THE SOCIETY FOR THE PROMOTION OF COMMUNITY STANDARDS INC

ORAL SUBMISSION TO

THE FILM & LITERATURE BOARD OF REVIEW

3 September 2002

Parts I-II

Re-Classification of “BAISE-MOI”

Presented and prepared by:

(Dr) David Hutchison Ph.D. SPCS Vice-President (Part I)

Rev. Gordon Dempsey, SPCS President. (Part II. Sections 1-2)

David Lane M.Sc. (Hons.), Dip. Tchg. (Part II. Sections 3-9).

SPCS Secretary & Spokesperson

Part I

Introduction

Our Secretary will summarise points to be made under the Act relating to the film’s content. My introduction is by way of appeal to the Board to act to ensure that this pernicious production is either substantially cut or banned because the availability of the publication is likely to be injurious to the public good.

Since the Society last appeared before the Board, the court hearing regarding the murder of 36-year-old Kate Alkema has commenced (DomPost Fri Aug 30, 2002). 20-year-old Nika Abraham, the young man accused of her murder, told the court that after seeing the video “Friday the 13th, he wanted to know what it was like to frighten someone. (This horror-violence video is part of a series referred to as part of the “slasher” genre. It “entertains’ by glorifying the mass murder of young people with gratuitous depictions of decapitations, strangulations, mutilatons and extreme cruelty). Alkema was attacked while walking along the Hutt River bank and died of strangulation. Her partly naked body was found hidden in bushes near the Hutt River on April 13, 2002 on the day she died (Dom-Post Sat Aug 31).

Seven children have been before the courts on charges of murder since we were here last. Among them, 13-year-old Bailey Junior Kurariki, convicted of the manslaughter of pizza deliverer Michael Choy, is reported as thinking that he is a big star, now that he has been on the front page of newspapers (DomPost Fri Aug 30, 2002). It has been reported on TV1 that children have been seeking his autograph because they see him as a star. Kurariki killed at 12, making him the youngest person ever to be convicted for manslaughter in New Zealand. His accomplice Kararaina Makere Te Rauna, who was also convicted for the manslaughter, killed at 14. The conspiracy to kill Choy was hatched by a group of children and young persons who were “street-wise” in the ways of crime.

Child, Youth and Family; Services Units are full, we are told, and so these young killers are being sent to prison (DomPost Tues Aug 27, 2002).

Citing Women’s Refuge statistics, Children’s Commissioner Hon. Roger McClay said that 10,000 children each year witness violence in their own homes (DomPost Tue Aug 27, 2002).

Victoria University senior law lecturer John Miller said a possible cause for the growing violence by children was the availability of hard-core sexually explicit material (op cit). The programme “Target” which screened on TV3 on Sunday night 1st September documented how easily children and young persons could hire R18 videos from Auckland’s North Shore Video libraries. If they can’t get them themselves they often have easy access to them in their homes. Four 10-year-old children in the Bay of Plenty recently confessed to police to watching pornographic movies and smoking cannabis while home after school unsupervised. Sergeant John Hicks, of Papamoa, said “police were becoming concerned at the growing number of young children who had ready access to cannabis and pornographic material. Last week’s incident was a wake-up call to all parents.” The Department of Child, Youth and Family Services and the Police have conceded that we have a major problem with unsupervised children (Dom-Post Aug 21 2002, A3).

Censorship Compliance Manager Steve O’Brien has released Internal Affairs Department figures that show that one in five people (20%) investigated over child pornography were teenage boys as young as 14. Most had collections of explicit pictures of children numbering from 50 images to several thousand and some were even involved in trading them in Internet chat rooms. Since July 1996 the department had successfully prosecuted one 17-year-old, two 18-year-olds and six 19-year olds. Two 16-year-olds had also been charged but had been referred for family group conferences (Dom-Post Sat Aug 31, 2002).

Dr Gabriele Maxwell, director of the Crime and Justice Research Centre at Victoria University “admits there could be some substance to a claim that the age when children start becoming violent is decreasing. From 1992 to 1999, violent offences attributed to children up to nine doubles and so did those attributed to 10-13 year-olds.” She said: “But so, too did the violent offences attributed to 31-50 year olds and those over 50.” (Dom-Post Aug 31, 2002). The point is that as children and young persons witness more violence and are victims of it, a culture of violence is bred among many young people.

A High Court jury in New Plymouth was told yesterday that a 13-year-old boy who watched the slaying of 60-year-old Waitara man Kenneth Pigott was asked to hit the victim but refused. The boy is one of three young witnesses who will give evidence in the trial of two girls, aged 14 and 15, accused of murdering Mr Pigott on or about March 10 this year. It is alleged that the girls used a hammer to kill Mr Pigott by breaking his skull while he lay asleep in his truck. They then kicked and punched him while he was on the ground and dragged his body down a river bank dumping it into the river (Dom-Post Sept 3, 2002).

In his annual report, released late last week (DomPost Fri Aug 30, 2002), Police Commissioner Rob Robinson says that violence increased 2 per cent over the past year, including a 15.5 percent jump in homicides. Sexual offences rose 13.6 percent. We calculate that, if these rates are sustained, then in three years time, we will see 54% more murders and 47% more sex offences than in the past year. All the signs point to a rapid growth rate in sexual offences, murders and sexual violence.

