AN ANALYSIS OF FIQH JINAYAH AND CRIMINAL LAW ON THE LEGAL PROTECTION FOR CHILDREN AS VICTIMS OF OBSCENITY

The issues raised include the concept of juvenile criminal law from the perspective of fiqh jinayah and positive law, differences in the concept of juvenile crime from the perspective of fiqh jinayah and positive law, the correlation of the concept of juvenile crime to the fiqh perspective and positive law. To study and answer the problem, a multidisciplinary approach is used, namely the normative theological approach (syar'i), juridical/legislative (statue approach), historical (historical approach), sociological (sociological approach), psychology (psychological approach). This research is classified as library research. The results of the study indicate that perpetrators of sexual abuse with child victims, in positive law and fiqh jinayah, sanctions are deterrent so that the perpetrator does not do it again. The laws governing this matter, namely the Republic of Indonesia Law Number 3 of 1997, Law Number 23 of 2002 concerning Child Protection and Law no. 4 of 1979 concerning Child Welfare. In contrast to Islamic law (fiqh), children's perceptions and forms of accountability make criminal acts of children not subject to Uqubah (punishment), but takzir (warning) and


INTRODUCTION
The welfare of children must be guaranteed because they are the future and successors of the nation's future. Children need to be protected from all forms of crime and violence, especially issues of sexuality. The 1945 Constitution paragraph IV reads, proving the nation and all of Indonesia's bloodshed, advancing public welfare, educating life and participating in carrying out the world. This means that children must pay attention to everything about their lives, both in education and their sociological development of the environment. 1 To protect the next generation of the nation, Indonesia made a special law that regulates children, both children in conflict with the law and children faced with the law as contained in Law number 35 of 2014 concerning amendments to Law number 23 of 2002 concerning child protection. The sociological aspect of children is defined as social creatures created by Allah swt who always interact and need each other in their lives and are not able to live alone. Children need parents to protect their lives in the future, so they do not fall into acts that are against the law. In addition, their true life must be guaranteed for needs that will have an impact on their psyche. 2 Obscenity is an attitude that has a bad impact and is a crime, the victims and their families suffer greatly because obscenity violates The translation: "Do not go near adultery. It is truly a shameful deed and an evil way." 8 The punishment for adulterers who have said ijab qabul (married) or muhsan adulterers is by stoning to death, while the ghayru muhsan adulterer is punished with 100 lashes and exiled for one year. Prohibitions sometimes take the form of prohibiting or leaving orders. The word syara' means that an act is considered a crime if it is prohibited by syara'. Etymologically, jinayah is the name of things that are done by someone related to crime or everything he does. Jinayah is a name with a masdar form (infinitive) from the word jana which means the ugliness that befell him. Then especially for all the actions that are forbidden. This meaning comes from jana as-samara which means picking fruit from the tree. As for terminology, jinayah is a name for actions that are forbidden by Islamic law, both with regard to life, property, and others.
Getting care is the right of the child and especially the assistance of the family and the community, as the environment that influences the growth and welfare of the child. Children must receive protection

METHOD
The type of research chosen is the type of library research, namely research whose object of study is to use library data in the form of books as data source material. This research is usually carried out in the library by reading, and analyzing various existing literature, namely in the form of the Qur'an, Hadith, Books and laws and regulations as well as research results in order to obtain the data needed in this research.
In finding answers, the researcher used the following approaches: a) the Syar'i approach, namely explaining the laws relating to child molestation laws in a comparative analysis of Islamic law and child protection laws. b) The juridical approach is an approach that uses the science of law (law) as study material, if there is a discussion of the law or legal theories related to the title, it is used as a study to be described. 10

