Gender-responsive sentencing for women defendants in Indonesia: Integrating living law and feminist legal reasoning

Abdul Mutalib (Universitas Diponegoro, Semarang, Central Java, Indonesia)
Pujiyono Pujiyono (Universitas Diponegoro, Semarang, Central Java, Indonesia)
Sukirno Sukirno (Universitas Diponegoro, Semarang, Central Java, Indonesia)
Rahmat Hi. Abdullah (Institut Agama Islam Negeri Ternate, North Maluku, Indonesia)
Ota Musashi (University of New South Wales, Sydney, Australia)

An-Nisa’ Journal of Gender Studies
Vol. 19 No. 1 (2026): An-Nisa' Journal of Gender Studies

Sentencing women defendants in Indonesia risks overlooking experiences of violence, unequal power relations, and caregiving responsibilities. The recognition of customary law also requires scrutiny to prevent the reinforcement of gender discrimination in criminal judgments. This study aims to formulate a normative-prescriptive framework for gender-responsive sentencing of women defendants by systematically interpreting Articles 2 and 54 of Indonesia’s National Criminal Code. The study employs a normative juridical method, drawing on statutory, conceptual, and doctrinal-analytical approaches. Legal materials are analyzed qualitatively through grammatical, teleological, and systematic interpretation to develop an accountable gender-responsive sentencing model. The findings reveal three main points. First, Article 2 conditionally recognizes living law, subjecting customary norms to constitutional and non-discrimination principles. Second, feminist legal reasoning applied to Article 54 allows consideration of socioeconomic circumstances, the consequences of punishment, victim forgiveness, community legal values, and relevant experiences of victimization, unequal power relations, and caregiving responsibilities. Third, the study develops a four-component model comprising the identification of customary legal norms, assessment of gender-related circumstances, formulation of integrated legal reasoning in sentencing, and accountability safeguards. Gender-responsive sentencing requires constitutional scrutiny of customary norms and a proportionate consideration of defendants’ circumstances, supported by transparent legal reasoning, without compromising the principles of legality, criminal responsibility, or victims’ rights. In practical terms, the proposed model could inform the development of judicial checklists and judicial training to assess customary norms, consider gender-related circumstances, and strengthen accountability in sentencing decisions, although further empirical validation remains necessary.