Definition of Victimology, Scope, History of Development and Complete Discussion
CHAPTER I
INTRODUCTION
A. Background Problem
Indonesia is a country based on law. So any action that is contrary to Pancasila and the 1945 Constitution (UUD) as the most essential legal basis in addition to other legal products. This law must always be upheld in order to achieve the ideals and goals of the State of Indonesia which are contained in the opening of the fourth paragraph, namely to form an Indonesian State Government that protects the entire Indonesian nation and all of Indonesia's bloodshed and to promote public welfare, educate the life of the nation and participate in carrying out world order based on freedom, eternal peace and social justice.
In practice law enforcement is not always in accordance with what is written in the laws and regulations. With the development of the era that is increasingly rapidly making many shifts in the social system in society. One of them is the worsening economic change due to the impact of the global crisis that has hit almost all parts of the world, including Indonesia. With the high economic pressure that requires everyone to meet their every need. Individuals in carrying out business to meet their needs, individuals must interact among other community members.
In living in society, everyone will not be separated from the interaction between one individual and another. As social beings created by Allah Subbahana Wa Ta'ala (SWT), humans will not be able to live if they do not interact with other humans. With frequent humans interacting with each other, so that it can cause a relationship between two or more individuals that is negative and can cause harm to one party. This is now often referred to as a crime. In the occurrence of a crime there are 2 (two) parties involved in it, namely the perpetrator and the victim. There are many forms or types of a crime, for example murder, robbery, defamation, obscenity, rape, embezzlement, theft and many others. Criminal acts of theft often occur in society driven by various factors. According to the Head of the Metro Jaya Regional Police (Kapolda) in 2008 the highest crime cases that occurred in Indonesia were cases of theft, both motor vehicle theft which ranked first and theft with violence which ranked second. The most common criminal case in society is theft. According to data from Polda Metro Jaya that crimes that occur in society every year are always growing and developing, especially according to KAPOLDA Metro Jaya, Wahyono that in 2009 it is likely that the crime rate will be higher because the dynamics in society are getting higher and the unemployment rate in society is increasing. Criminal acts of theft often occur in society driven by various factors. According to the Head of the Metro Jaya Regional Police (Kapolda) in 2008 the highest crime cases that occurred in Indonesia were cases of theft, both motor vehicle theft which ranked first and theft with violence which ranked second. The most common criminal case in society is theft. According to data from Polda Metro Jaya that crimes that occur in society every year are always growing and developing, especially according to KAPOLDA Metro Jaya, Wahyono that in 2009 it is likely that the crime rate will be higher because the dynamics in society are getting higher and the unemployment rate in society is increasing. Criminal acts of theft often occur in society driven by various factors. According to the Head of the Metro Jaya Regional Police (Kapolda) in 2008 the highest crime cases that occurred in Indonesia were cases of theft, both motor vehicle theft which ranked first and theft with violence which ranked second. The most common criminal case in society is theft. According to data from Polda Metro Jaya that crimes that occur in society every year are always growing and developing, especially according to KAPOLDA Metro Jaya, Wahyono that in 2009 it is likely that the crime rate will be higher because the dynamics in society are getting higher and the unemployment rate in society is increasing. According to the Head of the Metro Jaya Regional Police (Kapolda) in 2008 the highest crime cases that occurred in Indonesia were cases of theft, both motor vehicle theft which ranked first and theft with violence which ranked second. The most common criminal case in society is theft. According to data from Polda Metro Jaya that crimes that occur in society every year are always growing and developing, especially according to KAPOLDA Metro Jaya, Wahyono that in 2009 it is likely that the crime rate will be higher because the dynamics in society are getting higher and the unemployment rate in society is increasing. According to the Head of the Metro Jaya Regional Police (Kapolda) in 2008 the highest crime cases that occurred in Indonesia were cases of theft, both motor vehicle theft which ranked first and theft with violence which ranked second. The most common criminal case in society is theft. According to data from Polda Metro Jaya that crimes that occur in society every year are always growing and developing, especially according to KAPOLDA Metro Jaya, Wahyono that in 2009 it is likely that the crime rate will be higher because the dynamics in society are getting higher and the unemployment rate in society is increasing. both motor vehicle theft which ranks first and theft with violence which ranks second. The most common criminal case in society is theft. According to data from Polda Metro Jaya that crimes that occur in society every year are always growing and developing, especially according to KAPOLDA Metro Jaya, Wahyono that in 2009 it is likely that the crime rate will be higher because the dynamics in society are getting higher and the unemployment rate in society is increasing. both motor vehicle theft which ranks first and theft with violence which ranks second. The most common criminal case in society is theft. According to data from Polda Metro Jaya that crimes that occur in society every year are always growing and developing, especially according to KAPOLDA Metro Jaya, Wahyono that in 2009 it is likely that the crime rate will be higher because the dynamics in society are getting higher and the unemployment rate in society is increasing.
Criminology is a branch of criminal law that concentrates its studies on understanding crime, including the factors that lead to a crime. Even though there is criminal law, criminal procedural law and the sentencing system, the science of criminology arises because experts are dissatisfied with the provisions contained in criminal law, criminal procedural law and the sentencing system. Criminology has a scope of discussion, namely, the factors that cause a crime to occur, the influence of the environment on the perpetrator. Modern criminology illustrates to us how difficult it is to clearly understand the causes of a crime problem. In this case, to ensure the potential or possibility of a victim of crime ( victim) who have suffered actually become one of the factors in the occurrence of crime. The problem of crime is always an interesting problem, both before and after criminology has experienced the growth and development it has today.
Criminology pays a lot of attention to the development of society to study the causes of a crime that can occur. This situation encourages the efforts of various alternatives to deal with these crimes, both by law enforcers and by legal and criminological experts. Various elements related to a crime are studied and discussed intensively, such as: the perpetrators (daders), victims, legislators and laws, law enforcers, and others. In other words, all good and bad phenomena that can lead to crime (criminogenic factors) are considered in reviewing and analyzing the occurrence of a crime. However, it cannot be denied that so far, in analyzing and dealing with a crime event, attention has been devoted to the perpetrators of the crime.
