DILEMA PENETAPAN STATUS ANAK HASIL KEKERASAN SEKSUAL INCEST: ANTARA KEPASTIAN HUKUM DAN KEADILAN SUBSTANTIF

Deny Marita Wijayanti, NIM.: 24203011099 (2026) DILEMA PENETAPAN STATUS ANAK HASIL KEKERASAN SEKSUAL INCEST: ANTARA KEPASTIAN HUKUM DAN KEADILAN SUBSTANTIF. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

The absence of specific and explicit provisions governing the legal status of children born of incestuous sexual violence in Indonesia creates uncertainty over their lineage, civil relations, and fulfillment of basic rights. This gap between legal protection and substantive justice makes the main issue clear. This research examines judges' normative views on determining the status of children born of incestuous sexual violence to ensure substantive justice and explores a legal protection concept aligned with justice, humanity, positive law, and Islamic law. This research is empirical legal research using a qualitative approach. Data were collected through in-depth interviews with religious court judges and women and child protection practitioners. By using the theory of legal protection, legal ideals, and ḥifẓ al-nafs within the framework of maqāṣid al-syarī'ah, data analysis focuses on assessing the extent to which applicable legal normativity has provided legal certainty and substantive justice for children born from incestuous sexual violence. The results of the research indicate that: First, the normative construction of judges' views generally stipulates that children resulting from incestuous sexual violence only have a blood relationship with the mother. However, judge still protect other mechanisms, such as imposing civil responsibility on the biological father. Second, legal certainty has been fulfilled through clarity and consistency of norms. Still, substantive justice has not been optimally realized because protection of the child's dignity, psychological recovery, and future is still limited. Third, the determination of child status has been oriented towards the fulfillment of ḥifẓ al-nafs but remains partial, necessitating legal reconstruction more oriented towards comprehensive child protection.

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