A murder and suicide in Johnsonville reported on in today’s paper was the result of a “cascade of violent emotion” after a relationship break-up of two young people. A 23 year-old male stabbed his 21 year-old ex-girlfriend in the heart and throat using a kitchen knife, before taking his own life.

We are becoming an increasingly violent society. In the last few years, there has been a dramatic rise in the level of violence and sexualised violence in the film and video media. What should we do?

We do not know the complete spectrum of factors behind the behaviour of even Nika Abraham, let alone the other young people. However, it is clear that in the no-doubt disturbed mind of Nika Abraham, a violent film has been a contributing factor to an innocent person violently losing her life on the whim of an individual looking for a thrill. (Nika has chosen to plead not guilty to the charge of murder).

In general, it will remain difficult at best to prove a link between film/video content and individual actions. But inasmuch as trends are moving in the same direction - upwards - it would be a reasonable cautionary action on the part of classification bodies to err on the side of conservatism. Too much is being made of the “new genre” of art-house productions featuring explicit sex juxtaposed with graphic violence and criminal activity. People like Nika Abraham are unlikely to appreciate the declared “positive’ attributes of such films - for them, the publication simply motivates the viewer to “go and do thou likewise.”

A Mandate from the State Services Commission

In 1999, Standards New Zealand published HB143:1999 “Guidelines for Managing Risk in the Australian and New Zealand public sector.” The publication notes that the New Zealand State Services Commission’s “expectations review of departmental performance 1997/98 “explicitly requires that chief executives promote a risk management process across the Public Service.

As far as this Board is concerned, we submit that “risk” relates to the chance of unlawful actions by persons that are consistent with the influence of a film, video or publication, and its consequences. Nika Abraham’s actions against Kate Alkema, and her death are reported as having been contributed to by the influence of the video Friday 13th (DomPost Fri Aug 30, 2002).

We submit that the Board should consider, as part of the risk management required of the public service, the chance of occurrence and the consequences of actions consistent with any of those portrayed in the film/video Base Moi, should it be available to any section of the public in its present form.

HB143:1999 declares that “the alternative to risk management is risky management. This might be making reckless decisions, or decisions that are not based on a careful consideration of the facts and the risks involved.” And, further, that:

- Managing risk requires rigorous thinking

- Managing risk requires forward thinking

- Managing risk encourages an organisation to manage proactively rather than reactively

- Managing risk requires responsible thinking

- Managing risk improves accountability in decision making

- Managing risk requires balanced thinking

- Managing risk provides benefits

- Managing risk requires understanding

We submit that the Board has a mandate from the State Services Commission to err on the side of caution, when even a small section of the public is likely to act in a way which has terrible consequences on another, as a result of the influence of a publication of the type of “Baise Moi.” The likelihood of the availability of a publication containing “objectionable” material being “injurious to the public good” must be assessed seriously giving due consideration to social responsibility.

Part II

1. Section 3(1) of the Act.

According to s. 3 (1) of the Films, Videos, and Publications Classification Act 1993 (“the Act”) “a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good”. The “matters” listed constitute what have been termed the five “jurisdictional gateways”. Both the Office of Film and Literature Classification (“the Classification Office”), in its decision dated 20 August 2000, and the Film and Literature Board (the Board), in its decision dated 13 March 2002, took the view that the film Baise-Moi dealt with at least four1 of theses “matters”, namely sex, crime, cruelty and violence, in a manner that is “likely to be injurious to the public good”.

The likelihood of injury to the public good was considered by the Board to be “sufficiently real to be discernible or actual”.2 As an “expert body”3 the Board established this from “its own judgement”4 by way of “re-examination of the publication without regard to the decision of the Classification Office” as required by law.5 The Board concluded:

“¡K the prevalence of sex, crime, cruelty and violence and the manner in which each is dealt with in the film means there is a likelihood of injury to the public good. The activities of rape, murder, robbery other crimes, and physical violence are major themes in the film, and are dealt with in such a manner and frequency that, in the Board’s view, they are likely to be injurious to the public good” (par. 45).

2. The Board’s classification decision and descriptive note

The Board downgraded the classification decision of the Classification Office 6 to a general R18 (with no additional restrictions).

“The Board unanimously considers the film Baise-Moi to be objectionable if made available to persons under the age of 18 years. No other conditions are required by the Board [par. 41]¡K The Board recommends that Baise Moi be advertised and screened with the following warning, “This film contains frequent disturbing depictions of violence and repeated explicit sexual content’” [par. 79].

The Board decided to remove the legal requirement for the film to be advertised with a descriptive warning note (along with its R18 rating). They downgraded the law making the descriptive note requirement a mere recommendation. In addition the Board removed the reference to sexual violence from the Classification Office’s original “descriptive note” which reads “Contains sexual violence, graphic violence and explicit sex scenes”. The film was widely advertised for the Beck’s Incredible Film Festivals without any certified warning note.7

The Society argues that this downgrading of the censor’s warning note was in line with the Board’s deliberate downplaying of the injurious nature of the contents.

3. Certain publications are “deemed to be objectionable”

Under s 3(2) of FVPC: “A publication shall be deemed to be objectionable ¡K if the publication promotes or supports, or tends to promote or support”, certain activities listed in 3 (2) (a) through (f).

Both the Classification Office and the Board took the view that the film depicted activities described in sections 3 (2) (b) and 3 (2) (f);

3 (2) (b) “The use of violence or coercion to compel any person to participate in, or submit to, sexual conduct.”

