Ariel, Three & A Half Years, and an Appeal?

The sex-tape distribution case of Nazril "Ariel" Irham, or Peterporn as it had come to be known has reached a conclusion of sorts. Ariel has been sentenced to 3.5 years in the "big house" for his role in distributing a sex tape.

The evidence that was adduced in court and that which was played out in the court of public opinion must have been two very different animals. The reality is that what we know of this case in the public domain is more than enough to suggest that there is sufficient doubt as to whether Ariel had any role in distributing the two sex tapes of him to the public via the internet.

It is pretty obvious that what most people can agree on is that Ariel was the star of, and in, the sex tapes. Admittedly, most others would agree that his fellow cast members were pretty good too. I wonder whether there are any copies of "Ariel does Luna" and "Ariel does Cut Tari" doing the rounds of Glodok, Ratu Plaza or the lane ways of Blok M?

An appeal in this case seems destined to be run by a different set of lawyers. Luna Maya has engaged Taufik Basari to take over from OC Kaligis as her lawyer. Whether Ariel is going to follow suit remains to be seen, but the practice of lawyer shopping through an appeals process is nothing new. Basari is a good lawyer with a solid background with legal aid. But, I am gonna take a stab in the dark and say that he is probably not doing this one pro bono :)

The decision to sentence Ariel to 3.5 years and fine him IDR 250 million is justice gone awry There is simply no justice in sending a young man to prison for making a sex tape. I appreciate that different people have divergent moral views as to what is right and wrong with sex and pornography among consenting adults. However, despite those personal convictions, it seems hard to fathom exactly how the judges reached a conclusion that the prosecution had proved its case. Hopefully, a copy of the legal judgment that highlights the legal reasoning will be forthcoming in the public arena.

Nevertheless, there are those who feel that 3.5 years is insufficient. It goes without saying that the FPI and other hardline Muslim groups are still arguing for the death penalty. Yet, it is interesting to be able to lump the Indonesian Commission for the Protection of Children into the group that believes Ariel escaped with a sentence that was far too lenient. Maria Advianti of the KPAI argues that KPAI data highlights in the period after the Ariel sex tapes were released that there was a spike in child rape offenses by children on children as a result of having watched the Ariel sex tape. The data on that must be made publicly available and be subject to some scrutiny.

Interestingly, the sentence handed down to Redjoy or RJ was for 2.5 years. This is interesting because bothe were in essence accused of the same crime, distribution. Why is it that Ariel gets 3.5 years and RJ only 2.5? Is it that the judges are punishing Ariel more severely because his role in the distribution was bigger? Or is it that the courts and judges in this instance have decided that Ariel as a public figure has a higher level of guilt or responsibility to behave in a certain way because he is popular? And, therefore based on this he should be punished more severely in order to set an example to other celebrities? Or is it that the judges have punished him for making the sex tape in the first place because their collective conscience demands it?

As they say,"it is not over till it is over". I would suggest that this case still has legs and is likely to go a long time on appeal. Hopefully, the appeal courts will see some common sense and not fold in the face of forceful ultra-conservative religious voices from the public domain and affirm the sentence. Instead, it is hoped that the courts seek to apply the law in accordance with the relevant burdens required. The prosecutors must prove that Ariel was involved and evidence to date in the public domain has not met that burden.

A final point. So, where do the cases of Luna Maya and Cut Tari go from here? If the prosecutor was able to convince the court that Ariel's failure to prevent the distribution of the sex tapes was sufficient for a conviction that maintains Ariel was actively involved, then surely the prosecutors must be thinking that this decision gives their cases against Luna Maya and Cut Tari some additional legs.

It would be a rather spectacular fall from grace for Luna Maya and Cut Tari to end up in the big house (aka jail).

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?

Luna Maya, Ariel and Pemuda Pancasila...

So, what is the Pancasila Youth (Pemuda Pancasila) doing at the Ariel sex tape trial?

Part of the interest of watching a controversial celebrity trial is watching how the support for and against the defendant align themselves. A trial about sex tapes, and pornography generally, is certain to bring them out.

So, how do they align in the Ariel distribution of sex tapes case?

On, the one side you seemingly have the self-righteous Garis or the Islamic Reform Movement who would like to see Ariel get the death penalty for his lack of morals. To be clear, Garis is about the creation of an Islamic state. It is not about reform of Islam and the promotion of moderate Islam. So, Garis lines up fairly well with the other resident evil in Indonesia, FPI.

The Islam Defenders' Front or, as some people prefer, the white-robed thugs, also would like to see Ariel punished severely. However, there was a moment or two there where the FPI thought Ariel might want to repent and get more in touch with his Muslim spiritual side. Unfortunately, from an FPI marketing point of view, Ariel seems to have chosen a different path to redemption than the one offered by FPI. Strangely, or perhaps logically, enough these are the folks that find themselves aligned with the government through the Office of the Attorney General and the public prosecutors tasked with garnering a conviction.

