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Page 1 of 2 Earlier today, the FXI's Law Clinic made a verbal submission to the Film and Publications Appeal Board on behalf of Out in Africa (OIA) Gay and Lesbian Film Festival in connection with a film entitled 'XXY'. The film was due to be screened at the festival in 2008, but was refused certification on the grounds that it constituted child pornography. It therefore could not be shown at the festival, and OIA has appealed the decision. This award-winning Spanish film explores the sexual awakening of an Uruguayan intersex youth, and the psychological fallout of family anxieties about the youth's gender. It has won awards at the Cannes Film Festival and the Edinburgh Film Festival, among others, but the South African public cannot see it unless the Board's decision is overturned.
BEFORE THE FILMS AND PUBLICATIONS REVIEW BOARD
HELD AT JOHANNESBURG
SUPPLEMENTED APPEAL
TO THE FILM AND PUBLICATION REVIEW BOARD
ON BEHALF OF OUT IN AFRICA GAY & LESBIAN FILM FESTIVAL
IN RESPECT OF THE FILM
“XXY”
INTRODUCTION
1. Out in Africa South African Gay and Lesbian Film Festival (“OIA”) is a not-for-profit section 21 company and is duly registered in accordance with the company laws of the Republic of South Africa, with its principal place of business at 27 Caledon Street, Cape Town, South Africa.
2. OIA’s mandate is to serve the interests of the lesbian, gay, bisexual, transgender and intersex community of the Republic of South Africa. In so doing OIA hosts an annual film festival called “Out in Africa South African Gay & Lesbian Film Festival” (“Film Festival”). Its aim is to screen films for the lesbian, gay, bisexual, transgender and intersex community. The 2008 Film Festival took place from 4 to 21 September in Johannesburg and Cape Town. OIA has always implemented a voluntary over 18 entry policy to the Film Festival.
3. OIA wished to screen, amongst many others, a film titled “XXY” at the Film Festival.
THE FILM XXY
4. XXY is a film directed by Lucia Puenzo about a 15 year old intersex girl by the name of Alex, who lives in a coastal town in Uruguay with her parents. Alex was born with both male and female genitalia, a condition also described as XXY with refers to the chromosomes which create both men and women and which inspired the title of the film. She has been isolated and protected by her parents due to her condition Alex’s parents think it is time for her to make a decision regarding her gender identity. Her mother invites an eminent plastic surgeon and his family to stay with them at their home to assist them with the decision. Alex is sexually interested in the surgeon’s son, Alvaro. While the parents agonise over the conundrum of Alex’s gender, the teens embark upon a complex exploration of sexuality and identity. The film is quietly unassuming and is more about the psychological intricacies of a family's anxieties about their intersex child than the confusion surrounding Alex’s gender.
THE CONDITION XXY
5. The XXY is generally known as a condition where a person (referred to as “intersex person”) is born with both female and male genitalia. 1 in 1500 to 1 in 2000 births, are intersex babies. In a South African population of over 46 million that equals over 1.4 million intersex people.
6. This condition is, more often than not, a source of embarrassment shame for the individuals and their families and in most cases surgery is advised. However, intersex activists argue against such radical action.
7. The film XXY tackles this delicate issue with great care allowing both sides to speak their mind and addresses the problem sensitively without trivialising it.
8. Annexed as annexure “A” is a copy of the testimony of Ms Sally Gross who is an intersex person.
THE FACTS
9. In preparation for the Film Festival, and on or about 22 July 2008, OIA submitted to the Film and Publications Board (“the Board”) an application (“the application”) for a certificate of exemption (“the certificate”) in terms of section 22 and 23 of the Films and Publications Act 65 of 1996 as amended, (“the Act”) in respect of all the films they wished to screen at the Film Festival. Attached as annexure “B” is a copy of the said application.
10. Subsequent to the submission of the application and due to the fact that the Film Festival was scheduled to commence on 04 September 2008, OIA made numerous (approximately five) queries to the Board for a progress report in respect of their application. These enquiries were made telephonically as in July and August 2008 by Ms Raizenberg of OIA.
11. On 18 August 2008, Ms Sharon Jackson of OIA, addressed an email, at 2:38pm , to Mr Ivyar Chetty of the Board, requesting an answer in respect of the granting of the certificate. Attached as annexure “C” is a copy of the said email.
12. On 19 August 2008, OIA was requested via telephone by Siphokazi Mayatula of the Board to submit copies of two of the films on DVD for review by a panel of examiners. The DVD’s were delivered as requested on 19 August 2008. “XXY” was one of the two films requested.
13. OIA received no further correspondence from the Board until 3 September 2008, the day before the Film Festival was scheduled to commence in Johannesburg, when OIA received an invoice from the Board for classification services. The said invoice is attached as annexure “D”.
14. On 4 September 2008, the opening night of the Film Festival, Ms. Nodi Murphy of OIA, attended on the offices of the Board in Johannesburg to collect the certificate. Upon her arrival at the offices she was informed that their application in respect of the film XXY had not been granted on grounds of “child pornography”. When asked by Ms Murphy why OIA was only being informed of the Board’s decision at such a late stage, Mr Chetty referred to the file and produced a printed copy of an email dated 25 August 2008, addressed to Ms Jackson, informing OIA that the Board had refused the application in respect of XXY. Attached as annexure “E” is a copy of the said email, which Ms Jackson did not receive.