3 (2) (f) “Acts of torture or the infliction of extreme violence or extreme cruelty.”

The Board set out in paragraph 47, as it saw it, the task before it in the decision process:

“The Board must decide whether the film promotes, supports or tends to promote or support the activities in sub sections (b) and (f) or starkly describe [sic] them.”

There is a legal error in the description of their statutory duty. The task before the Board was simply to decide whether or not the film “promotes, supports or tends to promote or support the activities” (s. 3[2]) on the basis of “the way the prohibited activity is described, depicted or otherwise dealt with”. Its focus should have been on the effect of the descriptions and depictions of “prohibited activity” on viewers. The Board sets up a false dichotomy between promotion and mere description.

In their respective decisions the Board and the Classification Office drew from the Court of Appeal in Moonen v Film and Literature Board of Review8 to clarify their application of the words “promotes or supports”.

“Description and depiction ¡K of a prohibited activity do not of themselves necessarily amount to promotion or support for that activity. There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting the activity.”

A film scene could “starkly describe” a “prohibited activity” such as sexual violence (e.g. rape) and at the same time have the effect of tending to promote it. A scene which “starkly” depicts a rape, could at the same time, through the use of music and other techniques (as used in Baise-Moi) have the effect of sexually arousing an audience predisposed to sexual violence. It could do this by focusing almost exclusively on genital close-ups, the sexual acts of vaginal and anal penetration (as in Baise-Moi) and sexual climaxes. The presentation of the rape could legitimately be described as “stark” and yet its effect could be read as tending to support sexual violence. Furthermore, the stark portrayal, through lack of any balance, could focus almost exclusively on the sick pleasures achieved by the rapist, playing down the injuries and trauma inflicted on the victim. The effect is again one of tending to promote the “prohibited activity”.

Ms Rachel Harrison of Auckland Rape Crisis put it this way in her submission on Baise-Moi to the Classification Office:

“The fact that the scene includes close up shots of the rapist’s genitals as they penetrate the victim is of especially dire concern for us. This presentation of the rape (with the close ups) is very similar to the way that a typical pornographic movie is shot. We believe that this is especially dangerous to public health as it sexualises a brutal and violent attack. We believe the film is injurious to public health because of the myths associated with rape¡K. It is suggestive that women do not mind being raped. This theme (that women do not mind being raped) is also prevalent in the rape scene itself as one of the characters indicates that the rape means nothing to her as she '“leaves nothing precious in her cu** “ (pp. 1-2).

Ms Amy Ross, Coordinator for the Wellington Independent Rape Crisis Centre (Inc.) stated in her submission to the Classification Office:

“¡Kthe movie moves from realism to vouyerisim or gratuity .. in the brief frame in the rape scene of penetration. This frame gives a close up view of the penis penetrating the vagina. This scene could have the effect of relating rape to pleasurable sexual contact and remove the pain, violence and general non-consensual nature of rape. WIR believes this scene could be cut.”

In the U.K. the British Board of Film Classification ordered 10 seconds of the brutal rape scene, showing close-ups of genital contact, to be cut before it could be released R18. In Ontario it was banned and then subsequently released R18 after a 13-second cut was made to the rape scene. In other provinces it was banned. In the US it is classified “unrated” which means that it cannot be shown in any mainstream theatre. In Australia it has now been banned.

4. “Tend to promote or support” an “objectionable” activity defined

The Classification Office decision stated: “To promote an activity is to advance or encourage the activity. To support an activity is to uphold it and strengthen the idea of it so it endures” (p. 6). Applying s. 3 (2) (f) of FVPC it stated:

“The publication contains material which could be read as tending to promote and support the infliction of extreme violence. There are strong, graphic images of violence throughout the film ¡K The viewer, again, is encouraged to sympathise with the women’s rage, and the way in which many of the images are presented glamorises the violence, by panning bodies, posing in sexualised positions with guns, and by including scenes with highly choreographed violence¡K. However, other elements in the film give an alternative reading to one that tends to promote or support the infliction of extreme violence” (Emphasis added).

The Board devoted paragraphs 49 to 55 of its decision to trying to provide an “alternative reading”9 and “counterbalance” to each of the specific “examples in both the submissions of the applicant and the Classification Office in respect to whether the film promotes or supports, or tends to promote or support, the activity” (par. 48).

Example 1

With reference to the murder of the woman at the ATM machine after which one of the them said she “felt great” and wanted to “do it again”, the Board wrote:

“The Classification Office’s submission refers to the killing of a woman at an ATM machine in order to rob her, as a possible example of promotion or support. There are graphic images, which are replayed several times in slow motion. Once again the counterbalance is shown between one of the women perpetrators first saying she felt “sick” and that then she “felt great” and wanted to “do it again”. The characters’ statements do not, in the Board’s opinion, promote or support the activity of murder, as the women’s motivation was not revenge as in the main story line but one of poverty, hopelessness and resignation to robbery. The death of an innocent person, who was simply in the wrong place at the wrong time, was unrelated to any trauma either Nadine or Manu appear to have suffered. The Board considers it to be overly simplistic to attribute an isolated character statement as indicative of its importance to the film. There are other factors imported to this scene which includes the misfortune of the victim at the money machine. The scene arouses sympathy for a victim unrelated to the main characters abject resignation, it is not in the Board’s opinion promotion of violence as a positive attribute” (Par. 53. Emphasis added).

