Online Sexual Exploitation of Children: Have Our Laws Worked Well?

The Flashback of Online Prostitution Case

Online prostitution cases involving 75 people, including 18 girls through the MiChat application, have been secured by the police at two hotels located in West Jakarta.^[1] These young women are tricked, seduced, and lured by two pimps for money who intend to sell them to philanderers for selfish gain. According to Yusri Yunus, the Head of Public Relations of Polda Metro Jaya Kombes, the modus operandi of the crime began with the MiChat application account used by the two pimps offer victims to philanderers at a rate of 300 thousand to 500 thousand Rupiah. Furthermore, pimps get profit up to 10% from each transaction. Thus, the pimps get a share of 50 thousand to 100 thousand Rupiah per one transaction, while the rest is given to the victim as prostitution payment.^[2]

So actually, the online prostitution case of 18 teenage girls keep repeating the same issue. What we see today is an iceberg phenomenon – only a few on the surface but rooted so deep inside.

Those 18 teenage girls are not the only victims of online prostitution. Polda Metro Jaya uncovered child exploitation cases in the period January-February 2021, and found 91 of the 286 victims were children.^[3]

They initially met the perpetrator through social media. Next, the perpetrators stalk the child victims online and, in the end, persuade them to engage in online prostitution. From the data disclosed by the police, the article shows that sexual exploitation of children online is most likely to occur during the pandemic.

Before answering the central question of this article, it would be better if we fully understand how online sexual exploitation of children (OSEC) takes shape and occurs in our society today.

Online Sexual Exploitation of Children (OSEC)

OSEC is a criminal act committed by perpetrators by utilizing communication and information technology and/or the internet to facilitate sexual abuse and exploitation of children.^[4] Technological developments have not only a positive impact on children’s growth and development but also leave risks that need to be watched out for. The phenomenon of Online Booking (BO)/online prostitution, similar to the case above, is just one of the many modes of sexual exploitation crimes committed online. Both children and parents need to know and be aware of other modes of crime, including:^[5]

Child grooming
Child grooming is an act of inviting or persuading children to exploit children sexually. In general cases, the grooming process is carried out in stages, starting with selecting potential victims. The perpetrator chooses the victim by considering several factors, including (i) the attractiveness of the victim (appeal/attractiveness), which is determined by the perpetrator’s desire, (ii) the ease of access to the victim’s social media (for example, privacy settings on the site, platform, or application used). by the victim is not installed or disabled) and/or (iii) the victim’s vulnerability (for example, they post their condition living alone at home or feel psychologically unhappy). After determining the target victim, the perpetrator will try various ways to contact the victim. If successful, the perpetrator will try to build a friendly relationship with the victim and create a comfortable atmosphere. Finally, the victim feels emotionally attached to the perpetrator and may have a romantic relationship. That’s when the perpetrator is ready to commit his crime, sexually exploiting the victim.
Child Sexual Abuse/Exploitation Material (CSA/EM)
Another manifestation of OSEC is the production of CSA/EM by perpetrators or associated with child pornography. In principle, child pornography involves children in explicit sexual activity that is carried out in real/simulated or shows the sexual parts of the child for the primary sexual purpose itself.^[6]
Perpetrators produce and/or disseminate this CSA/EM via email, SMS, chat messenger, peer-to-peer file-sharing networks (such as eDonkey, BitTorrent, Gigatribe), social media platforms, and applications for encrypted or unencrypted communication. -encryption (such as Skype, Telegram, WhatsApp). In addition to visible sites, perpetrators also share the CSA/EM via DarkNet/Deep Web in the form of material that is more extreme and often more difficult to track down or takedown.
In addition, activities such as sexting (self-producing and sharing sexually nuanced messages/images) also place children at a higher risk of sexual exploitation.^[7] Recipients of irresponsible messages/images can become perpetrators of child sexual exploitation by spreading these messages/images for their selfish gain.
Live Streaming of Child Sexual Abuse
In the case of KB, a 5-year-old girl who became a victim of abuse by her biological father (see: ‘Nurturing before Blood’ during The Pandemic – Rumah Faye), the problem started with a 37-second viral video that was distributed via WhatsApp messages. Although not directly related to sexual violence, the case of KB and her father became one of the events that surfaced and succeeded in attracting public attention about how child exploitation online took shape. Live streaming sexual abuse can occur in online chat rooms, social media platforms, and communication applications (with the video chat feature).
Sextortion (memaksa dan memeras anak untuk tujuan seksual)
Sextortion is an act of sexual extortion. The perpetrator forces and extorts a child to produce sexual material, which is used for sexual, financial, or another selfish gain.^[8]

