The film is about a 15 year old intersex girl’s complex exploration of sexual identity. It deals with the psychological, emotional and social conundrum in which the teenager and her family find themselves when attempting to decide upon her gender identity. It does so delicately, intimately and respectfully. The Board itself stated that the film is a “bona fide artistic dramatic work”. The terms “intersex” or “XXY” refer to a person (referred to as an “intersex person”) born with both male and female genitalia. In its judgment the Appeal Board described the film as being “... about respect, tolerance and understanding”.

In February this year, the Appeal Board was tasked with the extremely difficult and often emotionally charged obligation of striking the balance between the protection of children’s rights and the right to freedom of expression. Central to this balancing act was the definition of “child pornography”.

In De Reuck the Constitutional Court - when interpreting the definition of child pornography so as to bring it in line with the Constitution of the Republic of South Africa (Constitution) - held that “[t]he overarching enquiry, objectively viewed, is whether the purpose of the image is to stimulate sexual arousal in the target audience. This entails considering the context of the publication or film in which the image occurs as a visual presentation”. If, when viewed within context, the images depicted in a film are predominantly aimed at stimulating aesthetic feelings then common sense and the considered judgment of the Constitutional Court dictate that the material cannot even be construed as pornography let alone child pornography.    

The converse is also true, if viewed within context a film containing depictions of minors engaged in sexual conduct, stimulates erotic feelings (predominantly), as opposed to aesthetic feelings, and thus harmful towards children, such material should without a doubt be banned and the creators, possessors and distributors be prosecuted and punished for their nefarious actions. Any material that does constitute child pornography, in the true sense of the word, would naturally be construed as sexual exploitation and degradation of children.

In essence, the Appeal Board reaffirmed the fact that the decision of De Reuck was still applicable to the definition of child pornography contained in the Act, even though it had been changed slightly since the De Reuck judgment and that “...on any objective assessment XXY cannot be deemed to be a means of conveying images of child pornography”. In this regard the appeal board’s decision is laudable, specifically the stance that it took against the Board when it warned that dictating to a filmmaker which scenes are necessary and those that are not to convey his or her message would necessarily create a situation where the Board functions as a censorship board as opposed to a classification board. Had it not been for the Appeal Board’s decision, the important message portrayed by XXY would have been lost to the dictates of an organ of state’s view of what is morally acceptable.         

What is however worrying about the Appeal Board’s decision is its view on the role and intention of the Legislature in defining child pornography. The Appeal Board indicated that, the fact that the legislature did not depart substantially from the definition considered by the Constitutional Court in De Reuck in its last amendment of the definition, meant that it did not wish to distance itself from the “De Reuck approach”. It is, with respect, not the prerogative of the Legislature to ignore the interpretation concretised by the Constitutional Court, the absence of which would render the definition of child pornography unconstitutional, as an unjustified limitation on the right to freedom of expression.

A blatant disregard of the decision of the Constitutional Court by the Legislature is evident from the subsequent amendment of the definition of child pornography in the Sexual Offences and Related Matters Act (Sexual Offences Act), which expressly provides that an image or description will amount to child pornography regardless of whether or not the image or description is intended to stimulate erotic or aesthetic feelings.

Consistency on the part of the Board in its interpretation and decision making on matters concerning child pornography is also proving to be a serious problem. A film titled “The Reader” - which was recently screened in theatres nationwide - contains scenes of sexual conduct between a heterosexual adult and a minor and would clearly fall within the definition of “child pornography” and on the Board’s interpretation, ought to be banned. The question that begs to be answered is whether this inconsistency is based on an element of intolerance and discrimination against the gay, lesbian intersex community in respect of their right to freely express themselves on matters fundamental to their human nature.  

Worrying aspects of the judgment aside, it does constitute a way forward in respect of the dreaded task of striking the correct balance between the right to freedom of expression and children’s rights, while not ignoring the ills of genuine child pornography.                  

In the words of the Appeal Board, “... this is a film of considerable artistic merit which treats the issue of intolerance towards intersex persons in a sensitive and meaningful manner. It is also a superbly crafted film with riveting performances by the lead characters”. It will be screened by OIA in September at the 2009 Film Festival and will hopefully contribute towards a better understanding of the complex nature of the issues involved. The media needs to convey this underlying sentiment of the judgment and in the process help to expand public awareness of the need to vigilantly oppose incursions on personal freedoms, particularly the right to freedom of expression.