Gagasan Kebijakan Hukum Pidana Perluasan Makna Zina Pada Pasal 284 Kitab Undang-Undang Hukum Pidana Dikaitkan dengan Putusan Mahkamah Konstitusi Nomor: 46/PUU-XIV/2016

Abstract

The Criminal Code Draft Team made efforts to renew the adultery offense, which is about the
adulterers who originally were married men and married women as regulated in positive law in the 2017
Criminal Code Draft Article 484 includes men and women who are not bound by each legal marriage with
other people. In addition to causing pro-contra, this is exacerbated by the protracted discussion of the
Criminal Procedure Code that there are no signs that will be ratified since 1963 until an idea emerges to
expand the meaning of zina through the Constitutional Court but it is rejected by the Constitutional Court.
The impact of this adultery can damage the moral and religious values that exist in Indonesian society based
on the supreme divinity, so that gradually this action seems to be a legalized act because of the lack of rules
Law in Indonesian positive law is a threat to national identity.
This type of research used in legal research is a normative juridical method, this research is
descriptive, that is a study that aims to describe the problem clearly and in detail. The source of the data
used secondary data and tertiary legal materials. Data collection techniques in this study with the literature
review method after the data collected is then analyzed to draw conclusions.
From the results of the research and discussion, it can be concluded that, First, the reasons derived
from the foundation of moral values / national agreements which state that zina violates the values of
morality (national agreement) that exist in Pancasila which contain values based on national life for the
One Godhead (religious moral values). Second, the regulation of adultery in the Criminal Procedure Code
tends to be overcriminalized and does not pay attention to the impacts that can occur. Third; In order to
avoid the implications of legal chaos, the regulation regarding zina should not over criminalize or expose
the principle of ultimum remedium and to overcome the protracted drafting of the RKUHP, the progressive
legal breakthrough is needed by the Constitutional Court to expand the meaning of zina in Article 284 of the
Criminal Code In the Constitutional Court Decision Number: 46 / PUU-XIV / 2016 the majority of judges
still use the legal positivist thinking pattern, which results in the rejection of the material test suit. the strong
flow of public opinion that wants the Constitutional Court to be a way out of the deadlock that occurs
because the thing being tested is contrary to moral values.
Keywords: Criminal Law Policy - Adultery - Judge's Decision