15. The grounds upon which the application was refused were as follows:
“In the opinion of the Board, the title “XXY” contains scenes of sexual conduct involving a person under the age of 18 years and therefore amounts to child pornography in terms of the Films and Publications Act, No 65 of 1996 (the Act). In terms of the Act, possession, distribution or exhibition of this title would constitute a criminal offence. This title has been “Refused Classification” and all copies should be destroyed or surrendered to the police for destruction.”
16. OIA wishes to place on record that there appears to be a lacuna in the Act in the sense that while the Board may as it did in this case order the immediate destruction or surrender to the South African Police Service all copies of the Film, failing which OIA would automatically be deemed to be in possession of prohibited matter and therefore criminally prosecutable. No provision exists which would allow OIA to maintain a copy or copies for the purposes of an appeal such as the present one or alternative remedies such as a review by the High Court or Constitutional Court. In our view this constitutes an unconstitutional intrusion on OIA’s rights and hampers access to the courts and justice.
17. Attached as annexure “F” is a copy of the Film and Publication Board Exemption/Verification Report, dated 25 August 2008, which was only received by OIA on 10 September 2008 at the preliminary hearing of the Review Board. In terms of this document the film:
17.1. “is an extremely difficult one to classify or refuse classification”;
17.2. “The main character is a 15 year old “girl” but also with male genitals”;
17.3. “the film is about gender identity and the possibility of an operation”;
17.4. “she certainly looks younger than 18”;
17.5. “there are scenes of her topless and naked”;
17.6. “the overall context of the film revolves around sexual identity” [emphasis added];
17.7. “there is a strongly simulated sex scene with topless female nudity (no visual genitals) where the “girl” penetrates (“implied”) the boy (with her male genitals)”;
17.8. “there is no explicit sexual conduct ‘ as laid out in Chapter 1(1) XIX of the Act’”.
17.9. “This is implied sex (with female topless nudity), consensual, between minors where there is no ‘explicit sexual conduct’”.
17.10. The film is a ‘bona fide’ artistic/dramatic work, serious (and tragic) in character.
17.11. “there is simulated sexual intercourse (oral) and since at least one, if not both, the actors, are said to be (and look) under 18, there seems to be no option, but, in terms of Chapter 1(1)(iv)(i), of deeming this to be “child pornography” and refusing classification (subsection ‘showing parts of the body may also apply)”.
18. Immediately after being notified of the Board’s decision to refuse the application on 4 September 2008 (“Board’s decision”), OIA, on the same day, lodged an appeal with the Films and Publications Review Board (“Review Board”), on the prescribed form. A copy of the said appeal is attached as annexure “G”. The aforementioned appeal was supplemented, also on 4 September 2008, by OIA’s then attorney of record, Mr Houghton, of the firm Houghton Harper Inc. A copy of the said letter is attached as annexure “H”.
19. The grounds upon which OIA based its appeal against the Board’s decision were the following:
19.1. XXY has been screened in cinemas across the United States.
19.2. The film has previously been awarded the American MPAA rating: NR (no restrictions).
19.3. The film has won many international awards including the Critics Week Grand Prize at the Cannes Film Festival 2007. Attached as annexure “I” is a list of further awards received by the film.
19.4. The Out In Africa Gay and Lesbian Film Festival which provides films for the lesbian, gay, bisexual, transgender, and intersex communities has a blanket age restriction on viewers allowing viewers who are 18 years or older.
19.5. The Board has previously allowed the film “Thirteen” directed by Catherine Hardwick to be screened on the open circuit. Justification for the screening of this film has been that parents of young teenagers should be informed as to what their teenagers may be involved in. The content of “Thirteen” is of a far more explicit and graphic nature than the single scene contained in “XXY”.
19.6. “Thirteen”, in contrast with the NR (No Restriction) rating given by the same organization to XXY, received the American MPAA rating: R (for drug use, self destructive violence, language and sexuality, or involving young teens).
19.7. XXY is a sensitive film portraying the story of a 15 year old intersex person (played by Inés Efron 22 years old), documenting her condition, her exploration of her sexuality, the way her family deals with her condition and the ultimate decision that she must make. The content of the film deals specifically with issues faced by a little represented Group in Society who number approximately 1.3 million South Africans, whom should be accorded the same rights that the aforementioned viewers of “Thirteen” were given.
19.8. The film was not in any way chosen for its sexual content, any more than it was made to appeal to the sexual interests of any groups, but rather for the fact that it is of definite interest to a minority group, as recognized worldwide by the awards it has garnered.
20. On or about 7 September 2008, subsequent to the lodging of the appeal by OIA, the Chief Examiner of the Board prepared a report in respect of the film. The said report is attached as annexure “J”. This report was only received by OIA on 10 September 2008, at the preliminary hearing of the review Board.
21. OIA deem it necessary to note the following additional arguments that were included in the aforementioned report, but did not appear in annexure “E”:
21.1. Alex appears to be younger than 18 due to the size and development of her breasts.
21.2. The definition of child pornography talks about “sexual conduct” not explicit sexual conduct and has no qualifying phrase such as “judged in context”.
