Sexting...

The internet is a wonderful knowledge tool. The internet is also a place where harm and the potential of harm is ever present. Technology such as mobile phones are also excellent pieces of equipment that allow us to access and share knowledge. Modern mobile phones and instant sound and image communication devices that not only make us more productive, but have the potential to get us into serious trouble.

This is one such case on the serious trouble front.

Sexting is a serious problem. It is a serious problem because of the immediate harm it can do to those involved. It is a serious problem because after the immediate harm there is ongoing and long term harm that must be endured by those involved. Mobile phones link so easily into the internet now days that an image sent from one phone to another can be quickly uploaded to the internet. People need to realise that once an image is online, it is almost impossible for it to 'disappear'. What goes online, stays online...forever!

So, if you send or post a naked picture of yourself, then make sure it is something you will be happy to see when it comes back to haunt you in the future.

Now, that takes care of the sermon angle.

Onto the news.

A young man, Damien Eades, thought he had avoided any serious consequences from his part in soliciting a 13-year-old to post him naked images of herself. For Eades this might have been a little presumptuous. He is now set down to be the first Australian to stand trial in a sexting case.

In March of 2008, an 18-year-old Eades was employed at KFC. He sent the picture to a 13-year-old girl with the message "you like?" Aside from the fact that he is 18 and she is 13, what happens at KFC that employees have time to take off their shirts and pose for a few photos and then start sending them off to people? What ever happened to preparing and cooking chicken?

Anyways, after establishing that the 13-year-old "liked" what she saw, Eades for some reason thought it would be a good idea if she returned the favour, but by sending a shot of her 'bottom half'. The girl agreed and ended up sending a full-frontal nude shot of herself to Eades.

The story might have ended there, except for a rather vigilant father who thought it necessary to check out his daughter's phone. When Dad discovered the messages, it was on the phone to the police.

The case originally went to the Penrith Local Court and was dismissed. It would seem that the magistrate did not think that the charges against Eades, incitement of a person under 16 to commit an act of indecency and possession of child pornography, were worth pursuing at trial.

However, the Director of Public Prosecution was far from satisfied with that outcome and decided to appeal. The appeal was heard by Justice Greg James of the Supreme Court. Justice James agreed with the Director and sent the case back to the local court for trial. According to Justice James, the sexual content of the electronic transaction warranted a trial.


Eades might not be so lucky the second time around.

New Australian Military Court Declared Invalid...

Who would have thought that a new Military Court would be declared constitutionally invalid because of a teabagging case. Teabagging, for those of you who do not know the term, is an act performed by a man that involves putting his testicles onto the face of another person. However, this is just what happened to the new Australian Military Court. Well, that and a government not prepared to listen to any advice that the court would not survive a constitutional challenge.

The High Court of Australia has handed-down a unanimous decision that the Military Court as it is currently constituted does not comply with the requisite judicial power outlined in the Constitution of the Commonwealth.

The Court made this decision because the court was designed to exercise the judicial power of the Commonwealth and as such the court had to be established in a particular manner in order to be valid. This was even after reading and considering the legislation that established the court. The relevant legislation goes to some length to state that the Military Court is to act more like a tribunal and therefore did not need to comply with the constitution's judicial power clauses.

How this came to be a High Court matter is an interesting tale of events. Brian Lane joined the Navy back in 1998. In 2005 he was photographed teabagging an army sergeant while the sergeant was asleep. Lane was then charged with committing an act of indecency and assaulting a superior officer. He was charged in August 2007 and discharged from the Navy in November 2007.

When the case came to court, Lane objected to the jurisdiction of the court and lodged an appeal to the High Court to determine whether there was valid jurisdiction. The High Court said that the provisions creating the Military Court were invalid because it was created as a court of record and because it was to have the power to issue binding and authoritative decisions of guilt or innocence. Simply, if it was to have the power to do these things then it must be a court that is properly constituted.

The High Court has ordered a writ of prohibition be issued. In essence, this writ stops the proceedings against Lane from going forward in the constitutionally invalid Military Court.

Perhaps this post lends itself to a picture of teabagging?

The Pornography Law -- Judicial Review

This has appeared previously on the en.hukumonline.com website - here.

