Eduvest
ďż˝ Journal of Universal Studies Volume
2 Number 10, October, 2022 p- ISSN 2775-3735 - e-ISSN 2775-3727 |
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THE ROLE OF KPAI ON THE
HUMAN RIGHTS OF CHILDREN AS VICTIMS OF RAPES IN EDUCATIONAL ENVIRONMENTS |
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Dina Indriyani, Joko Setiyono Universitas Diponegoro Semarang,
Indonesia |
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ABSTRACT |
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The purpose of this paper is to be able to find out about
what are the forms of violations of rape against children in the educational
environment and explain how the role of the KPAI in the human rights of
children who are victims of rape in the educational environment. The approach
method used is normative juridical with qualitative writing. The educational
environment is one of the places that are prone to rape of children which is
known together that the educational environment should be a safe and
comfortable place for children to seek knowledge. The role that KPAI has on
the human rights of children as victims of rape in the educational
environment is expected to make the child still able to become the next
generation of the Indonesian nation by means of mental, physical, and social
recovery from the child in order to recover, through Law Number 17 of 2016
Second Amendment to Law Number 23 of 2002 concerning Child Protection with
its basic form such as enabling victims to continue their education without
having any fear of acts of rape that have occurred before in their
educational environment |
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KEYWORDS |
KPAI; Children's Rights;
Rape; Educational Environment |
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This work is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International |
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INTRODUCTION
Rape is an act carried out by individuals or groups of individuals by forcing the victim to vent the
sexual desire of the perpetrator. Rape is a
form of sexual violence in which sexual violence is an act that is categorized
as an unnatural sexual relationship and behavior that results in serious losses
and impacts for the victim. (Ni Made Dwi Kristen, 2014) Rape
victims do not know the gender of men or women, do not know the age of adults
or children, it can be said that rape victims can happen to anyone. However,
children are the ones who have more opportunities to
become victims of rape. In 2021 it was
recorded that the highest complaints of sexual crimes against children came
from the type of children as victims of obscenity, namely 536 cases (62%), and
children as victims of sexual violence rape/intercourse 285 cases (33%). (Chandra Iswinarno, 2022)
Apart from not knowing gender and age, rape also does not look at the
environment where it is known that rape can occur anywhere, especially if the
victim is a child, the educational environment is one of the places. Rape can
occur in the educational environment due to internal and external factors.
Internal factors can come from the perpetrators or victims, but the internal
factors from the perpetrators of rape are factors that have an important role.
While external factors can come from a place and time where the
environment/place of the perpetrator and the victim affects the occurrence of
acts of rape such as being in quiet or dark places that create opportunities
and possibilities, as well as time becomes one of the external factors because
in terms of In the educational environment, many activities are carried out
during school hours (morning to evening) indicating that rape does not look at
the time even though it is daytime, this dispels the view that rape only occurs
at night because in reality rape in the educational environment occurs at
night. school activity. (Dudung Mulyadi, 2018)
The problem of rape that occurs in the educational environment is still
a lot going on. During January to July 12 cases of sexual violence were
recorded, of which 3 (25%) schools were under the authority of the Ministry of
Education, Culture, Research, and Technology and 9 (75%) education units under
the authority of the Ministry of Religion. Of the 12 cases, 31% of sexual
violence occurred in boys and 69% occurred in girls. (Mutia Yuantisya, 2022)
The educational environment that should be a learning platform for
students to shape the morals and character of the nation's children has
actually become an uncomfortable and unsafe place for children (Fldzah Hani Mufidah, 2020) who are victims of rape.
In the educational environment, the main responsibility is the educators
regarding everything that happens to their students because the educators have
been given the trust by the parents of students to become parents when they are
in the educational environment. Many of these cases actually involve educators
as perpetrators of sexual violence against their students.
Rape must become a public problem and no longer just a private matter
because rape is clearly an immoral act which in addition to violating
children's human rights, also causes physical, mental and social suffering to
children. (Iwan Setiawan, 2018)
The existence of
rape cases that make children as victims, even in large numbers and for a fairly long period of time in the
educational environment, needs to be a very serious concern for
many parties, especially the state. The state as a protective umbrella and can
provide protection for every citizen
who is a victim of actions that occur in the territory of his country. It has been stated in the Convention on the Rights of
the Child that children, students, have the right to be free from inhumane
acts. The state party shall take all necessary steps to ensure that school
discipline is regulated in such a way as to be consistent with the human
dignity of the child.
