07 January 2011

Ariel Looking Down the Barrel: Five on the Inside?

Nazril 'Ariel' Irham the front man for the Indonesian band Peterpan is facing a five-year jail term and a fine of IDR 250 million for his alleged role in a porn distribution racket. The sad part about this case is that it should never have gone to trial. There is no case to answer here. Even with a very novel and creative interpretation of the law it is very difficult to see exactly how Ariel has broken the law as the prosecutors have set out to prove.

This is simply a case of a celebrity making a sex tape, having the tapes stolen, and then watching them wend their way online. The only witness for the prosecution is a man who has everything to gain and nothing to lose in testifying that it was all Ariel's idea. Let's face it, Redjoy uploaded the sex tapes to the internet, of that there seems to be little debate. However, how he came into possession of those tapes is the crux of this case. Simply, the prosecutors have not proved beyond a reasonable doubt that Ariel was a participant in the crime as charged.

The fact that Ariel is the man in the sex tapes is not a crime in and of itself. So, even if the prosecutors were to have proven beyond any doubt that it was Ariel "doing the deed" with Luna Maya and Cut Tari there is no case to answer. This case is solely about the distribution of porn, and the prosecutors have not proven that charge.

The fact that Ariel is a celebrity does not place a larger burden on him to set a good example. If it does, then any public figure must be liable to the same degree. Surely the prosecution is not arguing that there should be one law for the rich and famous and another law for the rest of us, are they?

However, the defense case seems to be hinging on the argument that the anti-pornography law cannot be applied retroactively. This seems to be the weakest of the arguments that they could be making. The simple and best argument is that Ariel was not involved in the distribution of porn. As this seems to be the main thrust of the prosecution case. Irrespective of whether the tapes were made in 2005 or 2006 the production of a private sex-tape between consenting adults is not a crime. So, the production aspect is moot. Once again, this is a case about distributing porn. The tapes were uploaded to the internet in June 2010 and therefore at least in a temporal sense they fall within the gambit of the articles of the Anti-Pornography Law.

I just don't quite get why O.C. Kaligis is harping on the anti-retroactivity angle in preference to just saying "hey, the defendant has not committed any crime!" And, then add "the defense has proved beyond a reasonable doubt that the defendant was not involved in, and did not consent to, the distribution of the sex tapes!"

I guess Kaligis will be making these submissions at the next trial hearing.

Undoubtedly there are divergent opinions on what would constitute a good outcome in this case. But, from a legal perspective it is difficult to see how a conviction could be handed-down. Yet, perhaps more importantly in a legal certainty sense is why the prosecutors have pursued this case with such zeal why letting similar cases fall by the wayside.

Ho hum...

No comments: