When United States Supreme Court Justice Potter Stewart tried to rein-in the courts' inconsistent definitions of obscenity and pornography, he famously skirted an attempt to provide a concrete definition of what's obscene and instead declared "I know it when I see it."
Well today, 53 years later and some 16,000 kilometers away, the same battle is playing out in a very different way in Indonesia. The country decided to implement laws banning the possession, distribution, and production of pornography in 2008 after much heated debate. But Indonesian lawmakers also included provisions outlawing pornoaksi in the bill, deciding to clamp down any "actions deemed indecent."
But how, critics asked, do you define indecency? The bill's pornoaksi clause opened the door to the prosecution of anything deemed indecent by officials, including, but not limited to, strip clubs, miniskirts, and traditional dances. Indonesian authorities seem to "know it when they see it," and "see it everywhere" too.
Especially when it comes to the country's increasingly persecuted LGBT community. Last weekend, Jakarta Police raided a gay sauna in Kelapa Gading, arresting 141 men and charging at least ten under the anti-pornography law. The reason? "There were gay people who were caught strip-teasing and masturbating in the scene," Jakarta police spokesman Raden Argo Yuwono told BBC Indonesia.
It was a similar story earlier this month when police in Surabaya raided a so-called "gay party" being held in two hotel rooms. They arrested 14 men, charging eight with violating the pornography law after officers caught the men engaging in "deviant sexual acts" and watching gay porn.
Local police told reporters that the raids were the first of their kind in this city of 6.4 million.
"This is the first time we enforce the law and arrest gay people in the city," Shinto Silitonga, Surabaya police's head of detectives, told Agence France-Presse.
The increasingly wide reach of the pornography law—especially in raids targeting the LGBT community—is raising concerns among legal experts and human rights groups of the state's creeping reach into private matters and closed-door activities between consenting adults.
"Indonesian police are again violating the basic rights of LGBT people by invading their privacy," Phelim Kine, deputy Asia director at Human Rights Watch, said after one raid. "The Surabaya raid subjected these gay men to traumatic humiliation, puts two at risk of long prison terms, and threatens the privacy rights of all Indonesians."
Homosexuality is only illegal in Indonesia's conservative Aceh province, where authorities are allowed to enforce their own version of Sharia law. Nationally, there are no laws criminalizing homosexuality, sodomy, or lesbian sex. Instead, authorities are using the pornography law to prosecute those detained in these raids—charging gay men with a penalty that carries a maximum sentence of 15 years in prison.
"There's an effort to marginalize people, those with certain sexual orientations seen as deviant," Muhammad Isnur, the chairman of the Indonesian Legal Aid Institute Foundation (YLBHI), told VICE Indonesia. "That's exactly what we are criticizing. Regarding the arrest of the homosexuals in Kelapa Gading, there's something odd about the arrest and the laws being used."
Amnesty International has urged the central government to readdress the long-standing concerns with the pornography law and put a stop to the raids of hotels, underground gay clubs, saunas, and private residences.
"The Indonesian government must revise its pornography laws so that they cannot be misused in this way," said Josef Benedict, Amnesty International's deputy director of campaigns. "Rather than peddling blatantly homophobic rhetoric the authorities should focus its efforts on creating a safer, inclusive environment for the LGBTI community in the long term."
The Constitutional Court ruled against efforts to overturn the bill in 2010, deciding that the definition of pornography as basically anything that was disseminated "through various mass media or public displays that can arouse sexual desires and/or violate public moral values," was clear enough.
The court's lone female judge Maria Farida Indrati offered the dissenting opinion, stating that "the law could lead to public judgments among the people because of different definitions of the term pornography."
A legal expert likened the pornography bill's unparalleled reach to that of a totalitarian state at the time of the Constitutional Court challenge. Airlangga University lecturer Jeoni Arianto argued that the law was "a clear attempt to standardize the moral values of our society. But one's morality depends on their values and culture and therefore it's impossible to set a sweeping generalization when it comes to it."
It's a debate that continues today. The pornography bills is still vaguely worded and open to interpretation, making it ripe for misuse or overreach by authorities reacting to a rise in public pressure to crack down on certain individuals deemed a threat to the nation's morality.
Without a redrafting of the law, or its outright repeal, these questions about the role of the state in private lives will, in all likelihood, continue to haunt the country, explained Asep Komarudin, the head of the research division at the Jakarta Legal Aid Network (LBH).
"The pornography law still don't have a strict definition," Asep told VICE Indonesia. "It's implementation is also very subjective and susceptible of being misused. It's still up for debate today whether private lives should be subject to criminalization."