Indonesia, Parliament & Porn: A Dilemma or A Storm In A Tea Cup?

There is nothing quite like vibrant democracy, and there is nothing quite like the era of technology that we live in right at this very moment. The reality is that technology makes everything we do potentially something that will find itself in the public domain. There is very little secrecy and even less privacy. The moments we thought were our own may in fact be shared with millions or perhaps billions of people in a very short space of time. The technology at our disposal also makes telling fibs and exaggerating justifications very difficult indeed.

Arifinto of the Prosperous Justice Party (PKS) in Indonesia learnt this the hard way over the past weekend. Arifinto is one of the founders of the PKS. The PKS is an Islamic Party that has been instrumental in pushing an Islamic agenda and the Islamization of Indonesia's legal code. The party was the driving force in the drafting, passage and enactment of pornography legislation. This legislation is draconian in many ways and has been used most recently to put one of Indonesia's favourite singers, Nazril "Ariel" Irham behind bars for making a skin flick and allegedly distributing it online.

The story is a simple one. Arifinto was sitting in a plenary session of the House of Representatives on Friday, just before Friday prayers, when for some reason, known only to him, he decided to use his taxpayer provided Galaxy Tablet computer to watch a little bit of porn. To be blunt, if the man needs a little bit of video stimulation to get him through the day, then so be it. However, he was on the taxpayer funded clock and as such the taxpayers that pay his salary and provide the perks like tablet computers deserve better.

Arifinto's problem was not that he watched a skin flick on public time, but rather that he got caught. In Indonesia's form of open and accountable democracy, photographers are allowed into plenary sessions. In this case, Mohamad Irfan of Media Indonesia was busy snapping away from the gallery and caught Arifinto watching the porn in question. Unfortunately, for Arifinto he was not sure what Irfan had snapped and decided to make a statement that he had inadvertently opened a link in an email sent to him. However, Irfan's photographs were in fact a series of photos that show Arifinto opening the porn film from a file that was obviously saved to his computer.

Arifinto has now decided that the best course of action is to fall on his own sword and seek redemption by stating that he will return to the job of reciting the Koran and seeking forgiveness from Allah for straying from the path. Oh, and if he resigns, rather than waiting for the inevitable push, he maintains all the benefits that he has accrued as a member of parliament.

Herein lies the dilemma. Should a member of parliament who was doing what Arifinto was doing, and has been busted in the manner that he has, have any rights at all to collect taxpayer money in the form of a pension? The other dilemma for Indonesia and for the PKS is what punishment should Arifinto receive? This is particularly important considering it was the KS that were arguing for the severest available punishment to be applied to Ariel. Now,Ariel made a home-made sex tape, which in and of itself is not illegal in Indonesia, which was then stolen and uploaded to the internet without his permission. Therefore, a simple question is what punishment should now be applied to a PKS legislator who has obviously been involved in the distribution of pornography using taxpayer funded perks of office?

Arifinto must not be allowed to resign and slink off into the sunset and enjoy a long and fruitful retirement courtesy of the taxpayer or public purse.What is good for the goose is good for the gander, Arifinto must see the inside of a jail cell. After all, consistency in the severity of punishment needs to be maintained in order to maintain the faith of the general public that the law enforcement system is working, right?

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).

Watching Porn and Thoughts of Rape and Pedophilia...

It is interesting how an argument that links pornography to all sorts of society ills is trotted out to justify a crackdown. There is a distinct difference between arguments regarding the morality of porn and arguments about porn leading to increases in occurrences of rape and pedophilia. So, when high ranking individuals in government ministries, agencies, or the police force make statements to the effect that watching porn promotes thoughts of rape and pedophilia then they have a moral obligation to evidence support for those assertions.

It was always going to be the case in the post TitS vs. RIM battle that TitS would be ratcheting-up his anti-porn agenda and putting the hard word on other institutions of state, like the police force, to pull their collective fingers out and fight porn on their own turf.

Now, Sr. Comr. Baharudin Djafar, a spokesman for the National Police Force in Jakarta has labelled pornography "a disease" and then gone on to say this:

“The raid was conducted so that there would be no more porn videos circulating among the public, because they can ruin society — especially children”, and “From watching porn, [a person can get ideas that can] lead him to rape someone or commit [pedophilia] with the neighbor’s children” (as quoted in The Jakarta Globe).