21.3. Schedule 9, with its exemption of bona fide dramatic films, does not apply in the case of child pornography.
21.4. The Chief Examiner welcomed OIA’s appeal due to the complexity of the issues involved.
22. OIA welcomes the Chief Examiners view that a definitive decision is required on the issues at hand. OIA believes that it is necessary in this instance and in general to balance the rights of freedom of expression, dignity, privacy and the protection of children very carefully. By no means does OIA support child pornography, the exploitation of children or the incitement of harm, specifically to children. OIA believes in upholding the Constitution of the Republic of South Africa and the equal protection of the rights entrenched therein.
23. On a date which is unknown, which date we assume succeeded the date of the Chief Examiners Report, an unsigned and undated letter was addressed to the Chairperson of the Review Board by the Executive Committee of the Board, which is again for the aforementioned reasons assumed, in which the following additional issues were raised. The said letter is attached as annexure “K”:
23.1. The executive committee does not have any good reason to believe that a bona fide purpose will be served by granting an exemption in respect of the film.
23.2. The scene of sexual conduct involving the two children is unnecessary and does not add to the development of the theme and could very well have been omitted from the film without doing any damage to the film or the treatment of the theme.
23.3. The many awards that the film has won are irrelevant. The rating given by the other classification bodies is irrelevant especially since the MPAA is not a statutory body or a body whose decisions have the force and effect of law.
23.4. The Film and Publications Board is the only classification authority that functions under an empowering Act that contains child pornography offences.
23.5. There is no attempt in the grounds of appeal to address the issue of child pornography, with particular reference to the offending scene.
24. On 7 September 2008, Mr Houghton called the Board to seek confirmation of the date upon which hearing of the Review Board was to take place. The Board could not confirm the same. Mr Houghton insisted that the appeal be held on 10 September 2008 as the film was scheduled for screening that same evening. Mr Houghton also requested information regarding the specifics of the appeal, but was informed, by Ms Dhanraj and Ms Lange of the Board to just appear in the day and “talk to the issues”.
25. On 9 September 2008, Ms Murphy called the Board to inquire as to the date of the hearing as the OIA had not been contacted by the Board since Mr Houghton’s communication with them on 7 September 2008. Ms Murphy was informed that the hearing was to take place the next day, being 10 September 2008 at 11am.
26. Due to the fact that Mr Houghton had a court case which had been set down for the same day, 10 September 2008, a long time prior to this matter, he was not able to represent OIA at the preliminary hearing.
27. On 10 September 2008, the preliminary hearing was held by the Review Board at which OIA was represented by Ms Murphy, Shahindran Moonieya, a director of OIA, and Ms Ann Dominy. At the said meeting the following was agreed between the parties:
27.1. The definition of child pornography is an important issue in general and not just for the film;
27.2. That OIA would seek legal opinion in respect of the appeal and specifically in respect of the definition of “child pornography”;
27.3. OIA would secure legal representation at the hearing of the appeal before the Review Board;
27.4. The film was a sensitive, well-filmed treatment of the subject matter and well worth the accolades it had received, but that the Review Board was hamstrung by the definition of “child pornography”.
28. A copy of the notes of the meeting, taken by Ms Dominy, are attached as annexure “L”.
29. In light of the aforementioned, OIA have secured the services of Ms Melissa Moore, Head of the Freedom of Expression Institute’s Law Clinic and an admitted attorney, to represent them at the hearing of the matter and to advise OIA on the matter.
30. On 15 September 2008 OIA received a preliminary award of the Review Board, via email from Ms Dhanraj, the coordinator of the Review Board. The Preliminary Award is attached as annexure “M”.
31. In terms of the Preliminary Award, the Review Board indicated that their primary objection relates to “one scene during which Alex and Alvaro, both portrayed as fifteen-year olds, engage in sexual conduct” , as in their view the scene amounts to child pornography as defined in the Act.
32. OIA hereby supplements its appeal to the Review Board to deal properly and fully with the issues raised by both the Board and the Review Board and certain other peripheral issues which OIA believes are essential to the proper functioning of the Board in the industry.
33. In summary, OIA submits the Review Board has incorrectly determined that XXY amounts to child pornography. The Review Board failed to apply the definition of "child pornography" in the Film and Publications Act 65 of 1996, as read down by the Constitutional Court in De Reuck v Director of Public Prosecutions 2004 (1) SA 406 (CC), to the film. OIA further submits that the Review Board has acted in an unfairly discriminatory manner as it has determined that XXY is child pornography while at the same time it determined that other films, which include scenes of heterosexual sexual conduct between teenage children, are not child pornography.
OVERVIEW OF THE LAW
The Constitution of the Republic of South Africa:
The Right to Freedom of Expression:
34. Section 16(1) of the Constitution states that:
“(1) Everyone has the right to freedom of expression, which includes–
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to–
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
35. Section 16(1) set out above, specifically provides for the right “to receive or impart information or ideas” and “artistic creativity”. In the case of Handyside v United Kingdom , the court made the following comment which was endorsed by the Constitutional Court in the matter of Islamic Unity Convention v Independent Broadcasting Authority and Others. stating that freedom of expression extends to:
“. . . not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. . .”.
