Problems in Law Enforcement Of The Crime Of Women's Abortion

The purpose of this study is to examine the implementation of abortion in Indonesia, especially for women who are victims of rape. The research method used is normative juridical. The results showed that a person could have an abortion when pregnancy occurs due to rape which can cause psychological trauma with the condition that the abortion is carried out before six weeks of pregnancy, calculated from the first day of the last menstruation. It is still found that abortions are carried out when the pregnancy is more than six weeks old. Not a few of those who carry out abortions are sentenced to criminal penalties, can say that the application of legal protection guaranteed by the law is far from perfect, especially law enforcement that is less partial to rape victims who choose the abortion route does not reflect the sense of justice, certainty and benefit be a legal goal. Therefore, legal protection for abortionists who are victims of rape must consider the best interests of the victims, and this can be realized when the Government carries out its obligations to protect and prevent abortions.


I. Introduction
Pregnancy is one of the effects of a rape, but the pregnancy is often not desired by the victim so she prefers the abortion path to be able to eliminate the fetus she is carrying. There are many reasons that encourage victims to have abortions (abortus provakatus), in addition to covering up family disgrace and bad stigmas, but also because of the refusal to bear children from the proceeds of the crime of rape.
According to BKKBN, unwanted pregnancies account for 75% of maternal mortality. In contrast, pregnancy consultation data at PKBI for ten years consistently shows that 20 people per day experience unwanted pregnancies, where 75% are married couples and no longer want to add children for health and economic reasons. The Ministry of Health 2012 has been running a program to provide health services for pregnant women in rural areas, so what is essential is to ensure that pregnant women have their pregnancies checked and mitigate the risk of unwanted pregnancies, including for victims of rape and pregnancy that endanger the life of the mother. 1 Abortion has always been a conversation that concerns the fields of law, medicine and other disciplines. 2 In medicine, the term abortus is known to abort the womb, which means the production of the results of conception (the meeting of eggs and sperm cells) before the fetus can live outside the womb. The World Health Organization (WHO) defines abortion as the cessation of the life of the fruit of pregnancy under 28 weeks or the weight of the fetus less than 1000 grams. Abortion also means removing or removing either the embryo or fetus prematurely (prematurely). 3 Abortion is a social phenomenon that is increasingly concerning. The concern is not without reason because the behaviour of aborting the womb has caused many adverse effects for the perpetrator and the wider community. This is because abortion concerns the moral norms as well as the laws of a nation's life. Another serious problem is that the act of abortion is related to the oath of Indonesian doctors, which in it confirms that doctors will respect every life. Abortion has a long history and has been performed by various methods, either naturally or the illegal use of sharp tools, without regard to the provisions suggested by the legislation. This causes physical trauma, and the longer it will affect the psychiatric condition. Now, the era is advanced where abortions are performed by utilizing high-quality medicines to surgical procedures using the latest technology. Legality, normality, culture and views regarding abortion differ substantially across the State. In many countries around the world, the issue of abortion is a prominent and publicly divisive issue over ethical and legal controversies.
Law consists of norms of decency, norms of decency and legal norms called social norms. Social norms are general provisions that apply as guidelines for individual behaviour in social life. The criminal law, as in Article 346, Article 347, Article 348 and Article 349 of the Criminal Code (KUHP), provides that depriving the right to life of a child in the womb or abortion is threatened with criminal penalties. The law still provides a loophole or space for someone to have an abortion but for predetermined reasons, namely the reason for medical indication and the child resulting from rape 4 which was then strengthened by the ratification of Government Regulation Number 61 of 2014 concerning Reproductive Health (PP No. 61 of 2014).
