Tourkia Rebhi (Université Djilali Bounaama Khemis Miliana), Syahwa Mastia Sofa Lubis (Sekolah Tinggi Agama Islam Negeri), Aftab Haider (Southwest University of Political Science and Law), Zul Fahmi (Sekolah Tinggi Agama Islam Negeri Mandailing Natal), and Sadmir Karović (University of Travnik) have posted Between Sanctions and Judicial Reasoning: Contemporary Perspectives on Gender Justice in Khalwat Cases in Aceh (Uqubah: Journal of Islamic Criminal Law) on SSRN. Here is the abstract:
Cases involving jarīmah khalwat in Aceh raise questions about the application of ‘uqūbat and judicial reasoning toward male and female defendants. This study examines sentencing patterns and judicial reasoning in jarīmah khalwat cases before the Mahkamah Syar’iyah through a substantive equality perspective on gender justice. Employing normative legal research with statutory, case, and conceptual approaches, the study analyzes eleven judgments representing seven jarīmah khalwat cases, identified through an online search of the Supreme Court of Indonesia’s judicial decision database using the keyword “Khalwat.” The analysis applies substantive equality, focusing on consistency in legal treatment, justification for differential treatment, and scrutiny of gender stereotyping. The judgments show both equal and differential treatment of male and female defendants, while the reasons for differential ‘uqūbat are not always articulated with sufficient legal clarity. Differential ‘uqūbat may constitute legitimate individualized sentencing when supported by relevant, objective, proportionate, and legally defensible grounds. However, reliance on gendered assumptions without clear legal justification may undermine substantive equality. The study proposes a gender-just judicial reasoning model emphasizing consistent legal standards, justified differential treatment, and scrutiny of gender stereotypes, providing a framework for assessing and articulating discretionary ‘uqūbat in a transparent, consistent, and accountable manner.
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