36. In the matter of Case v Minister of Safety and Security: Curtis v Minister of Safety and Security sexually explicit material was recognised as a form of expression that falls within the ambit of the right to freedom of expression.
37. OIA submits that the forms of unprotected speech contained in section 16(2) of the Constitution, and cited above, do not apply to the material in dispute.
The Right to Dignity and Protection of Children’s Rights
38. Section 10 of the Constitution states that “Everyone has inherent dignity and the right to have their dignity respected and protected”.
39. In terms of Section 28(2) of the Constitution:
“(1) Every child has the right-
(a)…
(b)…
(c)…
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) …
(f) not to be required or permitted to perform work or provide services that-
(i) are inappropriate for a person of that child’s age; or
(ii) place at risk the child’s well-being education, physical or mental health or spiritual, moral or social development”.
(g)…
(h)…
(i)…
(2) A child’s best interests are of paramount importance in every matter concerning the child.
(3) In this section “child” means a person under the age of 18 years”.
40. In the matter of De Reuck vs Director of Public Prosecutions and others Constitutional Court held that
“Children merit special protection by the State and must be protected by legislation which guards and enforces their rights and liberties… The degradation of children though child pornography is a serious harm which impairs their dignity and contributes to a culture which devalues their worth…
Society has recognised that childhood is a special stage in life which is to be both treasured and guarded. The state must ensure that the lives of children are not disrupted by adults who objectify and sexualise them through the production and possession of child pornography…
There is obvious physical harm suffered by the victims of sexual abuse and by those children forced to yield to the demands of a paedophile and pornographer, but there is also harm to the dignity of and perception of all children when a society allows sexualised images of children to be available.
The chief purpose of the statutory prohibitions against child pornography is to protect the dignity of children”.[emphasis added]
41. In the matter of Dawood and another vs Minister of Home Affairs and others, Shalabi and others; Thomas and another v Minister of Home Affairs and others the Constitutional Court held as follows:
“The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”
Films and Publications Act 65 of 1996 as amended:
42. The objects of the Act are to :
42.1. regulate the creation, possession, production and distribution of certain publications and certain films by means of classification, the imposition of age restrictions and the giving of consumer advice, due regard being had to in particular to the protection of children against sexual exploitation or degradation in publications, films and on the internet; and
42.2. make the exploitative use of children in pornographic publications, films or on the internet, punishable.
43. In terms of Section 18(1A)(b) any person who intends to distribute or exhibit any film shall submit for classification any film which is intended for distribution or exhibition in the Republic and which has not been classified or approved in terms of this Act or the Publications Act, 1974.
44. Further to the aforementioned section, 26(1)(a) makes it an offence for a person to knowingly exhibit in public any film that has not been classified.
45. In terms of section 22 of the Act, “the executive committee may on receipt of an application in the prescribed form, subject to such conditions as it may deem fit, exempt in writing any person or institution from sections 25, 27 and 28 if it has good reason to believe that bona fide purposes will be served by such an exemption”.
46. Section 27(1)(a) provides as follows:
“(1) (a) Any person shall be guilty of an offence if he or she –
(i) is in possession of;
(ii) creates, produces, or in any way contributes to, or assists in, the creation or production of;
(iii) imports or in any way takes steps to procure, obtain or access; or
(iv) knowingly exports, broadcasts or in any way distributes or causes to be exported broadcast or distributed,
a film or publication which contains child pornography or which advocates, advertises or promotes child pornography or the exploitation of children.” [emphasis added]
47. Section 22 of the Act presupposes that there are cases in which an exemption to the aforementioned prohibition is appropriate where a bona fide purpose will be served by an exemption.
48. The Act defines “Child Pornography” as including “any image, however created, or any description of a person real or simulated, who is, or who is depicted or described as being, under the age of 18 years –
(i) engaged in sexual conduct;
(ii) participating in, or assisting another person to participate in, sexual conduct; or
(iii) showing or describing the body parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation”. [emphasis added]
49. The Act states that “sexual conduct” includes-
(i) ….;
(ii) the undue display of genitals or of the anal region;
(iii) ….;
(iv) ….;
(v) sexual intercourse, whether real or simulated, including anal sexual intercourse;
(vi) sexual contact involving the direct or indirect fondling or touching of the intimate parts of a body, including the breasts, with or without any object;
(vii) …
(viii) ,,,
(ix) ,,,”
INTERPRETATION OF THE DEFINITION OF CHILD PORNOGRAPHY
50. The definition of “child pornography” contained in the Act, as cited above, is a complex definition and contains the following elements, which require highlighting and discussion, namely:
50.1. an image or description;
50.2. of any person who is, or is described or depicted as being under the age of 18 years;
50.3. whether real or simulated;
50.4. engaged in sexual conduct; or
50.5. assisting or participating in sexual conduct; or
50.6. showing or describing the body, or parts of the body which, within context, amounts to:
50.6.1. sexual exploitation; or
50.6.2. is capable of being used for purposes of sexual exploitation;
51. In the present case it is true that the film contains a scene which depicts images of two adults (who are intended to represent teenage children) engaged and participating in simulated sexual conduct, where Alex’s breasts are exposed.
.
52. The Act states that an image will also amount to child pornography even if it is not an image of an actual child but a person who is depicted or described as being under the age of 18 years old.
