Prosecutors Say They Have Done Enough: Ariel Guilty!

Rusmanto the lead prosecutor's response to the defense claims in Nazril "Ariel" Irham's distribution of sex tapes trial was one for the ages:

“We ask the panel of judges to reject the entire statement of defense put forward by lawyers for the defendant.” And, “We stand by the sentencing demand of five years.”

To be honest, every prosecutor who is worth their salt would stand by the arguments that they have made when leading the court through their case. However, the opportunity is one to, in essence, surrebut the defense case. The simple strategy would have been to take each of the defense arguments one by one and rebut them.

For example, the defense argument that the sex tapes were made in 2005 or 2006 and therefore a law passed in 2008, such as the Pornography Law, cannot apply retroactively. The prosecution, for example, might want to have argued that the actual offense of distribution did not occur until 2010 and therefore the law is not being applied retroactively.

The difficulty though of a closed hearing is that it is hard to get an exact account of what the arguments were. With a bit of luck the 'documents' will become publicly available in the near future, or at least "available", for perusal.

A decision in the case that has gripped the nation since June 2010 should be handed-down by 31st January 2011. This is a case that seems to beg for an appeal. So, no matter what the verdict is, this case will be appealed. If Ariel is acquitted as he must be, then there is no doubt that the prosecutors will appeal. If by some unreal twist of fate Ariel does not walk free, then it goes without saying that the defense will appeal. It would be interesting to see how a time served sentence would be viewed by either side.

I wonder how large a police presence will be required in Bandung to keep order? Let's face it, this case has generated extreme feelings on both sides with fans demanding an immediate release and hard-line Islamic groups demanding that Ariel be sentenced to death.

Well, it is almost time for police and law enforcement officials to find another case to distract public attention and scrutiny away from issues that really matter like the ongoing Sidoarjo mud extrusion or the Gayus shenanigans...and it is probably time for me to find something else to follow too. Any suggestions?

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.

"Rape By Deception"...

You have to give it to the Israeli courts, they will be creative in their jurisprudence if it means protecting some absurd sanctity of Jewishness and purity. If you tell lies and mistruths or you misrepresent something, like who you are for example, you might be guilty of deception. But to say you are someone you are not, or to lead someone to believe you are someone you are not, seemingly gets you in a position where you can be guilty of rape by deception.

In essence, if you embellish your personal story to get laid, then you get laid and the other person finds out that you are not who or what you say you are, then you are guilty of raping that other person because they would not have willingly engaged in sexual relations with you if they had known the truth.

This brings us to the case of Saber Kushour. It is a story I came across as I plough through the news online. I found this story at The Guardian here. The article is based solely on the account of Kushour.

The story is a sad tale because Kushour is a married father of two, and irrespective of the outcome of the case he acknowledges that his stupidity has harmed his family.

Kushour is an Arab Israeli who speaks fluent Hebrew without an Arab accent, and obviously passes for a Jew in some circumstances. Perhaps he now wishes that he did not in hindsight. Kushour has been sentenced to eighteen months in jail for the rape by deception of a Jewish woman.

The sex was consensual at the time and lasted a mere 15 minutes. Kushour's case is on appeal and attracting considerable attention in Israel for the underlying racist nature of the sentence and what this says about justice in Israel, and perhaps what is morally acceptable to Israelis in general.

Why has Kushour been sentenced to prison? This is a crude tale, an adulterous tale, where a single Jewish woman propositions a married Arab Israeli man and then has sex with him on a rooftop. To be fair the Jewish woman does not know that Kushour is married. But, Kushour is married and seemingly figured it was a good idea to avail himself of an opportunity to have a casual sexual encounter that his wife would never find out about. Unfortunately for Kushour, the Jewish woman when she found out that Kushour was really an Arab Israeli and not a Jew she lodged a police complaint claiming that she never would have had sex with him if she had known he was an Arab Israeli and not a Jew.

So, what was the legal reasoning of the judge, Zvi Segal, in this case that would allow a decision like this to be reached:

'Judge Segal conceded that it was not "a classical rape by force". He added: "If she hadn't thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated. The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls."' (from the Guardian).

The problem with this reasoning is that the woman was clearly not thinking about the sanctity of her body or soul when she engaged in the consensual sexual activity. The reality is she picked a man up off the street and then had sex with him on a rooftop. The judge has seemingly gone above an beyond in constructing his decision based on the need to protect the public interest from smooth talking criminals.

It would seem that Kushour's crime is that he suggested to the Jewish woman that he was a bachelor interested in a long-term relationship. In addition to the failure to be explicit in saying to the Jewish woman. "before we have sex you should know that I am an Arab Israeli, are you still interested in proceeding with our sexual encounter?" However, it must be pointed out that the Jewish woman did not ask about Kushour's lineage either.

The judge has then decided that the Jewish woman would not have 'co-operated' if she had known that Kushour was not a bachelor, and presumably she definitely would not have proceeded had she known he was an Arab Israeli. Yet, I would argue that the simple fact that she picked this man up while he was out buying cigarettes and then had sex with him on a nearby roof suggests that she was not all that interested in a period of courtship, marriage, and then sexual relations.

Kushour might be an adulterer but he is not a rapist.

Note:
If I can find what the appeal court decides in this case I will add a postscript to this post. If the appeal court upholds this decision it will be interesting to see if anyone tries to argue and introduce it in other jurisdictions.

Sex and War

This certainly gives additional meaning to entertaining the troops. An Australian entertainment trip to Afghanistan has allegedly ended in one of the entertainers having sex with a number of Special Air Services (SAS) troops. The singer, Tani Zaetta, has strongly denied the claims and has the backing of another member of the entourage, Angry Anderson of Rose Tattoo fame, who has also denied that the alleged sexual encounters every took place.

The interesting part here was that the allegations were contained in a debriefing memo to the Minister of Defence and then the memo some how made it into the hands of the press.

Yet, in the big scheme of things if Zaetta is doing her part for troop moral and the sex is between consenting adults is there really any harm here? Perhaps if the troops involved are married and a long way from home then there might be some moral issues but the sex itself does not seem to be illegal, unless of course there is something in Zaetta's contract that says she is prohibited from having sex with the troops.