RESULT AND DISCUSSION Obscenity in Criminal Law and Fiqh Jinayah
Obscenity comes from the word obscene, namely all kinds of forms of action, whether done to oneself or to others related to the genitals or other body parts that can stimulate sexual desire. For example, stroking or rubbing the penis or vagina, holding the breasts, kissing a woman's mouth and so on.
The Criminal Code has not clearly defined the intent of the obscene act itself and seems to mix the meaning of the words sexual intercourse and rape. In the draft of the Criminal Code there is an addition of the word "intercourse" in addition to the word obscene act. But the notion of obscene acts itself is broader than the notion of intercourse because intercourse means the union of male and female genitalia, which requires the entry of the penis into the vaginal canal, then the penis secretes sperm as normally results in pregnancy. Meanwhile, if it does not meet one of the conditions, for example, the penis has not entered but the sperm has come out, this incident is not sexual intercourse, but an obscene act. 11 The crime of obscenity is one of the crimes of morality, which is regulated in the Criminal Code Book II Chapter XIV Article 294 paragraph (1) which is punishable by a maximum imprisonment of 7 (seven) years. Although this act must always be carried out by both parties together, only an adult is punished. 12 If the obscene act committed by the perpetrator does not achieve the intent, due to resistance from the victim, he is blamed for carrying out an attempted obscenity, the provisions of which are regulated in Article 53 paragraph (1) of the Criminal Code which reads: implementation, not solely due to his own will. 13 Criminal sanctions regarding obscene acts against children are also regulated outside the Criminal Code, namely in Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection, the provisions in article 81 are as follows: 14 (1) Any person who violates the provisions as referred to in Article 76D shall be sentenced to a minimum imprisonment of 5 (five) years and a maximum of 15 (fifteen) years and a maximum fine of Rp. 5,000,000,000 (five billion rupiah).
(2) The criminal provisions as referred to in paragraph (1) shall also apply to any person who intentionally commits a trick, a series of lies, or persuades a child to have intercourse with him or with another person. (3) In the event that the criminal act as referred to in paragraph (1) is committed by a parent, guardian, child caretaker, educator, or education staff, the penalty shall be increased by 1/3 (one third) of the criminal threat as referred to in paragraph (1). The provisions in Article 82 of Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection explain that: 15 (1) Any person who violates the provisions as referred to in Article 76E shall be sentenced to a minimum imprisonment of 5 (five) years and a maximum of 15 (fifteen) years and a maximum fine of Rp. 5,000,000,000 (five billion rupiah).
(2) In the event that the criminal act as referred to in paragraph (1) is committed by a parent, guardian, child caretaker, educator, or education staff, the penalty shall be increased by 1/3 (one third) of the criminal threat as referred to in paragraph (1). Obscene acts according to the Oxford Advanced Learner's Dictionary are connected with sex in a way that most people find offensive. Obscenity is an act against the law in the sense that it is contrary to religious norms and the norms of Indonesian society. In the Criminal Code, it is explained that obscene acts are all heinous acts related to sexual desire. 16 From the definition above, we can conclude that decency is an act that violates the norms of decency which are often related to sexual desire, in social life which can cause moral damage that lives in the midst of society. In practice, this crime or violation of decency does not only happen to adult women, but it has also even spread to minors.
From the above understanding, it can be understood that obscene acts are heinous and unlawful acts related to sexual desire. While pedophilia comes from the word pais, paidos which means child, and the word Phileo, Philos which means to love. So, it can be concluded that pedophilia is a mental illness in which a person has sexual deviations, namely having a sexual tendency towards children. The act of pedophilia can be in the form of first, exhibitionistic acts by showing the genitals of children. Second, caressing, kissing, hugging, proposing, and other acts of manipulation of children's bodies as well as having intercourse with children. A pedophile is usually a male aged 35-45 years. 17 Their condition has mental disorders, is psychopathic, alcoholic, and behaves immorally, in Indonesia this behavior is also often a requirement to obtain a certain knowledge.
The definition of obscenity comes from the word obscene which is also linguistically interpreted: 18 a. obscene language or behaviour b. an obscene word or act Meanwhile, according to the term obscenity or obscene acts in language, obscenity means actions that are out of the right path and piety that leads to obscene acts, sins, misguidance and kufr.
Obscenity can also be interpreted as acts that violate sexual decency that do not reach the form of sexual relations. For example, a man touching a woman's breasts, patting her buttocks, groping her genitals, oral sex or molesting and others. Based on fiqh jinayah, Islam includes this crime of obscenity into the category of jarimah ta'zir. What is meant by jarimah ta'zir is an act or criminal act whose law is not specified in the Qur'an and hadith relating to crimes that violate the rights of Allah and the rights of servants whose function is to provide lessons for criminals so as not to repeat the same crime. Because Islamic law does not only view obscenity as a violation of individual rights but is also seen as a violation of the rights of the community.
Obscenity is an act that violates decency (politeness) or a heinous act, all of which is in the environment of sexual lust, for example kissing, groping the genitals, groping the breasts and so on. But not until intercourse so that obscenity will be subject to jarimah ta'zir. 20 Islamic law as one of the norms adopted in society needs to be used as a basis for studying child protection issues. Islamic law is a tool to protect children from exploitation. The elasticity of Islamic law with the principle of "Salih li kulli Zaman wa Makan" and the principle of "Al-Hukmu yadarru ma'al illati Sadaran wa 'adaman" requires new analogies and interpretations to be made in accordance with the context of the phenomenon of crime that occurs in children today. 21 In the norms of Islamic law, there is a transcendental value which is a distinct advantage that causes its adherents to be more convinced that if religious teachings are understood properly, they will realize how religion does not want the exploitation of fellow human beings. The values of upholding justice, preventing injustice, and the need for cooperation in overcoming social problems are humanitarian missions brought by religion. 22 However, these values need to always be actualized and reinterpreted in accordance with the latest developments in the mode of crime. Thus, the act of the perpetrator against the obscene act above according to Islamic law is still classified as an attempt to commit a crime. In Islamic law, an attempt to commit adultery should not be punished by punishment imposed for the act of adultery itself, namely volume and stoning, but rather a ta'zir punishment.
We do not find the theory of "attempted" jarimah among jurists, the term attempted with a juridical technical meaning is also unknown to them, what they are talking about is the separation between the finished jarimah and the unfinished jarimah. The absence of a specific understanding of the attempted jarimah is due to two things: 23 a. Attempted jarimah are not subject to had or qisas punishment, but to ta'zir punishment, regardless of the type of jarimah. The fuqaha pay more attention to jarimah ḥudud and qi'as-diyat, because the elements and conditions remain unchanged, and the punishment has also been determined in number and cannot be reduced or increased. 24 b. With the existence of rules that include from the syara' regarding the punishment of jarimah ta'zir, then special rules for trials do not need to be held, because the law of ta'zir is imposed on every immoral act (error) that is not subject to had or kifarat punishment.

