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Pornography and Sexual Crimes Towards Children in Indonesia: A Judicial Approach

This document summarizes a research article that examines the judicial approach used in Indonesian court decisions related to cases of sexual crimes against children that are linked to pornography crimes. The research analyzes court rulings to understand the models of approach used by judges in understanding cases and determining appropriate punishments. The research finds that judges commonly use two approaches - one focused on understanding the impact of actions, and one focused on retaliation, prevention and contemporary legal theories of punishment. The document provides context on the prevalence of sexual assault cases against children in Indonesia and the role of social media networks in enabling the dissemination of child pornography.

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0% found this document useful (0 votes)
97 views10 pages

Pornography and Sexual Crimes Towards Children in Indonesia: A Judicial Approach

This document summarizes a research article that examines the judicial approach used in Indonesian court decisions related to cases of sexual crimes against children that are linked to pornography crimes. The research analyzes court rulings to understand the models of approach used by judges in understanding cases and determining appropriate punishments. The research finds that judges commonly use two approaches - one focused on understanding the impact of actions, and one focused on retaliation, prevention and contemporary legal theories of punishment. The document provides context on the prevalence of sexual assault cases against children in Indonesia and the role of social media networks in enabling the dissemination of child pornography.

Uploaded by

Ismail Jhon
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Pornography and Sexual Crimes towards Children in Indonesia:

A Judicial Approach
Faizin Sulistio1, Nazura Abdul Manap2
1
Faculty of Law, Brawijaya University
Email: faizin@ub.ac.id
2
Universiti Kebangsaan Malaysia, Malaysia
Email: nazura@ukm.edu.my

Submitted : 2017-10-05 | Accepted : 2018-10-25

Abstract: Pornography and sexual crimes against children are two forms of crime in
Indonesia. Both of these crimes in various cases have a linkage with each other, whether one
of which is a crime or pornography becomes a criminogenic factor for the onset of sexual
crimes against children. The review in this article attempts to look at the approach used by
judges in deciding cases of sexual crimes against children that correlate with pornographic
crimes. This research employs normative juridical research using legislation and case
approach.
The results of the review found that, in sum, there are two model of approach used by
the Court in deciding criminal cases, especially pornography related to sexual crimes, which
include the approach in understanding and assesing cases; and theories of punishment
approach. While the rfirst model of approach emphasizes on the understanding the impact of
the action, the secodn model look more at the retaliation, prevention, combination and
contemporary approach. It is further argued that those two models are not necessarily used
separately. The combination of the two models can also be employed, such as in the case of
Tanjung Pati District Court's Ruling no. 58 /Pid.B/ 2011 /PN.Tjp. In fact, in the case, the judges
combine several approaches in deciding cases and punishing defendants. It is submitted that
the objective of a judge is crucial since the objectivity resulted in a fairer verdict for the victim,
the community or the perpetrator himself.

Keywords: pornography, sexual crime, decision approach, punishment approach, judicial


approach

I. INTRODUCTION social network to create Official Loly


In mid-March 2017, Indonesia was Candy's 18+ account. This group account is
struck by the uncovering of networks of suspected to be a place for pedophiles and
perpetrators of pornographic and sexual pornographers to interact and disseminate
crimes targeting child victims. This network pornographic content with children as the
utilizes fanpage groups on the Facebook objects. The group is managed by four

DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.09 | 261


Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development

perpetrators who are currently detained and 2014 (1423 cases). Surprisingly, in 2015 the
named as suspects by investigators. 2 of the number of cases was markedly increase
four perpetrators were the children of M. become 1,718 cases3. The victims including
Bachrul Ulum (Wawan aka Snorlax), DF (T- 1443 cases in kindergarten and elementary
Day), Dede and SH. school students, 498 cases in junior high
The name of this group is a term school students, 513 cases in senior high
commonly used by pedophiles. Loly is a school and 13 cases in school dropped-out
candy that is identical with children. Thus, children4.
the pedophiles interpret children as a loli or The phenomenon of loly candy is a
candy that could give pleasure, the pleasure necessity in the cyberspace, where there is a
in realizes sexual abnormalities. The main relationship between the criminal act of
requirement of being a member of this group pornography and sexual crime. Cyberspace is
is the obligation to upload pornographic also a sovereign electronic place with
content, especially child pornography. individuals, communities, corporations or
In its criminal acts, the perpetrator not governments without state restriction5.
only shares pornographic images and videos Jessica Lipnack and Jeffrey Stamp described
but also sexually assaulting the children. The the cyberspace as "smash the boundaries, tear
perpetrators also record the video during their down the hierarchy and dismantle the
action and then share it to the fanpage bureaucracy´6. Cyber space is a global
members. Investigators from Metrojaya communication medium which is enabled to
Police reported that there are still other transform the information and communicate
unidentified victims and perpetrators1. between individuals7. For the perpetrators of
Sexual violence in children may strongly criminal acts of pornography and pedophilia,
cause a physical or emotional disturbance this also become a medium to interact with
which affecting in their future growth and others who have the same sexual disorder.
development2. A review of court decisions has often
The prevalence of sexual assault cases been found in various studies aimed at
against children increases in every year. improving the process of legislative drafting.
According to the Commission of Child This is understandable because court
Protection in Indonesia, in 2013, the number decisions are based on the community's
of sexual assault cases against children was actual conditions in responding to state law.
1445 cases, and not significantly different in Based on the phenomenon and legal cases

1
http://www.dw.com/id/loly-candy-di-facebook- (2002) 194 ALR 433; /DZUHQFH /HVVLJ µ7KH /DZ
terungkap-pedofil-masih-jadi-ancaman/a- RI WKH +RUVH :KDW &\EHUODZ 0LJKW 7HDFK¶
37985355 (March 20, 2017) 113 Harvard Law Review 501. David Johnson and
2
Abu Huraerah, Kekerasan Terhadap Anak (Nuansa 'DYLG 3RVW µ/DZ DQG %RUGHUV ² The Rise of Law
Cendikia, Bandung, 2012) 44. in CybeUVSDFH¶ Stanford Law Review
3
KompasTV, 1367.
6
https://www.youtube.com/watch?v=PaL21SNpfY Jessica Lipnack & jeffrey Stamps, The Age of the
E, 10 Maret 2017, (March 10 2017) Network, Organizing Principle for the 21st Century
4
BeritaSatuTV, (New York : John Willey & Sons, Inc, 1994), 3.
7
https://www.youtube.com/watch?v=RPtzYvuNl88, *UHHQ 3DSHU HQWLWOHG µ$ 3URSRVDO WR ,PSURYH
10 Maret 2017, (March 10 2017) Technical Management of Internet Names and
5
%ULDQ )LW]JHUDOG µ6RIWZDUH DV 'LVFRXUVH 7KH $GGUHVVHV¶ FDQ EH IRXQG DW
Power of Intellectual Property in Digital http://www.ntia.doc.gov/ntiahome/domainname/d
$UFKLWHFWXUH¶ Cardozo Arts and nsdrft.htm. Accessed on March 23, 2010.
Entertainment Law Journal 337, 353; Gutnick

262 | Sulistio, Manap - Pornography and Sexual Crimes Towards Children in Indonesia...
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development