To protect human
rights, the state must be built on the principle of the rule of law so that
there is an instrument to monitor and prosecute in case of human rights
violations and to put the people as the determinant in the life of the state. (Sabila, Bustamam, & Badri, 2019) The
rule of law in Indonesia cannot be separated from the regulation of human
rights itself, especially in the ground
norm , namely the Fourth Amendment of the 1945 Constitution of the Republic
of Indonesia (UUD 1945). (Amalia & Dewi, 2018)
Indonesia as a state of law in this case seeks to provide protection for
cases involving children, including cases of sexual violence against children,
one of the efforts of the government is the establishment of the Indonesian
Child Protection Commission (KPAI). KPAI is one of the independent institutions
that was formed to provide all protection efforts from the many kinds of
problems involving children, from preventing them to providing solutions to
problems that occur to children. KPAI was formed under the mandate of Law no.
23 of 2002 concerning Child Protection which later became Law no. 17 of 2016
concerning the Second Amendment to Law no. 23 of 2002 concerning Child
Protection, which in Article 74 provides an explanation (1) In order to
increase the effectiveness of supervision of the implementation of the
fulfillment of Children's Rights, with this Law an independent Indonesian Child
Protection Commission is established; (2) If necessary, the Regional Government
may establish a Regional Child Protection Commission or other similar
institutions to support the supervision of the implementation of Child
Protection in the regions.
Seeing the cases that occurred, it raises the question of how the role
of KPAI as an independent institution authorized in terms of providing child
protection for children's human rights as victims of rape in the educational
environment
RESEARCH
METHOD
This writing uses a qualitative normative juridical method. Normative
juridical research is research that refers to legal norms contained in
legislation and court decisions and norms that live in society. Abdullah Sulaiman, Methods of Writing Legal Studies, Printable To
(Jakarta: Postgraduate Law Program, Islamic University Jakarta, 2010), p. 25. The nature of this writing is qualitative with
descriptive type.
The data
collection technique used is to collect library data ( library research ) in the form of primary and secondary data to be studied later in order to obtain solutions to
existing problems . Sandu Siyoto and M Ali Sodik, Basic Research Methodology, 1st edn
(Yogyakarta: Media Literacy Publishing, 2015), p. 11-12.
RESULTS
AND DISCUSSION
Throughout 2021 to 2022,
several cases have emerged involving educators as perpetrators of raping their
students that occurred in the educational environment. In 2021 appears cases
of rape committed by caregivers as well as teachers at Islamic boarding schools
in Bandung against 13 female students. The case was successfully revealed after the West Java Regional Police received a report from the parents of one of the victims. It was revealed that 9
babies had been born from 8 victims. There are even victims who give birth up
to two times. The age range of the victims is between 14-20 years. Not only
that, it was revealed that the child born to the victim was recognized as an
orphan. These children are also a tool to ask
for funds from several parties. Victims were also forced and employed as
construction workers to build Islamic boarding schools in the Cibiru area. (Kompas.com, 2021) Until then on April 4, 2022, the defendant was
sentenced to death by the Panel of Judges chaired by the Head of the Bandung
High Court, Herri Swantoro, who read out 10 points in the verdict. (Febriyan, 2022)
In 2022 there was a case
involving the leader of one of the Islamic boarding schools, namely WA in
Sukabumi, who violently assaulted 3 female students at his Islamic boarding
school. Victims from WA were aged 15 to 18 years. One of the victims admitted
that WA had forced him 20 times. The modus operandi of the perpetrator is to
say that he will cure the disease and provide assistance to the parents of the
victims who are in trouble. (Eko Sutriyanto, 2022)
Rape is included in the category of violation of human
rights because it is very clear that this act deprives the victim of absolute rights
and destroys her dignity as a human being. With regard to the cases above, it is clear
that the perpetrators carried out these acts of rape with full awareness in
themselves, seeing the period of time that was committed along with the number
of victims.