Guaranteeing rights to protect rape victims can provide new hope for life in the future. Great hope will arise from the sense of physical trauma, psychological trauma and social burdens he faces. This reason then becomes the legalization of abortion as an implementation of the enforcement of human rights (HAM) because everyone has the freedom to determine what will be done for himself. 5 From (Health Law) which confirms the legalization of abortion due to psychological trauma due to rape because if given a prison sentence, it will have a broad impact on other incest rape child victims. They are increasingly reluctant to report cases that happen to them because they risk getting a negative impact that bigger. 6 There needs to be a pardon for the law so law enforcement officials can broadly see the possibilities that occur. The procedure for abortion that can be said to be legal is if the abortion is carried out when the fetus is not yet aged or less than 6 (six) weeks which can calculate from the last day of menstruation. However, this requirement can also exclude if there is a medical emergency even though the womb has reached this for more than 6 (six) weeks; thus, implicitly, the researcher explained that it could legalize the practice of abortion. 7 So, according to Rina Shahriyani et al., her research stated that Abortion can be applied to rape victims and cannot a held criminally liable even though the Criminal Code regulates it because of the existence of the Health Law as Lex Specialis, which governs that Abortion can be legalized against rape victims if there are medical indication reasons. In addition to health or medical problems, Abortion is closed related to a person's psychological issues. I can see that mentally women who choose the path of Abortion for whatever reason experience a lack of uncertainty, insecurity, excessive worry, loss of direction and even feelings of guilt and sin that can result in the death of a woman or a disabled condition. 8 Abortion remains unlawful if in practice the Abortion is carried out not by the provisions in the laws and regulations, namely, Abortion is carried out before the gestational age of 6 (six) weeks calculated from the first day of the last menstruation, carried out by authorized health workers, approval from the pregnant woman, husband's permission except for rape victims and there are infrastructure facilities that are by the stipulated. However, the problem that often arises is that victims of sexual violence generally know that they are pregnant when the gestational age has been over 40 days. 9 In line with Rinna Dwi Lestari's opinion in her research, which explained that women who perpetrate abortions from rape victims must be given legal protection against the threat of criminal acts because rape results in victims experiencing many losses financially, physically, psychologically, and socially. Violent crimes against women, especially rape, are dangerous acts not only to their victims but also to society. 10 For a rape victim who results in getting pregnant and gets to have an abortion, it is certainly against the law.
However, this situation is one way to protect itself from deeds that society considers shameful acts. To protect the law has regulated exceptions to Abortion contained in Article 75 Paragraph 2 of the Health Law, Article 2 of the Minister of Health Regulation Number 3 of 2016 and Article 33 of Law Number 39 of 1999 concerning Human Rights. 11 According to her, the perpetrator of an abortion due to the rape that happened to her should not be able to be filed through the legal process, as long as it is true that the pregnancy can cause profound psychological trauma to the rape victim.
The purpose of this study is to update the previous study to discuss more deeply the protection of the rights of victims who have abortions because they are victims of rape and their relation to the application of Abortion as per Article 75 Paragraph of the Health Law. So it is hoped that this paper complements and updates the study by analyzing more deeply that the perpetrator of Abortion due to criminal rape will deprive the victim of the rights.

II. Problem Statement
This paper is based on the problem that rape victims should get protection from the government, society and most importantly, from the family. In particular, the core of this paper's discussion is about abortion and how the law is enforced. In this case, the author will explain in more detail the legality of abortion regulated by law. Of course, there are many considerations and reasons so that the abortion is performed.

III. Research Methods
Research methods used normative juridical methods by examining library materials or secondary data. 12 Normative legal research uses secondary data consisting of primary, secondary, and tertiary legal materials. 13 The data is obtained through secondary data, namely primary legal materials such as Law Number 36 of 2009 concerning Health, Law Number 1 of 1946 concerning Criminal Law Regulations or the Criminal Code (KUHP) and other supporting laws and regulations. In addition, the author also uses secondary legal materials such as scientific books and the results of previous researchers' research that raised the issue of abortion practices performed by rape victims.
