Smartraveller: Australian tourists warned they could be jailed for sex outside marriage in Indonesia

Australians travelling to Indonesia are being warned that if they have sex outside of marriage they could face up to one year in jail under new legislation.

The laws, which came into effect on January 2, are part of the country’s revised criminal law, and include penalties for cohabitation and sex outside of marriage.

Although alarming, there are specific requirements that must be satisfied for authorities to act on a complaint, which make it less likely they will do so.

For unmarried people, the complaint for either offence must be made by the person’s child or parent.

For married people, Indonesian authorities are able to act on a complaints made by their spouse.

Authorities have said this “safeguard” prevents arbitrary enforcement against tourists.

The penalty for living with someone who you are not married to is six months imprisonment.

The changes are part of broader reform to Indonesia’s criminal law, which had previously been inherited from the Dutch.

Since declaring its independence in 1945, Indonesia has been looking to revise the old code, and after many delays, its parliament passed the new penal code in 2022.

When the bill entered it’s three year transition period after being passed, Human Rights Watch called it a disaster.

“The law making consensual sex outside of marriage a criminal offence is a full-scale assault against the right to privacy, permitting intrusions into the most intimate decisions of individuals and families,” Human Rights Watch said.

The watchdog also raised concerns about the potentially disproportionate impact of the law.

“Indonesia has millions of couples without marriage certificates who will be theoretically breaking the law, especially among Indigenous peoples or Muslims in rural areas who married only using Islamic ceremonies, called kawin siri,” the body said.

“While the crimes of sex or cohabitation outside marriage can only be prosecuted on the complaint of the husband, wife, parents, or children of the accused, it will disproportionately impact women and LGBT people who are more likely to be reported by husbands for adultery or by families for relationships they disapprove of.”

Because same sex couples cannot be married in Indonesia, Human Rights Watch said the law “effectively renders all same-sex conduct illegal”.

“This is the first time in Indonesia’s history that adult consensual same-sex conduct has been proscribed by law,” Human Rights Watch said.

“In 2016, petitioners asked the Constitutional Court to criminalise same-sex conduct and the judges rejected the case, responding that ‘It is out of proportion to place all the responsibility in arranging social phenomena—especially regulating behaviours considered ‘deviant’—to criminal policies only’.”