Sanctions for Child Obscene Perpetrators in Fiqh Jinayah
a. Obscenity Subject to Ta'zir Sanction In the case of the criminal act of obscenity described above, ta'zir criminal sanctions are imposed, namely the crime of obscenity in which the act has not yet reached sexual intercourse, but in this case the perpetrator only makes contact with parts of the female body, such as groping breasts, etc. 25 So, in this case, the perpetrator cannot be punished with ḥudud criminal sanctions, but the criminal sanctions are determined by ulil amri, which is the severity according to the benefit needed by the community considering that such actions can damage the child's future.
b. Obscenity Subject to Ḥudud Sanction In the case of a criminal act of obscenity that is subject to criminal sanctions ḥudud, namely a criminal act of obscenity in which the act reaches sexual relations. So, in this case, the perpetrator gets punished with the criminal sanction of ḥudud which has been determined by the naṣh because the act has been included in the category of adultery. The punishment for which is the same as adultery, which is punishable by stoning to death for those who are married and can be lashed one hundred times and exiled for one year for those who are not married.
A good punishment is as follows: 26 1. Must be able to prevent someone from committing immorality or prevent the action before (preventive) and explain after the action (repressive). 2. The high and low limits of a punishment really depend on the needs of the community's benefit, if the benefit requires the severity of the punishment, the punishment will be increased. And vice versa, if the needs of the community do not want light punishment, then the punishment is commuted. So, the existence of punishment is not measured by the severity or lightness of the form of punishment, but the extent to which punishment can deter perpetrators from creating benefits in society.

Forms of the Obscenity Crime Act
1. The crime of attacking the honor of decency This is formulated in Article 289 of the Criminal Code which reads in full: "Any person who by force or threat of violence forces a person to commit an act or allows an obscene act to be carried out, is threatened for committing an act that attacks the honor of decency, with a maximum imprisonment of nine years". 27 2. Obscenity towards Fainting People People Not Fifteen Years Old and Others. This is formulated in Article 290 of the Criminal Code as follows: Threatened with imprisonment for a maximum of seven years: 28 a. Any person commits an obscene act with a person, knowing that the person is unconscious or incapacitated. b. Any person commits an obscene act with a person even though he knows or should have guessed that he is not yet fifteen years old or if his age is not clear, it is not yet time for her to get married. c. Any person persuades someone whom he knows or reasonably should suspect that he is not yet fifteen years old or if his age is not clear, it is not yet time for him to marry, to commit or allow obscene acts, or to have sex outside of marriage with another person.