The debate on the pornography law seems to be a never ending one and is set to continue in the Constitutional Court on 23 February 2009. On 9 February 2009, in a move without any fanfare or announcement, eleven individuals filed a petition in the Constitutional Court seeking a judicial review of the Pornography Law. The petition seeks to have Articles 1(1), 4, and 10 repealed as constitutionally invalid.

The petitioners, among others, include Billy Lombok (Minahasa Christian Gospel Church), Jeffrey Delarue (Indonesian National Youth Committee of North Sulawesi), Janny Kopalit (Manado Catholic Youth), Goinpeace Tumbel (North Sulawesi Indonesian Christian Youth Movement), Bert Supit (Minahasa Cultural Council), and Charles Lepar (Manado Inter-Church Youth Forum). To represent them in the judicial review process, they have engaged O.C. Kaligis as their lawyer.

The substance of the petition is not surprising and is representative of much of the debate on the validity of the pornography law to date. The first claim as it relates to Article 1(1) is that the definition of pornography is too broad and as such is all-encompassing. The petitioners are arguing that such a broad definition will catch legitimate art and other traditional cultural practices under the definition.

The crux of the argument is that with such broad cultural diversity in Indonesia from Sabang to Merauke that it is unfair to have such a broad definition. Simply, what is acceptable in Papua might not be acceptable in Aceh. But, that lack of acceptance must not see the conduct criminalized as pornography or indecency.

Nevertheless, it will be interesting to see whether the Constitutional Court reads the pornography law as a whole or only the individual articles. The reason for this is that the government continues to maintain that the law specifically protects certain art and cultural traditions under other articles within the law. The petitioners despite representing an eclectic mix of church and youth organizations, they are also artists who feel that they have a legitimate grievance here in light of some of the art that they produce, such as carvings and paintings, would seemingly fall foul of the definition.

An angle adopted by the petitioners, and worthy of note, is that as working artists who earn a living and support families from their artistic income the pornography law discriminates against them and in essence violates their right to work. This is the substantive argument against Article 4.

The problem, as the petitioners see it, with Article 10 is that the article is open to multiple interpretations. The petitioners seem to focus on the term “depict nudity” and the definition may vary from one region to another in terms of what is considered to depict nudity. The argument seems to rely, similarly to Article 1, on the fact that Indonesia is a country with a rich history of pluralism and cultural diversity.

However, in a generic sense the term, depict nudity, is not problematic. Simply, what is depicting nudity in Aceh will still be depicting nudity in Papua. The difference is whether or not the current law would provide an exception for the depiction.

On the sides to this petition there are still many within the community that take issue with the pornography law. One issue that continues to arise is related to enforcement and how law enforcement agencies, irrespective of whether they are the police or the Office of the Public Prosecutor, intend to enforce the provisions that many consider to be problematic.

At various times both the National Commission for Women and the National Commission for Human Rights have invited law enforcers to discuss in detail the proposed implementation and subsequent enforcement of the provisions of the law. These organizations generally focus on the broadness of the definitions and the all-encompassing nature of these definitions as the basis of their rejection of the provisions of the law. In this case Article 4 was also noted as being most problematic.

However, the police see the law as a valuable tool in combating crimes related to pornography. Nicolas A. Lilipaly, Head of the Pornography, Indecency, and Morality Unit at the Metro Jaya Police Headquarters, is unequivocal in stating that the Pornography Law has enhanced the police’s ability to deal with pornography, which had to date been dealt with under provisions of the Indonesian Criminal Code.

In another interesting aside and also related to the pornography law, the Chief Judge of the Central Jakarta District Court, Andriani Nurdin, stated that where laws exhibit weaknesses then the duty falls to the court to exercise their discretion and interpret the provisions as they appear or to create the law where the legislation remains silent. There is likely to be some serious questioning of this kind of judicial activism of the bench from the community, particularly if the courts were to use their discretion in ways that clearly exceeded the intent of the parliament when drafting the law.

This latest installment in the debate on pornography is certain to keep the issue alive within the community.

(RAB / SH)

Pornography Bill -- The Debate Rages On

Overview

In what many would consider a surprising turn of events over the last seven to ten days, the long and tortuous journey of the Bill on Pornography looks set to come to an end. Most pundits have the bill being passed by the full plenary session of the House of Representatives on 23 September 2008 or very soon thereafter. The passage of this bill has seen its fair share of controversy and the very passage of the bill is unlikely to bring to a close these controversies.

The primary concern is that the definitions scattered throughout the bill remain vague and open to interpretation and thereby decreasing the legal certainty in the field. There seems little debate that there needs to be express or explicit provisions inked into law. However, there is considerable debate as to whether there needs to be a specific pornography law considering many of the provisions are already regulated elsewhere in Indonesian law such as the Law on the Protection of Children and the Indonesian Criminal Code.

The bill started this journey as the Bill on Anti-Pornography and Anti-Pornoaction (Indecency). The indecency provisions were in general dropped from the law as these were seen as being more problematic as they tended to deal with private behaviors and were much more subjective in nature. However, some of the indecency provision have been maintained and have been reclassified as being pornographic. The bill in its current form is just the Pornography Bill.

Pancasila and the Bill
Interestingly, the bill starts off with considering the ideals and values contained in Pancasila. Pancasila is the State ideology and contains five basic principles which are supposed to guide the State and her people. Pancasila is very much about tolerance and promotes the idea of unity in diversity (or a more literal meaning of “many but one”) however there are serious questions as to whether this bill promotes diversity and unity in that diversity or is merely a means of tightening governmental controls of public and private behavior to a very narrow set of moral and ethical norms.

The Intent
The intent of the bill and the construction of the provisions are the two sides of the one coin. The intent is clear; pornography is dangerous and exploitative and therefore must be prevented and where possible eradicated. Nevertheless, even where the intent is reasonable the construction can be poor. For example, where a particular definition is so broad that it can conceivably be interpreted in several ways without breaching the general essence of the definition. One of the primary criticisms of this bill is that the definitions are so broad that just about any image can conceivably fit the definition.

What is Pornography?
Pornography is defined in Article 1 as, “any material of a sexual nature that is made by humans in the form of a pictures, sketches, illustrations, photographs, writings, voices, moving pictures, animation, cartoons, poetry/rhymes/prose/verse, conversation, body movements, or in any other communicative message form via a any form of media communication and / or displayed in public, which heightens sexual arousal and / or breaches moral norms within the community.”

Pornography Services
Generally, pornography services are services provided to facilitate pornography such as television, cable television, radio, telephone, internet, electronic communication devices, newspapers, magazines and other printed medium.

This provision is problematic and subjective on a number of levels. Article 4 expressly prohibits the offering or advertising of pornographic services either directly or indirectly. For example, is a newspaper that accepts an advertisement for a massage service indirectly advertising a pornographic service?

Even more interesting is whether a theatre that runs a play or performance that involves nudity protected by the art and cultural provisions discussed later or are that at the mercy of the authorities for permitting a prohibited pornographic performance?

Another issue not properly resolved in the bill is how are artists such as Inul and Dewi Persik to be considered under this law. Perhaps more to the point should they be considered at all under these provisions. It is still to be resolved who is to be the arbiter of the community norms with respect to whether artistic expression is protected or not.

Discrimination
The bill explicitly states that the regulations governing pornography are to be non-discriminative yet appear to regulate certain behaviors not only as being of questionable morality but labels them as being deviant. Some of these behaviours that are deemed deviant include homosexuality, lesbianism, and oral sex.

Pornography Collections
There is a strict prohibition against the listening to, the watching of, the ownership of, and the storage of pornography except where the prevailing laws and regulations grant the requisite authority to possess pornographic material. This means that anyone with any of the elements of the sexual material noted earlier will need to rid themselves of this material as soon as possible. Failure to do so will put the individual at risk of prosecution. This particular set of provisions will need to be read in conjunction with other prevailing laws and regulations as it is unclear for example how someone receiving an email with offending content is to be dealt with if they open the file and the image is stored in the cache memory.

Criminalizing Models
The penalties for voluntarily or agreeing to be a model for material that is deemed pornographic attracts significant jail time and fines. The maximum amount of jail time permissible is ten years or a criminal fine of IDR 5 billion. When one considers that the wearing of a bikini could run afoul of the provisions if the context is deemed to be counter to the intent of the provision. However, this assumes that the photo of the bikini was a marketing campaign to sell more bikinis.