53. In this regard the Act prohibits two types of child pornography. The first type “Real Child Pornography”, involves actual children. This is the type of pornography that evokes a strong and near universal sense of moral outrage. It is not only that the material is offensive; it is the permanent record of a particularly vile form of child abuse. Children that are involved in pornography are harmed via its creation; the distribution of the material is a further harm against their dignity and privacy.
54. The second form of “child pornography” does not involve real children. This “Virtual Child Pornography” is made up of a number of different types of erotic material. It includes paintings, cartoons, sketches and written descriptions of children involved in sexual conduct and digitally created images that resemble actual child pornography, but which do not make use of real children. It also includes depictions of adults, which are represented as being under the age of 18, engaged in sexual conduct. For purposes of this matter we are only dealing with the latter scenario.
55. In the American case of Ashcroft vs Free Speech Coalition it was stated that virtual child pornography does “not involve, let alone harm, any children in the production process.” “The statute proscribes the visual depiction of an idea - that of teenagers engaging in sexual activity - that is a fact of modern society and has been a theme in art and literature throughout the ages.”
56. The Act states that artistic films are not exempted from prohibition if they constitute virtual child pornography. The effect of the prohibition, as contained in the Act, is that other publications or films such as Thirteen, American Beauty and Romeo and Juliet, which involve sexual conduct between teenagers or a teenager and an adult, would constitute an offence.
57. In the De Reuck matter the Consitutional Court held that “Child pornography is defined as images “depicting” those prohibited acts. The threshold question is the perspective from which it is to be determined what an image depicts. Legal certainty and the practicalities of proof favour an objective test based on the perspective of the “reasonable viewer” over those tests that consider the subjective state of mind of the author or the accused.” This approach was adopted by the Supreme Court of Canada in R v Sharpe .
58. OIA acknowledges that the definition of child pornography in the Act has been amended since the Constitutional Court’s decision in De Reuck. However, the dicta in De Reuck are still law as they apply to how one defines child pornography generally.
59. Furthermore, it was held by the Court in De Reuck that the omission of the words “judged within context” from section 27(1) and the first part of the definition of child pornography as contained in section 1 of the Act (in respect of paragraphs (i) and (ii) of the definition), does not prohibit courts from referring to context when determining whether a film or a scene therein constitutes child pornography. The Constitutional Court went on to state that “it is not possible to determine whether an image as a whole amounts to child pornography without regard to context” .
60. The Constitutional Court, in De Reuck explained that dictionary definition of pornography is useful in order to understand what constitutes child pornography (at para 20). It was explained that:
"[a]ccording to The New Shorter Oxford English Dictionary, 'pornography' means: 'The explicit description or exhibition of sexual subjects or activity in literature, painting, films, etc, in a manner intended to stimulate erotic rather than aesthetic feelings; literature etc containing this.' This is a useful guide. I would observe, however, that erotic and aesthetic feelings are not mutually exclusive. Some forms of pornography may contain an aesthetic element. Where, however, the aesthetic element is predominant, the image will not constitute pornography. With this qualification, the dictionary definition above fairly represents the primary meaning of 'pornography'. 'Child pornography' bears a corresponding primary meaning where the sexual activity described or exhibited involves children." (our emphasis, at para 20)
61. Therefore child pornography, as defined in the Film and Publications Act, only amounts to child pornography where the scene is interpreted in context and where the erotic element is dominant. It is axiomatic that where the scene is interpreted in context and where the aesthetic element is dominant the scene would not amount to child pornography. The simulated sex scene in XXY (where there are no visible genitalia) when examined in context is pre-eminently aesthetic and non-erotic. We expand on this submission below.,
62. The sex scene is an integral part of the story in XXY in that it represents the confusing and difficult way in which the teenagers' desire for one another is manifest. The scene is by no means gratuitous or aimed at titillating the audience. Neither the film nor the scene contain any of the hallmarks of pornography. The film is clearly an art film, the acting is excellent, and it is beautifully shot. The sex scene simply reflects one of the difficult aspects of living as an intersex teenager (and the film engages with a range of other difficulties faced by intersex teenagers and their families) in an honest and heartbreaking manner.
LIMITATIONS ANALYSIS
63. The question that must be determined is whether the prohibition of the latter type of child pornography is justifiable under section 36 of the Constitution.
64. OIA acknowledges the fact that neither the Board or the Review Board have the power to determine that the Act or specific sections thereof are unconstitutional. However, OIA deems it jurisprudentially expedient to raise these issues so as to allow the Review Board to consider the import thereof and so that they may be fully appraised of the issues at hand.
65. Section 27(1) read with the definition of “child pornography, contained in section 1 of the Act limits the right to freedom of expression. OIA accepts that the right to freedom of expression contained in section 16 of the Constitution is not without limit and can be limited in such instances where the limitation is justifiable in terms of section 36 of the Constitution which provides as follows:
“(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
66. In terms of section 36 the State must ensure that any limitation on a right must in order to comply with the demands of the limitations clause firstly, be “a law of general application”. A law qualifies as a law of general application if it is stated in a clear and accessible manner. Laws must be drafted with such precision so as to allow those who are tasked with their implementation to have reasonable certainty about the conduct that is required of them.
