Visum et Repertum as Evidence in Sexual Violence Prosecutions : A Criminal Law Literature Review

: Sexual violence is a global problem that must be investigated and prosecuted. Visum et Repertum is a written statement made by a doctor at the official written request of an investigator regarding a medical examination of a human being, whether living or dead or a part of the human body, in the form of findings and their interpretation, under oath and for the benefit of justice. In Indonesia, Visum et Repertum is one of the valid pieces of evidence as written in Article 184 of the KUHAP, including in cases of sexual violence. This study aims to examine the position and legal basis of visum et repertum as a means of evidence in cases of sexual violence in Indonesia. This study includes the normative juridical approach and case studies. The sexual violence case study shows that the use of visum et repertum as evidence in sexual violence cases has its role in the prosecution process. The use of visum et repertum in cases of sexual violence is important in providing evidence to support the victim's testimony. Although crucial, visum et repertum has limited legal force and the need for additional evidence to reach material truth in the case. Overall, the findings of this study indicate that the use of visum et repertum as evidence in cases of sexual violence in Indonesia needs to be accompanied by other evidences to ensure justice for victims.


INTRODUCTION
Law enforcement personnel are authorized to conduct thorough investigations to obtain as much relevant evidence and information as possible in order to resolve criminal

Visum et Repertum as Evidence in Sexual
Violence Prosecutions : A Criminal Law Literature Review Velisia Putri Natalie 1* , I Made Wirya Darma 2 1 Universitas Pendidikan Nasional, Faculty of Law.
that violates an individual's human rights, causing significant physical and mental trauma to victims regardless of their gender, age, socio-economic status, or place of residence.
The definition of sexual violence as a criminal act in Indonesia is clearly outlined in the country's legal system.Specifically, UU Number 12 of 2022 about Sexual Violence Crimes, Article 1 paragraph 1, Article 4 and Article 5 provides a description of the behaviours that constitute sexual violence and the corresponding legal penalties.In these articles state that: i. money laundering crime origin is a violent crime sexual; and j. other criminal acts that are expressly stated as a crime of sexual violence as stipulated in the regulatory provisions legislation." Meanwhile, the reason why the number of reported cases of sexual violence is far less than what happened is because of the need for a forensic test as valid evidence, even though there is sufficient evidence 15 .This legal evidence is in the form of a VeR.VeR comes from the which can be found in the Staatsblad (State Gazette) of 1937 Number 350 16 .Thus, visa reperta means a report on testimony or sight about something.Based on this understanding, the VeR already fulfils two of the five pieces of evidence needed to make a decision, in which case the VeR is considered a letter and expert statement17 .
VeR can be classified as expert testimony, namely what is given by an expert, in this case, a doctor appointed by the court in accordance with his competence to prove a crime as outlined in the form of a document.VeR is classified as evidence of a letter written by a doctor on a piece of paper.The Staatsblad states that a VeR is made for the benefit of justice (pro justitia) at the request of the authorities made by all doctors for what was seen and found during the examination of evidence, based on an oath at the time of accepting the position, and based on their best knowledge.The VeR made can explain, legally, the cause of the condition of the victim of persecution, rape or murder 18 .One of the practical uses of VeR, as evidence in the investigation of the crime of rape, is regulated in Article 133 paragraph 1 of the KUHAP in conjunction with Article 1 point 28 of the KUHAP which regulates requests for expert information assistance requested by investigators for medical examination of rape victims in written statement form 19 .

What Does Visum et Repertum Say?
Article 184 paragraph (1) of the KUHAP defines valid evidence as witness testimony, expert testimony, letters, hints, and statements made by the accused.
The expert statement referred to is a medical statement made by a doctor who has taken an oath based on the Government Regulation (PP) Number 26 of 1960 regarding the Pronunciation of Doctor's Oaths.This statement includes medical information on the victim's condition and is admissible as legal evidence.This written statement by a doctor is known as VeR.However, the concept of expert testimony in the KUHP presents a dualism.
Firstly, VeR can serve as evidence for expert testimony, as outlined in Article 186 of the KUHP, which states, "Expert testimony is the statement that an expert makes in court".
Secondly, VeR can serve as proof of documents, as specified in Article 187 letter c of the KUHP.The judge has the discretion to categorize this assessment as a letter of evidence or a witness statement, with the power of proof that is both free and non-binding (vrij bewiskracht).VeR is admissible in court when the existing evidence is insufficient to provide Law enforcers may seek expert assistance if they encounter difficulties beyond their capacity and experty in obtaining evidence.Article 120 of the KUHAP states that: 1. "In case an investigator deems it necessary, he may ask for the opinion of an expert or a person with special expertise."2. "The expert takes an oath or makes a promise before the investigator that he will provide information to the best of his knowledge.However, if his dignity, job, or position obliges him to keep secrets, he may refuse to provide the requested information."

