Double Track Criminal System of Indonesia: Criminal Sanction and Chemical Castration Treatment Policy on

Pedhofilia?

DOUBLE TRACK CRIMINAL SYSTEM OF INDONESIA:

CRIMINAL SANCTION AND CHEMICAL
CASTRATION TREATMENT POLICY ON
PEDHOFILIA?
1
Appludnopsanji, 2Ani Purwanti
1
Faculty of Law, Universitas Diponegoro, Semarang, Indonesia, [email protected]
2
Faculty of Law, Universitas Diponegoro, Semarang, Indonesia, [email protected]

Abstract

Cases of sexual contact with threats or violence perpetrated against children by adult offenders may be subject to
criminal penalties and treatment of chemical castration. This is governed by Law No. 17 of 2016, which passed the
Government Regulation in lieu of Law No. 17 of 2016. The existence of criminal sanctions and acts in the form of
chemical castration is a breakthrough and a manifestation of the implementation of double-track sentencing. The
chemical castration treatment has led to the opposition of society. Consequently, to find out how the regulation of
chemical castration treatment and to know what chemical castration is appropriate with the double-track criminal
system. It is necessary to researching doctrinal research. The results showed that chemical castration is an
treatment and castration has been contradicted with the double-track criminal system adopted by Indonesia.

Keywords: Criminal Sanction; Chemical Castration Treatment; Double-Track System

1. Introduction
Indonesia has happened many changes in the field of law at the moment. One of the
changes occurred in the field of criminal law. The development of criminal law can be seen in
manifesting the perpetrators from a criminal orientation to punishment. The criminal sanctions of
criminal law originally was only for retribution for the act of the perpetrator. Today, not just for
vengeance, but also to provide protection for criminals to become successful in the future, such
as treatment, is the progression of criminal law. This is classified as a criminal sanction using
either a two-track system or a double-track system.1
Indonesian Penal Code is commonly familiar with criminal sanctions and penalties for
conduct, namely those found in Article 10 of the Criminal Code relating to forms of criminal
sanctions, while the law contained in Articles 44, 45, 46 of the Criminal Code are concerned. It
is undeniable that Indonesian material criminal law is being used now or that the Criminal Code
has not been able to be maximized because it has been codified for too long and can’t summarize
all legal issues in the criminal field, so then the enactment of special crime law that
accommodates all special legal events. The presence outside of the Criminal Code of special

1
Aisyah Amini Burhanuddin, “Penerapan Sistem Dua Jalur Dalam Putusan Perkara Anak Yang Berhadapan
Dengan Hukum,” Al Hikam 2, no. 1 (2018): 34–49.

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 Double Track Criminal System of Indonesia: Criminal Sanction and Chemical Castration Treatment Policy on
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criminal law and criminal law is a representation that criminal law wishes to achieve, especially
in the effort to deal with crime. This effort to prevent crime can’t be eliminated from the name of
a crime prevention policy in the form of regulations made by the authorities that are an integral
part of social policy for achieving social welfare and protection of the community.2
The sentencing of a criminal sentence using double-track system, constitutes a sentence in
the form of a criminal offense and an treatment against the accused. Such sentences are based on
abandoning previous weaknesses by abandoning the traditional approach and giving rise to good
advantages and aims in which such a system is a system that has been applied internationally and
as a source of Neo-classical schools in criminal law.3
The presence of Law Number 35 of 2014 concerning amendments to Law Number 23 of
2002 concerning Protection of Children to guarantee and protect children's welfare including
protection of children's rights from violence and inhuman discrimination. This law adheres to the
name of the double-track system that discusses the existence of criminal sanctions and treatment.
Criminal sanctions are intended for perpetrators whose aim is to deter perpetrators, while
treatment is given to children as victims for the recovery of conditions for children. This can be
found in Law No. 35 of 2014, namely in Articles 81 to 89 concerning criminals and Article 69A
regarding these treatment. Nevertheless, it has not yet been identified that criminal sanctions and
treatment are being enforced on perpetrators whose purpose is not only to turn over the
perpetrators but to handle the perpetrators so that they do not do so again in the future.
On 9 November 2016, Law No. 17 of 2016 on the Stipulation of Government Regulation
Replaced Law No. 1 of 2016 on the Second Amendment to Law No. 23 of 2002 on Child
Protection Becomes an Treatment. This law was born because there was an urgent condition in
Indonesia that sexual violence against children would be a matter of emergency, originally
referred to as Government Regulation in Instead of Law No 1 of 2016. 4 As a result of Indonesia's
emergency conditions of sexual violence against children and the number of cases of sexual
violence against children each year has increased and it is judged that there is still a lack of
punishment for perpetrators of sexual violence against children and that it does not deter
perpetrators except under these rules, The State is present to guarantee children's right to
survival, growth and development, as well as protection from violence and discrimination.