Art, Culture, Custom, and Ritual
The bill purports to make exceptions for pornography that is deemed to be artistic, culturally necessary, part of an acknowledged custom or ritual. It was only recently that when the bill finally looked like getting over the line that small protests broke out. One such protest included Balinese women wearing a traditional see through kebaya that clearly showed the outline of the women's breasts. This might arouse the sexual needs of some however the kebaya is clearly a traditional piece of clothing that is common to many of Indonesia's diverse ethnic cultures.

However, the elucidations to the provision suggest that the interpretation is restrictive and is dependent on not arousing the sexual desires of those who view the material. The example given in the elucidations is one of naked statues.

It is unclear as to what else might be considered under this definition. Are the bare-chested women participating in a ritual or customary ceremony protected from prosecution simply by claiming a tradition, custom, or ritual? The lack of legal certainty in this regard has caused a considerable amount of anxiety to be voiced by those in Bali and Papua.

Bali is particularly worried as there is a concern that the bill, once enacted, will have a devastating impact on tourism. However, the intent of the bill does not seem to be directed at women wearing bikinis or men wearing speedos at the beach.

Child Pornography
The sum total of the bill’s regulation of child pornography and the protection of children is contained in two short articles, Articles 16 and 17.

Article 16 simply requires people to protect children from pornography. Article 17 requires that children exposed to pornography are rehabilitated.

The Community’s Role
Aside from the definition of pornography, the role of the community is the most often debated provision. Yet, the bill seems to provide a broad role for the community in prevention while simultaneously limiting that role.

Of most contention is Article 21 which simply states that, “the community can play a role in the prevention of the production, dissemination, and utilization of pornography.” This is clearly a very broad mandate for the community to play an active role in the prevention of pornography in the general community.

However, Article 22(1) stipulates that the role of the community as envisaged in Article 21 is to:
(a) Report breaches of this law;
(b) Initiate class action lawsuits in the courts;
(c) Undertake socialization activities to explain the prevailing laws and regulations in this area; and
(d) To provide guidance to the community with respect to the dangers and impacts of pornography.

Article 22(2) is explicit in stating that any actions taken under the provisions of 22(1)(a) and (b) must be done so in compliance with prevailing laws and regulations and the perpetrators of any actions are to be fully responsible for those actions.

The provisions can reasonably be interpreted to be restrictive as to what actions are permissible by the community. Nevertheless, the provisions are simultaneously and perhaps purposefully vague in this regard.

Sanctions
There are both criminal sanctions and administrative sanctions contained in the bill. The bill also allows a judge to call founders and administrators to appear in court where the corporations they represent are alleged to be involved in a breach of the provisions of this bill.

The criminal sanctions range from 6 months to 15 years imprisonment and fines ranging from IDR 250 million to IDR 7.5 billion. Where the offense includes the exploitation of a child the liabilities are increased by one-third.

The administrative sanctions include the suspension of business activities, the cancelation of business permits, the confiscation of any proceeds of crime, and the revocation of incorporation.

Closing Provisions
The bill gives anyone with pornography one month to rid themselves of any offending material.

The bill will come into immediate force upon its enactment.

Conclusion

It is clear that the House of Representatives is keen to see this bill passed despite considerable opposition to it. It is unclear, and remains so, as to why there is a need to regulate pornography in this way. However, it seems that politicians in the lead up to the general and presidential elections believe that this bill establishes their credentials as being tough on crime and taking the high moral ground. Yet, there is no-one arguing that pornography is a good or positive activity, the arguments relate to necessity.

Questions remain as to how serious the government is with respect to enforcing the provisions once the bill passes the House and is ultimately enacted. Simply, without the full commitment of law enforcement the bill becomes just another law on the statute books.

Pornography In Indonesia -- A Follow Up

The first post on pornography and the soon to be passed Pornography Bill generated a bit of debate. Therefore, a follow up is warranted. This is particularly so in order to clarify and explain a few matters.

The definition of pornography is broad and the term used in Indonesian is materi sexualitas. However, this should for all intents and purposes be read as sexual materials and would include all the things listed in the first post. Rima has a good description of several of the Articles.