On the other side, is just about everyone else. Everyone else here includes not only the long-suffering girlfriend, Luna Maya. Tere is also Ariel's daughter and extended family. And, also his dyed in the wool fans, and just about anyone with a shred of common sense. However, also lining up on this side of the equation is Pemuda Pancasila.

Having a look at the photo (thanks Kapan Lagi), it would seem that the Pancasila Youth are there in support of Luna Maya as her personal security. This is probably not a bad idea in a lot of respects. I am not a fan of Pemuda Pancasila, never have been and will never likely be. To each their own though. So, why is it not a bad idea. Well, it is not a bad idea because the police thought the potential for violent conflict at the trial in the District Court in Bandung was so great that they thought it necessary to deploy 600 armed officers. It is a good idea because the FPI and  Garis have threatened violence and intimidation. It is a good idea because this whole trial is a media circus. Therefore, in order to plow your way through the waiting throng a bevy of beefy lads is probably just the thing.

I have heard that this kind of close personal protection is not a hugely expensive deal. So, if the figures I have seen being bandied about are true then somewhere between IDR 60,000 and IDR 150,000 is a pretty good deal. It is also real value for effort for the Pancasila Youth boys as well. Nothing like a little bit of exposure in order to advance one's goals. It would seem that the Pancasila Youth are affiliated with the West Java Chapter and under the auspices of Kang Dasep.

Yet, in the big scheme of things, this is all a side show and an unhappy distraction. I would really like to know what sort of personal toll this is taking on Ariel and Luna Maya, particularly their relationship together. To be honest, it is nice to actually see the degree of loyalty that Luna Maya has. She turns up to each trial hearing and she professes her love of Ariel and her disappointment in the process, particularly the fact that charges were ever pursued and laid.

The question, if I had permission to ask one, would be "will you last?" Take that as you will. Maybe it is will you last personally? Maybe it is will you last as a couple? Maybe it refers to whether there are lasting careers to be repaired here? My personal hope is that the case runs out of steam and just dies where it stands. So, my second question follows on from the first in that sense, "where do you go from here?"

There will undoubtedly be more posts on this. I think it is time to look at a few more issues in depth and do a little bit of critical legal analysis on matters such as retroactive use of laws, legal representation, prosecutorial discretion or misconduct, and the like.

So, perhaps this story needs a narrator, maybe we should 'call him Ishmael'!

Ariel Going to Trial on Monday...

The fact that this case is going to trial is symptomatic of the ills of the Indonesian justice system. It is also indicative of why most Indonesians are skeptical of claims that there has been serious reform happen in the legal system or is likely to happen. This is particularly so on the coattails of Gayus Tambunan who has been able to take at least 68 trips outside of his cell by paying off the relevant officials.

Anyways, Nazriel "Ariel" Irham of Peterpan fame and more recently of Peterporn fame is going to trial on Monday (22 November 2010) for his alleged role in the distribution of a couple of sex tapes starring himself and Luna Maya and Cut Tari. The trial will be in the district court in Bandung because the alleged act, distribution, took place in Bandung. Interestingly enough, the police have not been able to determine where the actual sex tapes were made.

Ariel has been in detention since 22 June 2010. It is time that he is either released of prosecuted. So, in that sense it is a good thing that this is heading towards a resolution with a trial date set. It is sad that it is going to trial at all.

Unfortunately, the trial is to be closed. According to the Acting Attorney General (well, an anonymous source), pornography trials are closed-door affairs. The rationale, presumably, is that the titillating details would be too much for most Indonesians and they would be influenced in a negative way by all the "perversion" that will come out as evidence in the course of the trial. The only real problem with that is that most people who would be watching the trial have already watched the 'offending' sex tapes either online or on their mobile phones.

There is no reason for this to be a closed trial. This case does not involve minors. The fact that it is closed gives rise to claims that the trial will be unfair. To ensure fairness, the appropriate course of action is to have this hearing as a public one. This is particular so considering that the prosecutors have backed away from pursuing charges for the production of the sex tapes and will be proceeding exclusively on the distribution charges as they are described in the 2008 Anti-Pornography Law.

If Babul Khoir Harahap is to be believed, then the whole prosecution case rests on what Ariel did not do. If this is true, then why is it that Luna Maya and Cut Tari are not being prosecuted at the same time? Simply, they also new about the sex tapes and did nothing to prevent their distribution.