Rape is an act that robs the victim of the dignity and
worth due to acts carried out on the
basis of coercion and/or threats. Rape cases that make children as victims are acts that violate human rights, whether the number of victims who are raped is small
or large, it is still an act that violates human rights.
Related _ Regarding
human rights violations, human rights have a number of principles, namely Eko Riyadi, Human Rights Law: International, Regional, and National
Perspectives, 1st edn (Depok: Rajawali Pers, 2018), p. 25-31. :
1.
Universal Principle (Universality)
The universal principle is that all individuals, in all parts
of the world anywhere, no matter
what religion, citizen country,
language, ethnicity, regardless of
political and anthropological identity, and regardless of their
disability status, they have the same
rights as human beings.
2.
Principle of Indivisibility (Indivisibility)
This principle means ' all '
HAM is equally
important and therefore not allowed issue certain
rights or rights group of its components.
3.
Principle of Interdependence (Interdependent)
This principle means that one group of rights will often be fulfilled depending on the fulfillment of other rights.
4.
Principle of Interrelated (Interrelated)
This principle is understood that is, all human rights are component not separate
from the others.
5.
The Principle of Equality (Equality)
Equality is assumed
to be a
very fundamental human rights principle.
6.
Principle of Non-Discrimination (Non-Discrimination)
Discrimination is defined as a
situation where the same situation is treated differently and/or different
situations are treated the same.
7.
Principles of Human Dignity (Human Dignity)
The main objective of the agreement and codification of human rights law is to ensure that all individuals can live with dignity. All individuals must be respected,
treated well, and assumed to be valuable.
8.
Principles of State 's Responsibility
Fulfillment, protection and respect
for human rights are the responsibility of the state. The
main actor who is burdened with the responsibility to fulfill,
protect and respect human rights is the state through its
government
apparatus.
The Basic Laws of the Republic of Indonesia of 1945
have been contain A number of human rights , viewed from a macro definition of human rights , will be more assertive if other laws and regulations are followed
that can harmonize with the development of
society and the international community. (Setiaji & Ibrahim, 2018)
case of Herry Wirawan,
who raped 13 female students and employed his victims, in addition to violating
the 1945 Constitution of the Republic of Indonesia, he also violated Law Number 39 of 1999 concerning Human Rights . It is clear in Article 29 paragraph (1) of the Human
Rights Law that every individual is entitled to
self- preservation, family, honor, dignity, and property rights. Then Article 30 that every Individuals
have
the right to a feeling of security and peace
along with guard
on the threat of fear of use Act or not act something.
Article 33 paragraph (1) each Individuals have the right to be free from torture, punishment or cruel, inhuman,
degrading treatment and human dignity, as well as Article 35 of each
Individuals have the right to live in the people 's order as well as a peaceful, safe, peaceful state, respecting,
protecting and fully carrying out human rights and basic human
obligations in accordance with in this law.
In addition, the perpetrator's actions also violated Law no. 17 of 2016 Second Amendment to Law No. 23 of
2002 concerning Child Protection, in which in the Herry
Wirawan case most of the victims were underage. In Law no. 35 of 2014 concerning Amendments to Law no. 23 of 2002
concerning Child Protection, previously one of the amendments focused on the
weighting of criminal sanctions against perpetrators of sexual violence against
children. However, the amendment to the law has not significantly reduced the
level of sexual violence against children, so the state needs to take optimal
and comprehensive steps by not only giving weighting criminal sanctions, but
also implementing forms of prevention such as chemical castration, installing
electronic detection devices, and rehabilitation for offenders. (Wakhid Rendy Saputro and Ira Alia
Maerani, 2021)
Children have human rights that must be fulfilled, protected, and guaranteed
by parents, family, society and the state.
In the case of Herry Wirawan violating Article 9 paragraph (2), every child has the right to safeguarding the education unit from sexual
crimes and violence carried out by educators, staff, fellow students, and/or other parties. The case occurred in an educational environment,
where the victims lived in Islamic boarding schools which were also used as
places for them to study and the perpetrators of the rape were also educators
at the pesantren.