2
Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana (Semarang: Prenadamedia Group, 2018).
3
Muladi Muladi and Barda Nawawi Arief, Teori-Teori Dan Kebijakan Pidana (Bandung: Alumni, 2010).
4
Nabila Tashandra, “DPR Sahkan Perppu Kebiri Menjadi Undang-Undang,” n.d.,
https://nasional.kompas.com/Read/2016/10/12/13333281/Dpr.Sahkan.Government Regulation In Lieu Of
Law.Kebiri.Menjadi.Undang-Undang?Page=All.

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Explicitly, the contents of the article in the regulation are already present in it the concept
of the double-track system. Where there are criminal sanctions and treatment imposed on
perpetrators of sexual violence against children. As an example contained in the contents of
Article 81 paragraphs (1) and (7) Government Regulation in Instead of Law No 1 of 2016. In
paragraph 1 it explains that every person who violates the provisions of Article 76D shall be
sentenced to a maximum imprisonment of 5 (five) years and a maximum of 15 (fifteen) years
and a maximum fine of Rp.5,000,000,000.00 (five billion rupiahs). Paragraph (7) explains that
the perpetrators as referred to in paragraph (4) and paragraph (5) may be subject to treatment in
the form of chemical castration and the installation of electronic detection devices. From the two
verses already appear criminal sanctions and treatment in it, but seen from the concept of the
double-track system whether the treatment in the form of chemical castration is appropriate and
equivalent to criminal sanctions needs to be studied in depth in the current author's research.
This research focuses on treatment in the form of chemical castration. This research has
been studied by several people including Nuzul Qur'aini Mardiya in 2017.5 This research focuses
on the application of chemical castration sanctions for perpetrators of sexual violence, Nur
Hafizal Hasanah and Eko Supoyono in 2018.6 The title of research on criminal law policy on
chemical castration sanctions and the perspective of human rights and law Indonesian criminal.
and has been investigated by Cesar Antonio Munthe in 2016 which focuses on the relevance of
chemical castration sanctions in Government Regulation in Lieu of Law number 1 of 2016 on the
second amendment to law number 23 of 2002 concerning the protection of children against
criminal purposes.7 Based on previous research, there are differences in the focus of research to
be conducted by the author with previous researchers. Although, It looks same about chemical
castration, the writer emphasizes the compatibility and equality of the basic idea of the double-
track system between criminal sanctions and treatment of chemical castration that occur in
Indonesia. In the context of the problem above, it is natural that this study moves around the
question of how criminal law policy on treatment in the form of chemical castration at this time

5
Nuzul Qur’aini Mardiya, “Penerapan Hukuman Kebiri Kimia Bagi Pelaku Kekerasan Seksual Implementation
Of Chemical Castration,” Jurnal Konstitusi 14, no. 1 (2017): 214–33.
6
Nur Hafizal Hasanah and Eko Soponyono, “Kebijakan Hukum Pidana Sanksi Kebiri Kimia Dalam Perspektif
Ham Dan Hukum Pidana Indonesia,” Jurnal Magister Hukum Udayana (Udayana Master Law Journal) 7, no. 3
(2018): 305–17.
7
Cesar Antonio Munthe, “Relevansi Sanksi Kebiri Kimia Dalam Perpu No. 1 Tahun 2016 Tentang Perubahan
Kedua Atas Undang-Undang Nomor 23 Tahun 2002 Tentang Perlindungan Anak Terhadap Tujuan
Pemidanaan,” Justitia Et Pax 32, no. 2 (2017): 106–22.

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and how criminal law policy on chemical castration treatment in the sense of the basic ideas of
the concept of the double-track system.