Attention is paid more attention to the perpetrators, because in the science of criminal acts the attention of the perpetrators is the party whose actions must be proven to impose criminal sanctions. Very little attention is given to victims of crime who are actually elements (participants) in criminal events. Victims are not only the cause and basis of the process of criminality but play an important role in the search for material truth desired by material criminal law. Victims can have a functional role in the occurrence of a crime, either consciously or unconsciously, directly or indirectly.
From the facts mentioned above, attention to victims must be prioritized. One of them is by developing victimology and its application in the criminal law system in Indonesia. According to Arif Gosita, in a paper written by Dikdik M. Arief Mansur:
One of the backgrounds of this victimological thinking is "widely integrated observation", everything must be observed in an integrated manner (macro-integral) apart from being observed micro-clinically, if we want to get a picture of reality according to its true proportions dimensionally, about something, especially regarding the relevance of something. It is for this reason that an effort to develop victimology as a sub-criminology which is a scientific study of crime victims is urgently needed, especially in the search for material truth and protection of human rights in this Pancasila state.
The effort to find material truth by analyzing victims of crime is also a new hope as an alternative or a fresh instrument in the overall effort to deal with crimes that have occurred. Although in fact the problem of victims is not a new problem, because certain things are given less attention and even neglect. At least it can be emphasized that if we want to observe the problem of crime according to the actual proportions from various dimensions (dimensionally) then we inevitably have to take into account the role of the victim in the emergence of a crime.
Some of the subjects that must receive attention in discussing research or learning from victims of criminal acts, namely:
1. The role of the victim in the occurrence of a crime.
2. The relationship between the perpetrator of the crime (dader) and the victim of the crime ( victim )
3. The nature of the victim's vulnerability to attack and the possibility of becoming a recidivist.
4. The role of victims of crime in the justice system.
5. The victim's fear of crime.
6. Attitude of victims of crime towards regulations and law enforcement.
Furthermore, an understanding of victims of this crime both as sufferers as well as factors/elements in a criminal event will be very useful in efforts to prevent the occurrence of the crime itself (preventive). Therefore a victim can be seen from the dimension of a victim of a crime or as one of the criminogenic factors. In addition, the victim can also be seen as a component of law enforcement with its function as a victim witness or reporter.
Victims should be seen as the party that suffers the most losses and all their rights must be protected. And this is what Viktimilogy will try to achieve. Expectations to be achieved from the emergence of the science of victimology is that this knowledge can provide even greater attention to victims of a crime. Do not let a victim only be used as a tool of evidence in court to impose sanctions on the perpetrators. Because if someone has become a victim then that person feels a loss, both material loss and immaterial loss. But as a victim, that person should also be able to be given protection in the form of restitution, rehabilitation and compensation. A new thought has arisen in which law enforcement officials, be it the Police, Prosecutors and Judges, can have a new idea that the sentencing of the perpetrators of crimes does not only focus on the interests of imposing criminal penalties on the perpetrators of crimes,
One of the various types of crimes that often occur in society is theft. Theft occurs due to various factors, from various factors causing the crime of theft, opportunity is the determining factor. Victims are also one of the causes of the emergence or occurrence of criminal acts of theft.
B. Problem Formulation
A research requires the formulation of the problem to identify the problem under study, so that the goals to be achieved become clear, directed and achieve the goals to be achieved. Researchers formulate the problem as follows:
1. What are the factors that cause the crime of theft?
2. What is the role of the victim in the occurrence of theft in terms of Victimology?
C. Purpose of Writing
A research activity must have a clear purpose. The purpose of this research is to give direction in moving according to the purpose of the research. The objectives to be achieved by the authors in this study are:
1. Objective Objectives
a. To find out what factors are the cause of the crime of theft.
b. To find out how far the role of the victim in the occurrence of a crime of theft according to Victimology.
2. Subjective Goals
a. To add, broaden, develop the author's knowledge and experience as well as understanding legal aspects in theory and practice in the field of law, especially in the field of criminal law which means a lot to the writer.
b. To provide an overview and contribution of thought to the science of law.
CHAPTER II
LITERATURE REVIEW
A. Victimology
1. Definition of Victimology
The book The Problem of Victims of Crime written by Arif Gosita is given an explanation of the meaning of victimology, in the book it states that "Victimology is a scientific knowledge/study that studies (criminal) victimization as a human problem which is a social reality." Victimology comes from the Latin word victima which means victim and logos which means scientific knowledge or study.
The book Anthology of Victimization written by JE. Sahetapy and friends explains that Victimology is a term derived from the Latin " Victima" which means victim and " logos" which means knowledge, is a field of science that examines the problems of victims and all their aspects.
Another understanding of Victimology is a study or scientific knowledge that studies the problem of victims of crime as a human problem which is a social reality. And victimology is part of criminology which has the same object of study, namely crime or criminal victims ( http://replaz.blogspot.com/2008/09/viktimologi.html ).
Whereas on the knowledgerush website it is stated that Victimology is.
“Victimology is the study of why certain people are victims of crime and how lifestyles affect the chances that a certain person will fall victim to a crime. The field of victimology can cover a wide number of disciplines, including sociology, psychology, criminal justice, law and advocacy” (http://www.knowldgerush.com).
The exampeleessay website, which also discusses Victimology, gives the understanding that " Victimology is the scientific study of crime victims, focuses on the physical, emotional, and financial harm people suffer at the hands of criminals" .
Wikipedia, which is one of the largest websites in the world, also provides a definition of victimology, namely:
“Victimology is the scientific study of victimization, including the relationships between victims and offenders, the interactions between victims and the criminal justice system that is, the police and courts, and corrections officials and the connections between victims and other social groups and institutions, such as the media, businesses, and social movements” ( http://www.wikipedia.com).
2. History of the Development of Victimology
At the beginning of its development, victimology only received attention from the scientific community on the problem of victims starting when Hans von Hentig in 1941 wrote a paper entitled " Remarks on the interaction of perpetrator and victim." Seven years later he published a book entitled The Criminal and his victim which stated that the victim had a role which stated that the victim had a decisive role in the emergence of crime.