The approaches used in this study are the statute approach and the conceptual approach (conceptual approach). The regulatory procedure examines all laws and regulations related to the legal issues being handled. 14 Furthermore, the abstract method moves away from the views and doctrines that developed in legal science. This research is then analyzed qualitatively, based on legal norms contained in the laws and regulations that are analyzed and described by the position of the case used as an approach in the 11 Rinna Dwi Lestari, "Perlindungan Hukum Perempuan Pelaku Aborsi Dari Korban Perkosaan Terhadap Ancaman Tindak Pidana Aborsi", MAGISTRA Law Review, Volume 1, Number 1, 2020, p. 13-14. 12  research. 15 The legal materials used are primary and secondary legal materials using collection, namely library research. The data that has been collected is then systematically classified to prove the existence of factors that make the practice of abortion a legal act, especially for rape victims. The three stages of the analysis are the basis for concluding.

IV. Discussion Criminal Application for Abortion Offenders
Indonesia must undoubtedly be able to prioritize rights and obligations based on regulated legal norms. For those who violate the provisions, then the sanctions are obtained. Every offence and crime has been regulated inside and outside the Criminal Code. 16 The purpose of the criminal law is often interpreted as imposing criminal sanctions on lawbreakers so that later people do not commit crimes. 17 Will resolve legal matters if the criminal or violator sits in front of the judge's desk and is sentenced to criminal sanctions. What positions justice and criminal law enforcement are that there are criminal sanctions or, in other words, criminal sanctions are used as a barometer of justice. 18 The settlement process often uses imprisonment when it is not the only alternative to addressing violations that occur in society.
As Sudikno Mertokusumo argued, ultimum remedium is the last tool. 19 Can use criminal penalties if other sanctions cannot solve a problem. So that later, criminals can be imposed appropriately because they are concerned about the human rights that every human being has. 20 Although it is not a constitutional principle, it is a legislative ethic in the criminalization stage. 21 The criminal act of abortion because of the rape that happened to him; if we look at it from a legal point of view without first discussing whether the perpetrator can be convicted or not, of course, abortion is unlawful; in other words, the perpetrator has killed the fetus he is carrying. In general, the regulation regarding abortion is contained in Articles 299, 346, 347, 348, and 349 of the Criminal Code. These articles clearly and straightforwardly explain the prohibition for any reason to carry out abortions, including abortions performed out of emergency (forced), i.e. as a result of rape, either for the perpetrator or who helped conduct the abortion. 22 Therefore, if abortus provocateurs is a choice that must be taken and made by rape victims, either at the request of themselves  2019, p. 201 or through the help of others with the consent or without the permission of the person concerned, then even by the criminal provisions of those who are victims of rape, cannot be free from existing legal entanglements so that the Criminal Code does not provide legal protection for women.
Article 346 of the Penal Code states, "A woman who intentionally aborts or turns off her womb or instructs others to do so, is punishable by imprisonment for a maximum of four years." According to the provisions contained in Articles 346, 347, and 348 of the Criminal Code, criminalist abortion includes acts of aborting the womb (afdrijving van de vrucht). And kill the womb (de dood van vrucht veroorzaken). 23 The law does not explain the difference in the notion of aborting the womb and killing the womb, nor does it describe the meaning of the womb itself. In terms of grammar, aborting means to make a fall or cause to fall, which is the same as falling or falling off. So aborting the womb means making the womb fall or causing it to fail. While killing is equivalent to causing death or eliminating life. So, killing the womb means causing the womb to die or taking the life of the womb. In the abortion of the womb, namely the release of the womb from the uterus and the family of the womb from the body of the pregnant woman. Meanwhile, in the murder of the womb, the act that is punished is to cause the death of the womb.
Abortion is the act of aborting the womb. In Indonesia, such actions are prohibited. Although abortion is legally banned, the reality is that abortions are still widely performed by women for various reasons because the existing regulations and laws are less accommodating to the causes that force women to perform abortions. In general, abortion can be divided into two types, namely: accidental abortion and forced abortion. An accidental abortion is a spontaneous abortion that occurs without any action.
In comparison, involuntary abortion is an abortion that occurs as a result of an effort. Can distinguish abortion in this second form into two types, namely abortion articles therapists and abortion procerus criminals. An abortion articles therapists is an abortion performed by a doctor based on medical indications performed as a salvation to the mother's life who is threatened if the continuity of the pregnancy is maintained. Meanwhile, a criminalist provocateurs abortion is an abortion that is performed without the basis of medical indications; for example, an abortion performed to negate the results of intercourse outside of marriage or to end an unwanted marriage.
