that violate criminal law in each country, including abuse of power (Muladi, 2005).
Victims need to get recovered. According to Muladi, victims of crime need to be protected because, first, society is seen as a form of a system of institutionalized trust. This belief is integrated 251 through the norms expressed in the institutional structure, such as the police, prosecutors, courts, and others. Second, there are arguments for the social contract and social solidarity because the state can be said to be a monopoly on all social reactions to crime and prohibits private actions.
Therefore, if there are victims of crime, the state must pay attention to the needs of victims by improving services and regulating rights. Third, the protection of victims is usually associated with one of the objectives of punishment, namely conflict resolution. Resolving conflicts caused by criminal acts will restore balance and bring a sense of peace to society (Muladi, 1997).
As a party who has suffered physical, mental, economic, social, and other losses, the Victim must be legally protected through the fulfillment of his or her rights that have been violated. In information about police investigations related to crimes that were experienced; (i) The right to personal freedom/personal confidentiality, such as keeping the telephone number or identity of other victims secret (Mansur & Gultom, 2007).
The need for protection for victims of the crime of rape cannot be separated from the consequences experienced by victims after the incident. These consequences include: (1) Psychological suffering, such as embarrassment during the encounters with the people close to them because they have lost their virginity. Other psychological sufferings can be in the form of anxiety, loss of self-confidence, no longer cheerful, reluctance to meet with other people, growing hatred (antipathy) towards the opposite sex, and excessive suspicion of other parties who actually have good intentions; (2) Pregnancy; (3) Physical suffering, the rape will cause injury to the Victim.
Wounds are not only related to the torn vital organs, but it is also possible that other body organs will be injured if the Victim first puts up a hard fight, which at the same time encourages the perpetrator to act more violently; (4) Growing a sense of lack of trust in the handling of legal practitioners; (5) Victims who are faced with difficult situations such as the loss of confidence may involve themselves in prostitution. With prostitution, they can take revenge on men and seek recognition (Wahid & Irfan, 2001;Heryanto, 2020).
The crime of rape is regulated in Article 285 of the Criminal Code, which states that: "Whoever by means of violence or threat of violence forces a woman to have intercourse with him out of marriage, is threatened with committing rape with a maximum imprisonment of twelve  Furthermore, Article 28 stipulates: If the application for restitution is filed based on a court decision that has obtained permanent legal force and the perpetrator of the crime is found guilty, LPSK submits the application along with its decisions and considerations as referred to in Article 27 to the competent court.
LPSK in this restitution mechanism only has the authority to provide recommendations to law enforcement regarding whether or not the Victim deserves restitution and is also related to calculating the amount of restitution requested by the Victim. Furthermore, it is up to law enforcement to decide whether the restitution is granted or rejected. If the judge refuses the restitution based on the judge's consideration and based on the facts of the trial, the LPSK is not given the authority to take legal action. Meanwhile, concerning court decisions granting victim restitution, LPSK also does not have the authority to forcefully execute restitution against perpetrators who do not have good intentions to pay restitution.

Number 6 of 2014
Efforts and policies to make good criminal law regulations basically cannot be separated from the purpose of crime prevention. Therefore, to protect rape victims, rational efforts are needed from the community, namely the politics of criminal law. The politics of criminal law means holding elections to achieve the best results of criminal legislation to fulfill the requirements of justice and Code include:

a. Ta'zir or fines in the form of gold for perpetrators of rape
Ta'zir sanction is jarimah which is threatened with ta'zir punishment. Ta'zir means ta'dib, translated as to teach or to educate. Ta'zir is also interpreted as ar-raaddu wal man'u, which means to refuse and prevent. While the understanding of ta'zir according to Al-Mawardi is an educational punishment for sins (criminal acts) whose punishment has not been determined by syara (Wardi, 2000;Andiko, 2017;Sarono, 2018). Ta'zîr is a punishment that has not been determined by syara' and is left to the ulul amri to determine it. Ta'zîr punishments are numerous, ranging from the lightest to the heaviest punishments. Judges are given the authority to choose between these punishments in accordance with the circumstances of the jarîmah and the person who committed it. The characteristics of Jarimah Ta'zir are as follows: (1) The punishment is not certain and unlimited, meaning that the punishment has not been determined by syara' and there is a minimum and a maximum limit; (2) The determination of the punishment is the right of the ruler (ulil amri/judge).
Topo Santoso (Santoso, 2020) explained that the basis and determination of ta'zir are based on ijma' (consensus) relating to the state's right to punish all inappropriate acts, which cause physical, social, political, financial, or moral loss or damage to individuals or society as a whole. The purpose of granting the right to determine the jarimah ta'zir to the authorities is to 255 regulate society and maintain its interests and be able to deal with sudden situations as well as possible (Nur, 2020;Mursyid, 2019).
The forms of ta'zir punishment are as follows: (1) Ta'zîr punishment related to the body, such as the death penalty and jilid (hitting); (2) Punishments related to a person's independence, such as imprisonment and exile; (3) Property-related ta'zir punishments, such as fines, confiscation of property, and destruction of goods; (4) Other punishments determined by ulul amri for the sake of the people (Djazuli, 2000). According to Djazuli, the crime of ta'zir is divided into three kinds (Yani, 2020) The provision of financial penalties in the form of gold to rape perpetrators regulated in Aceh Jinayah Law is a step forward in the protection of rape victims. Gold was chosen to determine the fine uqubat because it is more suitable with the hadith of the Prophet PBUH and because its value is considered more stable. Therefore, there is no gap between the fine uqubat with other uqubats due to inflation. A fine sanction is a form of protection for victims oriented towards the rehabilitation of the victim. The perpetrator is held criminally responsible for compensating the Victim's losses.

b. The Obligation to Pay Restitution
The presence of Aceh Qanun Number 6  The protection of rape victims in the form of restitution as regulated in the jinayah qanun is an extraordinary legal breakthrough. The existence of the jinayah qanun in Aceh is a renewal of criminal law in Indonesia because good law must, of course, reflect the law that lives in the community itself (Kamarusdiana, 2016;Isdiyanto, 2018). This policy is a tangible form of concern 257 for rape victims in the criminal justice process. Most victims of the rape crime must appear in court at their own expense to be witnesses. When giving testimony, they must repeat the story about their bitter experience and reconstruct the incident.
Furthermore, they are confronted with the perpetrator who had raped them. In addition, they must face a defense or lawyer from the perpetrator's side who tries to eliminate the perpetrator's guilt. So the type of loss suffered by the Victim is not only in the form of material, such as the costs incurred for healing physical wounds, but also immaterial losses, such as loss of mental balance, loss of enthusiasm for life, and self-confidence due to anxiety and fear (Krisantya, 2016). Likewise, the recovery of rape victims covers both physically and psychologically, such as torn hymen and prolonged trauma (Sari, 2014).
The state's involvement in overcoming the burden of rape victims is not only because the state has public service facilities but also that the state is obliged to maintain safety and improve the welfare of its citizens. Rape cases can be considered as the failure of the state to provide good protection to its citizens.
The protection of rape victims in the form of restitution is conceptually a new legal policy where there is a merger of criminal law and civil law, as is the concept of qishash and diyat in Islamic criminal law. Its implementation depends on the will of the Victim, who is the aggrieved party. From this perspective, new restitution is imposed not only because of criminal considerations but also for the victim's sake. The implementation itself is the right of the Victim. If in the trial the Victim wants it, and it may also be possible that other basic crimes do not need to be applied if the Victim wants the perpetrator to be sentenced to a basic sentence of compensation. Thus the foundation for the protection of rape victims is based on the philosophy of restorative justice where reparations or recovery due to criminal acts can be realized, and relations between parties can be maintained after the judicial process.

CONCLUSIONS
The politics of criminal law in the Aceh Jinayah Law on the protection of rape victims consists of two kinds. First, ta'zir or fines in the form of gold, and second is the payment of Uqubat Restitution by the perpetrator to the rape victim with a maximum of 750 grams of pure gold.