The Board’s reasoning here is seriously flawed when it “considers it to be overly simplistic to attribute an isolated character statement as indicative of its importance to the film.” The expressions of gratification uttered by one of the women following this killing can reasonably be interpreted as representative of the subsequent pleasure they receive from all other senseless killings of innocent people. It is not an “isolated” and unrepresentative response, as the Board tries to make out. Later, after killing another innocent victim within the context of a sexual encounter, one of them declares “let’s go .. and let rip the mother-fu**er side of our soul”. They head off gleefully on a violent killing spree carried out deliberately in the context of promiscuous sex and torture, calling themselves the “fu**ing condom dickhead killers”. As Hamish Dixon (of STOP) stated in his submission to the Classification Office:

“¡Kafter killing the woman at the ATM machine, the two women say how excited they felt and how they felt like doing it again. This is worrying, not just for men, but generally as murder is presented as being exciting, a big buzz.”

The way the “images are presented glamorises the violence,” as the Classification decision states (p. 7), communicating the thrill and buzz experienced by Manu and Nadine who seek to satisfy their lust for violence in the context of promiscuous sexual activity. Violence, as Mr Dixon pointed out, is presented “as a legitimate reaction” to their anger and yet “nothing justifies this level of violence”.

It is ironical that the Board “considers it to be overly simplistic [of the applicant, the Society, and at least one submissions to the Classification Office10] to attribute an isolated character statement (“I feel great”) as indicative of its importance to the film”, and then seeks to provide a “counterbalance” based on three words that the killer utters prior to this (“I feel sick”). This so-called “counterbalance” which seeks to “give an alternative interpretation to one which tends to promote or support sexual violence and the infliction of extreme violence” (see par. 4) is patently false. The Board’s reasoning is flawed. The fact is that the women go on from this killing at the ATM machine to seek to experience the “thrill” of more slayings, sexual perversion, and debauchery, proves the applicant’s reasoning to be sound and the Board’s deficient.

The scene of one of them posing in front of the bathroom mirror in black lingerie with a gun, calculating the manner in which she intends to carry out further carnage, confirms the applicant’s analysis and negates the Board’s. The glamorisation of murder and extreme cruelty in the context of sexual promiscuity has the effect of tending to portray it as a “thrill” “sport’, which indeed is way the women perceive it.

The Board has erred in law in its failure to recognise and address the effect such glamorised depictions have in tending to promote a “mindset” that accepts extreme violence as integral to sexual activity and as a legitimate response in revenge. This should have been a significant consideration under s. 3(2) of FVPC.

The Board’s dogmatic statement that “the death of an innocent person [at the ATM machine] who was simply in the wrong place at the wrong time, was unrelated to any trauma either Nadine or Manu appear to have suffered”, is not relevant to applying s. 3(2), even if true. The point is that the pleasure they got from the murder becomes a clearly stated motive (“I feel great”) for the further murders they carry out, a key point the Board seems incapable of comprehending and certainly does not acknowledge.

The Board’s decision contains a legal error in that it assumes erroneously that the legal question regarding promotion and support of the prohibited activity dealt with under s. 3 (2) of FVPC turns on the nature of the motives of the two criminals.

The Board states (see above)

“The character’ statements do not, in the Board’s opinion, promote or support the activity of murder, as the women’s motivation was not revenge as in the main story line but one of poverty, hopelessness and resignation to robbery.”

However, the legal question turns on the “effect” of the depiction on the viewer: whether the activities described in s. 3(2)(b) & 3(2)(f) are “advanced or encouraged, upheld or strengthened so as to strengthen the idea so that it endures.” The gratuitous slow-motion replay of the brutal attack on the woman at the ATM combines four “objectionable” elements: crime, cruelty, violence and horror. The viewer becomes a voyeur unwittingly indulging the senses in graphic violence, which is presented as a thrill trip for the perpetrators.

Example 2

The Board states:

“The women’s killing spree of the man who propositioned one of them in the street, the man they stomped to death for wanting to wear a condom and the killing of the art dealer do not in the Board’s opinion promote or support or engender sympathy for the actions of the perpetrators. These were, more simply, examples, in the Board’s view, of how far the women had drifted into an amoral world of abrupt violent motiveless acts” (par. 54) (Emphasis added).

The Board makes a serious error in law in taking the view that to show that a “prohibited activity” is NOT promoted or supported, one only has to establish that it is portrayed in a manner that does NOT “promote or support or engender SYMPATHY for the actions of the perpetrators” (Emphasis added). However, the legal question does not turn on whether or not sympathy is engendered in the audience “for the actions of the perpetrators”.

A film “starkly” depicting a single act of paedophilia (non-explicit) may engender in an audience overwhelming sympathy for a mentally handicapped adult perpetrator of the crime (as well as the child victim), because he has been deprived of true love and care all his life, has been sexually abused himself and is mentally handicapped. However, engendering this sympathy for the perpetrator does not establish the depiction as necessarily “objectionable” under s. 3(2) of FVPC Act 1993. As the Court of Appeal stated: “There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity."11

On the other hand, if the depiction focuses on explicit sexual content, including vaginal and anal penetration and oral sex (as in Baise-Moi), in the manner of a hard-core pornographic movie (as in Baise-Moi), then there is a strong argument that it tends to promote the prohibited activity by pandering to the element of “sexual arousal”. That it does this in Baise-Moi is clear from the fact that in its screening in France where it was produced, it is rated “X” and screenings are limited to restricted “sex cinemas”.12 The typical “pump-and-grind” porno-style music that accompanies the explicit rape scene and the “presentation in a style reminiscent of a music video ¡Khyped up to fast speed”13 used in the “fu** club” massacre scenes, proves that the “objectionable” elements (applying s. 3 [2] of FVPC) are intentionally overlaid with a level of overt “sexualisation” which would tend to promote the activities.