2. Methods
Research is a basic effort and not just observing carefully an object that is easily held. This
type of research used in this paper is doctrinal legal research because it examines the systematic
regulation of laws and examines the synchronization of statutory regulation. The legal materials
used in this study were obtained from secondary legal data sourced from library research.
The article uses secondary information in reading. Secondary data is indirect information
derived from the research object's origin. Such details are in the form of legally binding material
(primary legal content), Legal material providing further descriptions of primary legal material
such as books, papers and internet related to the topic of this study (secondary legal material) and
legal material providing a clarification of the above two legal materials (tertiary legal material),
since this legal material is capable of clarifying the terms and problems that may arise; for
example, is a legal dictionary and other language dictionaries. The technique used in secondary
data collection is through library research or documentary study, which is a study that examines
various documents related to both legislation and other available documents. The last step is to
collect data-data that has been collected so that it becomes a legal writing that can address the
questions that have been previously developed to help the reader draw a correct conclusion.

3. Results and Discussion

3.1. Criminal Policy about Chemical Castration in Indonesia
The legal policy problem about treatment of chemical castration can not be isolated from
the widespread and large cases of sexual abuse that are now affecting Indonesian children.
According to data from the LPSK (Witness and Victim Protection Agency) submitted by LPSK
Deputy Chairperson Edwin Partogi Pasaribu data on child sexual abuse there was a substantial
increase, including 25 cases in 2016, then rose to 81 cases in 2017, and the maximum in 2018
was 206, in 2019 was 123 cases. It was revealed that 80.23 percent of the perpetrators of sexual
violence against children are dominated by the closest people, according to Ahmadi as the

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Deputy Chairperson of other LPSKs. In the meantime, 19.77% were carried out by unknown
people.8
Based on the data that it has occurred in Indonesia concerning cases of sexual violence
against children, it is true that if it is now linked to laws and regulations, it is not able to respond
to the existing problems, so that it has not been able to provide protection and prevention in
order to not function properly. The penalty levied on sexual violence offenders did not have a
deterrent effect on the individual and could not change the offender's act to become a better
person. In this case, in 2016, President Joko Widodo released and signed a criminal law
regulation on Government Regulation instead of Law No. 1 of 2016 relating to the Second
Amendment to Law No. 23 of 2002 on Child Protection, which was subsequently approved by
the legislature and became Law No. 17 of 2016 About the stipulation of Government Regulation
instead of Law No. 1 of 2016 on Child Protection Amendment to Law No. 23 of 2002. 9
Criminal law policy is an effort at one time to enforce good regulations according to the
circumstances and situations.10 According to Sudarto, implementing criminal law politics means
holding activities to make rules in order to achieve the best results of criminal legislation in the
sense of meeting the requirements of justice and usability by circumstances and situations at a
time and for the days to come. Criminal law enforcement policy is a series of processes that
consist of three policy stages. First, the stage of formulating policy or legislative policy stage,
namely the stage of criminal law formulation. Second, the stage of judicial/applicative policy,
namely the stage of applying criminal law. Third, the executive / administrative policy stage,
namely the stage of implementing/executing criminal law.11 The criminal law policy as outlined
in Indonesia's child protection legislation has been amended by adding penalties and additional
sentences regulated in Government Regulation instead of Law No. 1 of 2016 for perpetrators of
sexual violence against children contained in Article 81(7) Government Regulation instead of
Law No. 1 of 2016, namely: Actors as referred to in paragraph (4) and paragraph (5) may be
subject to act in the form of chemical castration and installation of electronic detection devices.
There is a period of 3 (three) years from the existence of the Treatment.

8
Arief Ikhsanudin, “KPAI Sebut Kasus Kekerasan Seksual Anak Meningkat Akibat Pengaruh Digital,” n.d.,
https://news.detik.com/Berita/D-4640789/Kpai-Sebut-Kasus-Kekerasan-Seksual-Anak-Meningkat-Akibat-
Pengaruh-Digital.
9
Lidya Suryani Widayati, “Pengebirian Sebagai Upaya Perlindungan Anak Dari Kekerasan Seksual,” Info Singkat
Hukum 7, no. 20 (2015): 1–4.
10
Junita Mokale, “Pedofilia Sebagai Salah Satu Bentuk Kejahatan Kekerasan Seksual Terhadap Anak,” Lex
Crimen 2, no. 5 (2013): 98–107.
11
Krismiyarsi Krismiyarsi, “Kebijakan Sanksi Kebiri Kimia Bagi Pelaku Kekerasan Seksual Terhadap Anak
Kajian Politik Hukum Pidana,” Seminar Nasional Hukum Universitas Negeri Semarang 4, no. 1 (2018): 90–109.