Same-sex obscene acts (Homosexual)
This is formulated in Article 292 of the Criminal Code which is formulated as follows: "An adult who commits an obscene act with another person of the same sex, which he knows or should reasonably suspect is not yet an adult, is threatened with a maximum imprisonment of five years". 29 4. Motivating Minors to Do Obscene Deeds. This crime is formulated in article 293, as follows: a. Any person, by giving or promising money or goods, abuses the agent that arises from a relationship of circumstances, or by misdirection, intentionally moves a minor and good behavior to commit or allow an obscene act to be carried out with him/her, even though he/she is not yet an adult, it is known or should be suspected, is punishable by a maximum imprisonment of five years. b. Prosecution is only carried out on people's complaints against him/her being committed the crime. c. The grace period referred to in Article 74 for this complaint is nine months and twelve months, respectively. 5. Obscene acts against children, stepchildren, and so on. This is formulated in article 294 which is detailed as follows: a. Any person who commits an obscene act with his child, stepchild, adopted child, child under his supervision who is not yet an adult whose care, education, or custody is handed over to him or with his assistant or subordinate who is not yet an adult, shall be punished by a maximum imprisonment of seven years. b. Threatened with the same punishment: 1) An official who commits an obscene act with a person who because of his position is his subordinate, or with a person whose care is entrusted or handed over to him. 2) Administrators, doctors, teachers, employees, supervisors or errands in prisons, state workplaces, educational institutions, hospitals, orphanages, mental hospitals or social institutions, who commit obscene acts with people who are admitted to them. 6. The crime of facilitating obscene acts by his children, his stepson, his adopted children, and others who are not yet adults. This is formulated in article 295, as follows: a. Threatened: 1) By a maximum imprisonment of five years any person, in the case of his child, stepchild, adopted child, or child under his supervision who is not yet an adult, or a person who is not yet an adult, whose care, education or care is handed over to him, or by his assistant or subordinates who are not old enough, intentionally cause and facilitate obscene acts with them. 2) With a maximum imprisonment of four years, any person who, in the event of an obscene act by a person other than the one mentioned in point I above, who he knows or should reasonably suspect, is immature with another person, intentionally causes or facilitates the obscene act. b. If the guilty commits the crime as a means of livelihood or habit, the punishment may be increased by one third. This is formulated in Article 296 which is in full as follows: "Any person intentionally causes or facilitates obscene acts by others with other people and makes it a livelihood or habit, shall be punished by a maximum imprisonment of one year and four months or a maximum fine of fifteen thousand rupiahs.

Types of Obscenity
In classifying obscenity, it can be divided into several types of obscenity, which include the following: 30 1. Sadistic Rape means, in this type of sexuality and aggression combine in a destructive form. Perpetrators of sexual abuse have appeared to enjoy erotic pleasures not through sexual intercourse, but through gruesome assaults or the victim's genitals and bodies. 2. Angea Rape is sexual abuse characterized by sexuality as a means to express and vent the feelings of anger and anger that are held back. Here the victim's body seems to be the object against whom the perpetrator projects a solution to his life's frustrations, weaknesses, difficulties, and disappointments. 3. Dononation Rape is an obscene act that occurs when the perpetrator tries to maintain power and superiority over the victim. The goal is sexual conquest, the perpetrator hurts the victim, but still has the desire to have sex. 4. Seductive Rape is obscenity that occurs in stimulating situations, created by both parties. At first the victim decided that personal intimacy should be limited not to the extent of sexual intercourse. Perpetrators generally have the belief that they need coercion, because without it they have no guilt related to sex. 5. Victim Precipitated Rape, namely obscenity that occurs (takes place) by placing the victim as the originator. 6. Exploitation Rape is an act of obscenity that shows that at every opportunity to have sexual relations a man obtains by taking to be cared for or guarded or his bachelor or people under him, both underages, shall be punished with imprisonment for seven years. In Law No. 23 of 2002 there is an article that mentions obscene crimes, namely: Article 82 "Every person who intentionally commits violence or threats of violence, coerces, commits deception, a series of lies, or persuades a child to commit or allow obscene acts to be carried out, shall be sentenced to a maximum of 15 (fifteen) years and a minimum of 3 (three) years and a maximum fine of Rp. 300,000,000.00 (three hundred million rupiah) and a minimum of Rp. 60,000,000.00 (sixty million rupiah)." Based on the sanctions given to the perpetrators of the criminal acts above, the author can classify obscene crimes that are threatened with the laws mentioned above, in which the punishment given is the longest sentence, namely imprisonment for fifteen years, categorized into obscene acts that are up to with sexual relations with minors. Meanwhile, obscene perpetrators who have not yet had sexual intercourse are sentenced to three years to fifteen years. While the sanctions contained in the Criminal Code are considered irrelevant to the birth of Law no. 23 of 2002 concerning child protection. This law guarantees the survival of children more than what is contained in the Criminal Code in the aim of providing a deterrent effect against the perpetrators of these obscene crimes.
Judging from the punishment to the perpetrators, justice is needed which is awaited by the victim's family and the whole community who are in their midst, it does not mean a severe punishment desired by the public but a punishment that is in accordance with the actions of the perpetrator and has a positive impact so that the perpetrators are deterrent.
Victims of obscenity are people who are unconscious or helpless, not yet 15 (fifteen) years old or not yet married, same sex, immature, stepchild, adopted child, child under his supervision. Obscenity sanctions start from 9 (nine) years (Article 289), 7 (seven) years (Article 290,294), 5 (five) years (Article 292, 293 (1), 295 (1 to 1)), 4 (four) years (Article 295 (1 to 2)), besides that, the penalty can be increased by one third, if the crime is used as a livelihood (Article 295 (2)). of obscenity against minors who had sexual relations imposed sanctions, namely imprisonment for 7 (seven) years and a fine of Rp. 60,000,000 subsidies 5 (five) months. This decision is not in accordance with what was threatened by the public prosecutor, namely the threat of a maximum sentence of 15 (fifteen) years and a maximum fine of Rp. 300,000,000. Law enforcers must be able to take a deep look at the human rights of children, especially as victims who receive suffering that they cannot forget. In law enforcement, it does not mean that the perpetrators must be punished with the most severe laws, but the appropriate punishment for the perpetrators to be able to foster the perpetrators so as not to repeat their actions in the future.