The Board has committed a legal error in applying s. 3(2) by assuming erroneously that its judgement on whether a prohibited act is promoted as depicted, turns on whether there is motivation on the part of the criminals (and whether “sympathy for the actions of the perpetrators” is engendered, promoted or supported, as noted earlier). It states:

“These [killings] were, more simply, examples, in the Board’s view, of how far the women had drifted into an amoral world of abrupt violent motiveless acts”

To address the matter of promotion under s 3 (2) of FVPC the Board needed to have examined the effect of the depiction of each prohibited activity upon the viewer. The powerful message of misandry14 which undergirds this film promotes the vilification, denigration, hatred, demeaning, contempt of and for men by women, particularly those who have genuine grievances against some men or who have become converts to extreme feminist propaganda (which is radically anti-male). The Board failed in its statutory duties to recognise and address these factors even though they are integral to s. 3 (3) (e) of FVPC (see later discussion) and are relevant to s. 3 (2).

The submission from Rape Crisis (Auckland) stated:

“¡Kscenes where the characters reflect on the image of themselves as glamorous killers encourages and promotes the idea that violence is to be admired and respected. This and the fact that the film could be interpreted as a story of two women who are mistreated by men and go on to take their revenge by brutally killing other men is of concern. In a time where New Zealand is trying to address violence amongst its people, this film is a step in the wrong direction.”

Example 3

The scene involving the mass killing in the “fu** club” is glossed over in the Board’s report. It is one, which can be read as tending to promote the infliction of extreme violence and cruelty in several ways. First, the obvious glamorisation of the gun toting lady-killer whose glistening gun is wielded in a manner to accentuate what the Classification Office decision referred to as “highly choreographed violence” (pp. 7, 9). “[T]he manner in which the music is hyped up to fast speed” during the “indiscriminant” killings allows the “whole scene [to be] presented in a style reminiscent of a music video” (pp. 9-10). Rachel Harrison of Auckland Rape Crisis, commented on this scene of sickening carnage in her submission to the Classification Office:

“The scene ¡K is also disturbing in the way it legitimises the killing of these people¡K. By portraying them as sleazy, contemptuous and repulsive. This is exemplified when one of the central characters makes a man who tried to come on to her kneel on his hands and knees and take his pants down and grunt like a pig. This man is then laughed at and shot up the anus” (p. 2).

The use of the gun is sexualised as the Classification Office decision acknowledges “The killing of the man in the anus has a clearly sexual tone to it” (p. 10). The gun is used as a phallic symbol and is poked into the mouths of naked men and fired while naked women are fellating them. “One man is shot through the head and his brains spatter a mirror behind him” (p. 9). The act of sticking a gun up a man’s anus is a sexual violation and most definitely gratifies the woman holding it and her accomplice. The extreme humiliation and torture of the man in this context tends to promote sexual violation as a legitimate means of getting revenge.

The Board failed in its statutory duty to apply s. 3(2) to this scene. They provided no “counterbalance” or “alternative reading” of this depiction of graphic violence juxtaposed with explicit sex, to counter the view that it glamorised extreme violence and cruelty, thereby tending to promote it. Its only comment is:

“The submission that the shooting of the man in the anus was promotion of such activity as sexual gratification is not accepted by the Board. The screen participants showed no reaction indicating sexual gratification to the shooting, which was off screen” (par. 52).

The Board has again erred in law by assuming erroneously that the issue of promotion of a prohibited activity turns on the response of the screen participants. The case turns on the effect of the depiction on the viewer.

5. Section 3 (3) of FVPC

If Baise Moi is deemed to be objectionable under s. 3 (2) of FVPC then s. 3 (3) does not apply in the classification decision.

The Board commences par. 57 by stating that it “has found that Baise-Moi does not fall within s 3 (2) of the Act” and that “it must therefore consider s 3 (3) as to whether Baise-Moi is objectionable or should be given a classification other than objectionable placing particular weight on the matters in sub sections (a) to (e).”

The applicant did not consider s 3 (3) applied as it contended that that the publication is ruled objectionable on the basis of s. 3(1), 3 (2)(b) & 3(2)(f). However, if one examines the Board’s decision from paragraphs 57 to 63 it becomes clear that it has erred in law by failing to address properly the issue of the “extent and degree to which, and the manner in which, the publication - describes, depicts or otherwise deals with” the matters in s. 3 (3) (a) (i) (ii) and (iii) and (c)” of FVPC.

For example, it states that together with the applicant it agrees with the Classification Office submission stating that “this constant juxtaposing of sex with violence has the effect of sexualising the violence as well as adding a violent reading to the sex. Each element on its own is less problematic than the juxtaposition of both”. [par. 58]. With reference to the rape scene the OFLC submission stated: “The explicitness of this scene bears some resemblance to material intended for the purposes of sexual arousal” (p. 10). The minds of those with a tendency or predisposition to sexual violence and who might read the film as tending to promote and support sexual violence and graphic violence are likely to be affected by individual elements of the film.