When viewed from a medical point of view, there are no specific restrictions on when an abortion can be carried out. The womb can be aborted at any time if there are medical indications as a reason for the abortion. Such as if it turns out that the child may be born with severe disabilities or heart disease that is being suffered by the pregnant mother and will be very dangerous for the safety at the time of the delivery process in the future. Even if the fetus has entered the age of five months or six months, the abortus provocateurs, in this case, can still be done with medical considerations.
If you look at how to do it, abortion is divided into two, namely legal and not legal (illegal). Legal abortion is performed by a medical offender who has been approved by law in a State where the abortion is also performed for reasons permitted by law and a requirement that has undoubtedly been met, namely that the procedure is performed in an approved manner and the midwife must know in their Country concerning abortion. In some countries, for whatever reason, abortion is legalized to be completed in a place or institution approved by the government. 24 Meanwhile, illegal abortions are performed by people who are not permitted by law who then carry out the abortion process without definite procedures because it allows for the risk of infection that can make blood pressure drop drastically and life-threatening (sepsis), bleeding (hemorrhagation) and injury which is certainly not small. In the Health Law, it is emphasized that reproductive health must receive special attention. 25 The reason for having an abortion, both legal and illegal, is generally due to not wanting to continue the pregnancy until delivery which consists of health reasons, social reasons, economic reasons or even the presence of an emergency (forcing). 26 Not infrequently, there are cases of abortion, especially those performed by rape victims, for various reasons, one of which is not being ready to bear the shame of having to give birth to a child, not from the result of a legal marriage.
Abortion perpetrators due to rape certainly have a deep trauma sometimes; they prefer to be silent because it will embarrass the family name, especially in cases of rape which then makes them feel helpless (powerlessness), and abortion is sometimes a way to be done due to the pregnancy borne by the victim. However, it is necessary to emphasize that rape victim who have abortions still have the same rights that must be protected and get the same treatment before the law. Any violation of the law alleged against him and the impact experienced by the victim should receive the necessary protection from the law by legal principles because it is not a stranger when there are many rape cases where the law ignores the victim. It can be seen from the many issues with female victims that cannot resolve pretty and satisfactorily.
So far, many views have interpreted that abortion of a rape victim is equated with medical indications that can do it because of a psychic disorder to the mother that can also threaten the mother's life. But on the other hand, some view the abortion of rape victims as a criminal abortion because it does not endanger the mother's life. So, it should include abortion in the criminal act, where the abortion performed is to terminate the pregnancy before the fetus is born, without considering the fetus's age in the womb.With the issuance of the revision of the health law, the legality of abortion for rape victims has been contained in Article 75, paragraph 2 of Law Number 36 of 2009 concerning Health. 24  Everyone committing a crime must be sanctioned to achieve justice from the law. However, to impose a sentence on rape victims who have abortions, they must be guided by the Health Law. It is clear that the Criminal Code expressly prohibits abortion for any reason, whereas health laws allow abortion or indications of medical emergencies or for the presence of rape. In its implementation, it is necessary to have a review related to the articles in the Criminal Code that regulate the unemployment of the womb because there are conflicts with the Health Law and its derivative rules-supported by the Fatwa of the Indonesian Ulema Council Number 4 of 2005 which also provides an exception to the ban on abortion for women with conditions regulated in the Health Law. The issue of abortion more clearly has also been handled in PP No. 61 of 2014. The pp's publicity is relatively high because, until now, abortion is still a controversial and intriguing issue to debate.