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Chemical castration is conducted by injecting anti-androgen chemicals into the body of a

person and the best way to treat child predator of sex and safe children from criminal. 12 The goal
is to reduce the hormone testosterone production. The end effect is similar to that of actual
castration.13 Wimpie Pangkahila, professor at the Faculty of Medicine at Udayana University,
said the word anti-hormone testosterone came from the chemical castration. The perpetrator is
expected to lose sex drive through this drug so that he doesn't want to and can't do it anymore.14
However, sexual desire is not only affected by the testosterone hormone. Chemical castration has
been investigated with the use of anti-androgens to lower testosterone levels in sexually risky
males since the 1940s. Around two decades later, Dr. John Money became the first person in the
United States to prescribe the drug Medroxyprogesterone Acetate (MPA) to sex offenders. While
other chemical agents have been administered to such offenders worldwide, MPA is the most
commonly administered drug in the U.S. for the purpose of chemical casting. 15 There are other
factors that promote this, including past sexual encounters, health conditions, and sexual function
psychological factors. Therefore, the desire to have sexual intercourse will not necessarily
completely disappear despite being given anti-testosterone drugs.
The implemention chemical castration treatment of Indonesia is further regulated in article
81A paragraph (1) Government Regulation in Lieu of Law No. 1 of 2016 namely: "The
treatment as referred to in Article 81 paragraph (7) shall be imposed for a maximum period of 2
(two) years and to be carried out after the convict has served the principal crime". Execution of
chemical castration treatment is agreed jointly with the main perpetrator, but after the major
criminal treatments followed by rehabilitation, the execution of the chemical castration treatment
is carried out. Chemical castration treatment with a maximum period of 2 (two) years and the
implementation of chemical castration treatment under the Ministry of Law, Social, Health will
be monitored. More detailed implementation procedures will be regulated by government

12
Vedije Ratkoceri, “Chemical Castration As A Security Measure In The Criminal Legislation Of The Republic Of
Macedonia,” International Journal Of Social Sciences And Education Research 3, no. 2 (2017): 357–60.
13
Supriyadi Widodo Eddyono, Ahmad Sofian, and Anugerah Rizki Akbari, Menguji Euforia Kebiri Catatan Kritis
Atas Rencana Kebijakan Kebiri (Chemical Castration) Bagi Pelaku Kejahatan Seksual Anak Di Indonesia
(Jakarta Selatan: Institue For Criminal Justice Reform Ecpat Indonesia Mappi FH UI Koalisi Perempuan
Indonesia Aliansi 99 Tolak Perppu Kebiri, 2016).
14
Hasanah and Soponyono, “Kebijakan Hukum Pidana Sanksi Kebiri Kimia Dalam Perspektif Ham Dan Hukum
Pidana Indonesia.”
15
Elizabeth M Tullio, “Chemical Castration for Child Predators: Practical, Effective, and Constitutional,”
Chapman Law Review 13, no. 19 (2010): 191–220.

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regulations, but the detailed chemical castration treatment is unfortunately not regulated until
now.16
The presence of this law has caused some circles of conflict, the conflict has arisen as a
result of the addition of punishment in the form of chemical castration and electronic detection
devices for sexual violence perpetrators (receive) against children and the position of the
function from chemical castration. Despite of happen a contradictions about this treatment, in
2019 there was a court ruling namely the Mojokerto District Court which sentenced him to 12
(twelve) years in prison, a fine of Rp 100.000.000,- (one hundred million rupiahs) in 6 (six)
months confinement and criminal addition in the form of chemical castration to convict named
Muh. Aris Syukur who had raped 9 (nine) children.17 In this case, law enforcement officials
consider chemical castration as an additional crime to the perpetrators. This is different from the
meaning of the contents of article 81 paragraph (7) which explains that the perpetrators as
referred to in paragraph (4) and paragraph (5), namely in the case of intercourse which has
caused more than 1 (one) victim, causing the victim to be disturbed psychiatric, infectious
diseases suffered, severe injuries, malfunctioning of the victim's reproductive organs even until
the victim dies. Perpetrators can be threatened with a criminal sentence of imprisonment of at
least 10 (ten) years and a maximum of 20 (twenty) years.18 Then be detailed again that the
perpetrators who meet these requirements may be subject to treatment in the form of chemical
castration carried out after undergoing criminal treatment and afterward only carried out
chemical castration treatment. If law enforcement officials consider that chemical castration is an
additional crime,19 then the meaning in paragraph (9) will be different, which explains that
additional penal and treatment are excluded for children. If our see from the contents of the
verse, what is meant by additional penal there is in the form of an additional number of crimes.
i.e. the criminal plus 1/3 (one-third) of the criminal threat given. While the treatment referred to
in paragraph (9) are treatment in the form of chemical castration and electronic detection
devices. So if the judge decides the case considers chemical castration as a criminal sanction, it
can be said that the judge is considered inaccurate and there is a mistake in deciding a case that is