Having conceded the problem of the “juxtaposing of sex and violence” throughout the film, the Board’s analysis under s. 3 (3) seeks to downplay the problem posed by “prohibited activities” designed for “sexual arousal”, by considering them within “the context of the film as a whole” rather than “in isolation” (par. 58). This is an error in law. Such activities as listed in s. 3(2) cannot be redefined as non-objectionable based on the application of s. 3(3).

The Board in effect does this with the rape scene:

“The Board acknowledges the concern in the submission of the Classification Office as to the manner in which the film depicts sexual violence and violence in association with sexual conduct. The submission that the depiction of vaginal penetration in the rape scene and the physical violence perpetrated on the victims during the rape could be viewed as sexually arousing is not accepted unless taken in isolation but not in the context of the film as a whole.” (Emphasis added)

Here the Board admits that taken “in isolation” the rape scene could be viewed as “sexually arousing”. This is exactly why the Classification Office, women’s groups and rape crisis groups consider the film so dangerous and do not want it made available on home video or viewed as “entertainment’ in public cinemas. The OFLC decision stated:

“this [rape] scene is an explicit depiction of vaginal penetration, which is of particular concern as it may be seen to sexualise the act of rape. The explicitness of this scene bears some resemblance to material intended for the purposes of sexual arousal¡K.the violent manner in which the women are treated throughout the rape ¡K may be seen to be arousing to some viewers and is of concern.” (Emphasis added).

The sexualising of the violence in this and other scenes can be taken as tending to make them attractive to the voyeur and those stimulated by sadomasochism.

The problem posed by the contents of Baise-Moi for the Board is twofold: (1) the juxtaposing of sex and violence and (2) constant juxtaposing of the two. The net effect is to add “a violent reading to the sex” to such an “extent and degree” that the Board recommends that the film be advertised and screened with the warning “This film contains frequent disturbing depictions of violence and repeated explicit sexual content”. The Board fails to take into account the glamorisation of the extreme violence, which is combined with explicit sex.

The outcome of the Board’s consideration of s 3(3) is expressed as follows in its decision:

“The extent and degree to which activities in Baise-Moi fall within s 3 (a) (i) (ii) and (iii) and (c) is high and hence the Board accepts the submission of the Classification Office that the extent and degree to which, and the manner in which the film juxtaposes sex, violence and sexual violence warrants an age restriction” (par. 59).

6. Section 3 (4) of FVPC

The Board then considers s 3(4) (a)-(e) of FVPC. The applicant took the view that this section does not apply as it considered the publication to be deemed objectionable under s 3(2). However, an examination of the Board’s treatment of this section reveals how they have misapplied s 3(2).

With reference to s. 3(4)(a) - “the dominant effect of the publication as a whole" - the Board states:

“The dominant effect of the publication is a bleak story with a view that just deserts are meted out at the end to Nadine and Manu. The perpetrators have a certain self-awareness “we are leaving a trail’” (par. 60).

This description constitutes an error in law as it fails to adequately address “the dominant effect”. The Classification Office provided a summary that does address the matter:

“The overwhelming effect, however remains the shocking and unrelenting presentation of violence, much of which has been sexualised due to the association of these images with those of explicit sex. Many of the sexual images are presented using the constructs commonly seen in explicit material intended for adult sexual arousal” (p. 11).

The Board’s description (p. 60) of the “dominant effect” of Baise-Moi as “a bleak story” is a largely irrelevant and facile understatement. It is like calling the impact of the sinking of the Titanic on the families of those who died “a noteworthy event”. Likewise, to describe the “dominant effect” of Baise-Moi as “a view that just deserts are meted out at the end to Nadine and Manu” is another facile understatement. It is like calling the dominant impact of the film-musical Sound of Music “a view that becoming a Catholic nun might eventually lead to marriage, family bliss and high adventure in the Swiss Alps”.

Legal questions related to the “dominant effect” of an event on an individual or individuals, involve matters of fact as well as a level of subjectivism in the response(s). A Crown prosecutor could legitimately ask a key witness for the defense counsel which is acting for an accused murderer, whose accomplice was killed at the scene of a sex-related crime involving many innocent victims: - “What was the dominant effect upon the witness of exposure to the scene of the crime, involving mass human carnage, at the time of his first visit? If the reply was, “Sir, the overwhelming effect on me remains the shocking and unrelenting presentation of violence as I moved from one room to the next and saw the evidence of horrific sexual violence and apparent senseless brutality,” then such a response addresses the question and fits the facts.

On the other hand what would a jury make of a response like that of the Board: - “Sir, the dominant effect was a bleak picture with a view that just deserts are meted out at the end to the perpetrators of the crime. They must have had a certain self-awareness that they were leaving a trail and would be caught.” This absurd and facile response is not reasonable. It does not fit the facts. It seeks to downplay the force and effect of the initial impact of the graphic and horrific carnage involving many innocent victims by reducing this element to “a bleak picture”. It is preoccupied with the “awareness” of the perpetrators and reveals an unnatural callousness towards the victims. It is not a credible witness from one who is presumed to be objective.

In the case of Baise-Moi, the Board has sought to use the fact of the deaths of the two criminals at the end of the film to downplay the “dominant effect” of the “objectionable” scenes of “unrelenting violence” and “repeated explicit sex” which confront the viewer throughout.