Efforts to Overcome the Occurrence of Obscenity in Criminal Law
Efforts in crime prevention are part of providing protection to the community (social defense) and efforts to prosper. Crime prevention is "protection of society to achieve public welfare". The crime prevention policy is a policy of the law enforcement section. Law enforcement policies are also part of the social policy section. 33 Muladi also stated that the crime prevention policy when viewed from a very broad scope because crime is essentially a human problem and a social problem. The crime of social problems is a symptom that changes, always develops and is interrelated with the symptoms of society and from a very complex social order and is a socio political problem. 34 1. Repressive or Penal Efforts Preventing crime through repressive or penal channels is the prevention of crime after the crime has occurred. This is repressive in nature (suppressing, restraining, detaining, or oppressing), meaning that in this case every perpetrator of a crime is given a punishment in accordance with positive law. Preventing crime through the penal route involves the functioning of the law enforcement apparatus of the criminal justice system, which consists of the police, prosecutors, courts, and correctional institutions. 35 According to Barda Nawawi Arief, crime prevention and control through penal facilities is a penal policy or penal law enforcement policy whose function/operationalization goes through several stages: 36 a. Formulation (legislative policy); b. Application (judicial/judicial policy); c. Execution (executive/administrative policy).

Preventive or Non Penal Efforts
The prevention of crime through this non-penal route is the prevention of crime before the occurrence of a crime which is more of a preventive action or prevention of a crime. What is handled in this case are the factors that cause the occurrence of a crime related to changing the nation's morals that are not appropriate and can be pursued by various efforts, namely prevention, through a religious approach, counseling through community leaders, moral education in schools, including moral character building and in the family. 37 services; g. temporary shelter services; and h. reintegration services into the community. 44 Article 47 (1) Community social workers can play a role in the referral system. (2) The role as referred to in paragraph (1) can be in the form of identification and recording of victims' needs. 46 (3) Community social workers can directly provide needed services, according to their capacities and duties, or refer victims to other institutions. 45 As for Article 48 Chapter XI concerning the Implementation of Protection, it is stated that: (1) The implementation of protection for victims is carried out in an integrated manner in the Integrated Service Center (PPT) which is coordinated by the agency/institution that is tasked and responsible for the empowerment and protection of children.
(2) Aceh Province PPT may receive case referrals from districts/cities throughout Aceh Province. (3) Provisions on PPT shall be further regulated by a Governor Regulation. 46 The form and mechanism of service in Article 49 states that: (1) The forms of service to victims organized by PPT are: a. medical services; b. medicolegal services; c. psychosocial services; d. legal services to assist victims in the judicial process and e. independence services in the form of economic access and skills training so that victims can be independent. (2) The service mechanism as referred to in paragraph (1) is carried out according to standard operating procedures (SOP) which will be further regulated by a governor regulation. 47 The service principles are contained in article 50 which states that: 47 "Services to victims are provided with the principles: fast, responsive, safe, empathetic, and non-discriminatory, easy to reach, and guarantees confidentiality, and free of charge from the victim."