16
Mardiya, “Penerapan Hukuman Kebiri Kimia Bagi Pelaku Kekerasan Seksual Implementation Of Chemical
Castration.”
17
Enggran Eko Budianto, “Ini Alasan Hakim Tambah Vonis Kebiri Kimia Ke Predator Anak Di Mojokerto,” n.d.,
https://news.detik.com/Berita-Jawa-Timur/D-4681082/Ini-Alasan-Hakim-Tambah-Vonis-Kebiri-Kimia-Ke-
Predator-Anak-Di-Mojokerto.
18
Muhammad Andi Dirgantara et al., “Analisis Yuridis Kebijakan Pemidanaan Dengan Hukuman Kebiri Terhadap
Pelaku Pedofilia,” Usu Law Journal 5, no. 1 (2017): 119–27.
19
Adam Yuriswanto and Ahmad Mahyani, “No TitleHukuman Kebiri Sebagai Pidana Tambahan Dalam Tindak
Pidana Kejahatan Seksual,” DiH Jurnal Ilmu Hukum 14, no. 27 (2018): 28–40.

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not based on existing regulations because of the position of the chemical castration in positive
Indonesian law listed in Government Regulation in Lieu of Law No. 1 of 2016 is a form of
treatment and is not a criminal sanction and its position is equal to criminal sanctions whether
they are basic or additional crimes, even though it is assessed by the public that treatment in the
form of chemical castration have a great impact on the perpetrators.
Obviously, incorporating retribution in the form of chemical castration treatments would
reap the benefits and drawbacks in different circles. The inconsistency can be caused by
treatments in the form of chemical castration in violation of human rights (HAM) Article 28B (1)
of the Republic of Indonesia Constitution of 1945.20 Furthermore, it violates the criminal theory
adopted by Indonesia today, namely the combined theory (Vernegings Theorien). This combined
theory bases the criminal on the principle of retaliation and the principle of defense of public
order. There are 2 (two) major groups in this combined theory including: a joint theory that
prioritizes retaliation, but retaliation must not exceed the limits of what is necessary and
sufficient to be able to maintain public order and a joint theory that prioritizes community
protection, but suffering over the fall the crime must not be more severe than the treatment of the
convicted person.21
Chemical castration treatment currently in force in Indonesia is considered to be a very
scary punishment and even more impact than criminal sanctions. Fear felt by the offender when
subjected to these chemical castration treatment can be seen from the effects in chemical
castration caused by the offender such as: Decreased sexual desire, headaches, nausea and chills,
gynecomastia (appearance of breasts in men), weight gain, the ability to erect, phlebitis (a
disease that attacks the blood), intestinal bleeding, diabetes. Subsequent inconsistencies also
emerged from IDI (Association Doctors of Indonesia), which refused to become executors in the
introduction of chemical castration treatment because it was contradictory to the medical code of
ethics and the oath of the physician.22

20
Messy Rachel Mariana Hutapea, “Penerapan Hukuman Tindakan Kebiri Kimia Dalam Perspektif Hak Asasi
Manusia,” Jurnal Hukum Magnum Opus 3, no. 1 (2020): 26–34.
21
Ruben Achmad, “Hakekat Keberadaan Sanksi Pidana Dan Pemidanaan Dalam Sistem Hukum Pidana,” Legalitas
V, no. 2 (2013): 79–104.
22
Atet Sumanto, “Tindakan Kebiri Kimia Bagi Pelaku Tindak Pidana Persetubuhan Dengan Menggunakan
Kekerasan Terhadap Anak Di Indonesia,” Perspektif 22, no. 2 (2017): 111–22.