When it is all said and done this is just a couple of sex tapes. There are millions of them out there in cyber space. Yes, there may be some morality questions to be argued here. Maybe there are even some religious concerns about pre-marital and adulterous sex. Yet, the law does not criminalise people for filming themselves in the throes of sexual gratification or orgasmic climax. The law does criminalise distribution if the perpetrator of that distribution is pro-active and consciously doing so. However, the law does not criminalise the failure to prevent distribution of a sex tape where you were unaware of the intended distribution.

Therefore, it would seem that the prosecution really needs to be able to prove that Ariel handed off the sex tapes to Redjoy, and that he knew Redjoy (Reza) was going to upload them to the internet. As far as I recall, Ariel and his amateur porn colleagues have always maintained that they were the victim of a crime, theft. On face value, it would seem that the prosecution is between a rock and a hard place in terms of proving this. Perhaps, there is a need for this to be a closed hearing!

Ho hum...

The Distribution of Pornography -- The Case Against Ariel...

You really do have to wonder about the intent in this case. When it is all said and done this is a case of a two videos shot by consenting adults. Are there moral issues to be considered in a case like this? Perhaps, but the charges that Ariel has been charged with are not moral ones, they are criminal.

The charges relate exclusively to the distribution of the videos themselves. Nevertheless, it may be argued that the use of the 1951 Emergency Law  is intended as a "catch-all" charge that will allow prosecutors to take the moral route and claim that Ariel has violated some existing customary or traditional law that applies in Indonesia.

So far, only Ariel and Cut Tari have been charged. The most controversy over this relates to the use of Law No. 1 of 1951. The Emergency Law was clearly not drafted for this purpose. Contextually the 1951 Law relates to a period of Indonesian history where it was experimenting with its unique form of Sukarno-ist constitutional democracy and trying to untangle itself from myriad of Dutch created laws and norms and replace them with some of their own.

Funnily enough, in 2010 it could still be argued that the process is an ongoing one! Luna Maya, the other amateur porn star involved in these tapes has so far evaded charge. She used to star in an advertisement for Lux soap, perhaps there is a pun to be had here in relation to her ability to keep herself clean of charges.

So, what is Ariel really looking at here. The main charge relates to Article 29 of the Anti-Pornography Law (and for some reason the similar provision under the Information and Electronic Transactions Law), Article 56 of the Criminal Code and Article 5(3) of the 1951 Emergency Law.

The Anti-Porn law provides for a 16-year jail sentence for the distribution of pornographic material. Whereas the ITE law only allows for a 6-year sentence. This is standard prosecutorial procedure in a case where one is not so sure of what crime has been committed, so charge the same offense in myriad of ways ranging from the most serious to the least serious and with a bit of luck maybe one of them will stick somewhere along the line.

What is interesting about this case, aside from the stupidity of pursuing it, is that the police still have not been able to establish an accurate timeline of the event relating to the videos, particularly when the Cut Tari video was filmed. The police have also seemingly not been able to nail down exactly where it was shot either. Strangely enough there is some discussion that the video may have been shot in 2005, or perhaps 2006, or maybe even as recently as 2010...Ouch!

Oh well. Back to Ariel and his dilemma or lack thereof with the current charges. The primary charge seems to be that he was actively involved with the distribution of the videos. The police are apparently basing their entire case on the testimony of one man, Redjoy or Reza. Redjoy has piped up that he received the tapes in the form of computer files with the express instruction to prepare them for upload to the internet. According to Redjoy's testimony, these files were provided by Capung Studio. Capung Studio happens to be the studio that Ariel owns in Bandung. What seems to be missing from most reports on this transaction is whether it was Ariel himself that handed the files over to Redjoy.

This is going to quickly degenerate into a he said vs. he said scenario. Ariel, despite Cut Tari's admission to the contrary, has yet to acknowledge that it was him in the video. However, that aside, it has been consistently argued by the alleged amateur porn stars that they were the victim of a crime themselves, theft. And, it was this theft that saw the files wend their way online. Now, it would seem that if Redjoy was involved in the theft then it would make sense to start claiming that no theft happened but rather the files came into his possession through Ariel, or someone linked to Ariel, for the purpose of uploading the files for the enjoyment of the world over.

The trial seems destined to proceed. It would be a real turnaround for the prosecutors to fold on this case now. The trial will be in West Java, Bandung to be precise, so their should be a steady stream of infotainment journalists making their way to Bandung.

This is going to be messy.

Cut Tari and Ariel Peterporn...

The proof of the deed is in the "watches". Or, more specifically in the "watch" of Nazriel "Ariel" Irham, amateur pornographer and wannabe porn star.

The attached image is supposedly proof positive that the fellow wearing the watch and making a rear entry into the scene is none other than Ariel. The photo really is a little to grainy for my liking. It would be so much easier if there was a much more obvious distinguishing feature' like a tattoo or a mole on the end of his penis or something (not that I would be looking, of course), just something that the police could grab on to might help in resolving this case...