The Indonesian Child Protection Commission (KPAI) noted that 35 cases of sexual exploitation, trafficking, and child labor occurred during January-April 2021. Of these, 60% were carried out through online media.^[9]

In addition, based on KPAI data, the MiChat application is the most widely used online medium in sexual exploitation, trafficking, and child labor, with 41% cases. Its position is followed by WhatsApp and Facebook, with 21% and 17%, respectively. This data shows the increasing vulnerability of perpetrators using social media, online platforms, and communication applications to carry out their crimes. Not only is it more vulnerable, but access to these online media is also getting more accessible in this technological era.

The easy access of perpetrators to online media puts children at high risk of becoming victims of online sexual exploitation. This risk is getting worse due to the increased access of children to these online media, especially during the pandemic. According to the results of the initial mapping conducted by ECPAT Indonesia, it was found that 67% of child respondents experienced an increase in internet use compared to before the pandemic, where most of the respondents admitted that they spent more than 6 hours a day using the internet. ECPAT Indonesia also noted that from 1203 respondents, it turned out that 287 forms of bad experiences occurred while surfing the internet during this pandemic. The most common forms of bad experiences include: being sent writings/text messages that are rude and obscene (112 respondents), sent pictures/videos that make them uncomfortable (66 respondents), to sending pictures/videos featuring pornography content (27 respondents).^[10]

Through this data, an important message is implied that every person and institution, especially parents, is responsible for ensuring that children have adequate knowledge about safe ways to surf the internet, especially during a pandemic. It is also important to teach children how to identify threats of sexual exploitation in cyberspace.

Have Our Laws Worked and Protected Children?

Before answering the central question of this article, let’s see what positive contributions the law has made to protect Indonesian children from sexual exploitation online.

Currently, at least three laws can be used to trap perpetrators of criminal acts of sexual exploitation on children online, namely: (i) Law (No). 23 of 2002 concerning Child Protection and its amendments (“Child Protection Law“), Law (No). 11 of 2008 concerning Electronic Transaction Information and its amendments (“UU ITE“), and Law (No). 44 of 2008 concerning Pornography. (“Pornography Law“).^[11]

Article 76I, in conjunction with Article 88 of the Child Protection Law, threatens perpetrators of child sexual exploitation with a maximum imprisonment of 10 (ten) years and a maximum fine of 200 million Rupiah. However, the Child Protection Law Article has not accommodated punishments for perpetrators who commit sexual exploitation of children online. Therefore, there were articles in the ITE Law, one of which was Article 27 paragraph (1) of the ITE Law, written to ensnare perpetrators who committed crimes using communication and information technology facilities. Likewise, with the Pornography Law, several articles are designed to protect children from sexual exploitation specifically. For example, Article 34 of the Pornography Law threatens perpetrators who make children as models or objects of Pornography with a prison sentence of 10 years and a fine of 5 billion Rupiah. The series of articles above can be a weapon against perpetrators of child sexual exploitation online.

However, there are still problems. Our laws are not perfect. There are three main legal problems that do not maximally support the efforts to protect children from online sexual exploitation. The three main problems that need to be addressed are:

UU ITE / ITE Law: The phrase “Violation of Morals” is a “Boomerang” for Victims

The black record of the ITE Law is visible in the case of Baiq Nuril, a woman who intended to report sexual harassment she experienced, was instead found guilty by the Supreme Court for distributing a recording containing decency and sentenced to six months of prison and a fine of 500 million Rupiah.^[12]

It was questionable, why did Baiq Nuril, the woman who became the victim, be punished for spreading content deemed to violate morals? This problem departs from the sound of Article 27 paragraph (1) of the ITE Law, which from the beginning has no clear boundaries. Article 27 paragraph (1) reads as follows:

“Every person who intentionally and without rights distributes and/or transmits and/or makes accessible Electronic Information and/or Electronic Documents that have content that violates morals.”

Based on Article 27 paragraph (1), the court sentenced Baiq Nuril for spreading a telephone conversation between her and the perpetrator (Principal of SMAN 7 Mataram) which was sexually nuanced and violated moral norms. When in fact, the telephone conversation is the evidence of sexual harassment by the perpetrator against Baiq Nuril. Then, why was the court’s decision not in favor of the victim?