The Authority to Give Expert Testimony
When evidence takes the form of a human body, but presenting it in court is impractical, VeR, a written document considered valid in court, can serve as a replacement.This document is produced by a doctor and cannot be delegated to any other party, as stated in Article 133 paragraphs (1) and ( 2) of the KUHAP.The doctor's obligation to provide the requested information is further outlined in Article 179 of the KUHAP: 1. "Any person who is asked for their opinion as a medical expert of the judiciary or as a doctor or other expert is obligated to provide expert testimony for the sake of justice." 2. "All the provisions mentioned above for witnesses also apply to those who provide expert testimony, provided they take an oath or promise to provide the best and true information according to their knowledge in their field of expertise."

The Authorized Party To Make Expert Statements
The party authorized to request expert testimony according to Article 133 of the KUHAP is the investigator.According to Article 133 of the KUHAP paragraph (1) and (2): 1. "The investigator, for the sake of justice, has the authority to request expert information from a medical expert of the judiciary, a doctor, or other expert when handling a victim who is injured, poisoned, or dead, and the event is suspected to be a criminal act."

What Does Visum et Repertum Speak For?
VeR plays a crucial role in upholding justice for both the victim and the accused.In Indonesia, the legal system follows the principle of proving negative wettelijk criminal procedural law.This means that a judge may only declare a defendant guilty after the evidence specified in the law, plus the judge's conviction, is fulfilled.
VeR serves two main purposes in criminal cases: 1.As evidence of the suspect's detention According to Article 183 of the KUHAP, "Judge may not impose a sentence on a person unless there are at least two valid pieces of evidence that confirm that a crime has occurred and that the defendant is guilty of committing it."

As a material for the judge's consideration
Although the conclusion of VeR is not binding on the judge, the news section of the VeR is considered as material evidence of the impact of a crime.This part of the news can be trusted as an alternative to evidence that has been examined and known by doctors.
Therefore, it can be used as material for review by the judge who is trying the case.

Visum et Repertum as Evidence for Criminal Acts in Sexual Violence
VeR is instrumental in supporting investigators in uncovering criminal acts of sexual violence, estimating the time of occurrence, and serving as initial evidence for further action.
VeR can be used to determine the patterns and motives of violence against victims and describe the degree of injury or quality of sexual violence as outlined in articles 90,184,351,and 352 of KUHP 20 .It can prove the occurrence of violence, wound or bruise, the cause and size of the injury, and the causal relationship, which serves as material for judges' decisionmaking 21 .However, VeR has limitations due to physical changes in the victim during examination and after the crime.Hence, it needs to be complemented by other evidence to reach material truth in the case 22 .
The use of VeR to prove criminal acts of sexual violence, is a common practice.Article 184 paragraph (1) letter b and letter c of Undang-Undang number 8 of 1981 concerning the KUHAP establishes that VeR can serve as a substitute for evidence (corpus delicti) that provides the details of the time the incident occurred and the investigator's instructions regarding the incident.VeR can provide valuable information that can help convince judges in deciding a trial.However, the strength of VeR is not absolute, and additional evidence, such as statements from victims and witnesses, may be necessary to clarify the crimes of the perpetrators 23 .
Research indicates that sexual violence cases are more likely to be terminated than other cases.In some US states, up to 40% of cases are dismissed from prosecution, while in Sweden, only one in ten cases reported to the police is prosecuted.Similarly, in New South Wales, Australia, only 15% of reported cases were charged and 8% were proven in court 24 .
The primary reason for high termination rates is the lack of adequate evidence to support the victim's testimony.Children's sexual abuse cases are often dismissed because victims are deemed not credible, while teenage victims of sexual abuse may not report due to victim blaming, including by their parents, leading public prosecutors to stop investigations due to low-quality evidence.In Indonesia, only 32% of cases of sexual violence were prosecuted, with factors including positive VeR results or a suspect's confession being the primary means for prosecution.However, VeR does not usually provide sufficient evidence to convict the accused, especially in cases where traces of violence are not visible.On the other hand, in 20

JUSTISI | UNIVERSITAS MUHAMMADIYAH SORONG 311
Sweden, the existence of forensic evidence, such as medical records, corroborating DNA evidence, and confessions from suspects, increases the likelihood of prosecution in sexual violence cases.In Brazil, evidence of sexual intercourse or other acts, including a torn hymen, sperm in the victim's vagina, or pregnancy, is required for prosecution, and forensic experts report such evidence through a digital system called GDL to the police 25 .Not all criminal acts can be proven with VeR as evidence due to its limited legal force.
For instance, to prove a violation of Article 332 Paragraph (1) 2 of the KUHP related to domestic sexual violence, the analysis of hymen tears is not conclusive, as it is normal to find such tears in married individuals.Therefore, judges are not required to consider the results of VeR in all cases.Since VeR cannot always provide sufficient evidence, the victim's testimony is crucial in proving a criminal case, especially since 50-90% of sexual violence cases cannot be proven through this method.However, the victim's statement can be biased or misinterpreted due to a lack of credibility, misperceptions of violence in the immediate sphere, pressure during witness examination, and personal interpretation of the available evidence.These factors have led to violence remaining invisible and normalized in victims' daily lives 26 .