Abortion is regulated in several articles, namely Article 75, Article 76 and Article 77 of the Health Law. 27 Abortion can be said to be a medical act and can be accounted for, justified and cannot be prosecuted in court if it is done so that the soul and health of the pregnant mother can be helped by the soul and health of the expectant mother. The child in the womb has the right to be given the same protection by law whereby he has the right to live, maintain and improve his degree of life. That is in line with what is stated in Article 75 subsection (1), which prohibits abortion from being performed. However, there are exceptions to the article under two conditions as stipulated in paragraph 2, namely: (1) there are indications of medical emergencies that can threaten the life of the mother and child, the presence of severe hereditary diseases and congenital disabilities, or things that can make it difficult for children born to live after birth; and (2) Pregnancy resulting from rape inflicts psychological trauma on rape victims.
Abortions performed should also not be arbitrary. Because in the formulation of Article 75, paragraph (3) states that can only the act of abortion, as referred to in paragraph (2), be done after going through counselling and pre-action counselling and ending with post-action counselling carried out by none other than a counsellor who has competence and authority. Can interpret that the formulation of this article explains that before an abortion is performed, there must be a consultation first before or after the abortion performed by those who are experts in their fields. 28 In addition to the reasons for the legalization of abortion in Article 75 paragraph (2), other conditions that must be met when a person is going to have an abortion as stated in Article 76 are: (1) "Before pregnancy is 6 (six) weeks old, it is calculated from the first day of the last menstruation, except in the case of medical emergencies; (2) Abortions are performed by health workers who, in this case, are competent and authorized and have certificates that the ministry has given; (3) With the consent of the pregnant woman concerned; (4) With the permission of the husband, except for the victim of rape; and (5) Conducted qualified health services as stipulated by the Minister. " Related to rape, may add victims with the permission of the family concerned to minimize the occurrence of unwanted things in the future, especially in the realm of law especially if there is a medical emergency that occurs in a rape victim where the consent of the family becomes very important to save the woman's life.
Women who become pregnant as a result of rape are clearly contrary to a woman's human rights because the rape that befell her resulted in physical, psychic and social injuries. The impact of violence causes trauma to the victim, which can affect a person's social life in daily activities. 29 The psychological effects on victims of sexual violence cause unstable emotions, often silence, unwillingness to socialize with family, depression, fear, anxiety, love to daydream, shame, and reluctance to gather with people around them. Social impacts include the victim's inability to continue his life anymore, not wanting to associate with the surrounding environment and even himself becoming isolated by family and neighbours.
Fetuses conceived as a result of rape basically have the right to life and to abortionists who are physically capable of giving birth to them. However, what becomes problematic is the psychological disorders or trauma that the abortionist then experiences after giving birth to the child. 30 These impacts are what make victims of sexual assault afraid and forced to have an abortion. The mental and psychological burden that rape victims have to carry makes them unable to think correctly about what things should be done, such as reporting that they were raped by their families or authorities so that abortion is not avoided. Because more victims choose to be silent by not telling about the events they have experienced, 31 it should emphasize that the indication of rape is if there is an element of coercion, there is a psychological disorder that does arise from the rape, where this is what needs to be further studied by a team of experts and can be proven not just a far-fetched reason. So that medical indications and rape victims do not become a tool or justification so that a person can easily have an abortion because of the legalization label of abortion.
Although there are restrictions on the permissibility of abortion in Indonesia, the reality is that the practice of illegal abortion is still proliferating. An illegal abortion performed by a person who does not have the competence and does not have official certification will undoubtedly harm the life of a person who intends to abort his womb. So that all forms of prevention are needed, one of which is synergy between the government and the community and with law enforcement officials in minimizing the illegal practice of 29 abortion, which will later take many victims. 32 In other words, abortions performed are not by what is stipulated in the laws and regulations mentioned above, so abortions are said to be illegal. That is specified in the Health Law and PP No. 61 of 2014 concerning Reproductive Health which provides an exception for abortion due to indications of medical emergencies and rape victims. Besides that, abortion is an act that is not allowed by law. Regarding the medical procedure of abortion, it has also been further regulated in the 2016 Regulation of the Minister of Health concerning Training and Implementation of Abortion Services for Indications of Medical Emergencies and Rape Emergencies.