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3.2. Chemical Castration Is Related To the Principle of the Basic Idea of the Double-
Track System in Indonesia
Indonesian Penal Code has governed penalties and conduct in criminal matters. This is
governed in Article 10 of the Penal Code which specifies that a criminal offense consists of basic
crime and additional sanctions. Major crimes include capital punishment, parole, imprisonment,
fines. Whereas additional offenses are the deprivation of certain freedoms, the confiscation of
certain property, the declaration of the verdict of a judge. The purpose of the article is intended
so that the judge may not deviate from Article 10 of the Criminal Code in making the verdict.
Whereas the treatments in the Indonesian Penal Code are governed in Article 44 which states
that a person can not be held accountable to him because his soul is deficient in his body or
impaired as a result of disease, the person can not be punished but the judge can order the person
to be admitted to a mental hospital.23
The basic idea of the double-track system means talking about the basic idea of the penal
system, which is the basis of the criminal law framework and the use of witnesses.24 This
double-track system's basic idea is the equality between criminal sanctions and treatment. Equal
penalties and treatment under the double-track system are related to the fact that the element of
reproach (through criminal sanctions) and the elements of punishment (through sanctions
treatment) are equally important.25 The value of criminal sanctions and beneficial steps to
optimize the use of both sanctions in a balanced manner, avoid fragmentary sanctions (which
overemphasize criminal sanctions) and also ensure the implementation of operational sanctions
systems.26
According to Alf Ross, the difference between "criminal sanction" and "treatment" is not
based on the presence or absence of the first element (suffering), but must be based on the
presence or absence of the second element (reproach element). Herbert L. Packer also argues that
the level or degree of cruelty is not a characteristic that distinguishes "criminal sanction" and
"treatment". The difference must be seen from the purpose and to what extent the role of the
perpetrator's treatment in the existence of a crime or treatment. According to Herbert L. Packer,

23
Sudaryono Sudaryono and Natangsa Surbakti, Hukum Pidana Dasar-Dasar Hukum Pidana Berdasarkan KUHP
Dan RUU KUHP (Surakarta: Muhammadiyah University Press, 2017).
24
Gita Santika Ramadhani, Barda Nawawi Arief, and Purwoto Purwoto, “Sistem Pidana Dan Tindakan ‘“Double
Track System”’ Dalam Hukum Pidana Di Indonesia,” Diponegoro Law Review 1, no. 4 (2012): 1–9.
25
Dwi Wiharyangti, “Implementasi Sanksi Pidana Dan Sanksi Tindakan Dalam Kebijakan Hukum Pidana Di
Indonesia,” Pandecta 6, no. 1 (2013): 80–85.
26
M Sholehuddin, Sistem Sanksi Dalam Hukum Pidana Ide Dasar Double Track System & Implementasinya
(Jakarta: Raja Grafindo Persada, 2004).

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the main purpose of "action" is to provide benefits or to improve the person concerned. The
focus is not on his past or future actions, but on the goal of helping him. 27
So, the basis for the justification of "treatment" is the view that the person concerned will
or maybe better. The main goal is to improve their welfare. Meanwhile, the justification of
"criminal sanction" is based on two objectives, including the prevention of crime or undesired
conduct or offending conduct and the deserved infliction of suffering on evildoers or retribution
for perceived wrong doing. So, in criminal matters, the focus is on wrongdoing or criminal acts
that have been committed by the perpetrator. Thus the treatment has a big role and is a condition
that must exist, for the existence of "criminal sanction". Furthermore, Herbert L. Packer
emphasized that in the case of "criminal sanction" we treat someone because he has done
something wrong with the aim, either to prevent the recurrence of the treatment or to wear
suffering or both. In the case of "treatment", there is no need to have a relationship with the
treatment; we treat the person because we think or think that he or she will get better. We can
also hope that the person who is subject to punishment will be better, but it is not because of this
that we do so, the main goal is to prevent wrongdoing and not improve the offender. Therefore,
between "criminal sanction" and "treatment" must be considered and aimed at a person's future
activity to something he has done in the past and the protection of others rather than the
betterment of the person being dealt with, then such treatment is called "criminal sanction". In
connection with the difference between criminal sanction and treatment, Van Bemmelen stated
that the system for including treatment or maatregelen in addition to criminal or straf so that they
are "zweispurig" in Holland, is implemented in such a way that the crime also aims at educating
criminals, while actions also bring suffering because they are almost always accompanied by
deprivation or restriction of freedom.28
From the origin of different basic concepts, the distinction between criminal sanctions and
treatment can be seen. Criminal sanctions are based on the basic idea: Why is criminal
punishment?, while sentences are based on the basic idea: Why is criminal punishment being
carried out?,29 This means that criminal sanctions are responsive to an treatment while
punishments are more forward-looking measures against the treatment perpetrators.
Traditionally, it can be said that the distinction between criminal sanctions and behavior