In 1947, or a year before von Hentig's book was published, Mendelsohn wrote a paper entitled " New bio-psycho-social horizons: Victimology." It was at this time that the term victimology was first used. After that, other scholars began to study the psychological relationship between criminals and victims, with H. Mainheim, Schafser, and Fiseler. After that, in 1949 WH Nagel also made observations regarding victimology which was outlined in his article entitled " de Criminaliteit van Oss, Gronigen." , and in 1959 P.Cornil in his research concluded that the victim deserves greater attention from criminology and victimology. In 1977 the World Society of Victimology . The World Society of Victimology (WSV) was pioneered by Schneider and Drapkin. The biggest change in the development of the formation of basic principles regarding the protection of victims occurred at the time of the congress in Milan, on August 26, 1985 which resulted in several basic principles regarding victims of crime and abuse of power which were subsequently adopted by the United Nations on December 11, 1985 in the a declaration called the Declaration of Basic Principles of Justice for Victims of Crime and Abuse Power.
3. Scope of Victimology
Victimology examines topics about victims, such as: the role of the victim in the occurrence of a crime, the relationship between the perpetrator and the victim, the vulnerability of the victim's position and the role of the victim in the criminal justice system. In addition, according to Muladi, victimology is a study that aims to:
a. Analyze various aspects related to victims;
b. Trying to provide an explanation for the causes of victimization;
c. Develop a system of actions to reduce human suffering.
According to JE sahetapy, the scope of victimology "includes how a person (can) become a victim determined by the victim who is not always related to crime, including victims of accidents and natural disasters apart from victims of crime and abuse of power".
B. The Relationship between Criminology and Victimology
There is no doubt that there is a relationship between criminology and victimology, because from one side criminology discusses the perpetrators of a crime broadly, while victimology here is the science that studies victims of a crime. As discussed in the book The Urgency of Crime Victim Protection, written by Dikdik M. Arief Mansur. If examined more deeply, it would not be an exaggeration to say that victimology is the missing part of criminology or in other words, victimology will discuss parts that are not covered in criminological studies. Many say that victimology was born because of the emergence of an insistence that the victim's problem be discussed separately.
However, regarding the importance of establishing Victimology separately from criminology, several opinions are invited, namely the following:
1. Those who argue that victimology is inseparable from criminology, including Von Hentig, H. Mannheim and Paul Cornil. They say that criminology is a science that analyzes crime in all its aspects, including the victim. Thus, through his research, criminology will be able to help explain the role of the victim in crime and the various issues surrounding it.
2. Those who want victimology to be separate from criminology, including Mendelsohn. He said that victimology is a branch of science that has a theory in criminology, but in discussing victims' issues, victimology cannot only focus on the victims themselves.
Specifically regarding the relationship between criminology and criminal law, it is said that the two are a pair or dual that complement each other because people will have a good understanding of the use of law against criminals as well as an understanding of the emergence of crime and methods of eradicating it so as to facilitate the determination of crimes and perpetrators of crimes. Criminal law only studies offense as a violation of the law, whereas to study that offense is a human act as a social phenomenon is criminology.
JE Sahetapy also believes that criminology and victimology are interrelated sides of a coin. Attention to existing crimes should not only revolve around the emergence of crimes but also the consequences of crimes, because from here it will be seen that attention shifts not only to the perpetrators of crimes but also to the position of the victims of these crimes. This is also discussed by other legal experts in paying attention to this relationship, or at least attention to the occurrence of crimes not only from one point of view, if a person becomes a victim of a crime, it is clear that a crime has occurred, or there are victims of a crime and there is a crime and there are victims. So if you want to describe and prevent crime, you have to pay attention to and understand the victims of a crime.
C. Victim
1. Definition of Victims
Many definitions of victims have been put forward by both experts and sources from international conventions that discuss victims of crime, some of which are as follows.
a. Arief Gosita
ccording to him, victims are those who suffer physically and spiritually as a result of the actions of other people who seek to fulfill their own and other people's interests that conflict with the interests of the injured party's human rights.
b. Ralph de Sola
Korban (victim) adalah “…person who has injured mental or physical suffering, loss of property or death resulting from an actual or attemted criminal offense commited by another..”
c. Cohen
Cohen mengungkapkan bahwa korban (victim) adalah “Whose pain and suffering have been neglectedby the state while it spends immense resources to hunt down and punish the offender who responsible for that pain and suffering:”
d. Z.P Zeparovic
Korban (victim) adalah “… the person who are threatened, injured or destroyed by an actor or omission of another (mean, structure, organization, or institution) and consequently; a victim would be anyone who has suffered from or been theatened by a punisable act (not only criminal act but also another punisable acts as misdemeanors, economic offense, non fulfillment of work duties) or an accidents. Suffering may be caused by another man or another structure, where people are also involved.”
e. Muladi
Victims ( Victims ) are people who both individually and collectively have suffered losses, including physical or mental, emotional, economic losses, substantial interference with their fundamental rights, through acts or omissions that violate criminal law in their respective jurisdictions. state, including abuse of power.
f. Law No. 23 of 2004 concerning the Elimination of Domestic Violence.
"Victims are people who experience violence and/or threats of violence within the household."
g. Law No. 27 of 2004 concerning the Truth and Reconciliation Commission.
Victims are individuals or groups of people who suffer physical, mental or emotional suffering, economic losses, or experience neglect, reduction or deprivation of their basic rights, as a result of gross human rights violations, including victims who are their heirs.
h. Government Regulation Number 2 of 2002 concerning Procedures for the Protection of Victims and Witnesses in Serious Human Rights Violations.
Victims are individuals or groups of people who experience suffering as a result of gross human rights violations that require physical and mental protection from threats, harassment, terror and violence from any party.
i. Deklerasi PBB dalam The Decleration of Basic Principles of Justice for Victims of Crime and Abuse Power 1985.
Victims means person who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substansial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within member states, including those laws proscribing criminal abuse power.
With reference to the definitions of victims above, it can be seen that victims are basically not only individuals or groups who directly suffer the consequences of actions that cause harm/suffering for themselves/their groups, even more broadly including their immediate family. or the direct responsibility of victims and people who experience losses when helping victims overcome their suffering or to prevent victimization.
2. Typology of Crime Victims
The typology of dimensional crimes can be viewed from two perspectives, namely:
a. Viewed from the perspective of the level of involvement of the victim in the occurrence of crime. Through this perspective study, Ezzat Abdel Fattah mentions several typologies of victims, namely;
1) Nonparticipating victims are those who deny/deny crime and criminals but do not participate in crime prevention.