Abortion is an option because of failure to use contraceptives, too many children, and aspects of poverty. Maria Ulfah, in her book The Jurisprudence of Abortion, explained that more than 60% of women who perform abortions are married. 33 At the same time, less than 40% of abortions are completed by those who are not married (teenagers) due to promiscuity, rape, incest, and the consequences of work as a Commercial Sex Worker. 34 The figures show that most abortions are performed as a result of unwanted pregnancies (KTD).
Abortions that are performed without applicable procedures and are not accompanied by medical Tenga will undoubtedly have an impact on the lives of pregnant women, as evidenced by the high Maternal Mortality Rate (MMR); this is strengthened by data from the 2012 Indonesian Demographic and Health Survey which states that there are 305 women per 100,000 deaths. That means that 38 mothers die every day after giving birth. Where 75% of maternal deaths are caused by severe bleeding (mostly post-saline), infections (usually post-saline), high blood pressure during pregnancy (preeclampsia/ eclampsia), old or stalled parts, and unsafe abortions. That illustrates that the 35 millennium development goals (MDGs) are to reach 205 or even lower in 2015, but it turns out that the ideal is far from expectations because then, in 2013, obtained the number 205. In 2020, the data showed a downward trend in the MMR indicator (per 100,000 live births) from 390 in 1991 to 230 or down -1.80 per cent per year. Despite the decline, MMR has still not reached the 2015 MDGs target of 102 and the SDGs in 2030, which is less than 70 per 100,000 live births. 36 Regulations related to the prohibition of abortion with criminal threats that are still regulated in the Criminal Code are still a frightening scourge for both perpetrators (pregnant women, doctors, midwives, shamans, etc.) as well as those who help the abortion process encourage silent, illegal and vulnerable abortions with the risk of death even though the Health Law has allowed specific indications. 37 Even if there are medical personnel who can help the abortion process run according to procedures with guaranteed safety from a medical point of view, the problem is that the cost of an abortion is relatively expensive, which makes them have to choose abortion illegally or on their own. 38 Choosing to maintain the womb, especially like a rape victim, is a better thing to do than to take the life of the conceived fetus. However, legal protection is needed for those who maintain the womb, especially the consequences of rape, not only legal guarantees but also social security. Society is often reluctant to accept children born not from legal marriages, so rape victims are repeatedly insulted and oppressed, especially when the child is maintained grows up. Do not let the child born into the world become material for others to insult or stigmatize the child, for example, with an "illegitimate child". That is society's role to be fair to women who are pregnant due to rape because of a legal certainty that has been given.
Those who have abortions due to rape should not be able to file charges or legal proceedings from the beginning, as long as it has been proven that the pregnancy experienced causes psychological trauma to the rape victim, especially if the rape victim is a child. 39 However, it should underline that the legal consequences of abortions performed without medical indication or rape, the perpetrators can be subject to criminal sanctions or accountable for their actions because a criminal is a punishment that can impose on an individual who, in this case, has been proven to have lawfully and convincingly committed a criminal act.

V. Conclusion
Abortion is a severe problem in the community because it is closely related to the problem of life. However, we should emphasize that not all abortionists are against the law, so in applying the law, it must be distinguishable which ones should be punished and which ones should be protected. The health law stipulates that for rape victims, abortions can be performed but must still pay attention to the conditions recommended by law. That the criminal law here is to seek material truth (material waarheid), meaning that when the perpetrator of abortion on the indication of a medical emergency or rape turns out to be legally processed, then the criminal law here must be able to seek, test and consider the legal facts revealed at trial and coupled with the judge's conviction. In addition, a complete legal arrangement that is clear and careful will have its impact on those abortionists who need legal protection when many people around are berating the consequences of their despicable acts even though there is a legal certainty that legalizes the act of abortion itself. But even if abortion is legalized, it is necessary to understand that a woman who performs an abortion should not be done carelessly. It is required to have counselling and pre-action counselling and end with post-action counselling carried out by a counsellor with the competence and authority of course in the health sector equipped with adequate health facilities or services as regulated in the laws and regulations. That is intended so that the abortion performed does not severely impact health, especially reproductive health, and saves the woman's life from arbitrary abortion.