27
Dede Kania, “Pidana Penjara Dalam Pembaharuan Hukum Pidana Indonesia,” Yustisia Jurnal Hukum 3, no. 2
(2014): 19–28, doi:10.20961/yustisia.v3i2.11088.
28
Pratiwi Ayu Sri Daulat, “Urgensi Penggunaan Sanksi Hukum Pidana Dalam Konteks Penanggulangan
Kejahatan,” Hukum Dan Dinamika Masyarakat 16, no. 1 (2018): 79–86.
29
Sholehuddin, Sistem Sanksi Dalam Hukum Pidana Ide Dasar Double Track System & Implementasinya.

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according to Prof. Sudarto is that the criminal is punishment for the maker's errors, while the
treatment is for public safety and the maker's learning or treatment. 30
Roeslan Saleh said that if a criminal does not just impose a crime in an effort to achieve his
goal, it also uses treatment. There are also treatments, however, in contrast to the criminal
sanctions. This is intended solely for special prevention. The aim of this treatment is to protect
people's safety against people who are a bit dangerous and are going to commit criminal law. 31
Punishment of treatments directed at criminal offenders based on defense, so that criminal
offenders are safer and not just for revenge purposes. Treatment is also forward-looking so that
the victims try to better realize that what has been done is wrong and violates the law, so it won't
be repeated later. Based on H.L. Packer about treatment, the primary purpose of therapy is to
support the individual being treated. The emphasis is not on his behavior, history or future, but
on supporting him.32
Examples of the application of criminal sanctions and treatment in special laws outside the
Criminal Code include Law Number 32 of 2009 concerning Environmental Protection and
Management which adheres to double-track system in imposing sanctions. Article 98 through
Article 118 of Law number 32 of 2009 concerning Environmental Protection and Management
regulates criminal penalties in the form of imprisonment, confinement, and fines. Whereas the
regulation on sanctions for treatment can be seen from Article 119 of Law number 32 of 2009
concerning Environmental Protection and Management which explains that the treatment is in
the form of deprivation of profits obtained from treatments, closure of all or part of the place of
business and/or treatment, improvement due criminal offense, the obligation to do what was
neglected without rights; and/or company placement under a maximum of 3 (three) years.
Furthermore, Law Number 35 of 2009 concerning Narcotics also adopts double-track system in
imposing sanctions. This can be seen from Articles 111 to 144 and 147. These articles constitute
the imposition of sanctions in the form of capital punishment, imprisonment, confinement, and
fines. While sanctions for treatment are contained in Chapter IX starting from Article 53 to
Article 56 of Law Number 35 of 2009 concerning Narcotics in the form of rehabilitation. 33

30
Muladi and Arief, Teori-Teori Dan Kebijakan Pidana.
31
Marcus Priyo Gunarto, “Asas Keseimbangan Dalam Konsep Rancangan Undang-Undang Kitab Undang-Undang
Hukum Pidana,” Mimbar Hukum 24, no. 1 (2012): 84–97.
32
Muladi and Arief, Teori-Teori Dan Kebijakan Pidana.
33
Wiharyangti, “Implementasi Sanksi Pidana Dan Sanksi Tindakan Dalam Kebijakan Hukum Pidana Di
Indonesia.”

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Diponegoro Law Review, April 2021, Volume 06, Number 01
 Double Track Criminal System of Indonesia: Criminal Sanction and Chemical Castration Treatment Policy on
Pedhofilia?