Visum et Repertum in Court : Case Studies of Sexual Violence in Indonesia
Sexual violence is a prevalent issue in society, Article 285 of the KUHP stipulates that individuals who use force or threats of violence to coerce women into having sex outside of marriage will be charged with rape and face a maximum of twelve years imprisonment.In uncovering instances of sexual violence, a series of investigations are necessary to acquire material truth, which is evidence related to the criminal acts that occurred and an attempt to clarify the case.The decision to prosecute individuals for violating Article 285 of the KUHP is made by examining the fulfillment of the elements outlined in the article.These elements include: 1.The element of "whoever" -indicating that any individual, regardless of their relationship to the victim, can be charged with violating this article.
2. The element of force or threats of violence -indicating that the victim was coerced into sexual activity through the use of physical force or the threat of violence.
3. The element of forcing a woman to have intercourse with him outside of marriageindicating that the victim was forced to engage in sexual activity outside the bounds of a legal marriage.
By examining and fulfilling these elements, investigators can determine whether or not a case of sexual violence has occurred and proceed with the appropriate legal action.Efforts are necessary to establish the material truth in criminal cases by law enforcement to prevent errors in the imposition of criminal sanctions on an individual, as stipulated in Article 6 paragraph (2) of Law No. 38 of 2009 concerning the Judiciary, which states that "No one shall be subject to criminal sanctions, except when the court, based on evidence that is valid under the law, is convinced that a person deemed responsible is guilty of the alleged offense." Legal regulations require presenting thorough evidence and facts during criminal investigations, as stipulated in Article 184 of the KUHAP.Valid evidence, including witness statements, expert opinions, documents, material evidence, and the defendant's statements, must be presented.Criminal sanctions may be imposed under Article 183 of the KUHAP if two pieces of valid evidence can form the judge's conviction of the defendant's guilt.Human body evidence may be presented in court, but it is difficult; thus, a "substitute" in the form of documents, such as a VeR, is required.Experts may assist investigators in obtaining the material truth.Article 179 of the KUHAP obligates experts to provide testimony when requested by investigators.Sexual violence cases are often difficult to prove due to victims not reporting the crime immediately, and as a result, it becomes challenging to gather evidence through a medical examination (VeR).Moreover, sexual violence cases are complicated to prove since the perpetrator forces the victim to clean their body and remove all traces of the rape 36 .
The evidentiary value of VeR and examination is weak in cases of rape, as evidenced by Supreme Court Decision Number: 168K/PIDS/2016, which resulted in the defendant only being charged with Article 332 Paragraph (1) clause 2 of the KUHAP for the offense of abduction.In the District Court, all the evidence available failed to establish that the victim had experienced violence, threats, or coercion, leading to the judge's verdict of acquittal.
However, the Supreme Court found that the Judex Facti's decision was incorrect and that the law had been misapplied.The forensic examination results indicated redness on the inner labia minora that could result from recent sexual intercourse, but the victim's statement indicated that there was no coercion and that she had consented to the defendant's advances.Consequently, the element of violence or threat of violence in Article 285 of the KUHAP was not fulfilled.The word "may" in the visum conclusion was interpreted as a possibility of sexual intercourse having occurred or not.Additionally, the visum did not establish that the defendant had engaged in sexual intercourse with the victim.Moreover, the victim was married, and her relationship with the defendant was that of close friends who had an affair.Thus, the VeR had no probative value on its own and needed to be corroborated with other evidence.However, in this case, no other evidence was available to strengthen the VeR 37 .If VeR had been accompanied by other evidence, the objectivity and the possibility of tampering would have been minimized.As VeR is not binding and compulsory, the criminal trial can proceed even in the absence of such evidence 38 .
In Case No. 410/Pid.B/2014/PN.Bgl, the forensic evidence in the form of a VeR Number: VER/04/IX/2014 concluded that the victim's hymen was no longer intact and there was a tear in the lower vagina.Based on the evidence, the judge sentenced the defendant, who was a member of the Indonesian National Police (POLRI) who should have been a protector of the community, to four years and six months in prison.The fact that the defendant had committed a sexual violence offense was considered as an aggravating circumstance by the Panel of Judges 39 .
Based on the cases reported, VeR play a crucial role in revealing cases of sexual violence.The evidentiary value of VeR in proving the elements of a criminal offense can determine the course of action taken by the authorities in investigating the case.The time 36  elapsed between the incident and the examination can produce different results in the victim's body, leading to variations in the findings.This can affect the strength of the VeR in court 40 .

