Limitations of Police Discretion in the Settlement of Domestic Violence Cases

Abstract

Police discretion is an accepted instrument of criminal law enforcement in Indonesia, but its use in domestic violence cases is contested because informal settlement may expose the victim to further harm. This article identifies and analyses the use and application of police discretion in the settlement of domestic violence offences and the limits to which that discretion should be subject. The study is normative legal research using statutory and case approaches, drawing on the Criminal Procedure Code, Law Number 2 of 2002 on the Indonesian National Police and Law Number 23 of 2004 on the Elimination of Domestic Violence. The study finds that police discretion has a clear legal basis and is exercised on the principles of necessity, the interests of duty, purpose and proportionality, and that it is limited generally by the public interest, by the circumstances of necessity, and by legislation and codes of ethics. For domestic violence, the article argues that the limits of discretion require explicit legal determination: because the offence is a complaint offence, discretion must be victim-oriented, and victims should be kept away from informal peace settlements that allow the violence to recur.