This is not a new argument in Indonesia. It is one that is offered up by all manner of individuals and institutions. The linking of porn to rape and other serious sexual assaults is a favourite of the Indonesian National Commission for the Protection of Children, and was especially so in the aftermath of the Ariel sex tape scandal, which is now coming to a conclusion in the courts.

A final point. Perhaps, now is a good time that TitS and others start to provide some statistics and data that highlight how the war on porn has provided tangible benefits to the community. For example, how it has lowered the frequency and numbers of rapes and serious sexual assaults or how it has contributed to raising the standard of living and getting any of the estimated 50% of Indonesians living on or below the poverty line to a position where they are able to provide a sustainable future for themselves and their children.

I appreciate that TitS views his "war on porn" as a simple law enforcement issue. To a certain degree it is, there are plenty of laws and regulations in place in Indonesia governing pornography. The point is whether this is the sole task of the Ministry of Communication and Information in the sense of devoting so much of a limited amount of resources to defeating. 

On a personal level, I have no objection to the government protecting children from pornography and the ability to access it, However, I do wonder whether or not the government has a right to invade the private sphere of two, or more, consenting adults who wish to make or view pornography within the confines of their own homes with the curtains drawn.

To each their own!

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.

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...

Ariel, Is It You?

The big questions are about to be answered in the ongoing saga that doubles as the Nazriel "Ariel" Irham sex tapes trial. The biggest question of them all, in fact, "Ariel is that you in the tape making mad passionate love with Cut Tari?"

Well, according to Cut Tari, it is Ariel. There were no ifs, buts, or maybes in Cut Tari's testimony. In fact, when Cut Tari appeared to give her testimony she was asked to go to the front of the court room and watch a couple of clips of the [in]famous sex tape that she has admitted to being in. While she was there, the judges asked her who she was bumping uglies with. Cut responded, unequivocally I might add, with "why, your honours that is Ariel!"

Strangely enough, Ariel through his defense counsel is maintaining that, despite the somewhat obvious similarities between the man in the video and him, it is not him doing the bump and grind with Cut Tari. In some ways it is not hard to feel for Cut Tari. This must be an incredibly humiliating experience. She has confessed believing that the truth will set her free. Yet, it has still got to be difficult having this whole sordid affair played out in public. Nevertheless, the trial remains closed to public in order to protect the public's "innocence" and "morality" from harm.

The more interesting part about Cut Tari's testimony is that the video is placed in 2005 or 2006 as a production year. This is interesting because there is no real certainty in that time frame. So, does this mean the affair lasted for some time during that two-year period? Or, does it mean that they made so many tapes of their sexual encounters that she cannot rightly remember which tape this is? It is also interesting because Cut Tari was married in 2004. This has led to some hardliners wanting to see the whole trial process for Cut Tari cast aside and just get to burying her up to her neck and then stone the woman to death.

Folks, it is just a sex tape. It is most definitely not the end of the world as you, or we, know it! Life goes on, the band will keep playing. This whole charade is becoming increasingly not worth the effort.

Although, that said, the prosecutors are pulling out their big guns. Anton Castilani, a police officer from national headquarters has taken the stand to offer expert testimony as to whether there is any likelihood that the man in the video with Cut Tari is in fact Ariel or a very good look-a-like. Castilani's testimony seems to support the prosecution case theory that the man in the mirror is not Michael Jackson but it is Indonesia's own, Nazriel "Ariel" Irham of Peterpan fame.

I will let "you" the experts in the court of public opinion decide for yourselves. The choice bits of this photo for comparison have been pixelated. In my expert opinion, it's Ariel.

Ariel: The Farce Continues...

Wake me up when this trial is done and dusted, please.

I have been away for a little bit more than a week. It has been nice to not read a whole lot of news. It has also been nice to be away from an internet connection, and the temptation to see what frivolity came about in the latest trial hearing in the Peterporn saga. Yet, to be honest, I feel that seeing I started this "follow it through to the end" deal, I should in fact follow through. So, holiday or no holiday, I am back posting a running commentary on why this case should never have gone to trial.