If we look again at Article 27 paragraph (1), there is the phrase “has a content that violates morals”. What is meant by “violation of morals”? “Violating morals” is exactly what and how? This is unclear and it has no limits in the ITE Law. In addition, the phrase “distribute and/or transmit and/or make accessible Electronic Information and/or Electronic Documents” is also not clearly defined. Is it correct that victims of sexual harassment who do not dare to report to the authorities and choose to tell their friends/famil, then share the content of conversations or videos that are evidence of sexual harassment with their friends/family, should be considered to have spread content that violates morals? It is very dangerous to interpret the law in that way. The law did not side with the victim and instead criminalized the victim’s attempt to report the act of sexual harassment she experienced. Victims will be increasingly afraid to report to the authorities.

The problem in Article 27 paragraph (1) makes this article very dangerous when applied to cases of online sexual exploitation of children. Why is that? Imagine a child being a victim of sexual exploitation. Even adults are reluctant to report what happened to the authorities, especially children who do not yet have emotional and physical maturity. Often, it is difficult for children to even talk to their families, so professional help (such as psychologists, psychiatrists) as well as child and women’s protection agencies are needed. Then, when the child provides evidence of the conversation or video containing the content of sexual exploitation to their psychologist/psychiatrist, should the child be considered to have violated Article 27 paragraph (1)? Absolutely not! This is what must be corrected from our law, the ITE Law in particular. Do not let the victims of child sexual exploitation become victims of such law.

The Criminal Code (KUHP): The Deadline for Prosecuting Crimes Has Not Provided Guaranteed Justice for Child Victims

Did you know that perpetrators of crimes against children cannot be prosecuted after the child becomes an adult? Article 78 paragraph (1) of the Criminal Code regulates the time limit regarding when a criminal act can no longer be prosecuted by the state, namely:

Threat of punishment	Criminal acts can no longer be prosecuted after … years
Maximum 3 (three) years	6 (six) years
More than 3 (three) years	12 (twelve) years old
Death penalty/life imprisonment	18 (eighteen) years old

For example, if there is a perpetrator who sexually exploits a 6 year old child and is threatened with a 10 year prison sentence under the Child Protection Law, if the crime was exposed after the child victim turned 19 years old, then because it has passed the 12 year time limit since the crime occurred, the perpetrator would not be prosecuted for his crime. Perpetrators are free to roam, while child victims will continue to be traumatized physically and psychologically even though they have become adults.

The fulfillment of justice for child victims should not be hindered by the provisions on the time limit for prosecution. The law should provide special treatment for cases of crimes against children, including online and offline sexual exploitation, that is, perpetrators can be prosecuted for their crimes without a time limit or the time limit for prosecution is calculated from the time the child victim reaches adulthood. This measure will guarantee greater justice and protection for children.

The OPSC Ratification Act and the Extradition Act: Changing the Paradigm from the Side of Child Victims

In the legal concept, the term “extraterritorial jurisdiction” (extraterritorial jurisdiction / ET), which means a state can impose penalties on perpetrators – who are its citizens – for crimes committed abroad. The concept of ET in child protection efforts has been adopted by Indonesia through Law No. 10 of 2012 concerning Ratification of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC). So, what are the problems we face?

Again, Indonesian law has not seen it from the victim’s point of view in adopting the concept of ET. So far, the application of ET is only intended for crimes committed by Indonesian citizens abroad, but does not apply to crimes whose victims are Indonesian citizens but occur when they are living abroad. This becomes a problem when crime no longer recognizes the boundaries of space and time where sexual exploitation of children can occur online, anywhere, anytime and by anyone. A simple illustration, for example, of an Indonesian child living in the Netherlands and experiencing online sexual exploitation by a citizen of the United States. Our current law has not been able to reach the citizen of the United States of America to be punished for his actions. The state does not yet have the tools to ensure that US citizens are punished by the Netherlands (according to the location of the incident) or the United States (according to the nationality of the perpetrator). As a result, child victims do not receive the justice they deserve. This is why the OPSC Endorsement Law should regulate the application of ET to Indonesian children who are victims of online sexual exploitation abroad, so that there is a guarantee that the perpetrators will be strictly punished.

The next question is, how does Indonesia ensure that the US citizen will be punished strictly? With the OPSC Ratification Law and the OPSC itself, Indonesia actually has a basis for submitting a request for extradition (returning the perpetrator of a crime to a country for punishment) to another country where the perpetrator is hiding or fleeing, even though there is no extradition treaty. However, this must be specifically regulated in a new regulation, complementing Law No. 1 of 1979 concerning Extradition. In addition, it should also be regulated that when Indonesia’s request for extradition is rejected by another country, the other country must guarantee that cases of crimes against children will be tried by courts in their country.