2) Latent or predisposed victims are those who have certain characteristics tend to become victims of certain violations.
3) Provocative victims are those who cause crime or trigger crime.
4) Particapcing victims are those who are not aware of or have other behaviors that make it easier for them to become victims.
5) False victims are those who become victims because of themselves.
b. Viewed from the perspective of the victim's own responsibility, Stephen Schafer put forward a typology of victims into seven forms, namely:
1) Unrelated victims are those who have no relationship with the perpetrator and become victims because they have potential. For that, from the aspect of full responsibility on the victim's side.
2) Proactive victims are victims caused by the role of the victim to trigger a crime. Therefore, from the aspect of responsibility lies with the victim and perpetrator together.
3) Participating Victims In essence, the victim's actions are unconsciously able to encourage the perpetrator to commit a crime. For example, taking large amounts of money from a bank without escort, then wrapping it in a plastic bag, thus encouraging people to seize it. In this aspect, the full responsibility lies with the perpetrator.
4) Biologically weak victims are crimes caused by the physical condition of victims such as women, children and elderly people who are potential victims of crime. In terms of responsibility, it lies with the community or local government for not being able to provide protection to helpless victims.
5) Socially weak victims are victims who are not cared for by the community concerned, such as homeless people with a weak social position. For that, the full responsibility lies with criminals or society.
6) Self-victimizing victims are crimes committed by themselves (pseudo-victims) or crimes without victims. For this reason, the responsibility lies entirely with the victim as well as the perpetrator of the crime.
7) Political victims are victims because of their political opponents. Sociologically, this victim cannot be held accountable unless there is a change in the political constellation (Lilik Mulyadi, 2003:123-125).
c. In addition to the above groupings, according to Sellin and Wolfgang, there are still victim groupings, which are as follows.
1) Primary victimization, namely victims in the form of individuals (not groups).
2) Secondary victimization, namely group victims, for example legal entities.
3) Tertiary victimization, namely victims of the wider community.
4) No victimization, namely victims who cannot be known, for example consumers who are deceived into using production.
3. Rights and Obligations of Victims
a. Victims' Rights
Every day the public obtains a lot of information about various crime incidents, both obtained from various mass media as well as print and electronic. The incidents of these crimes have caused a lot of suffering/loss for victims and their families.
In order to provide a sense of security and comfort for the community in their activities, of course these crimes need to be tackled both through preventive and repressive approaches, and all of them must be handled professionally and by a competent institution.
With regard to victims of crime, it is necessary to establish an institution that specifically handles it. However, first of all it is necessary to convey adequate information on what rights the victim and his family have, if in the future they experience loss or suffering as a result of the crime that befell them.
Rights are something that is optional , meaning that the perpetrator may or may not accept it, depending on the conditions affecting the victim, both internal and external.
It is not uncommon to find someone who suffers (physical, mental or material) as a result of a crime that befalls him, does not use the rights that he should have received for various reasons, for example feeling sick in the future when people find out about what happened to him (because this incident was a disgrace to himself and his family) so it is better for the victim to hide it, or for the victim to refuse to file compensation because they are worried that the process will become longer and more protracted which could result in prolonged suffering.
Even so, not a few victims or their families used the rights that had been provided. There are several general rights provided to victims or families of victims of crime, including:
1) The right to obtain compensation for the suffering he experienced. This compensation can be provided by the perpetrator or other parties, such as the State or a special institution established to deal with compensation for victims of crime;
2) The right to obtain guidance and rehabilitation;
3) The right to obtain protection from threats by perpetrators;
4) The right to obtain legal aid;
5) The right to recover his rights (property);
6) The right to obtain access to medical services;
7) The right to be notified when the perpetrators of crimes will be released from temporary detention, or if the perpetrators are fugitives from detention;
8) The right to obtain information about police investigations related to crimes that have befallen victims;
9) The right to privacy/personal confidentiality, such as keeping telephone numbers or other victims' identities secret.
Based on Article 10 of Law No. 23 of 2004 concerning the Elimination of Domestic Violence (KDRT), victims are entitled to:
1) Protection from the family, police, prosecutors, courts, advocates, social institutions, or other parties, either temporarily or based on a stipulation of a protection order from the court;
2) Health services according to medical needs;
3) Special handling related to victim confidentiality;
4) Assistance by social workers and legal assistance at every level of the examination process in accordance with the provisions of laws and regulations;
5) Spiritual guidance services.
United Nations Declaration No.40/A/Res/34 Tahun 1985 has also established several rights of victims (witnesses) so that it is easier to obtain access to justice, especially in the judicial process, namely:
1) Compassion, respect and recognition;
2) Receive information and explanation about the progress of case;
3) Provide information;
4) Providing propef assistance;
5) Protection of privacy and physical safety;
6) Restitution and compensation;
7) To access to the mechanism of justice system.
b. Victim's Obligations
Even though victims' rights are adequately provided, ranging from the right to financial assistance to the right to medical services and legal assistance, this does not mean that the responsibilities of victims of crime are neglected because through the role of victims and their families it is hoped that crime reduction can be achieved significantly.
For this reason, there are several general obligations of victims of crime, including:
1) The obligation not to carry out vigilante efforts/revenge against perpetrators (acts of retaliation);
2) The obligation to seek prevention from the possibility of the recurrence of a crime;
3) The obligation to provide adequate information regarding the occurrence of a crime to the authorities;
4) The obligation not to make excessive demands on the offender;
5) The obligation to be a witness for a crime that befalls him, as long as it is not harmful to his family and friends;
6) The obligation to assist various interested parties in crime prevention efforts;
7) The obligation to be willing to be fostered or foster oneself so as not to become a victim again
D. Crime
1. Terms of Crime
Our legislators have used the term " strafbaarfeit" to refer to "criminal acts" in the Criminal Code without providing an explanation of what the term "strafbaarfeit" actually means . So that many give rise to the notion of "strafbaarfeit" . According to Adami Chazawi, "a crime can be said to be an official term in our country's legislation" (Adami Chazawi, 2002:67). In almost all laws and regulations we use the term criminal act to formulate an action that can be punished with a certain punishment.