The most recent reports have covered the testimony of Hadi Supeno, the former Head of the Indonesian Child Protection Commission (KPAI). Supeno cannot be faulted for his commitment to protecting Indonesian children. He is most definitely, at least at face value, committed to seeing that Indonesian children are protected from all manner of harm. However, he is not much of a public relations whiz. He is not good at selling the message.

The primary problem for Supeno is that he talks in generalities and the grand schemes of things. He tends to downplay the "facts" or the "science" in preference for sweeping statements about how "he knows" what will harm Indonesian children and whatever he states must be accepted as is. Unfortunately, and perhaps beneficially for Ariel, no everyone does.

According to Supeno, there are four major impacts that children will encounter as a result of the release of the Ariel / Luna Maya and Ariel / Cut Tari sex tapes, namely: the videos will increase the sexual desires of children, the videos will effect the social and mental development of children, the videos will encourage children to replicate the behaviours they have watched, and the icing on the cake, the videos will lead to an escalation in the criminal activities of children.

Ah, evidence? Boy Afrian Bondjol, Ariel's lead lawyer in the case, questioned Supeno on the four assertions he made in court, and rightly so. Supeno could only offer up that "this" is what he knows. But, Pak Hadi, you really need to stump up some research. Surely, there must be some research that supports the proposition that children who watch pornography are more likely to commit crimes. Or that children who watch porn are more likely to become sexually active at a young age. Or that these increasing numbers of sexually active children are becoming rapists and sexual predators. Any research would do.

Seriously, if this is the best that the prosecution has to offer up as supporting evidence for their desire to see Ariel jailed for up to 12 years and fined a couple of billion rupiah, then one really does need to question the wisdom of bringing this case to court. There is no justice being served here. There is only a desire to deflect public attention from more serious criminal cases and matters that continue to flounder in the deep dark abyss that is the Office of the Attorney General.

Once again, the man made a sex tape...so what? If this "case" was dropped like it should of been then people would no longer be talking about it. So, for that reason alone, perhaps there are arguments here that the Office of the Attorney General and the courts are complicit in keeping this "morally questionable conduct" by Ariel in the public eye. Why would they want to be doing that?

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'!

Luna Maya Is Sad...

I abominate all honourable respectable toils, trials, and tribulations of every kind whatsoever. It is quite as much as I can do to take care of myself ...

- Ishmael (From Moby Dick)

It is the essence of gossip that there are so many personal struggles that would be time better spent that gloating over the trials and tribulations of others as we watch their lives unravel on national TV and in the tabloids. Ho hum...

The saga that is Peterporn and the trial of Nazriel 'Ariel' Irham is destined to take its toll on many more than just the man in the middle of all this. There are those novice female porn stars who took part in the sex tapes, the extended families of all, the lawyers and prosecutors, and the fans and other supporters. Perhaps it is worth having a sneak peak at Luna Maya and her struggles with this particular 15-minutes of fame that she did not expect or seek.

Luna Maya was famous before this sex tape, and she will continue to be famous after it. The sex tape will be something that is always there, but ultimately it is not going to be the sole event that defines her or her career. There is no doubt that the public's fascination with the intimate details of the sex lives of the rich and famous will ensure that the sex tape always remains an interview question, the reality is that there will be other celebrities with more juicy scandals to follow in the future. Once this trial is done and dusted, then interest will subside and life will get back to some degree of normalcy for all involved, including me.

Luna Maya is the girlfriend in this sex tape saga. The video that she is in is a grainy, poor quality mobile phone job. What is sad about this is that people film themselves all the time. What is sad about this is that sometimes these "home movies" include footage that is better left in private circles. What is sad about this is that despite your best intentions, there are always those that will exploit your fame for 15-minutes of fame for themselves. What is sad is that the ignorant here are winning the war.

This is just a sex tape, nothing more and nothing less. It is not earth-shattering footage. It is not the end of the world. God is not going to cast thunderbolts down to earth and destroy it and us because Ariel and Luna Maya got down and dirty. More to the point, and God aside, there has been no crime committed here. This is a tape that was created for personal purposes. I am pretty sure it was not created for the purposes of playing on the big screen in the background to future marriage nuptials. I am not going to judge them for making the tape. To each their own.