The violations that occurred in this case clearly injured,
robbed, damaged, harmed the victims, because the rights inherent in them that
should be respected and protected by others were taken without any sense of
humanity at all. Humans who are equipped with reason and conscience should be
able to use them properly in social life, even more so for those who are more
mature, they can set good examples in educating and teaching what is
appropriate and what is inappropriate to do to children as the next generation.
Attitude about Human
rights are derived from religious teachings, universal moral values, and the noble values of the nation, as well as
based on Pancasila and the 1945 Constitution of the Republic of Indonesia.
The truth is and basic
human rights _ human needs, meaning
every human/ person can enjoy their human rights. Man is a whole person who does not dissolve / does not lose his identity / personality as a human being, he has rights to himself apart from other individuals . Effendi Masyhur, Human Rights: In National and International Law (Bogor:
Ghalia Indonesia, 2016), p. 47.
Problems
related to human rights are humanitarian problems, related to how to cope, not
only recognizing human dignity, but also about how far the human dignity of
each person can be felt by all individuals, there is no difference. The
principle of recognition and protection of human rights is part of the
principle of legal protection. The term human rights in Indonesia is often
equated with the term natural rights, basic human rights. (Aswandi & Roisah, 2019)
Its
relation to human rights is not only to uphold and provide biological needs
(housing, clothing, and food) but also to provide needs and mental and
spiritual freedom (rights, obligations, and responsibilities) for every human
being equally. Recognition of human rights is not just a means, but one of the
most fundamental goals of organizing the life of the entire community. (Pangaribuan, 2017)
2.
KPAI as the Protector of Children's Rights in the Educational Environment
According
to Article 1 point 1 of Law no. 17 of 2016 Second Amendment to Law No. 23 of
2002 concerning Child Protection states that child protection is all activities
to guarantee and protect children and their rights so that they can live, grow,
develop and participate optimally in accordance with human dignity and
protection from violence and discrimination.
Described in Article
22 that the state, the Government, and the
Regional Government have to and is responsible for providing support for
facilities, infrastructure, and the existence of human resources for the
implementation of
Child Protection. In addition, the state is also obliged to guarantee the implementation of children's
rights by protecting, fulfilling, and respecting children's rights. The state
formulates, implements and supervises policies in the field of implementing child protection. These laws also explain that the responsibility for
protecting children is not only shared by the state, but also belongs to
parents, families, and the people.
Article 15 states that every
child has the right to get protection from many things, such as protection from
abuse in political activities; involvement in armed conflicts; involvement in
social unrest; involvement in events that contain elements of violence;
involvement in war; and sexual crimes. Children are the trust
and gift of God Almighty, which is inherent in
the dignity and worth as a whole
human being. (Sustainable, 2017) Children
can act based on their own thoughts, feelings and desires, but the environment
has a very big influence on the formation of children's behavior, which is why
children must be guided, nurtured, and protected by parents, teachers, families
and existing adults. around it is needed by the child for the development
process. M. Nasir Djamil, Children Are Not To Be Punished (Jakarta: Sinar Graphic,
2013), p. 11. Child is component that can not be separated from the purpose of state
protection and as a human investment in the national development
process. (Hamamah, 2015) Children
include groups of citizens who are vulnerable
at the same time individual the elderly , the
poor, pregnant women , and
disability namely protection
for This vulnerable group is entitled to more treatment and protection
related to their specificity. (Hertianto, 2021) Children have personality autonomy, which
cannot be seen in a weak, passive, and accepting position, but is an autonomous
person (having desires, experiences, imagination, aspirations, uncertain
options similar to adults). Djamil, OpCit. Thing. 29-31. Children become the generation that holds the
successor to the ideals of the nation's struggle and become human resources for
national development. (Nabella Puspa Rani, 2018)
Problems related to child
protection are complex and give rise to various kinds of further problems,
which cannot always be solved individually, but must be jointly resolved, and
the solution is a shared responsibility.
Child protection is a result
of interaction because of the interrelation between existing phenomena and
mutual influence. Therefore, if we want to know whether there is good or bad
child protection, right or wrong, then we must pay attention to which phenomena
are relevant, which have an important role in the occurrence of child
protection activities.
Protecting children is
protecting humans, is building a complete human being. Child protection
activities are legal actions that have legal consequences, so legal guarantees
are needed for child protection activities. Legal certainty must also be sought
for the continuity of child protection activities and prevent fraud that will
cause unwanted negative impacts in the implementation of child protection
activities.
