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...
Brawijaya Law Journal Vol.5 No 2 (2018)               The Role of State in Contemporary Legal Development
 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
Brawijaya Law Journal Vol.5 No 2 (2018)             The Role of State in Contemporary Legal Development
      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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Brawijaya Law Journal Vol.5 No 2 (2018)               The Role of State in Contemporary Legal Development
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
                      Sulistio, Manap - Pornography and Sexual Crimes Towards Children in Indonesia... | 267
Brawijaya Law Journal Vol.5 No 2 (2018)             The Role of State in Contemporary Legal Development
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
 children. This case began when the                      Basrowi, Muhammad Teori Sosiologi dalam
 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:
 and the victim. All the witnesses shown were                 Hermeneutics and the study of history
 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
                      Sulistio, Manap - Pornography and Sexual Crimes Towards Children in Indonesia... | 269
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
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     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...