The Board erred in law in failing to identify the “dominant effect” of the publication as a whole under s. 3(3)(a) and that of each “prohibited activity” depicted under s. 3(2)(b) and s. 3(2)(f).

The question of whether the advocacy or promotion of extreme violence or any other “prohibited activity” is “the dominant effect of the publication as a whole”, can only be addressed under s. 3(4)(a) of FVPC. It would have to constitute a cumulative effect based on the “publication as a whole”, for the publication to be ruled objectionable under s 3(4). The Classification Office’s description of the “dominant effect” (quoted above) of the film provides an important ground for the film to be classified “objectionable” when combined with its findings related to s. 3 (2) of FVPC.

7. The character of the publication, including any merit ¡K s. 3 (4) (c)

If the publication Baise-Moi is deemed objectionable under s. 3 (2) as the applicant maintains, then it follows that all considerations under section 3 (4) are irrelevant to its classification. However, the Board did not accept that s 3 (2), when applied, defined the publication as objectionable. The applicant considers the reasoning used by the Board under s. 3 (4) (c) facile and flawed, exposing the special pleadings made by the Board to salvage some “redeeming” aspect from this publication. The Board stated:

“In respect to s 3 (4) (c) the Board considers the film has a degree of merit as a post modern [sic] movie with some value from a feminist perspective [par. 61].

The Board reveals itself to be semi-literate even in its use of the fadish nomenclature of postmodernism. Dr Harriet Margolis, in her positive submission on the “redeeming social/artistic merit[s]” of Baise-Moi to the Classification Office (dated 10 April 2001), described the film as “invok[ing] the discourse of self-conscious postmodernism”. (She made two other references to “postmodernism” and one to “a postmodern empty reference”). More importantly, the Board agreed with both Dr Margolis, who describes herself as a “feminist film studies” lecturer, and the Classification Office decision, that the film was produced “from a feminist perspective” and must be understood from this perspective. However, the Board failed to do this when applying s. 3 (2).

In the sharpest possible contradiction to a “feminist” viewpoint, when considering the film elements under s. 3 (2), in particular “the killing spree of the man who propositioned them in the street, the man they stomped to death for wanting to wear a condom and the killing of the art dealer”, the Board states:

“These were, more simply examples in the Board’s view, of how far the women had drifted into an amoral world of abrupt violent motiveless acts” [par. 54].

However, “feminist” theoreticians with expertise in the film media do not accept that these brutal acts depicted are intended to be read as “motiveless acts” as the Classification Office decision (p. 11) makes more than clear:

One of the film makers, Virginie Despentes, has herself described the film as “a feminist warrior vision on behalf of women marginalised and left powerless”. On this same line, the film may be seen as a version of a road movie which subverts the male dominated version of this genre. Other readings of this film relate to its shocking elements. Bruce Kirkland in the Toronto Sun quotes feminist professor Kay Armitage stating that the film is “Not just a provocation, it is a revolt¡Kagainst Puritanism, against hypocrisy of public morality, against the prevailing order of tasteful aesthetics, against efforts to contain excess”.

The film, directed by two women, produced by a man, and based on a novel by a woman, seeks to subvert the very concept that there is something indecent about murder, brutality and torture, in its open revolt against all moral categories. The concepts of virtue and vice are seen from this “feminist postmodern perspective” as just impotent bourgeois categories devoid of any meaning. Dr Margolis, whose submission is full of references to the “feminist” issues underlying the film and the criminals’ motives, stated in her submission:

“¡KBaise-moi addresses issues of inequality in society, specifically as these inequalities affect the status of women.”

The point is that in a desperate attempt to downplay the tendency to promotion and support of “objectionable” activities in this film (under s 3 [2]), the Board has argued that the graphic violence (dealt with under par. 54) is “simply” a series of “motiveless acts”. By doing so it contradicts the very basis upon which it hails this film as having artistic merit, namely its “feminist” perspective.

The Board stated:

[Baise-Moi] has social implications as an introduction to disaffected Paris youth. This is a film which may have value for some tertiary studies in the evolution of films depicting women and crime. Baise-Moi is a provocative film on the human condition. It is noted that it is listed in the top 10 films for the year 2000 in Time magazine and is discussed widely in reputable film magazines such as Sight and Sound¡K. [par 61] If the purpose of Baise-Moi is to make a social statement, it has achieved, in the Board’s opinion, a modicum of success” [par. 62. Emphasis added].

However, there are any number of films that have been produced world-wide which contain “objectionable elements” as defined under s 3 (2) of FVPC, and at the same time make a “social statement” which some film critics and others could view as having achieved a “modicum of success”. The FVPC requires these elements to be excised or the film banned.

8. Excisions from and alteration to films s. 32 (FVPC).

The Classification Office took the view that Baise-Moi was so full of “objectionable” elements that making cuts to it was “impracticable”.

“After consideration and consultation, it is felt that excising the film is impracticable due to the frequency with which violence and sex is intercut throughout the publication¡K” (p. 20).

The Board considered “excising certain scenes from the film pursuant to s 32 of the Act” and gave as its reason for not doing so:

“In its expert opinion the Board finds that the portrayal of sex and violence is pervasive throughout the film and would be difficult to remove while still retaining the story line. The Board also believes it would affect the thread of the film if cuts were made to, for example, the rape scene” [par. 64].