In order to develop business
activities for child protection, we must be alert and aware of the undesirable
consequences that cause victims, losses due to the implementation of child
protection that is irrationally positive, irresponsible and useless. Therefore,
efforts must be made to have something that regulates and guarantees the
implementation of child protection. It must be prevented, so that the
regulation of various child protection efforts itself does not guarantee child
protection and even causes various other negative deviations. Arif Gosita, The Problem of Victims
of Crime (Jakarta: Faculty of Law, University of Indonesia, 2007), p. 204-205
<https://doi.org/BL00012900001>.
Some of the rationale as the
basis for the problem of child protection, among others, are as follows:
1.
Meaning, attitude
and action
The right understanding or
meaning of child protection is expected to make us behave and act appropriately
in dealing with and overcoming problems related to child protection issues. The
right understanding can provide a strong positive motivation in carrying out
child protection activities. Based on the right understanding can also make
policies and work plans better and can be implemented.
2. Understanding about humans
The problem of child protection is a human problem
which is a social reality. The image or understanding of humans and humanity is
the dominant factor in dealing with and solving child protection problems which
are problems of human life. Understanding that those who are the object and
subject of services in child protection activities both have rights and
obligations; a person's motivation to participate diligently and persistently
in child protection activities; the view that every child is natural and has
the right to mental, physical, social protection from his parents, members of
society and the state, the views of these statements are clearly based on an
appropriate understanding or image of humans. Those who are protected and those
who protect and anyone who is involved in the issue of child protection are our
fellow human beings who have the same dignity and worth as humans, and who are
with us in a society.
Those who have the right image of humans and humanity
will better understand what it means to build a whole person, which also
includes child protection activities. Disseminate and spread the right
understanding of humans if you want to successfully implement child protection.
Improper understanding of humans is one of the inhibiting factors for
developing justice and welfare activities in general and child protection
activities in general, and child protection activities in particular.
3. Understanding of justice
With regard to child protection, it is necessary to
have an understanding of proper justice, which supports child protection
activities. A person's sense of justice will affect the continuity of child
protection activities. "Justice is a condition where everyone can exercise
their rights and obligations rationally, responsibly and usefully". If
justice is related to child protection, it can be said that where there is
justice, there should also be good child protection. Children are protected to
be able to carry out their rights and obligations rationally, responsibly and
usefully. Rational means reasonable, reasonable, but the rationale can be
positive or negative; being responsible means being accountable horizontally
(towards fellow human beings) and vertically (to God), being accountable to
others and to oneself; useful means useful for other people, society, nation,
and oneself.
4. Interaction Results
Interactive review expands the
people responsible for or the people involved in the occurrence of an action
and event. Child protection efforts are said to be a result of interaction
because of the interrelation between existing phenomena and their mutual
influence. So with regard to the issue of child protection, it is necessary to
pay attention to the relevant phenomena, which factors hinder or support the
existence of child protection efforts.
The social
relations that exist in society are the relationships between the roles of
individuals in society, so that roles are regulated by existing norms. KPAI has
a role to carry out its duties on issues related to children in contact with
the law (ABH). A role includes at least 3 things, namely (Sri Hartini, 2017) :
a. Roles include norms associated with a person's
position or place in society;
b. Role is a concept of what individuals can do in
society as an organization;
c. The role that can be said as individual behavior that
is important to the social structure.
KPAI as an institution
protecting children's rights has carried out activities as regulated in Article
76 of Law no. 17 of 2016 concerning the Second Amendment to Law no. 23 of 2002
concerning Child Protection, the KPAI is tasked with:
a. Supervise the implementation of the protection and
fulfillment of children's rights;
b. Provide input and suggestions in the formulation of
policies regarding the implementation of child protection;
c. Collecting data and information regarding child
protection;
d. Receive and review public complaints regarding
violations of children's rights;
e. Mediating disputes over violations of children's
rights;
f. Cooperating with institutions formed by the community
in the field of child protection; and
g. Provide reports to the authorities regarding alleged
violations of this Law.