In any event, if the case is this easy, why is it taking the police so long to lay the charges, complete the case file, and hand this thing off to the prosecutors?

Ho hum...

Underage Gambling in Indonesia -- Big Time Crime?

Gambling is illegal in Indonesia. This does not mean it does not happen. There is probably a case to made for instances of gambling and then gambling. The point here is that organized gambling is clearly against the law and any attempt to regulate it into existence has met with fierce opposition. Then there is gambling that kids partake in like having a flutter on the outcome of a coin toss. The first one sees hundreds of millions of Rupiah change hands and the other is lucky if it sees tens of Rupiah change hands.

A recent case that was heard in Tangerang District court has ended with ten children being convicted of gambling. Their punishment to date is that they have been sent home with their parents. The result is clearly not the right one. The case should never have even seen the light of day. But, it did and it highlights the lunacy of the law enforcement system in Indonesia. Anyone who argues that reform is taking hold is kidding themselves.

The lawyer of the children intends to appeal the decision. If I can help out from afar, then I would be more than willing to do so. The idea that these children were ever in detention was outrageous. The fact that they have been convicted is just as outrageous. The Attorney General should have instructed prosecutors to drop the case. The fact that he did not indicates where the priorities lay. I would also suggest that the masks provided hardly are sufficient to conceal the identities of these children, so the Tangerang prosecutors have failed in this regard as well.

There must be something in the water out Tangerang way. These are the prosecutors from the same Tangerang office that placed a young mother of two, Prita Mulyasari, in jail for writing a letter complaining about the service she received from the Omni International Hospital. There must be absolutely no serious crime in Tangerang that these prosecutors have nothing better to spend their time on than jailing young children and mothers.

This is a case that must capture more people's imagination and not just in Indonesia but further afield. An excellent piece, some might call it an enlightened and educated rage against the machine was written by a resident expat in Indonesia, Patrick Guntensperger, and can be found here.

The stupidity of the whole affair is that there are hardened criminals and organized criminal activities continuing to go about their ways without any concern at all about being arrested or brought to justice. Now, whether this is because they have connections to the right people or pay the necessary "fees" to avoid trouble, I will leave to you and your imaginations. However, the lawyer for the ten children, Kristin Tambunan, has a point when she asks, "since when is playing a crime?" This becomes even more absurd when one considers that these children are currently convicted criminals because they were tossing coins to fill in time between shoe shining gigs.

The conviction of these children is, plain and simple, wrong. The appeal must be accepted on the grounds that the judges erred in allowing the case to proceed, as the prevailing laws and regulations clearly state that the prosecution of children is a last resort. The verdict must be vacated and these children need to be allowed to get on with their lives without the noose of convicted felon hanging around their neck.

What is the Office of the Public Prosecutor thinking?

Bali Nine, Death Penalty, Appeals, and the Supreme Court

In a turn of events which is likely to see a call for the death penalty process to be sped up against Andrew Chan, Myuran Sukumaran, and Scott Rush, the three members of the Bali Nine sentenced to death and biding their time in Kerobokan prison, the Supreme Court has prepared a document that clearly puts the timing of appeals and ultimate executions squarely in the hands of prosecutors.

This is interesting timing for a number of reasons, none more so than this is an election year, and this is clearly an emotionally charged issue, with divergent views on the death penalty in general. However, in this case there is the added factor that the current president has adopted a hard line approach to drugs and those that deal in them. Therefore, to say the prospects of a reprieve for these three has taken a dive would be an understatement.

I am anti-death penalty and would hope that the president would exercise compassion once all other legal avenues have been exhausted and only a presidential act of clemency remains. I would hope that the sentence would be commuted to life in prison. The reality is that Australians, and all others as well, must realize that the trafficking of drugs in Indonesia exposes you to the death penalty. This is not Australian where you might do a 7 - 10 year stretch in jail for the equivalent crime.

You do the crime, then you deserve to do the time. I just think that in this case, and despite the seriousness of the crime, the death penalty is too severe a punishment. People will undoubtedly disagree with me on this, and you are free to do so, I believe in second chances in circumstances such as these, particularly in Rush's case where he has confessed to his role and expressed remorse at his actions. In this case, rehabilitation is a very real possibility. Here is a young kid who could conceivably still make very long and positive contributions to his community.

Unfortunately, the signs are looking bad for these three as the process in drafting the document and the discussion of it has seen them mentioned specifically as individuals that the new provisions are most likely to affect. Ultimately, these three are to become pawns in the Indonesian - Australian bilateral relationship and presidential politics.

Simple message - Drugs and Indonesia do not mix (particularly through airports).