related to sexual crimes caused by a liberal country that greatly upholds


pornography, then the author conducted a individual freedom, pornographic activity is
study of the judge's decision in settling the not a deviant act and not classified as a
case. criminal act. This has become a
This study attempts to examine court distinguishing feature in the process of
decisions on related sexual crime cases criminalizing pornography in Indonesia
and/or is associated with pornography. From compared to other (western) countries.
the background described above, the authors Pornography in Indonesia emphasizes on the
tried to study about the court's decision in relation between morality in society and law.
sexual crime cases related to pornography Thus the context of pornography is limited by
crime and the approach as a priority for other rules of social control such as
judges in deciding cases of sexual crimes customary law and religion. In Indonesia
related to pornography. This study was based criminalization of pornography is listed in
on a normative juridical study by examining article 282 of the Criminal Code and article 1
retio decidendi from the judge's decision. (1) of Act Number 44 Year 2008 on
Pornography.
II. LEGAL MATERIALS AND The forms of pornography are
METHODS described in more detail in article 1 (1) of Act
This research adopted a normative Number 44 Year 2008, as follows:
juridical method. It relies heavily on existing "Pornography is a drawing, sketch,
laws and legal frameworks concerning illustration, photo, writing, sound,
pornography and sexual crimes againts sound, motion picture, animation,
children. The research using statute and case cartoon, conversation, gesture, or
approach in its discussions. The legal another form of message through various
frameworks used in this research is criminal forms of communication media and/or
law legal framework, especially Indonesian public performances, containing
Criminal Code and Indonesian Act Number obscenity or Sexual exploitation that
44 Year 2008 on Pornography as well as violates the norms of decency in society"
Indonesian Act Number 35 Year 2014
concernig Child Protection and Act Number The definition of pornography as in the
48 Year 2009 on Judicial Power. The above article is a business that became a
analyses used the case of Tanjung Pati social consent to harmonize technological
District Court's Ruling no. 58 /Pid.B/ 2011 developments with new forms of
/PN.Tjp as specific case on children pornographic activity. While sexual assault
pornography. in the Criminal Code has several definitions
such as criminal acts of decency specifically
III. RESULTS AND DISCUSSIONS related to sexual violence. Sexual assault, in
Pornography Concept and Sexual Assault this case, is an obscene act committed by an
in Indonesia adult or perpetrator against children as stated
Discourse on pornography as a deviant in Article 287 of the Criminal Code. In
act is strongly influenced by the moral values addition, the prohibition of sexual
recognized by a society. The concept of intercourse on immature women may cause
pornography that is formed is also closely injury, serious injury, and death as regulated
related to the sense of decency in society. In in article 288 of the Criminal Code. In
Sulistio, Manap - Pornography and Sexual Crimes Towards Children in Indonesia... | 263
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development

addition to articles 287, 288 and 289 of the is a conscience that reflects the social
Criminal Code, sexual assault in the Criminal conditions of society which has a sensitivity
Code is also regulated in articles 290,291, to the social conditions of society that leads
292, 293, 294 and 295. to a sense of justice in the community.
Meanwhile, as a legal authority, the
Concept of Judge's Decision duty of judges is to enforce regulations in law
A judge is defined as a public official that have been violated by the perpetrators. In
who has the authority to hear and decide on a the context of this law enforcement, the
legal matter in court8. The judge is also constraints of judges are when the law is not
etymologically interpreted as an official who in accordance with the social dynamics
discovers, introduces and explains the law9. anymore. John Rawl stated that the trial in
The decision refers to some terms court is an imperfect justice procedure.
including decision, judgment, verdict, Although the law is implemented according
finding and ruling10. %ODFN¶V /DZ 'LFWLRQDU\ to the procedure, the result could be wrong.
GHILQHV MXGJPHQW DV D FRXUW¶V ILQDO The possibility of mistakes in judicial
determination of the right and obligation of decisions because laws are less likely to
the parties in a case. While the verdict is a follow social dynamics. Therefore, it
MXU\¶V ILQGLng or decision on the factual provides the basis for judges to either to form
LVVXHV RI WKH FDVH RU D MXGJH¶V UHVROXWLRQ RI law (rechtvorming) or discover the law
the issues of a case11. (rechtvinding). In this context court judges
While the definition of a judge in Act have the following functions:
Number 48 Year 2009 on Judicial Power is a a. Ensuring that one designation is applied
person who examines cases in court appropriately and fairly. Whereas the
according to law fairly without judge's conscience is convinced that the
discriminating people on different tribes, application of existing laws can lead to
religion, race, position, and wealth. In this injustice, then the judge is obliged to
context, judges have the authority to uphold support justice rather than simply
justice and law enforcement. As the enforcers making the rules as the ever-true book.
of justice, the duty of the judge is to uphold b. As the interpreter of the designated
justice (gerechtigdheid) not merely a arrangement by adopting the method of
certainty (rechtzekerheid). Justice based on interpretation and consider the
the Belief in God Almighty. Even in sociocultural aspects and also arrange a
Indonesian courts, judges in making provision relevant to the condition of
decisions must be preceded by the words "for society.
justice based on God Almighty". c. Conducting an act of correction of an
The meaning of judgment with justice error or legal void. The judge in this
based on God Almighty is that every decision context must find and create the law by
must be based on the laws and beliefs that are enacting the law.
felt on a good conscience. A good conscience

8 10
Garner, Bryan A, %ODFN¶V /DZ 'LFWLRQDU\ (West Alan M. Stevens dan Schmidgall, Comprehensive
Publishing co, St. Paul, 2009), 916. Indonesian-English Dictionary (Ohio University
9
Abdul Aziz Dahlan et al, Ensiklopedia Hukum Press, Ohio, 2004), 792.
11
Islam,Ichtiar Baru (Jakarta, 2001), 503. Garner, Bryan A, %ODFN¶V /DZ 'LFWLRQDU\ (West
Publishing co, St. Paul, 2009), 1968.

