Legal Reconstruction Of Cohabitation Regulations In The National Criminal Code

Abstract

The regulation of cohabitation in the National Criminal Code (KUHP) is a critical issue in the reform of Indonesian criminal law, particularly concerning the criminalization of private behavior and the protection of human rights. The regulation of cohabitation under Article 412 of the National Criminal Code reflects a shift in criminal law policy toward a moralistic approach that expands morality based offenses, yet simultaneously raises conceptual and constitutional problems. The formulation of “living together as husband and wife outside of marriage” is ambiguous, potentially violates the principle of legality especially the lex certa principle and opens the door to overcriminalization and discretionary abuse by law enforcement authorities. This research aims to analyze the ratio legis of cohabitation regulation in the National Criminal Code and formulate a legal reconstruction that is more rational, proportional and just. The research method used is normative doctrinal legal research, with legislative, conceptual and doctrinal approaches, through the study of the National Criminal Code and relevant legal theories. The results indicate that the regulation of cohabitation has not clearly defined the legal interests to be protected and lacks objective indicators that can be proven judicially, thereby creating legal uncertainty and distorting the function of criminal law. Cohabitation is criminalized primarily based on considerations of private morality rather than actual harm (serious harm). Therefore, a legal reconstruction is necessary, including clarification of the ratio legis, formulation of norms through the addition of clarifying provisions that comply with the lex certa principle and limitation of criminalization in accordance with the ultimum remedium doctrine.