Therry being the fine artist that she is should still be worried. This is even the case where Article 14 of the bill purports to be an exemption clause for artists and those practicing traditional customs and rituals. However, it should be noted that the elucidation to this Article seems to make an exception for statues but not for art that raises the sexual urges of the viewers. My guess is that there would be many members of the community who might be a little turned on by some of Therry's art. If this were the case then it would seem that these images might just fall within the gambit of pornography.

Article 21 seems to provide open slather for the community and so inclined community groups to be somewhat vigilante in their methods of shutting down things they consider to be pornographic. This, though, is modified to some degree by Article 22 which seems to limit these community preventive measures to the reporting of the alleged breach, commencing a class action, implementing a socialization program, or providing guidance to the community with respect to the dangers and the impacts of pornography.

The socialization and guidance parts still leave plenty to the imagination.

Life goes on.

Pornography and Indonesia

If recent reports are to be believed, then the controversial Pornography Bill (previously known as the 'anti-pornography and indecency bill) seems to be set to pass the House of Representatives soon. Some lawmakers are hailing this as some kind of prophetic Ramadan gift.

The bill is clearly a threat to the stability of the nation. The provisions appear to criminalize a good deal of Indonesian culture and will undoubtedly have a significant impact on tourism. For these reasons alone the current format of the bill needs to be re-worked in order to make the bill enforceable and not controversial. The provision provide for a little more than just prohibiting the publication of magazines like Playboy.

The bill poses significant threats to privacy as well.

There is opposition to the bill. Unfortunately, this opposition does not appear to be well-marshaled and it would seem the bill's supporters are likely to be bulldozing this through the Special Committee and to a vote on the floor.

Interestingly, Golkar through one of its lawmakers has suggested that the best course of action that may induce a rethink is if there was spontaneous rallies that provided vocal opposition to the bill.

The biggest issue is that the bill regulates morality. There will always be legal questions as to how far a government can go in regulating the morality of its citizens, particularly in the private sphere. The morality issue then gives rise to questions such as whose morals and how are these morals to be defined? To name but a few. There is little doubt that people support the idea of restricting or prohibiting access to pornography and indecency. What is in doubt is whether the current definition of either of the key terms is suitable for the purpose.

Another important question is whether there is a need for a specific pornography and indecency law. Most legal scholars would agree that the key offenses are already regulated in existing legislation, including the Criminal Code, Child Protection Law, and the Cyber Law (ITE). Some might argue that this is a lex spesialis law that deals with a very particular set of circumstances and offenses. However, this argument is moot in the sense that there are no arguments can be made that the provisions are not anything but mere duplication of provisions contained elsewhere.

With a definition of pornography like this:

"Pornography is any work that includes sexual materials in the form of drawings, sketches, illustrations, photographs, text, sound, moving pictures, animation, cartoons, poetry, conversations or any other form of communicative message"

it is little wonder that people have concerns.

Even greater concerns arise when the issue of enforcement is discussed. The bill would seem to allow an interpretation that suggest vigilante justice is permissible. The relevant provisions suggest that the community may take preventive measures. This is clearly different from the community having a mere reporting role where they suspect a breach may have occurred. If this indeed is an acceptable interpretation then you are going to have unqualified individuals and groups making legal determinations with regards to what constitutes pornography and indecency.

The stoning of Playboy's offices and the forcible closures of bars, pubs, and entertainment venues is just the beginning. Other places of indecency and pornography are likely to include museums and theaters.

A cold change is definitely in the air!

Public Sex -- Who Cares?

This might be a brazen attempt to boost my blog statistics, at least as they relate to page views and visitors, then again it might just be a funny picture that needs to be posted to ensure that it spreads far and wide.

I have posted a few entries of late on pornography, indecency, obscenity, and the like. However, this picture (perhaps photoshopped) of a man and woman engaging in sexual intercourse through a wall is when it is all said and done a photo of a statue. I wonder what your thoughts on this would be if we were to assume that this is not photoshopped but in fact a real statute commissioned by a government?

Anonymous sex in public places. Sounds like a fantasy that many might harbour to me (although not me anymore as I am happily married -- and I am not making any comments on any pre-marriage fantasies that I may have held)!

This photo / picture I have definitely seen before, but once again I am borrowing from the Boys Night Out blog.