The legal issues are just as interesting to me as the fascination we have as human beings with the misfortune of others. For example, if Ariel is guilty of helping distribute the sex tape, then where is the actual perpetrator who did the distributing? And, why is this person not on trial somewhere? Even more critical is the chain of possession of the offending sex tapes.

The prosecution case looks weak, very weak. One has to wonder why this case ever went forward, particularly as it seems to be a "test case" with respect to the provisions of the law indicted here.


If the tapes were stolen, then Ariel and Luna Maya are victims. So, if Luna Maya is sad, she has a right to be.

Ariel: The Trial Continues...

The trial continues...

The latest hearing of the "Ariel Does Indonesian Celebrities" trial was a public one. The fact that the hearing was a public one was not all that surprising in the big scheme of things. In essence, the hearing was merely a formality in that the judges were handing down their decision on the objections (eksepsi) of the defense to the prosecution's case. From what I can tell, the objections were contained in an injunction application.

The scenic District Court of Bandung is the place where the nitty gritty of this trial is to be played out. The crux of this case is whether Ariel did anything to prevent the distribution of the sex tapes he allegedly shot with Luna Maya and Cut Tari, and if he did do anything whether it was enough to absolve him of responsibility for the eventual distribution of the sex tapes.

According to the presiding judge in this case, Singgih Budi Prakoso, there is enough to proceed with the calling of witnesses. It would seem that Singgih is leaning towards the arguments that Ariel did not do enough to prevent the distribution.

Obviously, Afrian Bonjol, the lawyer for Ariel, was of the view that Singgih did not give sufficient thought or legal reasoning when rejecting the objections. Nevertheless, Bonjol has stated that Ariel accepts the decision of the judge and is looking forward to proving his innocence as the trial goes forward.

The next hearings for this trial are set for 13 December 2010 and 16 December 2010.

Ariel: Round 2 of Peterporn in Bandung...

The death penalty for distributing pornographic videos seems a little bit harsh. Let's face it, a self-confessed pedophile claiming the religious protections of Islam was sentenced to a mere four years in the slammer for sexually violating a 12-year-old girl. On the balance of things, Ariel's case should have been tossed eons ago as he really should not be seeing any more time on the inside than he has already seen in waiting for this trial to get underway.

At best Ariel is guilty of being naive and maybe even a little stupid that he could make a couple of sex tapes that would never see the light of day. In this day and age of instant communication and advanced technology, it was only a simple matter of losing his laptop or having it stolen and the anonymity of these sex-capades was gone.

As it turns out, he lost possession of his laptop and the rest is history, as they say.

To be honest, this really is not the best test case for establishing how well the provisions of the 2008 Anti-Pornography Law work. It is difficult to see how the prosecution will be able to successfully establish the elements of the crime. It just does not seem likely that the prosecution will make out the actus reus or the mens rea of the criminal indictment.

Yet, the prosecutors have opted to pursue this case for reasons that remain unclear. But, now that they have, there is a course of action that must be completed. Hopefully, it does not result in a conviction and then even more embarrassment for Indonesia and the public prosecutors as the case wends its way through the appeal courts.

More exciting than the legal arguments doing the rounds in the court room are the divergent and extreme opinions present outside of the Bandung District Court. Most interesting was the call by the Islamic Reformist Movement (Garis) who is calling for the death penalty to be imposed on Ariel.

Unfortunately, or is that fortunately, for Garis the death penalty is not an option in this case. This is not a Sharia Law court and Ariel is not being tried for adultery. In any event, Ariel would be unlikely to be stone to death for his sexual liaison with Cut Tari. Although, in Sharia Law conducive circumstances, Cut Tari might fall victim to such an antiquated and barbaric form of punishment. This assumes of course that the prosecutors could established when the sex tapes were made and / or where they were made.

I would add that there is nothing reformist about calling for the death penalty in this case.

The base reality here is that this case has become bigger than it needed to be as a result of the self-righteousness of some of the police and prosecutors involved being pushed forward by others, including the white-robed thug brigade (aka FPI), to pursue this. Any self-respecting law enforcement agency would have done the "likely to convict" assessment on this case and determined that the likelihood of a conviction was remote and then decided it is better not to pursue it at all.

