Kekaburan Norma Delik Aduan Kohabitasi dalam Pasal 412 KUHP: Tinjauan Asas Legalitas dan Kepastian Hukum

Abstract

The enactment of Law Number 1 of 2023 on the National Criminal Code, which entered into force on January 2, 2026, marks a new chapter in Indonesian criminal law reform, including the criminalization of cohabitation under Article 412 as an absolute complaint offense. Although the legislature has stated that this provision is intended to protect children from the negative impacts of cohabitation, its formulation raises serious normative concerns. This study aims to analyze the regulation of cohabitation as a complaint offense under Article 412 of the New Criminal Code from the perspective of the principle of legality and to examine the legal certainty afforded to orphaned children under the age of 16 in their capacity as complainants. This study employs a normative legal research method using statutory and conceptual approaches. The primary legal materials consist of legislation, while the secondary legal materials comprise legal doctrines and scholarly journals. The findings indicate that Article 412 of the New Criminal Code contains a vague norm (vage norm), as the minimum age requirement for a child to file a complaint is not explicitly stipulated in the provision itself but is instead dispersed across the explanatory provisions of other articles. Consequently, the provision fails to adequately satisfy the lex certa principle as a derivative of the principle of legality. This condition directly affects the legal certainty of an orphaned child whose father has died while the mother is the alleged perpetrator of cohabitation, particularly because Article 25 of the New Criminal Code, which should provide a mechanism for transferring the right to file a complaint, is expressly excluded by Article 412 paragraph (3). This study concludes that Article 412 requires reformulation to ensure fair legal certainty for all parties, particularly children as the most vulnerable legal subjects affected by the provision.