264 | Sulistio, Manap - Pornography and Sexual Crimes Towards Children in Indonesia...
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d. Performing enhancements to a rigid involve applying the law to the case by the
designation arrangement in order to method of a syllogism with the following
provide a reasonable justice. steps:
1. Analyzing the legal norms to determine
In addition, in relation to rechtvinding the elements contained in the contents of
or legal discovery by judges, a law expert the norm;
Van Eikema Hommes defines the process of 2. Analyzing the case to determine the
legal development by a judge in a single legal elements in the case;
event. This involves applying an abstract rule 3. Comparing the elements in the legal
to a concrete event12. This is a form of norm with the elements present in the
judicial discretion which is the policy of case to construct deductive conclusions.
judges in making decisions based on the
principles of law and an independent mind in From some court decisions, there are
order to give a fair decision13. several approaches used by judges to make
The judge as the determinant of justice decisions. The first approach relates to the
will be seen as a person who knows all laws assessment and the description of the case
or jurists (ius Curia Novit). Thus, although and the second approach refers more to
there are still no rules in some cases, the court criminal prosecution. An approach which is
(judge) must make a decision. This concept related to the full assessment of a case
in European continental court tradition is including:
known as the invention of the law
(rechtsvinding) or creating law 1. Understanding Approach
(rechtsschepping). This concept is a This approach is very close to the
manifestation of the principle that the court interpretation of the law through
should not reject any proposed case. hermeneutics. According to Max Weber, this
A judge in Indonesia should refer to understanding approach is an analysis of the
three stages in exercising the authority, symbol system. This approach allows people
namely: the stage of fact verification, case to appreciate the other's beliefs without
eligibility, and case assessment. In the stage prejudice. Verstehen tried to make an
of fact verification, a judge must carefully understanding of a case by re-experiencing or
observe, acknowledge or justify the case. reviewing experiences14. This concept
While in the stage of eligibility, a judge assesses the desired motive of SHUVRQ¶V
should judge a case that actually happens and actions (in-order to motive). Therefore, to
categorizes it to a particular legal section. understand the actions of a person, it is
The judge must find the appropriate law for a crucial to examine DQG DQDO\]H WKH SHUVRQ¶V
confirmed case. While the last stage is the motive15.
judge must give legal arguments which

12
Sudikno Mertokusumo, Bab-Bab tentang
14
Penemuasn Hukum (Aditya Bakti, Bandung, Wilhelm Dilthey, Selected Works: Hermeneutics
1993), 4 and the study of history, Selected Work Volume 4
13
Frans Hendrawinata, Mencegah Judicial (Princenton University Press, 1985), 159-161
15
Corruption melalalui Eksaminasi Publik, Muhammad Basrowi, Teori sosiologi dalam tiga
Mungkinkah?, in Susanti Adi Nugroho dkk, paradigm (Yayasan Kampusina, Surabaya, 2004),
Eksaminasi Publik: Partisipasi Masyarakat 60
Mengawasi Peradilan (ICW Jakarta, 2003), 14.

