18 January 2011

How Much Time Should Ariel Do For A Sex Tape?

Here is the crux of this case: "have the prosecutors proved that Ariel was involved in the distribution of either the tape of him having sex with Luna Maya or the tape of him having sex with Cut Tari?" The answer must inform the judges when making their decision. Based on the evidence which has been adduced in court, the answer to this question is "no". The prosecutors have not satisfied the burden of proving Ariel guilty of the charge for which he has been tried.

This trial is not about making and starring in an amateur porn film. Morals aside, it is not a crime to make a sex tape of yourself and another consenting adult in Indonesia. It is illegal to distribute that tape.

Despite the court being closed for the duration of the trial this must not be construed as it being secret. The truth of the matter is that both sides were more than willing to discuss on the record what their respective cases were to the mass media. So, getting a handle on who did what and with whom has not been difficult. For example, the gist of the defense was that the prosecutors had no evidence linking Nazril Irham (aka Ariel) to the alleged distribution of the sex tapes. And, O. C. Kaligis, one of the lead defense lawyers was quoted as having said as much to The Jakarta Globe. The whole defense case ran to some 107 pages (of which I hope to get a copy). The word from the man himself was contained in a 3-page plea which Ariel read to the court. Ariel gave this plea a name, "Nazril Irham, a victim of brutality". Ariel's statement would be a good read because it is hard to imagine what brutality he has suffered.

It is fair to say this is not the "test" case for the laws being argued before the courts. There is little doubt that Ariel has been humiliated by having this case played out in public, there is little doubt that the man has suffered for having his freedom curtailed whilst being detained, but I am not sure that he has been brutalised. Nevertheless, the man should never have done a day in detention. And, a guilty verdict would be unsound and would be an injustice. But, if Boy Afrian Bondjol is to be believed, then brutalisation claims relate to the idea that his privacy has been invaded and that process in the public eye is one that is brutal. Once again, humiliating rather than brutal.

For me, this case has always rested on whether the prosecution could prove that Ariel was involved in the distribution of the sex tapes in which he starred. The argument that he did not doing anything to prevent their distribution is the same as actively distributing them is not sustainable. The assumption is that he knew the tapes had been stolen and that he allowed, in fact encouraged, them to be uploaded to the internet. The balance of evidence would suggest that Ariel knew the sex tapes existed but did not know that they had been stolen.

Yet, the other key issue is whether the Pornography Law can be used in this case. There are interesting legal arguments to be played out here and some serious hair-splitting can occur. By most admissions the sex tapes were made in 2005 or 2006. This by itself suggests that the sex was not that good seeing no one can quite recall when the deeds were done. But, on a more serious note, 2005 and 2006 are both years that passed prior to the enactment of the Pornography Law. Recent Indonesian case law is unequivocal in stating that Indonesian laws cannot apply retroactively. Admittedly, this was a terrorism trial, but the principle was sound.

Although, the Pornography Law was passed in 2008 and therefore seemingly cannot apply to the production of these tapes, there is a different argument in play with respect to distribution. Distribution allegedly occurred in 2010 when the sexual performances of Ariel, Luna Maya and Cut Tari were uploaded to the internet. Therefore, there are arguments to be made that the actual violation of the law occurred within the parameters of the Pornography Law.

The legal reasoning of the decision once it is finally handed down should make for some real interesting reading.

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