The following is the opinion of legal experts regarding the term criminal act, including:
a. Vos formulated that a starfbaar feit is human behavior that is punishable by law.
b. Moeljanto argues "a criminal act is an act prohibited by a legal regulation which prohibits it accompanied by a threat (sanction) in the form of a certain crime, for anyone who violates the prohibition".
c. According to PAF Lamintang, our legislators have used the word " starfbaar feit " to mention what we know as "not criminal" in the Criminal Code. The word " feit " itself in Dutch means "part of a fact" while " starfbaar " means "punishable", so that literally the word " starfbaar feit " can be translated as "part of a fact that can be punished" which is of course it is not right because we know that what can be punished is a person as a person and not a fact, deed, or action.
d. Sudarto in his book Criminal Law I (1990:38) suggests the difference regarding the term evil act as follows:
1) Evil acts as a symptom of society are viewed concretely as manifested in society (Social Verschinjensel , Erecheinung, phenomena), namely human actions that rape or violate the basic norms of society in concrete terms, this is the notion of "evil acts" in a criminological sense.
2) Evil acts in the sense of criminal law ( strafrechtelijk misdaadsbegrip), are as manifested in abstracto in criminal regulations. Henceforth in this lesson on criminal law what will be discussed is the evil act in the second sense.
Criminal acts can still be divided into:
a) Acts prohibited by law;
b) People who break the rules.
2. Definition of Crime
The following is the opinion of legal experts regarding the definition of a crime, including:
a. We provide the opinion that "delict" contains actions that contain violations of rights that are committed with wrongful sins whose minds are perfect and to whom the actions should be held accountable".
b. The official website of the Supreme Audit Agency (BPK) provides a definition of a crime. Criminal acts have the meaning of acts of every person/legal subject in the form of mistakes and are unlawful or not in accordance with applicable laws.
From the various meanings above, we can conclude that the definition of a crime itself is an act committed by someone where that person can be held responsible for all of his actions. Where the action or deed that he did was a struggle against and violated the provisions of the applicable laws and regulations. So that the act can be threatened with a punishment that aims to provide a deterrent effect for individuals who commit these acts.
According to the views of experts that in the occurrence of a crime, a criminal act is distinguished between a criminal act and criminal liability. There are two views, namely, monistic and dualistic schools. Even though it has the impression that every act that is contrary to the law is always followed by a sentence, in these elements there is an impression regarding the (subjective) conditions attached to the person for a sentence to be imposed.
According to the limitation made by Vos, the elements of a crime can be drawn as follows:
a. Human behavior
b. Threatened with criminal
. In statutory regulations
It can be seen that the elements of the 3 limitations of adherents of dualism, there is no difference, namely that a criminal act is a human act that is prohibited, contained in the law, and is punishable by punishment for those who commit it. Of these elements it does not concern the maker himself or the maker's punishment, solely regarding his actions.
When compared with the opinion of adherents of monism, it looks different. The author takes only the two formulations that have been put forward, namely Jonkers and Schravendijk.
From the limitations made by Jonkers (a adherent of monism), the elements of a crime can be broken down as follows:
a. Acts;
b. Against the law;
c. Error;
d. Accountable.
Meanwhile, Schravendijk, within the limits he made at length, if detailed, there are the following elements:
a. Behavior;
b. Contrary to legal convictions;
c. Threatened with punishment;
d. Performed by people;
e. Blame/fault.
Even though the details of the three formulations above appear to be different, in essence there are similarities, namely: they do not separate the elements concerning the actions from the elements concerning the person.
3. Elements of a Criminal Act
According to Moeljanto, the elements of a crime can be:
a. (human) deeds;
b. Those who fulfill the formulation in the law (formal requirements);
c. Is against the law (material requirements);
There must be formal requirements, because only the principle of legality is contained in Article 1 of the Criminal Code. Material conditions must also exist, because the community must really perceive the action as something that is not permissible or should not be done; because it conflicts with or hinders the achievement of the order in society that society aspires to. Moeljanto is of the opinion that "mistakes and the ability to be responsible of the maker are not included as elements of a criminal act, because these things are attached to the person who did it".
According to Sudarto regarding the elements of a crime put forward by Moeljatno, so to allow for fair punishment, if followed by Prof. Moeljatno, then it is not enough if someone has just committed a criminal act; besides that, in that person there must be mistakes and the ability to be responsible.
According to D.Simons, strarfbaarfeit elements are:
a. Human action (positive or negative, doing or not doing or allowing);
b. Threatened with criminal ( stratbaar gesteld);
c. Against the law ( onrechmatig );
d. Done with error ( met schuld in verband stand);
e. By a person who is able to be responsible ( toerekeningsvatbaar person) .
Simons mentions that there are objective elements and subjective elements of strafbaarfeit.
a. Objective elements include:
1) Actions of people;
2) The visible consequences of the act;
3) There may be certain circumstances that accompany the act as stated in Article 281 of the Criminal Code which states "in public"
b. Subjective elements namely:
1) People who are capable of being responsible;
2) There is an error ( dolus or culpa );
Deeds must be done with fault. This error can be related to the consequences of the act or to the circumstances under which the act was committed.
According to Sudarto, the elements of a crime that can be referred to as a condition for sentencing include:
a. His actions, conditions;
1) Fulfill the formulation of the law;
2) Is against the law (no justification).
b. The person (his fault), conditions:
1) Able to be responsible:
2) Dolus or culpa (no excuses).
Only human actions can be prohibited, what prohibits is the rule of law. Based on the compound word criminal act, the main meaning is in the act, but it is not separated from the person. Threats (threatened) with criminal punishment illustrates that the act does not have to actually actually be punished. The definition of being subject to punishment is a general understanding, which means that generally being sentenced to a sentence.
From R. Tresna's formulation, a crime consists of elements, namely:
a. Actions / series of actions (humans);
b. Contrary to statutory regulations;
c. Punitive action was taken.
E. Theft
1. Definition of Theft
According to the Big Indonesian Dictionary, the meaning of the word "curi" is to take someone else's property without permission or illegally, usually secretly. While the meaning of "theft" is a process, method, deed.
The definition of theft according to law and its elements is formulated in Article 362 of the Criminal Code, which is in the form of the formulation of theft in its main form which reads:
Any person who takes an object which is wholly or partly owned by another person, with the intention of illegally possessing it, is threatened with theft, with a maximum imprisonment of 5 years or a maximum fine of Rp. 900.00-
To be more clear, if detailed, the formulation consists of objective elements (the act of taking, the object is an object, and elements of circumstances attached to objects to be owned partially or wholly belong to another person) and subjective elements (the existence of an intention, aimed at to possess, and by breaking the law).
The elements of theft are as follows:
a. Objective Elements in the form of:
1) The element of the act of taking ( wegnemen )
The first element of the crime of theft is the act of "taking" goods. "The word "take" ( wegnemen) in a narrow sense is limited to moving the hands and fingers, holding the goods, and diverting them to another place.
From the existence of elements of acts that are prohibited from taking, this shows that theft is in the form of a formal crime. Taking is a positive behavior / material action, which is carried out with deliberate movements. In general, using fingers and hands and then directed at an object, touching it, holding and lifting it, then carrying and moving it to another place or under his control. The main element of the act of taking must be an active action aimed at an object and the transfer of the object's power into his control. Based on this, taking can be formulated as committing an act against an object by bringing the object into his power in a real and absolute manner.
The element of absolute and real transfer of power over objects is a condition for the completion of the act of taking, which means it is also a condition for the completion of a perfect act of theft.
2) Elements of objects
The object of theft is in accordance with the information in Memorie van toelichting (MvT) regarding the formation of Article 362 of the Criminal Code which is limited to movable objects ( roerend goed ). Immovable objects can only become objects of theft if they have been separated from fixed objects and become movable objects. Movable objects are any objects that are tangible and move in accordance with the element of the act of taking. Movable objects are any objects that can be moved independently or can be moved (Article 509 of the Civil Code). Meanwhile, objects that do not move are objects that because of their nature cannot be moved or moved, an understanding of the opposite of moving objects.
3) Elements partly or wholly owned by other people
The object does not need to be entirely owned by another person, just a part of it, while some of it belongs to the perpetrator himself. An example is a shared motorbike, which belongs to A and B, which A then takes over from B's power and then sells it. However, if initially the motorbike was in his possession and then sold it, then it was not theft that occurred but embezzlement (Article 372 of the Criminal Code).
b. Subjective Elements in the form of:
1) The intention to have
The intention to have consists of two elements, namely the first element of intent (intentional intent or opzet als oogmerk), in the form of an element of error in theft, and both elements have it. The two elements cannot be distinguished and separated from one another. The purpose of the act of taking other people's property must be aimed at owning it, from the combination of these two elements which shows that in the crime of theft, the notion of possessing does not imply the transfer of ownership rights to the stolen item into the hands of the perpetrator, with reasons. First, it cannot transfer property rights by unlawful acts, and secondly, what constitutes an element of this theft is its intention (subjective). As a subjective element, to have is to have for oneself or to be used as one's possessions. When it comes to elements of intent,
2) Against the law
According to Moeljatno, the element against the law in the criminal act of theft is the intention to own unlawfully or the intention to own is shown to be against the law, meaning that before acting to commit the act of taking objects, he already knows and is aware that owning other people's objects is against the law. It is for this reason that the element against the law is meant to be an element against the subjective law. This opinion is in accordance with the information in the MvT which states that, if the element of intent is stated explicitly in the formulation of a crime, it means that the intention must be aimed at all the elements behind it.
CHAPTER III
DISCUSSION
A. Factors That Cause the Crime of Theft
The occurrence of a criminal act of theft has many factors behind it. In addition to the factor of the perpetrator himself as the party who commits a crime of theft, there are many other factors that encourage the occurrence of a crime of theft that occurs in society.
There are two main factors that lead to the occurrence of a crime of theft. Namely internal factors and external factors. Both of these factors will be explained in the sub-chapters below.
1. Internal Factors
a. Doer's Intentions
Intention is the beginning of an act, in committing the crime of theft the intention of the perpetrator is also important in the factor of the occurrence of the act. The perpetrator before committing the crime of theft usually has the intention and plans how to carry out his actions. What often happens is that the perpetrator feels that he wants to own the goods that belong to the victim, so the perpetrator takes possession of the victim's property in a way that is prohibited by law, namely by stealing it. The perpetrator usually feels jealous of the goods owned by the victim, so the perpetrator wants to own it.
b. Economic Situation
Economy is one of the important things in human life. So the economic situation of the perpetrators of the crime of theft often arises as the background for someone to commit the crime of theft. The perpetrators often do not have a steady job, or even no job at all or are unemployed. Because of the pressing economic pressure, namely having to meet family needs, buying clothes and boards, or having a relative who is sick, then someone can act recklessly by committing the crime of theft. In full, JJH Simanjuntak explained as follows:
Most of the perpetrators of theft carry out these actions due to economic difficulties, whether to meet their daily needs, have a sick family, need funds in the near future and others. So it can be concluded that the motivating factor for a person to commit a criminal act of theft is the economic difficulties that cause him to commit the act.
A person's love for his family causes him to often forget himself and will do anything for the happiness of his family. Moreover, if the driving factor is filled with anxiety, worry, and so on, it is caused by parents (generally mothers who are widows), or wives or children or children, who are seriously ill. Need medicine, while money is hard to get. Therefore, an offender can be motivated to commit theft.
c. Morals and Education
Moral here means the level of awareness of the norms that apply in society. The higher the moral sense that a person has, the lower the possibility that the person will violate the norms that apply. A person's legal awareness is one of the internal factors that can determine whether the perpetrator can commit an act that violates the norms in society. If a person is aware of an act that violates norms, he will not commit the act because he is afraid of sanctions that he can receive, both sanctions from the government and sanctions from the surrounding community.
A person's level of education also determines whether a person can commit the crime of theft. Because most of the perpetrators of criminal acts of theft only have a level of education that is not so high. The level of education also influences the income ownership of these actors. Because they do not have a high level of education, it is difficult for someone to find a job. Because they do not have a definite job and income, a person commits the crime of theft because of an economic need that must be met immediately.
2. External Factors
a. Residential Environment
The environment referred to here is an area where criminals live or areas where criminals carry out their actions. In addition, the environment here can also be interpreted as the environment in which the victim lives. First, the author examines the environment in which the perpetrators of crime live. The environment where the perpetrators of crime live is usually an environment or areas where social interaction is low, the morale of the population is low, and often in that environment social norms are often violated and no longer obeyed. In addition, educational standards and living environment where criminal acts are often committed are also factors that can shape a person or individual to become a criminal.