Sulistio, Manap - Pornography and Sexual Crimes Towards Children in Indonesia... | 265
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The understanding approach in making means that every judge's decision becomes a
this decision is in line with the opinion of reflection of the will of the people in using
Judge Oliver Wendell Holmes Jr. who states the law17. Judge Holmes also declared the
that in making judgments in court is not judge's decision bring the character of
merely a process of mathematical and cultural relativism. Every judge's decision is
mechanical syllogism. However, it has a a reflection of judges' experience related to
broad meaning. The life of the law has not behavior, morality, and wisdom. Holmes
been logic; It is has been an experience. The further stated that the law embodies the story
felt necessities of the time, the prevalent of nation's development through many
moral and political theories, the institution or centuries, and it contains only the axioms and
public policy avowed or unconscious, even collections of a book mathematics18
the prejudice share with their fellow. In addition to the approach that emphasizes
in understanding and assessing the cases, the
2. The Action Impact Approach next approach is more to the theories of
This approach is used by the court by punishment purposes, namely approaches of
assessing the indirect impact of acts retaliation, deterrence or prevention.
perpetrated by the perpetrator. This approach
can easily be known from the judge's 3. Retaliation Approach
argument that the perpetrator's actions have Approach to retaliation of criminal acts
damaged the morale of the community, appears in the classical era of criminal law.
especially the younger generation. In Courts The theory that uses punishment to retaliate
cases, this approach is commonly used on the perpetrators is known as an absolute
perpetrators who trade in pornographic items theory. According to absolute theory,
such as VCD or DVD. For example, the retaliation is a justification for punishment.
Ruling of District Court Bandung No 1096 / In this context, the state is entitled to impose
Pid.B / 2010 / PN Bdg with the defendant appropriate penalties because the perpetrator
Jhon Deardo Sipayung16 who was arrested by has violated the state's law. A Dutch legal
the police for selling pornographic items expert Vos stated that in seeking the basis of
which are VCD and DVD. A similar case was criminal prosecution, the criminal act itself is
the decision of District Court Ngawi No 310 seen as the basis of the punishment of the
/ Pidsus / 2011 / PN. NGW in the case of perpetrators of criminal acts. The use of this
Wahyudi bin Isbani who was sentenced to 8 approach is rarely used except in certain
months for selling pornographic items to his cases that attract public attention. The case of
cellular store customers. pornography with the defendant Ariel on the
The court verdict with an action impact decision of the District Court and the High
approach illustrates that the court will refer to Court implies an attempt to satisfy the grudge
the moral values in society in making the of society.
decision. This case is in line with Tamanaha In the case of Riga Antoni Putra19, the
who reported about mirror thesis which perpetrator was charged with disseminating

16 18
District Court Verdict Bandung No Oliver Wendell Holmes, The Common Law (Little
1096/Pid.B/2010/PN Bdg Brown, Boston, 1963) see also Julius J. Marke, The
17
Brian Z Tamanaha, A General Jurisprudence of Holmes reader (OFHDQD¶V 'RFNHW %RRNV ),
Law and Society (Oxford University Press, 65-70.
19
Oxford, 2006), 1-3. District Court Verdict Tanjung Pati No. 58 /Pid.B/
2011 /PN.Tjp.

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his sex video clip with Lidya who was still 14 This approach can be found in the
years old. The court sentenced the perpetrator decision of District Court of Rengat No 178 /
to 7 years imprisonment and a fine of 250 Pid.B / 2013 / PN. RGT with defendant
million rupiahs. The perpetrator started to get Ardiansyah bin Suryadi. In this case, the
acquainted with the victim, Lidya by phone. perpetrator was charged with article 45 (1) of
After 2 months of a relationship, the Law No. 11 of 2008 on ITE to article 65 (1)
perpetrator invites Lidya to had sexual of the Criminal Code. This section states that
LQWHUFRXUVH DW SHUSHWUDWRU¶V KRXVH LQ the perpetrator committed a crime
Payakumbuh. The perpetrator recorded their intentionally and without the right to make
sexual intercourse by using a cellular phone. access to information that violates decency.
The recording was then used by the At first, the perpetrator got
perpetrator to threaten the victim to have sex acquainted with the victims, Maria and Ine
with him again. The perpetrator and the Alivia via Facebook. Without the consent of
victim then had sex for 14 times and recorded the victim, the perpetrator downloaded the
it. The perpetrator began to spread the video YLFWLPV¶ SLFWXUH IURP WKHLU IDFHERRN 7KH
to his friends through his phone, and to the SLFWXUH ZDV HGLWHG E\ WDNLQJ WKH YLFWLPV¶ IDFH
/LG\D¶V WHDFKHU so that the victim was and pasting it on another naked picture. The
expelled from school. perpetrator then informed the victims that in
This case showed the relation between the blog entitled "Cewek Bispak Rengat Part
pornography and sexual crime to the children II" there were their pornographic images.
make the judge impose severe punishment to Then the perpetrator said that the pictures can
the perpetrator. The approach of retaliation is be removed if the victims pay to the
also more visible when there are two crimes perpetrator of 100.000 IDR. Because the
that occur. On the other hand, Angga Ryan victim did not want to pay, the perpetrator in
Saputra20 was accused of recording and March 2012, uploaded 4 more pornographic
spreading sexual intercourse in children on images of Maria and 4 porn images of Ine
the Internet and only sentenced to 9 months Avilia to his Blog. The perpetrator also
in prison. extorted the victims to immediately pay of
900.000 IDR. The victims than reported him
4. Prevention Approach to the police.
This approach emerges from relative In its verdict, the Panel of Judges stated
theory. In this theory, the basis of punishment that the behavior of perpetrators who
is the enforcement of the order in society. PDQLSXODWHG SHUVRQ¶V LPDJHV WR
The purpose of the punishment in this theory pornographic images and extorted the
is to prevent crime in society. The relative victims are criminal acts which have no
theory may also be called relationship theory excuses of forgiveness and justification.
or objective theory. This is because the Thus, the court ruled that the perpetrator was
relationship between injustice and sentenced to 1 year and 4 months in prison.
punishment is related to the desired purpose This severe punishment was imposed by the
of punishment which is to provide legal court to prevent perpetrators from repeating
protection and prevent injustice.