CONCLUSION
Sexual violence is a serious criminal offence that violates human rights and causes significant physical and mental trauma.The Indonesian legal system defines it as a criminal act and empowers victims to report their cases, but valid forensic evidence is needed for successful reporting.VeR is a crucial piece of evidence in the Indonesian legal system, with a doctor's report serving as essential evidence fulfilling two of the five pieces required for decision-making.However, VeR may not always show what happened, and additional evidence may be necessary, such as statements from witnesses and victims.To ensure a fair legal outcome, timely and accurate documentation of VeR is critical, as the timing of the examination can weaken the strength of the evidence presented in court.While VeR is an important substitute for evidence, a multi-faceted approach involving various types of evidence is needed to reach the material truth in sexual violence cases.

1.
Article 1 paragraph 1, UU Number 12 of 2022: "Sexual Violence Crimes are all acts which fulfil the elements of criminal acts as regulated in this Law and other acts of sexual violence as regulated in the Law as long as they are determined in this Law."2. Article 4 Point 1, UU Number 12 of 2022: "Sexual Violence Crimes consist of: a. non-physical sexual harassment; b. physical sexual abuse; c. forced contraception; d. forced sterilization; e. forced marriage; f. sexual abuse; g. sexual exploitation; h.sexual slavery; And i. electronic based sexual violence."3. Article 4 Point 2, UU Number 12 of 2022: "Apart from the Crime of Sexual Violence as referred to in paragraph (1), Criminal Act Sexual Violence also includes: a. rape; b. obscenity; c. intercourse with a child, obscenity against children, and/or sexual exploitation against children; d. acts that violate decency contrary to the will of the victim; e. pornography involving children or pornography which explicitly contains violence and sexual exploitation; f. forced prostitution; g. intended crime of trafficking in persons for sexual exploitation; h.sexual violence within the household; 2. "The request for expert testimony, as mentioned in paragraph (1), must be made in writing and must specify the purpose of the examination, such as examining wounds, corpses, or performing visum et repertum."JUSTISI | UNIVERSITAS MUHAMMADIYAH SORONG 309 Regarding the investigators who are authorized to request expert testimony, in this case, the investigators and assistant investigators who have the authority to bring in necessary experts are described in Article 7(1) point h and Article 11, respectively: "Investigators as defined in Article 6 paragraph (1) letter a have the authority, due to their obligations... (h) to bring in necessary experts in connection with the examination of cases" "Auxiliary investigators have the authority as stated in Article 7 paragraph (1), except regarding detention which must be granted with the delegation of authority from the investigator."The investigator in question is authorized by Article 6(1)(a) as an official of the state police of the Republic of Indonesia.VeR refers to expert statements on human mental health, and civil servant investigators are not empowered to request visum et repertum.The rank required for a visum et repertum request is set out in PP No. 27 of 1983, which provides: 1. Article 2 paragraph 1 point a "An investigator is a specific State Police Officer of the Republic of Indonesia who holds at least the rank of Assistant Police Lieutenant Second." 2. Article 2 paragraph 3 "If there is no investigator official as referred to in paragraph (1)(a) in a police sector, the Police Sector Commander will act as an investigator, provided that he holds the rank of non-commissioned officer under Assistant Second Lieutenant of the Police." 3. Article 3 paragraph 1 point a "Auxiliary investigators are certain State Police officers of the Republic of Indonesia who hold at least the rank of Second Police Sergeant."

25
Nathanael Sumampouw, Henry Otgaar, and Corine De Ruiter, "The Relevance of Certain Case Characteristics in the Successful Prosecution of Child Sexual Abuse Cases in Indonesia," Journal of child sexual abuse 29, no. 8 (2020): 984-1003.

What Does Visum et Repertum Speak To?
explanation of the substance of a criminal incident.Although not clearly stated in the KUHP, VeR is included in staablaad 350 of 1937 article 1 which reads."Visum et repertum from a doctor who has taken a special oath under Article 2 upon completing medical studies in the Netherlands or Indonesia.Such a report is admissible as evidence in criminal cases if it contains information about what the doctor observed during the examination of the relevant objects." an Mohd Hadyan Wardhana et al., "Enhanced Degree of Injury Classification Model: Determination Critical Indicator and Criteria Degree of Injury from Visum et Repertum (Ver) in Pekanbaru, Indonesia," 24 Ivan Dieb Miziara et al., "Physical Evidence of Rape against Children and Adolescents in Brazil: Analysis of 13,870 Reports of Sexual Assault in 2017," SAGE open medicine 10 (2022): 20503121221088680.