The environment where the perpetrator lives also influences the occurrence of a crime. Because the security of the victim's living environment is also one of the main factors in the occurrence of criminal acts. A quiet environment and the absence of an environmental security system (Siskamling) can also make criminal acts of theft more prevalent in the environment where the victim lives. Regarding this, JJH Simanjuntak explained that:
The living environment is also one of the important factors in the occurrence of a crime of theft. This can be seen from research so far, that the environment is also one of the criminal factors (causes of crime). From the cases of theft that occurred in the Surakarta area, it is often found that the perpetrators of crimes come from unhealthy living environments. The point is that the environment where the perpetrator lives is often a slum settlement, where the settlement is inhabited by people who often commit acts of violating the law, such as getting drunk, fighting and so on. Meanwhile, the environment where the victim lives also has a big contribution. Because often careless security from the neighborhood is used as a gap by perpetrators to carry out their actions.
b. Law enforcer
As a state officer whose job is to maintain public order and security, the role of law enforcers here also plays a significant role in the occurrence of criminal acts of theft. Law enforcers here are not only the police, but the prosecutor as the public prosecutor and the judge as the decision maker in the trial. The role of law enforcers who have a strategic role is the police. The police as state officers must always be able to create an impression of security and peace in social life. If criminal acts still occur in society, especially the crime of theft, it means that the police have not been able to create a sense of security in society.
The police have a duty not only to arrest every perpetrator of the crime of theft, but must be able to provide counseling and information to the wider community so that they are always able to be careful so that the crime of theft does not occur in their respective environments. These counseling can be done through electronic media and direct counseling to the community. In addition, the police can also carry out patrols to always maintain security in the community. As explained by JJH Simanjuntak, as follows:
The police can prevent the possibility of crime in general, and theft in particular, also carried out by law enforcement officials. From the Surakarta City Police, actions related to this were carried out in the form of security patrols, legal counseling to the community, both directly and periodically. Besides that, the regional police or state police have also issued warnings through electronic media, as we often see on television. The prosecutor's apparatus has also organized prosecutors to enter the village, and so on.
From the statement above, it can also be concluded that law enforcement officials also take action to prevent crimes, including the crime of theft, by conducting patrols, providing legal counseling to the public (performed by the POLRI), or by conducting in the form of "warnings" through electronic media such as television and radio. The Attorney General's Office also implements the Prosecutor Enters the Village program with (one of) similar objectives. Thus, the law enforcement officials have also taken preventive measures. Therefore, law enforcers are also a determining factor in the occurrence of the crime of theft, if law enforcers have done their job well, the crime rate, especially theft, can be reduced to the lowest number.
c. Victim
The victim's negligence is also one of the driving factors for the perpetrator to commit the crime of theft. In the current state of society where the level of inequality in society is getting higher. On the one hand there are many rich people but even more poor people. This creates social jealousy felt by the perpetrators. The act of the victim showing off his wealth also becomes a "temptation" for the perpetrator to carry out his action.
The victim's sense of vigilance must also be increased so that the crime of theft is not experienced by the victim. Suppose A has a motorbike, and it is parked in front of his house. To ensure safety, A must lock his motorbike and must park it in a safe place so that it will not be stolen by someone. This action is called a preventive measure that can be taken by an individual so that he does not become a victim of the crime of theft. As with the theft of money that most often occurs in today's society. Community members must always increase their vigilance and must be able to provide security for each of their assets, especially here money. The negligence of the money owner can also create opportunities for perpetrators to commit criminal acts of theft.
B. The Role of Victims in the Occurrence of the Crime of Theft According to Victimology
Before explaining more clearly about the role of the victim in the occurrence of a crime, the author will first explain which parties play a role in the occurrence of a crime of theft. From interviews conducted by the author, it was found that apart from the role of the victim and perpetrator, it turns out that the environment or society also plays a role in the occurrence of a crime of theft. The author will explain the parties involved in the crime of theft.
1. Community Role
In relation to the condition of the community around the perpetrator, whether the community around the perpetrator is a gambler or a drunkard. As for the internal factors related to the education of the community around the perpetrators of belief in religion or faith, in the sense that the community concerned considers "normal" the existence of things that are actually prohibited or considered to violate the law. External factors, especially those from other communities, also influence the behavior of members of the community where the perpetrator lives.
In a society that is all lacking, the object of theft will be aimed at other people whose conditions are better, besides there is indeed an opportunity for that. Special external factors, still come from other communities (outside the live actors), but are very special in nature. For example, there are other community members who keep large amounts of money at home or like to show off their wealth. Things like this become "angers" for perpetrators to commit criminal acts of theft.
Von Hentig is an expert on victimology that in an environment called a " victim area" (this victim area is the same as a " crime area" ), namely a place or environment where a person easily becomes the object of certain crimes. Market areas, red lights, and housing areas where there are no security guards are crime-prone areas.
2. Actor's Role
In general, this factor is associated with education, religion, moral sense, environment, and so on. This is as stated by JJH, Simanjuntak that a person with low education is likely to be easier to commit a crime, including theft with , compared to those with higher education or higher. In particular, the internal factors that cause crime or theft are, as explained in the previous chapter, "a sense of belonging, level of education, morals and other similar causes". In addition to the internal factors as stated above, there are also external factors, which include:
a. chance,
b. lack of security,
c. Economic Situation
d. association,
e. the role or circumstances of the victim.
Victim Role
The role of the victim in the occurrence of the crime of theft is also noteworthy and is one of the important factors in the occurrence of the crime of theft. As explained by the author earlier, the role of the victim here is defined as the condition of the victim who provides an opportunity or opportunity for the perpetrator to carry out his intention to commit theft.
The role of the victim here can be in the form of a victim who likes to show off his wealth, often wearing excessive jewelry even though he is only out around the house. Telling that he kept the money at home in large quantities, even though the people who were told were probably people who could not be trusted. With the information told by the victim, the perpetrator can easily enter the victim's house and take the appropriate items as told by the victim.