20
District Court Verdict Kandangan
114/Pid.B/2012/PN.Kgn

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their actions and preventing people from enrolled as a 5th grader at Petra 9 Christian
committing the same crimes as criminals. Primary School Surabaya.
The perpetrator then communicated
5. The Combined Approach with the victims and requested a naked
The combined approach is a picture of the victims to check the health
combination of both approaches of retaliation information such as the stage of
and the prevention approach. The purpose of reproduction, menstruation, and prevention
this approach is to combine retaliation and of breast cancer from their naked images.
make an order in society. This is in line with Then, the victims were interested and send
the maxim puniendis nemo est ultrameritum, the naked pictures to the perpetrator. After
intra meriti vero modum magis aut minus that, the perpetrator made several new
peccate piniuntur pro utilitate which means Facebook account named Iveyaphilia and
that sorrow is a natural thing to be borne by Hen Wei. Through this Facebook account,
the perpetrators of criminal acts, but the the perpetrator uploaded naked pictures of
severity of punishment to the perpetrator is the victims. The perpetrators also uploaded
limited to social benefits. This is in line with the pRUQRJUDSKLF LPDJHV LQ WKH YLFWLPV¶
the maxim who stated that natura ipsa dictat, school Facebook account. This made the
ut qui malum fecit, malum ferat which means school report the perpetrator to police.
that nature gives the teaching that anyone In its verdict, the panel of judges stated
who commits a crime, they will be exposed that the sentence imposed to perpetrator has
to sorrow. It's not a sorrow as revenge but given a sense of justice by giving an
also maintaining public order21. indication that the court has given
This combined theory is able to give a appropriate retaliation to the perpetrator's
balance in punishment to the perpetrator by actions. The punishment also
giving an appropriate retribution to provide a psychologically prevent perpetrators from
protection to the law. This approach can be repeating criminal acts and preventing people
referred to Tjandra Adi Gunawan22 case in from committing criminal acts, especially in
District Court Surabaya. This case was the pornographic crime of children.
started from the perpetrator who created a
fake Facebook account with the name Evi 6. Contemporary Approach
Urwatul Wusqo. The perpetrator admitted in This approach tries to restore the future
Facebook that he was a woman and worked of the perpetrator by improving the behavior
as an obstetrician at Mitra Keluarga Hospital of the perpetrator. The purpose of this
Cibubur. Through the account, the approach is the perpetrators can be accepted
perpetrator in early November 2013 sent a in the society after serving the punishment.
friend request to victims of Fedorika This approach is a form of separation from
Yaphilia, Stephanie Caroline, Ivana punishment as punishment (poenae ut
Wardana, Devina Dea and Merry Merlina poenae) and punishment as a medicine that
Renata. They were still 12 years old and can recover or heal (poenae ut medicine).