Have our laws worked and protected children? The short answer, not completely. There are still many legal aspects that need to be addressed by lawmakers and law enforcement officers in order to ensure justice and protection for children. However, changing the law that is still problematic will not happen overnight. Therefore, while lawmakers and law enforcement officers are working, WE – the closest family – must be at the forefront to ensure that our children are digitally literate, especially during the pandemic. That way, we can break the chain of vulnerability of Indonesian children to the threat of sexual exploitation in today’s cyberspace.

Writer: Patricia Cindy
Editor: Rheka Rizqiah Ramadhani
Translator: Clarissa Cita Magdalena & Hasna Fatina

Reference:

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^[1] CNN Indonesia, “Prostitusi Daring di Hotel Jakbar, 18 Anak Dijual via MiChat,” <Prostitusi Daring di Hotel Jakbar, 18 Anak Dijual via MiChat (cnnindonesia.com)> diakses pada tanggal 8 Agustus 2021 pkl. 18.29 WIB.

^[2] DW.com, “Indonesia: Polisi Ungkap Prostitusi Online yang Libatkan Belasan Anak di Bawah Umur,” <Indonesia: Polisi Ungkap Prostitusi Online yang Libatkan Belasan Anak di Bawah Umur | INDONESIA: Laporan topik-topik yang menjadi berita utama | DW | 25.05.2021> diakses pada tanggal 8 Agustus 2021 pkl. 18.51 WIB.

^[3] Detik News, “Terbongkarnya Kasus Eksploitasi Anak Bermodus Kenalan di Dunia Maya,” <Terbongkarnya Kasus Eksploitasi Anak Bermodus Kenalan di Dunia Maya (detik.com)> diakses pada tanggal 8 Agustus 2021 pkl. 19.17 WIB.

^[4] Child Safe Net, “Online Child Sexual Exploitation,” <Online Child Sexual Exploitation — ChildSafeNet> diakses pada tanggal 9 Agustus 2021 pkl. 14.44 WIB.

^[5] UNODC, “Online child sexual exploitation and abuse,” E4J University Module Series: Cybercrime, Module 12: Interpersonal Cybercrime, <Cybercrime Module 12 Key Issues: Online Child Sexual Exploitation and Abuse (unodc.org)> diakses pada tanggal 9 Agustus 2021 pkl. 17.12 WIB.

^[6] United Nations Human Rights Office of the High Commissioner, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, adopted and opened for signature, ratification and accession by General Assembly Resolution A/RES/54/263 of 25 May 2000, entered into force on 18 January 2002, Article 2 item c.

^[7] UNICEF, Protecting Children from Online Sexual Exploitation: A Guide to Action for Religious Leaders and Communities, (2016), ECPAT International and Religions for Peace, hlm. 4.

^[8] ECPAT, “Online child sexual exploitation,” <What is online child sexual exploitation? – ECPAT International> diakses pada tanggal 9 Agustus 2021 pkl. 19.57 WIB.

^[9] Dwi Hadya Jayani, “Kasus Prostitusi Anak Paling Banyak Terjadi lewat Aplikasi MiChat,” Katadata, <Kasus Prostitusi Anak Paling Banyak Terjadi lewat Aplikasi MiChat | Databoks (katadata.co.id)> diakses pada tanggal 9 Agustus 2021 pkl. 20.23 WIB.

^[10] ECPAT Indonesia, “Kekerasan Seksual Anak Online Meningkat di Masa Pandemi Covid-19,” <Kekerasan Seksual Anak Online Meningkat di Masa Pandemi COVID-19 – ECPAT Indonesia> diakses pada tanggal 9 Agustus 2021 pkl. 20.52 WIB.

^[11] Ahmad Sofian, “Perlindungan Anak dari Eksploitasi Seksual Online Selama Covid-19,” Binus University Faculty of Humanities, <PERLINDUNGAN ANAK DARI EKSPLOITASI SEKSUAL ONLINE SELAMA COVID-19 (binus.ac.id)> diakses pada tanggal 10 Agustus 2021 pkl. 16.45 WIB.

^[12] CNN Indonesia, “Kronologi Kasus Baiq Nuril, Bermula dari Percakapan Telepon,” <Kronologi Kasus Baiq Nuril, Bermula dari Percakapan Telepon (cnnindonesia.com)> diakses pada tanggal 10 Agustus 2021 pkl. 17.19 WIB.