Reconceptualizing Criminal Fault in Abortion Cases: Reforming Indonesian Criminal Law

Abstrak

Ideally, the element of fault (mens rea) in abortion crimes should be understood contextually by taking into account the psychological, social, and situational conditions of the perpetrator, particularly in cases involving victims of sexual violence. However, in reality, the criminal law approach in Indonesia remains rigid and formalistic, offering little room for a humane interpretation of culpability. This study aims to offer a new perspective in reconceptualizing the element of fault in abortion crimes by referring to the dynamics of national criminal law reform. The research employs a juridical-normative method with a descriptive-qualitative approach through library research on the 2023 Criminal Code (KUHP), the Health Law, related implementing regulations, and recent legal literature. The findings conclude that the reconceptualization of culpability in abortion crimes should shift toward an understanding of a spectrum of intent rather than a strict dichotomy of intentional or unintentional acts. The reform of Indonesia’s criminal law through the 2023 Criminal Code has opened broader avenues for protecting abortion victims in specific contexts, but further improvements are needed in terms of regulatory harmonization, evidentiary requirements, and legal protection for medical personnel to ensure a fair and victim-responsive justice system.