It is time to call it quits on this one. Let the man go. He has suffered much more on the public humiliation front than any subsequent jail term will exact. And, he will still have to explain to his child / children (whatever the case might be in the future) what daddy got up to in his younger years. I would love to be a fly on the wall for that conversation (although, if I had a choice, I think I would rather be the fly on the wall in the Tiger Woods household when he has a similar conversation with his kids).

I wonder if Miyabi (aka Maria Ozawa) makes it to Indonesia whether she will swing by Bandung and catch up with Ariel. After all, she would get tongues wagging and there remains a remote chance that an Ariel and Miyabi tape could find its way into the public domain.

Release Ariel! Release Ariel Now!

Marketing 101: Distribution of Pornography...

A distribution of pornography case that does not on face value appear to involve Nazriel "Ariel" Irham of Peterpan (aka Peterporn) fame. Then again, when it goes to trial maybe the perpetrator in this case will claim that he was influenced by Ariel's attempts to distribute porn videos on the internet in order to boost sales of future albums.

This case is an interesting one because it involves the distribution of pornography to minors. The case is also one of stupid marketing ideas and no understanding of how easy this "dirty little secret" was going to come apart at the seams.

Mohammad Hisyam, a 21-year-old bakso seller and the father of one, decided that the best way to boost sales of his product was to provide free pornographic video content as entertainment while his clients ate their meatball soup (bakso).

However, the truly sad part about this is that Hisyam thought it was a good idea to show these skin flicks to primary school children. After all, the mixed-up logic here seems to be that he was parked right in front of a primary school and his largest demographic was primary school children, so pornography is the most likely gimmick to get more kiddies into the meatball soup of a morning and afternoon; idiot!

Apart from the stupidity and serious harm that Hisyam could conceivably do to impressionable primary school kiddies, it beggars belief that he believed that this marketing tactic was not going to be exposed in next to no time. The ever-increasing numbers of children knowing about the gimmick meant an ever-increasing chance of Hisyam being exposed, and he was. Hisyam's little scheme came undone when students started talking about the bakso vendor showing porn videos over a bowl of meatball soup.

It did not take the teachers very long at Kepuh Jarak State Primary School to get onto the police about this foolish man selling bakso with his free porn video entertainment side-line.

However, on the truly sublime front is that the marketing tactic saw sales rise from IDR 70,000 per day to a whopping IDR 80,000 per day. This is where common sense should have kicked in. If I get caught doing this then I potentially go to jail for 12 years and get fined a huge sum as well, are the risks worth the consequences. Common sense says NO!

So, Marketing 101: Distribution of Pornography, Mr. Mohammad Hisyam gets a FAIL!

Syekh Puji: Sentenced to 4 Years for Pedophilia...

Pujiono Cahyo Widiyanto (aka Syekh Puji) has been sentenced to four years in prison for procuring a 12-year-old for a sexual relationship. Syekh Puji had been arguing that he had done nothing wrong in God's eyes nor under God's Laws as his 12-year-old bride had begun menstruating before he consummated the marriage.

Syekh Puji is a Muslim and believes that Islam permits his actions. The Syekh also believes that the laws of God are far superior to the laws of 'man'. Men do not have the right to punish him because he has not committed a crime in the eyes of God. The age of consent in Indonesia for females is 16-years-old. The law does not make any exceptions for early puberty or menstruation, or even parental consent.

Well, it would seem that despite his protestations to the counter, the judges of the courts of men (and women) in Semarang decided that the Syekh was in fact guilty of having sex with a minor, Lutfiana Ulfa. It goes without saying that Syekh Puji will appeal this decision. This was confirmed by O.C. Kaligis, the Syekh's lawyer. Kaligis is getting some varied and interesting work of late. Kaligis is also the lawyer for Ariel of Peterpan fame. Ariel is currently on trial in Bandung for his alleged role in the distribution of a couple of home-made sex tapes.

It will be interesting to see what the grounds for appeal are. The law is pretty explicit with respect to the age of consent. So, it is unclear at this point as to where the court may have erred in rendering its judgment.