67. OIA is of the view that Section 27(1) qualifies as a law of general application in that the reasonable reader upon reading the section would be able to ascertain that real child pornography as well as virtual child pornography are prohibited by the Act.
68. The second leg of the section 36 analysis is that a limitation of a right must be “..reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” This prohibits the state from making use of arguments based on a particular conception of the good. Conceptions of the good encompass a range of views about what makes life valuable or meaningful. Therefore the state ought not to limit rights by resorting to a particular view about the “good life”. As pointed out by Oppenheimer, this does not mean that all conceptions of the good are equal. A very good example of this is the matter at hand, real child pornography. The state would be justified in prohibiting child pornography on the basis that there is a “distinction between harms which all reasonable people would seek to avoid, and harms which are harms only against the background of a particular, intractability disputed conception of the good”
69. Meyerson defines these different forms of harms as neutral and non-neutral harms. Thus child pornography would constitute a neutral harm, as all reasonable people would deem the activity to be harmful regardless of their conception of the good. In contrasts, virtual child pornography constitutes a non-neutral harm, as some would view virtual child pornography as the sexualising and objectifying of children whilst others would view it as a depiction of the reality that we are faced with in our society, in that teenagers are children are engaging in sexual conduct at a very young age and virtual child pornography would educate and inform people about this reality.
70. The State cannot base a limitation of a right on arguments that show that the material is a non-neutral harm. A limitation can only be justified if based on a neutral harm. Meyerson states that the state ought to remain neutral as the dispute is not one that can be solved by using public reason. It should concern itself with combating harms that are agreed by all reasonable people to be harms.
71. In determining whether a limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” the following factors have to be taken into account:
71.1. The nature of the right of freedom of expression:
71.1.1. The Constitutional Court articulated the importance of the right to freedom of expression in the case of NM v Smith in which judgment O'Regan J stated that:
“Freedom of expression is important because it is an indispensable element of a democratic society. But it is indispensable not only because it makes democracy possible, but also because of its importance to the development of individuals, for it enables them to form and share opinions and thus enhances human dignity and autonomy. Recognising the role of freedom of expression in asserting the moral autonomy of individuals demonstrates the close links between freedom of expression and other constitutional rights such as human dignity, privacy and freedom. Underlying all these constitutional rights is the constitutional celebration of the possibility of morally autonomous human beings independently able to form opinions and act on them.
71.1.2. Freedom of expression is the cornerstone of a functioning democratic state, since it gives people the opportunity to be exposed to a number of different viewpoints so that they can make informed and legitimate decisions about both their political and private lives. Furthermore without the right to freely express beliefs society would disintegrate into a state of stasis where there would be no substantial intellectual growth. By stifling beliefs that are different from our own we lose the opportunity to “challenge, reconsider and perhaps reaffirm” our own views.
71.2. The nature and extent of the limitation:
71.2.1. The objects of the Act are set out in section 2 of the Act. For ease of reference same is repeated in this section:
“(a) regulate the creation, possession, production and distribution of certain publications and certain films by means of classification, the imposition of age restrictions and the giving of consumer advice, due regard being had to in particular to the protection of children against sexual exploitation or degradation in publications, films and on the internet; and
(b) make the exploitative use of children in pornographic publications, films or on the internet, punishable.
71.2.2. The purpose of the Act is to curb child pornography which is seen as an evil in all democratic societies , and rightfully so. In De Reuck the Constitutional Court established three legitimate objectives which the limitation aims to serve, namely, protecting the dignity of children, stamping out the market for photographs made by abusing children and preventing a reasonable risk that images will be used to harm children.
71.2.3. Section 30(1)(A) of the Act provides that “Any person found guilty of a contravention of section 27(1) may be sentenced to a fine or to imprisonment for a period not exceeding ten years or to both a fine and such imprisonment”. As mentioned above, this penalty also applies to the possession, creation, exhibition and import, export and distribution of “virtual child pornography”.
71.2.4. This threat of possible imprisonment, the attendant costs involved in legal battles and the humiliation of being hauled through the legal process will act as a powerful disincentive for artists, filmmakers and more importantly intersex persons who wish to convey their message and experiences to the South African community and other intersex people. This will have a regressive effect on our hard won right to individual liberty and freedom of expression.
71.3. The relation between the limitation and its purpose:
71.3.1. “The Chief purpose of the statutory prohibitions against child pornography is to protect the dignity, humanity and integrity of children”.
71.3.2. It may be argued that because it is sometimes not possible to distinguish between virtual and real pornography, it is necessary to prohibit virtual child pornography in order to prosecute real child pornographers. An example of such a case is the case at hand, where adults are depicted as younger than 18 years of age this would also be the case where images are created through the use of digital imaging software, which does not make use of performers at all. This in OIA’s view, and in the view of the United States Supreme Court in the case of Butler vs Michigar would be a case of “burning down the house to roast the pig”.. Such an approach is fundamentally flawed anti-constitutional and anti democratic.
71.3.3. In Ashcroft it was stated by the court that if a certain class of virtual is indistinguishable from real images, “the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.” This could lead to the reduction of real child pornography being produced and curb the abuse of children during its production.