Both the Board and the Classification Office ignored the sincere pleas from every one of the rape crisis, women’s groups and groups dealing with male sexual offenders, who made submissions on the film to the Classification Office, to have parts of the rape scene cut.

9. Bill of Rights Considerations

Section 4 of the Bill of Rights requires the Classification Office to apply s. 6 to give a meaning to the words of s. 3 (2) that is most consistent with freedom of expression. There is not sufficient ambiguity in the depictions and descriptions of men and women in this film that it could be said that the dominant effect is NOT to promote, support or to tend to promote or support, the exploitation of sexual violence, acts of cruelty, sexual torture, thereby allowing that application of s. 3 (2) (b) and 3(f). The depictions and descriptions of violence in association with sexual conduct is NOT ambiguous, as they are of more than sufficient in number and intensity that it can be said that the dominant effect is to promote, support, or tend to promote or support, the use of violence in association with sexual contact, thereby allowing the application of s. 3(2). The film does this by sending a message that such criminal acts may well be justified if not necessary to right a wrong, gain sexual emancipation from the straight-jacket of puritanical views, or societal boundaries imposed by law etc.

The two killers take delight in calling themselves the “fu**ing condom dickhead killers” at one point after a particularly gross slaying of a man one of them has sex with. The man retaliates branding them “filthy little cu**s” after one of them in the course of fellating him (a sexual service she agreed to perform), vomits all over his penis. As noted earlier, after another killing one of them declares “let’s go .. and let rip the motherfu**er side of our soul”. They head off gleefully on a violent sexual killing and torture rampage focused on men.

The younger women says to the older, “Fu**, we’re useless. Where are the witty lines?¡K People are dying .. the dialogue has to be up to it”. The older women replies, “We can’t write it in advance,” and the younger agrees: “That’s totally unethical.” So much for sick parody. “It’s just a bit of cock and we’re just girls” says one after the brutal rape. Does this send a clear message to 18-year-olds about the real nature of rape? No, it sends the wrong message. The incineration of a corpse, a criminal act, is the sick finale of this film followed briefly by the remaining killer’s suicide.

The films general presentation of women and depictions of sexual conduct are utterly degrading, dehumanising and demeaning in the worst possible degree to both men and women. Many of the images depict sexual conduct of a highly degrading, dehumanising and demeaning nature.

Despite the film maker’s largely incomprehensible attempts to “justify’ these images in terms of artistic merit, these images degrade, demean and dehumanise women in general by suggesting that women will allow themselves to gain sexual satisfaction from this sort of violence. The scenes of the girls masturbating on a bed while watching a sexually violent film sets the tone and provides the underlying “rationale’ for the chronicle of evil they engage in. The girl’s use of the fast-forward control to relive these sexually violent images while masturbating sends a clear signal to those who might get access to Baise Moi for “private use”. How sick! How sick that the Board has given the thumbs up for this film to be released into public cinemas and for home video use.

Section 14 of the NZBR Act states that everyone has “the freedom to seek, receive, and impart information and opinions of any kind in any form”. Under s5 of the NZBR Act, this freedom is subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Section 6 of the NZBR Act states: “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”.

The freedoms of the NZBR Act should be taken into account throughout the classification process and weighed against the provisions contained in s 3 (2) of FVPC. Legislation has conferred jurisdiction on the Classification Office and Board to classify as objectionable material, which comes within any of the five gateways, and thereby limit freedom of expression. There can be no doubt that each of these gateways has been entered in the case of Baise-Moi.

The Board should classify the publication as objectionable for all ages and persons. The option of making excisions to the film appears to have already been rejected by the Board but remains an option.

While the classification we propose is a severe restriction on the freedom of expression, it is a restriction that is both demonstrably justified in a free and democratic society and consistent with Parliament’s intention that publications falling within s. 3 (2) (b) and 3 (2) (f) are to be deemed objectionable.

FOOTNOTES

1 Board decision 13 March 2002, par. 42. “The Board finds that at least four categories apply to Baise-Moi namely sex, crime, cruelty, and violence feature in the film.”

2 Ibid. par. 44. Quoting The Society for the Promotion of Community Standards Inc v Everard (1987) NZLR 33.

3 Ibid. In a media release (15/3/02) from Internal Affairs re the Board’s decision on Baise Moi, the Board is referred to as “an expert decision making body”.

4 Ibid

5 Section 52 (2) of the Films, Videos and Publications Classification Act 1993 (FVPC).

6 The Classification Office ruled: “Objectionable except if the availability of the publication is limited for the purpose of study in a tertiary media or film studies course or as part of a film festival organised by an incorporated film society, and in both cases to persons who have attained the age of 18 years.”

7 The festival brochure contained no classification details on Baise Moi. It was published at a time when the Board’s general R18 classification remained valid.

8 Moonen v Film and Literature Board of Review (1995) 5 HRNZ 224. Quoted in Classification Office decision, p. 7 and referred to in Board decision par. 47.

9 The term “alternative reading” comes from the Classification Office’s decision, p. 8. “However, other elements in the film give an alternative reading to one that tends to promote or support the infliction of extreme violence.”

10 Submission by Hamish Dixon (STOP), p. 1.

11 Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224. Quoted in Classification Office decision, p. 7.

12 Board decision, p. 12, par. 9.

13 Classification Office decision, p. 10.

14 Paul Nathanson and Katherine K. Young, Spreading Misandry - The Teaching of Contempt for Men in Popular Culture (McGill-Queens University, 2001).

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