Peterporn: Entering the Twilight Zone...

I have been tossing up all day, no pun intended considering the subject matter, about whether to write a piece on the first closed hearing of the Nazriel "Ariel" Irham sex tape distribution trial. The first hearing is always as boring as watching the grass grow. These hearings rarely include any new charges or tid bits of information (aka alleged evidence) relating to the alleged crime. These hearings are pretty much as simple as reading out the indictment with respect to what the prosecution thinks it has.

What some readers might not be aware of is how trials are conducted in Indonesia. Trial hearings are weekly affairs. This means that a hearing is held each week until the case is completed. A trial is not conducted in say a block of three weeks or six months or however long the prosecution might believe the case will take. Therefore, today's hearing was the reading of the indictment and then an adjournment until next week. Very much a case of "same time, same bat channel, and see ya next week".

What we did learn is that the prosecutors are shooting for 12 years and a fine of around IDR 6 billion. If there is any justice to be had in this case, the the case will be dismissed and with prejudice. It is after all a couple of sex tapes. It is too bad the police, the public prosecutors, and the Islamic hardliners can not join forces to root out some real evil like the scourge of corruption, for example.

On the justice front. How can there be any, when the other two participants in the tape themselves are not on trial and do not appear to be destined for trial. Although, the Islamic hardliners as represented by Hirman Firdaus of the white-robed thug brigade want to see Cut Tari the married star of one of these amateur porn flicks to be stoned to death for adultery. This is despite the fact that the police and the public prosecutors have not been able to establish a timeline for the production of the tapes or where they were actually produced.

The other piece of information that we learned from today's game of charades was that the prosecution is angling for a conviction based on the allegation that Ariel provided the facilities to distribute the sex tapes on, and over, the internet. Good luck with that. These prosecutors have not even been able to establish some other pretty basic "facts" as noted in the previous paragraph.

The next trial hearing should provide us, closed door or not, with how the defense case is organised and structured. Ariel is represented by O. C. Kaligis. Kaligis is an excellent lawyer of considerable experience and standing in the legal profession.

I am wondering if, and when, the [in]famous sex tapes will get an airing at the trial. After all, it is the sex tapes that are the crux of the case here. It is only fair that the judges see what went on in order for it to become worthy of distribution.

Oh, the title to this post...I really do not see why this case is going to trial. It certainly has a "twilight zone" feel to it. Police and prosecutors have pursued this case for all the "wrong" reasons, at least in my opinion.

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...

Ariel and the FPI...

Amongst all the serious and tragic news today of earthquakes, tsunamis, and volcanic eruptions in Indonesia, there is this piece of "news". It appears Nazriel 'Ariel' Irham of Peterpan (aka Peterporn) fame has decided to repent and make his peace with God after his recent escapade into the sex-capade business of amateur porn.

There is nothing wrong with people deciding that their previous ways were in error and seeking to make their peace with whoever they think they must. But, the very idea that you would be seeking out the FPI to repent your sins and make everything swell with God again is funny in the most perverse kind of a way. Although, I am pretty sure that in order to repent, one must first acknowledge and admit to their "sins".

So, does this mean that Ariel is ready to say "Sorry Cut for not getting around to this sooner as I have been too busy trying to save my own arse, but yes that is us in that sex video, and you were good! In fact, one of the best that I ever had. Can I just say, your husband is a lucky man!"

The very idea that one would seek out these white-robed thugs parading as the enforcers of God's laws is sure to be a source for further embarrassment.

However, if the news in The Jakarta Globe is accurate then it would seem that it is Ariel and his team reaching out to the FPI in order to make things 'right'. The FPI visited Ariel in Kebonwaru Prison in Bandung today, and specifically with Hilman Firdaus. Hilman is, of course, interested in this development. If for no other reason than it provides some legitimacy to the FPI as being important in matters of religion rather than just promulgators of violence.

Yet, hearing it Hilman style is a little scary because he seems to think that if Ariel wants it, then the FPI is williong to help set him on the straight and narrow, while simultaneously helping Ariel and Peterpan regain their former glory.