71.3.4. In the Broadrick v Oklahoma it was held that “the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted”.
71.3.5. A number of arguments have been made in favour of the prohibition of virtual child pornography, namely:
71.3.5.1. that virtual child pornography it may be used to entice children to have sex with paedophiles. This argument fails on the basis that innocent objects like cartoons and candy may be misused by paedophiles to achieve the same end of seducing children, it would however, not be appropriate or just to prohibit those items. The prohibition would not attain the purpose of preventing pedophiles from enticing children, since they would continue to entice children by other means.
71.3.6. that virtual pornography will encourage paedophiles to abuse real children. Extensive studies have been carried out in this regard, namely:
71.3.6.1. laboratory experiments that show how exposure to pornography affects the behaviour of men;
71.3.6.2. studies that describe the factors that play a role in causing sex offenders to commit crimes.
71.3.6.3. statistical data that seeks to correlate the availability of pornography to acts of sexual violence;
71.3.6.4. Accounts that detail the role played by pornography in cases of sexualised violence.
71.3.7. The studies mentioned above came to the following conclusions:
71.3.7.1. No reliable results could be produced that prove that being exposed to pornography causes sexual aggression.
71.3.7.2. Studies that have been conducted on sex offenders show that the sexual offenders have been exposed to less pornography than the average man Furthermore a large number of sex offenders “were raised with strict, antisexual, repressive attitudes.”
71.3.7.3. The relationship between an abundant use of pornographic materials and high levels of sexual violence would not in themselves show that consumption of such materials caused sexual violence.
71.3.8. The ultimate aim of the legislation is to protect children from harm. This is an admirable, noble and extremely important aim that is achieved by prohibiting Real Child Pornography and certain forms of virtual child pornography. However the purpose is not achieved by prohibiting Virtual Child Pornography.
71.3.9. “If we attempted to ban all words that have been blamed for inspiring or inciting particular crimes by some aberrant or antisocial individual, we would end up with little to read or view”.
71.4. Less restrictive means to achieve this purpose:
71.4.1. The next step in the analysis is whether there are less restrictive means available to achieve the aforementioned purposes.
71.4.2. In this regard the limitation is in our view overbroad and has gone beyond its legitimate purposes due to the fact that the prohibition prohibits virtual child pornography.
71.4.3. American Booksellers Association v Hudnut, Judge Barker commented as follows:
“to deny free speech in order to engineer social change in the hope of accomplishing a greater good for one section of our society erodes the freedoms of all.”
71.4.4. That being said OIA submits that it will not suffice for Virtual Child Pornography to go unregulated. In this regard, the regulation of Virtual Child Pornography should be subject to the harm test referred to herein above and must also be judged within context as articulated by the Constitutional Court in De Reuck.
STATUS OF THE LEGISLATION
72. In view of what has been argued above, it is our submission that the section 27 of the Act read with the definition of the “child pornography” is an unjustifiable limitation on the right to freedom of expression in so far as it prohibits virtual child pornography and is thus unconstitutional.
73. Section 2 of the Constitution states that the “..Constitution is the supreme law of the Republic of South Africa; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”
74. However, if section 27 was struck down in totality, the genuine and vital purpose which it sought to achieve, namely the protection of children from harm and exploitation would not be attained.
75. In the recent US Supreme Court decision of Ashcroft it was held that The Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256 (CPPA) was unconstitutional.
OFFENDING SCENES
76. In its refusal, the Board indicated that there were two scenes which in their view contravened the Act and amounted to child pornography, firstly there are a number of scenes where Alex’s breasts are exposed and secondly, the scene in which Alex and Alvaro are engaging in anal intercourse during which Alex’s breasts are exposed.
77. We will deal with each of the aforementioned separately:
77.1. The bedroom scene:
77.1.1. The first scene in which Alex’ breast are exposed is while she is lying on her bed. She is holding her medication bottle and places one of the pills, which she takes to prevent the male in her from developing, on her chest in between her breasts. She then flicks the pill off her chest.
77.1.2. The scene portrays her frustration with the medication that she has to take every day of her life to prevent her from looking like a male and her confusion as to whether she wants to be male or female.
78. Anal intercourse scene:
78.1. The second scene is a scene in which Alex and Alvaro are engaged in anal intercourse. Alex’s breasts are exposed, Alvaro also fondles her breasts. The actors are depicted as engaging in anal intercourse. Neither of the actors genitals are exposed, however Alex’s buttocks are exposed.
79. The Mirror Scene:
80. The third scene is where Alex, after having anal intercourse with Alvaro, looks at herself in the mirror. Her breasts are exposed. In the scene she looks at her breasts in the mirror and then at her genitals, signifying the contrast in what she sees.
81. The shower scene:
81.1. The fourth scene is where she is in the shower with one of her female friends. Alex’s breasts are exposed while she is washing her hair.
AGE OF THE ACTORS
82. In the film Alex and Alvaro are depicted as younger than 18 years of age. However, at the time of filming Ines Efron, who plays the part of Alex, was 22 years of age and Martin Piroyansky, who plays the part of Alvaro, was 20 years of age. Attached as annexure “N” is an email from the distributor of the films confirming the aforementioned.
83. No children were used in the filming of XXY. The actors were of age and their involvement in the film was voluntary and consensual.