In essence, children cannot
protect themselves from various types of actions that cause physical, mental
and social harm in various areas of life. Maidin Gultom, Legal Protection of Children and Women (Bandung: Rafika
Aditama, 2012), p. 68-69. Children as a vulnerable group have the right to get
more attention from the state, every child has the right to get the right to
protective measures because of his status as a minor to his family, community
and state.
The role of KPAI
is to provide protection for children, either as perpetrators or as victims in
a problem, one of which is in the case of rape in the educational environment.
Article 75 explains that:
a. Conduct socialization of all provisions of the
legislation relating to children, collect data and information, receive public
complaints, evaluate and supervise violations of child protection;
b. Providing reports, suggestions, inputs and
considerations to the president in order to examine the contents of the article,
the KPAI's duties can be further detailed as follows, conducting socialization
and advocacy on regulations.
In relation to
children's human rights, efforts are needed so that the enforcement of the
implementation of the protection of children's rights in the educational
environment can be realized, namely as follows (Triwahyuningsih, 2018) :
a. Provide assistance by being a witness during the
process of upholding children's rights.
b. Provide support for victims of child rights violations
to obtain restitution, compensation and rehabilitation.
c. Provide information and report to law enforcement
officers or institutions dealing with children's rights issues in the event of
violations of children's rights.
d. Support to be able to accept reconciliation if the
human rights court gets deadlocked.
e. Not trying to hinder, complicate or interfere with the
proceedings of human rights trials.
The role of KPAI also includes
supervision of local governments, in which local governments also have an
obligation to play an active role in preventing rape cases in the educational
environment. The success of prevention efforts carried out by local governments
is also a form of the success of the KPAI's role in protecting children's human
rights.
KPAI's active role provides
opportunities for all children to make changes in themselves to become more
qualified individuals as the nation's successors, where children who are
victims of rape in the educational environment are still eligible and have the
right to get their rights in carrying out their lives. KPAI's active role in
protecting children who are victims of rape in the educational environment
includes not being allowed to carry out various forms of violence against
fellow children, protecting the rights of children, upholding the rights and
dignity of children without having to differentiate between class, race,
ethnicity. and gender. (Dwi Puji Lestari, 2018)
To increase the
effectiveness of monitoring the implementation
of the fulfillment
of children's rights, the Indonesian Child Protection Commission was created as a form of attention and protection of
the state (Wigati
Pulunggono and Munsyarif Abdul Chalim, 2017) , in which
the KPAI has the authority to oversee
and supervise the implementation of child protection carried out by relevant stakeholders. has an obligation to carry out child protection in accordance with loaded in Article 20 of the Child Protection Act.
The role of KPAI in terms of
handling the recovery of child victims of rape in the educational environment
by maintaining the rights of children to continue to receive rehabilitation
from the government mentally, physically, spiritually, and socially,
maintaining the privacy of victims from the outside environment so that victims
feel protected, victims also have the right to continue Knowing the progress of
the case at hand, the victim has the right to be notified if the perpetrator
has been released from prison, and if the perpetrator is not sentenced due to
insufficient or minimal evidence, the victim has the right to be given full
protection to avoid possible retaliation from the perpetrator. (Maharani Kharisma Putri and Enny Ristanti and
Nahdiya Sabrina, 2021)
CONCLUSION
Human
rights are something that must be realized together by all humans that it is
important for others to respect, respect and protect each other. Cases of child
rape are included in the form of human rights violations, as it is known that
children have full human rights within themselves. Children have protection of
these human rights wherever they are, one of which is in the educational
environment and all parties in that environment are obliged to respect,
maintain, protect the human rights of children. The state is one of the parties
that has the obligation to maintain, protect, and be responsible for the human
rights of children. The form of protection from the state in respecting the
human rights of children is the establishment of the Indonesian Child
Protection Commission (KPAI) which has the authority and purpose in the realm
of children's rights to prevent and provide solutions to problems related to
children's human rights. As a form of efforts to prevent rape in the
educational environment, namely knowing what are the causes of many rapes in
the educational environment and then trying to prevent these factors from
happening easily. The role of the KPAI in the problem of rape in the
educational environment seeks to make children who are victims and perpetrators
still able to become better quality successors of the Indonesian nation with
mental, physical, and social recovery from the child.
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