From example above, we can know that double-track criminal system of indonesia
explained that between criminal sanctions and treatment constitute a breakthrough regarding
Indonesian penalties which were initially oriented only to deploying the perpetrators but with the
presence of this double-track system the aim of Indonesian penalties is not only to enact but the
perpetrators to make improvements, recovery to the perpetrators as adhered to the combined
theory based on aspects of retaliation and defense of public order. However, in its development,
there is a rule that creates confusion and inconsistency in the application of penalties between
criminal sanctions and treatment as regulated in the double-track system. That rule is in Law No.
17 of 2016 concerning the stipulation of Government Regulation in Lieu of Law number 1 of
2016 concerning Amendment to Law Number 23 of 2002 concerning Child Protection.
This statute explains the existence of criminal sanctions and treatment including
imprisonment, namely by adding criminal sanctions, Including imprisonment, civil fines and the
presence of chemical castration penalties. The presence of these two forms of sanctions is a
problem related to the regulation of sanctions, the severity of sanctions and the formulation of
sanctions themselves. But in reality, in the development of society, it is known that the penal
sanctions that are regulated are in fact not very impactful and are even more feared by the public
ie castration chemistry treatment with the explanation that chemical castration treatment is a new
legal development that could harm the victims and is full of confusion and contradictory in
deciding the types and forms of punishment for compliance by the authorities. To overcome the
complexity of the penalty stipulation to law, it is necessary to establish a penalty pattern as a
guide for the planning of the penalty system so that contradictions do not occur in terms of
enforcement.
Sholehuddin explained that the pattern of punishment is different from the guidelines of
the criminal code. The term pattern refers to a reference or guideline for composing a criminal
for a rule (the policy stage of the law) whereas the criminal guideline is a guideline for
imposing/applying a criminal to a judge (the stage of judicial procedure).34 The punishment
pattern will function as a legislative guideline for lawmakers in the above explanation, and a
criminal guideline is a guideline for judges' jurisdictionIn-Law No. 17 of 2016, the problem lies
in the pattern of convictions that have an impact on criminal guidelines because the making of
the law is based solely on a one-sided view that does not think extensively to achieve the goal of
punishment, resulting in inconsistency in criminal proceedings.

34
Sholehuddin, Sistem Sanksi Dalam Hukum Pidana Ide Dasar Double Track System & Implementasinya.

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Diponegoro Law Review, April 2021, Volume 06, Number 01
 Double Track Criminal System of Indonesia: Criminal Sanction and Chemical Castration Treatment Policy on
Pedhofilia?

Based on the concept of the double-track system, chemical castration treatment was
deemed to be excessive in understanding the basic concept of the double-track system, implying
that there is no equivalent punishment among sanctions and treatment. Chemical castration
treatment in the form of physical punishment is known as a penalty because it can cause disease
and ways of taking the right to freedom and even the perpetrator's right to existence. This
contradicts the meaning of the law itself, which focuses on restoring public or private physical,
emotional and certain disabilities. Then, when assessing criminal penalties or treatments,
consideration must be given to the nature of the offenders (individuals or corporations) to
achieve the aim of fair justice effectively, but with the absence of such laws lead to
discrimination in the care of victims who may be unhappy in the future.

4. Conclusions
The conclusion to be drawn from the above discussion, namely; first: adding punishment in
the form of chemical castration will reap the benefits and disadvantages of certain circles. The
contradiction can be initiated by treatment in the form of chemical castration in violation of
human rights (HAM) Article 28B(1) of the Republic of Indonesia Constitution of 1945, In other
words, everyone has the right to form a family and to continue to have offspring through legal
marriage. It also contradicts Indonesia's existing criminal theory, namely the combination theory
which prioritizes retaliation, but retaliation must not surpass the limits of what is necessary and
sufficient to maintain public order and a common theory that prioritizes community security,
But the crime must not be more severe than the convicted person's treatment. As specified in
Government Regulation in Location of Law Number 1 of 2016, the role of chemical castration in
Indonesian positive law is a treatment, not a criminal sanction. Nevertheless if it looks at the
effects of chemical castration, the task of chemical castration is considered a criminal penalty.
Second: chemical castration treatment is considered to be excessive in the understanding of the
basic principles of the double-track system, implying that there is no equality of criminal
sanctions and treatment. Chemical castration treatment contradicts the meaning of the sanction
itself, which aims to restore certain public or private circumstances to physical, psychological
and psychological conditions.

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