Mengurai Bias Positivisme Hukum Pidana: Rekonstruksi Sosio-Legal Atas Urgensi Kriminalisasi Femisida Dalam Pembaharuan Hukum Nasional

Abstract

Femicide—the gender-motivated killing of women—represents the most extreme form of gender-based violence, deeply rooted in unequal power relations, sexism, and patriarchal culture. However, the construction of murder offenses under Indonesian positive law, including the old Criminal Code as well as Articles 458 and 459 of Law No. 1 of 2023, continues to rely on gender-neutral formulations that reduce femicide to ordinary homicide. Consequently, gender motives, history of violence, coercive control, and structural inequality are excluded from the framework of criminal liability. This study aims to deconstruct the bias of legal positivism in criminal law and formulate a socio-legal reconstruction regarding the urgency of criminalizing femicide. Employing normative-conceptual legal research with a socio-legal approach, this study qualitatively and comparatively analyzes primary and secondary legal materials through the analytical frameworks of Feminist Legal Theory, Karl Mannheim's Sociology of Knowledge, and Responsive Law theory. The findings demonstrate that the formal neutrality of criminal law conceals a masculine epistemological bias that perpetuates the subordination of women, while conventional law enforcement practices frequently misinterpret gender motives as mitigating factors in sentencing. Furthermore, the absence of legal recognition of femicide results in minimal official data visibility and inaccurate protection and rehabilitation mechanisms for victims. Therefore, a reconstruction of criminal law through the explicit recognition of femicide as a socio-legal category is imperative to achieve substantive justice and foster the responsiveness of national law.