In addition, the victim also participates in "providing an opportunity" for the perpetrator to commit the crime of theft. Examples of victims giving opportunities to victims are like the victim's house which is not given a high fence, does not keep the money in the bank but only keeps it in a cupboard, wears excessive jewelry even though only going to the market and many other examples where the victim gives the opportunity for the offender to carry out the act. And here the role of the victim is closely related to the occurrence of the crime of theft.
Victimology studies not only the protection that must be provided by the government to people who have become victims of criminal acts, but here Victimology also studies the role of victims in the occurrence of criminal acts, especially the crime of theft. The role of the victim relates to what was done by the victim, and in the actions taken by the victim there is an important relationship, and in some cases of crime the victim is said to be partly responsible.
The victim can play a role and take responsibility consciously or not, directly or indirectly, actively or psychologically. It all depends on when the crime took place. The victim as the main participant or the most decisive party in the occurrence of the crime of theft depends on the circumstances in which the victim is.
The victim in certain situations and conditions can also invite the perpetrator to commit a crime against him due to his attitude and actions. In this case, there is no relationship between the victim and the perpetrator. For example, the victim behaves and acts negligently towards his property (placing or carrying valuable items, without any security) so as to give other people the opportunity to take them without permission. It could also be because the victim is in a vulnerable area, which makes him vulnerable to being the target of evil deeds.
Victimology has a function to study the extent of the role of a victim in the occurrence of a crime, as well as how protection must be provided by the government for someone who has become a victim of a crime. In fact it can be said that it is impossible for a crime to arise if there is no victim of the crime, who is the main participant and the criminal or perpetrator in the event of a crime occurring and in terms of fulfilling the interests of the perpetrator which results in the suffering of the victim. Thus it can be said that the victim has a functional responsibility in the occurrence of a crime.
CHAPTER IV
CLOSING
A. Conclusion
In this study, there are two main issues that are examined by the author, first are the factors that cause a crime to occur, especially regarding the crime of theft and second are the parties who play a role in the occurrence of a crime, as well as how the role of the victim is reviewed according to Victimology.
Based on the results of the research and discussion of the two main problems above, the following conclusions can be drawn:
1. Factors Causing a Crime to Occur
a. Internal factors
1) Actor's intention
In each of the perpetrators of crime has arisen the intention to commit a crime. Because the beginning of a criminal act is usually preceded by the intention of the perpetrator, after having the intention, the perpetrator develops a plan to commit the crime.
2) State of the Economy
The economic situation of the victim is the most frequent factor in the crime of theft. Due to economic pressure to immediately meet their needs, the perpetrators take shortcuts to steal in order to get money quickly. The circumstances of the perpetrator's family also determine, for example, there is a family of the perpetrator who is sick so he immediately needs money for treatment.
3) Morals and Education
The level of education and morals possessed by the perpetrator is one of the determining internal factors, because the higher a person's education, the person must be able to think logically that stealing is not the right way to get money. Meanwhile, moral acts as a "wall" that holds a person from committing a crime.
b. External Factors
1) Residential Environment
The environment here can be interpreted as the residence of the victim or perpetrator. Because the environment where the victim lives determines the nature and behavior of the perpetrator, if the environment where the perpetrator lives often violates legal norms, then the perpetrator will follow suit. While the victim's safe environment can prevent criminal acts of theft.
2) Law Enforcement
Law enforcers here include police, prosecutors, and judges. But the most influential party is the police, because the police directly go down to the community to maintain security and order in society. By frequently conducting patrols and counseling in the community, it is hoped that the crime rate can be reduced.
3) Victim
Victims are parties who are influential in the occurrence of crime. Because often crimes that occur are the result of victims giving opportunities to perpetrators to be able to commit crimes against them. If the victim can increase his vigilance, then the crime cannot happen to him.
2. The Victim's Role in Theft According to Victimology
a. Parties that Play a Role in the Occurrence of a Criminal Act
1) Community Role
Society plays a role as a shaper of the character of the actor. And also the community also plays a role as a driving factor for the occurrence of criminal acts of theft. For example, if there are members of the public who show off their wealth, this can invite the perpetrator to commit the crime of theft.
2) Actor's Role
The role of actors here is influenced by many factors, such as education, morals, and economic conditions. These factors can make a person a criminal. The perpetrator is the party that plays the most role in the occurrence of the crime of theft, because in the crime of theft the perpetrator participates actively. If there is no intention and action from the perpetrator then a crime of theft will never occur.
3) The Role of the Victim
The victim is the party that is harmed as a result of the perpetrator's actions, but not all responsibility for a crime of theft is only delegated to the perpetrator. Victims also have a role, even though the participation of victims is passive participation. With the opportunity given by the victim, usually the new perpetrator commits a crime.
b. The Role of Victims Viewed According to Victimology
In a review of Victimology, the victim also participated in a crime. Even though the role is not as active as the perpetrator, the victim still has a role in the occurrence of the crime of theft. Therefore Victimology studies victims and how the protection must be provided by the government. In fact it can be said that it is impossible for a crime to arise if there is no victim of the crime, who is the main participant and the criminal or perpetrator in the event of a crime occurring and in terms of fulfilling the interests of the perpetrator which results in the suffering of the victim. Thus it can be said that the victim has a functional responsibility in the occurrence of a crime.
B. Suggestion
1. To reduce the number of crimes that occur in society, especially criminal acts of theft, it is not only the duty of the police. But many parties can participate in the prevention of criminal acts of theft. Like the community and family environment, the community has a duty as a party that must maintain the security of the victim's residence. Because as people who live in the same neighborhood, every member of the community must look after each other because it is impossible for the police to guard the entire area. The family can also prevent someone from becoming a perpetrator of the crime of theft by providing educational and religious provisions that must be given early on, so as to form someone who has good behavior.
2. The community, perpetrators and victims are three important elements in the occurrence of the crime of theft. The community as a party can prevent the occurrence of criminal acts, because if community members look after each other and create a safe and peaceful environment so that they can suppress the occurrence of criminal acts of theft. Perpetrators as parties who participate actively, can only be prevented from committing crimes from internal factors (self). Because only from the perpetrator himself can someone determine whether he wants to be a criminal or not. Meanwhile, the victim, who is the party most harmed, must increase vigilance so as not to create opportunities for the perpetrators to commit crimes
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