Hate Speech in Perspective Criminology

Runi Sikah Seisabila – University of Indonesia

Introduction
The number of cases of hate speech or commonly referred to as hate speech in
Indonesia occupies a high number. Hate speech is speech expressed by the public that
expresses hatred or incites violence against a person or a community based on race, religion
, gender, nor sexual orientation. Such hate speech has the potential to lead to discrimination
or violence or also be accompanied by insults. In principle, this hate speech is intended to
protect free speech. This is in the ITE Law Article 28 paragraph (2), which reads:
"Everyone intentionally and without means disseminates information intended to
cause hatred or hostility of certain individuals and or groups of people based on ethnicity ,
religion, race and intergroup (SARA)."
The policy is in accordance with the basis of the Indonesian state, namely Pancasila.
The policy aims to prevent commotion or unrest from occurring in the Indonesian state.
The State of Indonesia includes the country of law regulated in the Article; 1 paragraph
(3) of the 1945 Constitution of the Republic of Indonesia which states that "The State of
Indonesia is a country of law that upholds high value to uphold truth and justice and no
power that is not accounted for or can be called accountable (MPR, 2017).
The existence of law in society is to regulate the interests arising in society, the law
regulates in such a way that in a traffic interests do not conflict with each other. According to
Hans Kelsen there is no law for a person without legal obligations for others. If this goes well
in society, then justice is realized in society. Supposedly, people are obedient to the law not
only because people recognize the source of the law and also not because people believe in
the rationality of the law.
Although in the law there are sanctions as a force to force people to obey the law, this
is not a guarantee of the establishment of the law. In this case we see a norm exists and
applies it works/is effective or not, or in other words whether the norm is obeyed or not.
Therefore, in essence law enforcement is strongly influenced by factors both from internal
factors of the law itself, for example the law, its enforcers, its means and the legal awareness
of the community and the external facultys of the law.
Analysis of Differentiation Association Theory in Analyzing Hate Speech
Crime in telematics is a dark side of technological advances that has had a far-reaching
impact on all spheres of modern life today. In this point, the problem of hate speech can be
studied using the theory of differential associations, because this theory proposed by
Sutherland is a determining factor in criminal behavior located in the Person Situation
Complex, and the deciding factor in the occurrence of crime lies in one's
perception/attitude/response to something to be faced.
One of the sciences that studies the problem of crime is criminology. Criminology is a
science that reveals the realities or facts that occur and exist in society. In differential
association theorySutherland argues that criminal behavior is a behavior learned in a social
environment. This means that all behaviors can be learned in various ways. Therefore, the
difference in behavior that conforms with criminals is the opposite of what and how
something is learned. This theory is influenced by three other theories, namely: ecological
and culture transmission theory, symbolic interactionism, and culture conflict theory. This
theory is more sociological in nature and pays less attention to psychological aspects.
According to Sutherland, why people commit crimes, or prefer to violate rather than obey the
law, it is due to 4 elements (core of differential association theory) namely (Nandang, 2010) :
1. Frequency : Unindividual associates with a certain group.
2. Duration : time the individual in the group.
3. Priority : past a person.
4. Intensity : How the attitude of people towards the norms that their group adheres
to.
This crime in the field of telematics is the dark side of technological advances that have
a very broad impact on all spheres of modern life. In the subject of this paper, the problem of
hate speech can be studied using the theory of differential associations, because the theory
proposed by Sutherland is a determining factor in criminal behavior located in the Person
Situation Complex, and the determining factor in the occurrence of crime lies in a person's
perception / attitude / response to something that will be faced.
From this explanation, Sutherland revealed the reasons for this theory, namely:
1. Criminal behavior is learned, not inherited.
 2. Criminal behavior it is studied in relation to the interaction of others in a process of
communication.
3. The most important part of studying criminal behavior arises in a very intimate
relationship/group.
4. In studying criminal behavior, a person will learn techniques for committing crimes
and motivations/ impulses.
5. Those impulses are learned from the person's interpretation of the provisions of the
Act; whether he likes breaking the Act or he doesn't like breaking the Act.
6. A person becomes evil because that person would rather violate the Law than obey
the Law.

Conclusion

The factor that causes someone to commit hate speech is a process of communication
with people around them. This means that someone can easily commit hate speech because
they are influenced by people around them and the act is contagious. Usually, the
perpetrators influence people around them to carry out hate speech by inciting and hating
certain parties. In addition, there are factors from within the individual himself, such as the
pricological state of the perpetrator and his psyche, as well as the factor of society's ignorance
of his actions being right or wrong. Other reasons are prejudice against the person or the
victim, disappointment or hatred of the perpetrator towards the victim's actions that trigger
the perpetrator to do this. Facilities and technological advances also greatly influence hate
speech.
The enforcement of criminal sanctions against perpetrators of hate speech when
reviewed from Article 28 paragraph (2) of Law No.11 of 2008 Jo Article 45A paragraph (2) of
Law No.19 of 2016 concerning Electronic Information and Transactions and article 156 of the
Criminal Code has not gone well as it should. The article is often referred to as a rubber article
because it can restrict a person from expressing their opinion, especially if it is applied by
people who do not understand this, because the article above is not explained in detail about
the explanation of what hate speech is, what is meant by hate speech and so on. The article
only covers elements of SARA.
Reference:

Heniarti, Dini Dewi, Husni Syawali, Diana Wiyanti, 2015. Kebijakan Kriminal
Penanggulangan Kejahatan Telematika,
Majelis Pemusyawaratan Rakyat Republik Indonesia. 2017. Panduan Pemasyarakatan
Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 dan Ketetapan
Majelis Pemusyawartan Rakyat Republik Indonesia. Jakarta: Sekretariat Jenderal MPR RI,
halaman 67-68.
Nandang Sambas, 2010. Buku Ajar Pengantar Kriminologi, Bandung : RPP.