21 22
Jan Remmelink, Hukum Pidana: Komentar Atas District Court Verdict Surabaya No
Pasal-Pasal Terpenting dalam KUHP Belanda 2191/Pid.B/2014/PN.Sby
dan Padanannya dalam KUHP Indonesia
(Gramedia Pustaka Utama, Jakarta, 2003), 611

268 | Sulistio, Manap - Pornography and Sexual Crimes Towards Children in Indonesia...
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This approach is used in the Supreme REFERENCES


Court's verdict No. 1607K / Pid. Sus / 2008.
In this case the victim and the perpetrator are Books
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perpetrator X saved and showed the Tiga Paradigm (Yayasan Kampusina,
pornographic images of the victim on the Surabaya, 2004)
perpetrator's computer to 5 witnesses which Dahlan, Abdul Aziz et al, Ensiklopedia
are all brothers. In addition, the perpetrator Hukum Islam (Ichtiar Baru, Jakarta,
showed the picture to witnesses 6, 7 and 8 2001)
which were a friend of a perpetrator's school Dilthey, Wilhelm, Selected Works:
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still children. The perpetrator was charged Selected Work Volume 4, (Princenton
with article 283 of the Criminal Code which University Press, 1985)
has and publicly displayed images or objects Garner, Bryan A, %ODFN¶V /DZ 'LFWLRQDU\
that violate morality to children23. (West Publishing co, St. Paul, 2009)
In this case, the approach was very Hendrawinata, Frans, Mencegah Judicial
considerate of the circumstances perpetrator Corruption melalalui Eksaminasi
who was still a children. Even the Supreme Publik, Mungkinkah?, in Adi Nugroho
Court only sentenced the perpetrator for 6 Susanti (ed) Eksaminasi Publik:
months with a trial period of 9 months. This Partisipasi Masyarakat Mengawasi
means that the perpetrator did not need to Peradilan (Jakarta, 2003)
serve in a prison for 6 months if during the Holmes, Oliver Wendell, The Common Law
trial period of 9 months the perpetrator did (Little Brown, Boston. 1963)
not repeat the crime. Whereas in cases Huraerah, Abu, Kekerasan Terhadap Anak
involving children and perpetrators are (Nuansa Cendikia, Bandung, 2012)
adults, the courts always sentenced a heavy Lipnack, Jessica & Stamps, Jeffrey The Age
punishment to perpetrators. of the Network, Organizing Principle
for the 21st Century (New York : John
IV. CONCLUSIONS AND SUGGESTIONS Willey & Sons, In, 1994).
This research concludes that there are Marke, Julius J The Holmes Reader
two models of approach used by the Court in (2FHDQD¶V 'RFNHW %RRNV
deciding criminal cases, especially Mertokusumo, Sudikno, Bab-Bab tentang
pornography related to sexual crimes. The Penemuasn Hukum (Aditya bakti,
first model relates to the effort to understand Bandung, 1993)
and assess cases and the second model relates Remmelink, Jan Hukum Pidana: Komentar
to the theories of punishment. Approach with Atas Pasal-Pasal Terpenting dalam
first model is approach of understanding and KUHP Belanda dan Padanannya
impact of action. Furthermore, approach dalam KUHP Indonesia (Gramedia
related to the theory of punishment is the Pustaka Utama, 2003)
approach of retaliation, prevention, Stevens, Alan M. dan Schmidgall,
combination and contemporary approach. Comprehensive Indonesian-English

23
6XSUHPH¶V &RXUW 9HUGLFt MA No 1607K/ Pid.
Sus/ 2008

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Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development

Dictionary (Ohio University Press,


Ohio, 2004)
Tamanaha, Brian Z, A General
Jurisprudence of Law and Society
(Oxford University Press, 2006)

Journals Articles
'DYLG -RKQVRQ DQG 'DYLG 3RVW µ/DZ DQG
Borders ² The Rise of Law in
&\EHUVSDFH¶ Stanford Law
Review 1367.
Fitzgerald, Brian, µ6RIWZDUH DV 'LVFRXUVH
The Power of Intellectual Property in
'LJLWDO $UFKLWHFWXUH¶
Cardozo Arts and Entertainment Law
Journal 337, 353
Gutnick (2002) 194 ALR 433.
/DZUHQFH /HVVLJ µ7KH /DZ RI WKH +RUVH
:KDW &\EHUODZ 0LJKW 7HDFK¶
113 Harvard Law Review 501

Internet Resources
http://www.dw.com/id/loly-candy-di-
facebook-terungkap-pedofil-masih-
jadi-ancaman/a-37985355 (20 Maret
2017)
KompasTV,
https://www.youtube.com/watch?v=Pa
L21SNpfYE, 10 Maret 2017.
BeritaSatuTV,
https://www.youtube.com/watch?v=RP
tzYvuNl88, 10 Maret 2017

270 | Sulistio, Manap - Pornography and Sexual Crimes Towards Children in Indonesia...

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