84. It was contended by the Board that it is clear that Alex and Alvaro look younger than 18 years of age and that in their view Alex appears to be younger than 18 years due to the size and development of her breasts. OIA submits that this argument is misinformed and somewhat distorted as all women’s breasts develop differently and range in size and shape from AAA to the ubiquitous DDD. This line of argument could be considered as offensive to [small breasted] women with less developed breasts and cannot be reasonably taken as an objective assessment of female age. A reasonable viewer would view Alex and Alvaro to both be over the age of 18 years.
JUDGED WITHIN CONTEXT
85. The purpose of the Act is to protect the dignity, humanity and integrity of children, to prevent children from sexual exploitation and to prevent the incitement of harm towards children.
86. OIA respectfully submits the film, if judged in context, does not and is not intended to depict or promote the sexual exploitation of children or the incitement of harm towards children To the contrary the film promotes the dignity humanity and integrity of intersex people, children in particular.
87. When “judged within context” it is extremely difficult to understand how the scenes referred to above and the exposure of Alex’s breasts amount to child pornography or that the purpose of such images “within context” can be construed as bring about or encouraging the sexual exploitation of children.
88. In De Reuck the Constitutional Court held that “an image will amount to sexual exploitation if its purpose is to bring about or encourage sexual exploitation. …the words ‘sexual exploitation’ encompass the exploitation of the sexual urge of a human being and the exploitation of children. Here exploitation has a negative characteristic and implies either a negative purpose or result or negative cause by which the sexual urges of a human being are manipulated.”
89. According to the Oxford Dictionary the meaning of the word “exploitation” is to make use of unfairly or to benefit unjustly from the work of something.
90. he purpose of the film is to create awareness and to educate the public of the trials, tribulations, emotional, psychological and social turmoil that intersex people have to endure. The purpose of the scene is emphatically not to bring about sexual pleasure, urges or encourage sexual exploitation of children.
THE REVIEW BOARD HAS ACTED IN AN UNFAIRLY DISCRIMINATORY MANNER BY CLASSIFYING XXY AS CHILD PORNOGRAPHY
91. It is OIA’s submission that the fact that the Review Board systematically classifies films with equivalent heterosexual sex scenes between teenagers but has determined that this film amounts to child pornography is discriminatory on the grounds of sex, gender and sexual orientation There are a range of excellent examples namely, Kidz”, “Ken Park” and “Girls Can’t Swim”. In this regard the Board has discriminated against any form of sexuality which is not heterosexual.
BONA FIDE PURPOSE OF THE FILM
92. In the event that it is held that, the images contained in the film amount to child pornography, which is denied, OIA submits that an exemption ought to be granted in terms of section 22(1) of the Act on the grounds that there is good reason to believe that bona fide purpose will be served by such an exemption.
93. It was contended by the executive committee in annexure “K” they had no good reason to believe that a bona fide purpose will be served by the granting of an exemption in respect of the film.
94. OIA respectfully submits that the aforementioned conclusion was arrived at in total disregard for the intersex community of South Africa and without properly applying their minds to the matter.
95. OIA submits that it is clear that a bona fide and extremely important purpose will be served by the exemption, which purpose has been repeated throughout this supplemented appeal. Same will, for the sake of brevity not be repeated again, save to state that the granting of an exemption contemplated in section 22 of the Act would go a long way in promoting the dignity humanity and integrity of intersex people, intersex children in particular
PRIOR DECISIONS AND INTERNATIONAL BEST PRACTICE
96. In annexure “K” it was contended by the Board that the many awards received by the film were irrelevant and that ratings given by other jurisdictions is also irrelevant.
97. In terms of international best practice it would be recommended at the very least that those making decisions should take cognisance of the decisions of significant and respected institutions, even if they are of an extrajudicial nature, which amount to expert testimony which while, not conclusive or peremptory to our enforcers of the law, should at least play a role in the formulation of their decisions, if only as a cursory nod to checks and balances.
APPROPRIATE RATING
98. In terms of Schedule 7 of the Act:
“A film shall be classified as X18 if it contains a scene or scenes, simulated or real, judged within context, of explicit sexual conduct which, in the case of sexual intercourse, includes an explicit visual presentation of genitals.”
99. OIA submits that XXY should, at the very most given a rating of R18.
CONCLUSION
100. OIA submits that the Board made an error of judgment when deciding to refuse classification in respect of the film. In accordance with the arguments set out hereinabove OIA believes that both the facts and the legal position support our contention that the appeal should be upheld and that a classification of R18 is both appropriate and more than adequate to protect the interests of persons likely to be adversely affected by the screening of the film.
101. OIA reiterates that it is vital that, in the pursuit of the protection of children’s rights, the bigger and all encompassing picture of the protection of the myriad of rights that exist within our society must be given due and proper regard.
DATED AT JOHANNESBURG ON THIS THE 24TH DAY OF OCTOBER 2008.
___________________________________________
FREEDOM OF EXPRESSION INSTITUTE LAW CLINIC
ATTORNEYS FOR OUT IN AFRICA GAY & LESBIAN FILM FESTIVAL
MS MELISSA MOORE
41 DE KORTE STREET
SABLE CENTRE
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TEL: (011) 403 8403
FAX: (011) 339 4109
EMAIL: melissa@fxi.org.za
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