The mind boggles at the thought of how the FPI envisages 'helping' Ariel and Peterpan regain their previous days of glory.

Pedophilia vs. Distribution of Porn...

This must surely be an anomaly, right? Prosecutors are seeking to have Ariel jailed for 16 years for his alleged involvement in distributing a couple of home made sex tapes, yet the same office of public prosecutors are seeking a mere 6 years for a pedophile Muslim cleric. Go figure.

Does this mean that the distribution of pornography is a far more serious offense than pedophilia? Or is it that because Sheikh Puji has a legitimate argument that underage marriage is permissible in Islam thereby in some way mitigating the seriousness of the breach as it exists under state law?

These are serious questions for Indonesia to answer. It is high time that the president took the high moral ground and involved himself in these sorts of matters and made unequivocal statements as to what it means to be Indonesian. He should also stand up and say "sorry, but the sexual abuse of children is wrong! There is no excuse for it, there is nothing to mitigate the actions of a perpetrator, and anyone committing these crimes will be prosecuted to the full extent of the law". Hopefully, the full extent of the law is a little more than 6 years.

I have posted on Pujiono Cahyo Widiyanto and his marriage to Lutfiana Ulfa. A simple search of the blog will reveal those posts. Here are the essential facts as I recall them: he is 45-years-old and she is 12-years-old (at the time of the marriage), he owns and operates a Muslim Boarding school and uses that to call himself a cleric, he is wealthy, Lutfiana's parents had financial dealings and debts with him, he argues that God's law trumps the laws of man, and in any event she has reached puberty so in a medical sense she is no longer a child.

Perhaps prosecutors could use Article 5(3) of Law No. 1 of 1951 to prosecute the Sheikh as well?

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 Law No. 1 of 1951...

If something can be sad and funny at the same time, then this is it! Cut Tari made a skin flick. She was seemingly a willing partner in an amateur porn shoot in 2005 with the now infamous ladies man, Nazriel 'Ariel' Irham of Peterpan fame. By all accounts it was amateurish, which considering it was a handycam job, might not be far off the mark. Nevertheless, amateurish or not, it was sure to titillate the masses in Indonesia as getting a good look at the nether regions of celebrities is a pretty solid past time for some.

In any event, it would seem that making a porn film and being in a porn film are not illegal per se. This is true for the 2008 Anti-Pornography Law. Although the arguments being made by Cut Tari's lawyer, the 'I am everywhere you are', entertainment lawyer, Hotman Paris, rely on the inability of a 2008 law being applied retroactively to a sex video filmed in 2005. He has a point. Yet, it would seem that being naked in front of a digital camera probably falls under the indecency provisions (Art. 282) of the Criminal Code.

However, where this gets really sad is that the police and prosecutors are going all out to find laws to try and apply in this case. So, it was back into the archived Statute Books to play a little "pin the tail on the donkey". The end result was Law No. 1 of 1951, an emergency law that was enacted under a provisional Constitution and in 1951 Indonesia was tinkering with the way the Republic was to be governed. Nevertheless, Article 5(3) of Law No. 1/1951 has a nice 'catch all' element to it:

where an act is considered to be a crime, but where there is no relevant article in the Criminal Code prohibiting that act, then customary (traditional 'hukum adat') law can apply.

I wonder if the hukum adat that might apply here has any Sharia elements to it. Then again, both profess to not being able to remember where the film was shot. Maybe it was shot overseas and not even in the jurisdiction of Indonesia?

The cold hard reality for the coppers and the prosecutors here is that if you have to go back to a 1951 law that has not been used for this purpose previously then things are looking a little forlorn on the successful outcomes stakes. Let's face it, the drafters of the 1951 law hardly had amateur sex tapes at the forefront of their minds when drafting Article 5 of that law. It is a real stretch, drawing a long bow, if you prefer, to try an make this stick.

Final points...you really have to wonder why the police and prosecutors are persisting with this case. The again, if the SBY can railroad the DPR into approving a suspect candidate for Chief of Police, and the DPR can see no reason why the man who presided over the, still unexplained and unresolved, murder of Trisakti students in 1998 should not be Chief of Police, then what hope do a couple of amateur porn stars have?

Now for some obligatory pictures of Cut Tari...