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SPCS Appeals “Ken Park” Classification

SPCS Appeals “Ken Park” Classification

SPCS has sought the leave of the Secretary of Internal Affairs to appeal the classification decision of the Office of Film and Literature Classification (OFLC) with respect to the film “Ken Park”.

The application dated 2 May 2003 has been made pursuant to s. 47 of the Films, Videos, and Publications Classification Act 1993 (hereinafter called “the FVPC Act”).

The OFLC classification was registered on the 24th of March 2003 and published on Monday 14th April in the OFLC List of Decisions (March). Any applicant for review has until Tuesday 27th May 2003 to seek a review, “30 working days” from the date of publication of the decision. SPCS has lodged its application over three weeks prior to the deadline. Because of widespread public concern over the “objectionable” contents of this film the Society is making its submission public.

SPCS Submission to Mr Christopher Blake, Secretary of Internal Affairs Re Ken Park (OFLC Decision 300048).

2 May 2003 1. Introduction:

The film Ken Park was submitted in video recording format (VHS/PAL) on January 10 2003 to the Film and Video Labelling Body by Mr Anthony T. Timpson on behalf of 2Brothers Films, for the purpose of classification. It is intended, as stated by the applicant, in his application to the Office of Film and Literature Classification (OFLC) for a classification fee waiver, to be screened at the “[Beck’s] Incredible Film Festival which screens in Auckland & Wellington during the months of April-May-June.” [endnote 1]. Timpson, who is the director of this film festival sponsored by Beck’s Beer, describes it as “a one person operation” in his application for fee waiver. (Timpson was granted the fee waiver by Chief Censor Bill Hastings, receiving a $750 reduction, at the tax-payers’ expense).

On 24 March 2003 the OFLC issued its classification (Ref. No. 300048) for Ken Park and the decision was published on Monday 14th April in the OFLC List of Decisions (March). It was classified:

Objectionable except if the availability of the publication is restricted for the purpose of study in a tertiary institution, or for the purpose of exhibition as part of the 2003 Beck’s Incredible Film Festival or a film festival organised by an incorporated film society, and in all cases to persons who have attained the age of 18 years.

The “descriptive” note by the Office, which must accompany all advertising of the film, states:

“Contains graphic violence, explicit sex scenes and content that may disturb”.

Under s21(1) of the Films, Videos, and Publications Act 1993 (“the FVPC Act”) the Office sought assistance with the classification from a group of three clinical psychologists, the Office of the Commissioner for Children, and a family counsellor with a social service agency.

2. OFLC Consultations/submissions received with SPCS comments.

Dr Sharon Rippin, Kim Aitken and Dr Tania Lithgow, clinical and organisational psychologists with Cerno Limited, viewed the film and prepared a written submission (dated February 11, 2003) on the film’s possible psychological impacts. They expressed concern about a scene in which the character Tate masturbates while using a bathrobe belt around his neck in a practice known as “autoerotic asphyxiation”. Cerno submitted that the film could be injurious to the public good by being instructional:

The scene depicting autoerotic asphyxiation (also known as “eroticised repetitive hanging”) could be construed as instructional in that it showed the activity in a step-by-step manner. The portion of the film may encourage young adolescents to attempt/experiment with autoerotic asphyxiation, especially as the film portrays the outcome of autoerotic asphyxiation as pleasurable (without reference to the other possible outcomes of physical injury or accidental death).

The psychological literature suggests that the most common practitioners of autoerotic asphyxiation are adolescent and young adult males. Autoerotic deaths occur more frequently in adolescents, as they are more likely to be experimenting with their sexuality, are often unaware of the dangers of hypoxia and are more prone to risk taking. It is difficult to predict who is more likely to practice the technique, as it is typically performed in private, and when the act results in death there has been no reported history of other unusual sexual behaviour. Adolescent victims (i.e. those who died as a result of autoerotic asphyxiation) are not perceived to be depressed or suicidal prior to death. Experts recommend that efforts must be made to limit young people’s exposure to the technique, as risk-taking youth experimenting with their sexuality run a high risk of imitative practices (Dietz, 1989, Dietz, Hazelwood & Burgess, 1983) [see endnote 2]. They also suggest that there is a need to limit mass media exposure and coverage of the syndrome. [Emphasis in bold added]

Staff from the Office of the Commissioner for Children expressed concern over this step-by-step instructional depiction of autoerotic asphyxiation involving young persons harming themselves:

There is the possibility of harm if people were to mimic certain behaviours or acts portrayed within the film, (eg use of rope during the masturbation scene).

The Society points out that the OFLC and the Film and Literature Board of Review (the Board) have a statutory duty to require distributors to excise all material from publications that breach s. 3(2) and/or s. 3(3) of the FVPC Act. Both censorship bodies have acknowledged this requirement as evidenced in their respective classification decisions for the Korean film “Lies” [see endnote 3]. The OFLC classification decisions with respect to publications such as the DVD La Bête (Ref. No. 200059) and the Matador Series 2 (registered 4 October 2002) also demonstrate how the remedy of excisions in dealing with “objectionable” content should be applied.

The step-by-step instructional depiction of a sexual act by a young person involving self-inflicted violence comes under s. 3(2)(a), and s. 3(2)(f) of the Act. If the manner of the depiction, in terms of its effect upon the audience, has a tendency that “promotes or supports” any activity listed under s. 3(2), then the “objectionable” content must be excised. The gratuitous and step-wise instructional depiction of autoerotic asphyxiation is also “objectionable” in terms of “the extent and degree to which, and the manner in which, the publication – describes, depicts, or otherwise deals with” this sexual act. It constitutes a significant feature of the film in that it has caused OFLC consultants considerable concern.

Cerno then submitted that the film could be injurious to the public good in terms of s. (3)(2)(a) of the FVPC Ac, stating: (2)(a) The Exploitation of children or young persons, or both, for sexual purposes.

While the director has provided assurances (i.e. through commentaries on the films) that all the actors are over the age of 18, some of the actors looked significantly younger than 18. Their youthfulness was supported by:

Not seeing any of the young characters driving.

A character needing to ask his parent’s permission to go to a friend’s place for dinner;

A character deriving enjoyment and companionship from skipping with young children.

A character’s sexual partner (the mother of his girlfriend) calling him a “Good boy”, patting him on the head, and providing instruction during sexual activity.

In the light of the above, particularly if viewers did not have access to the director’s commentaries, viewers are likely to consider that the actors were younger than 18 years. The film could be construed as exploiting young persons for sexual purposes.

In addition, the film may be perceived as legitimising sex with young persons (as indicated by the young man who is a lover to his girlfriend’s mother, and alluded to through the marital ritual between father and daughter). The relationship the young male has with his girlfriend’s mother would particularly support some of the more common rationalisations (e.g. among paedophiles) that it is appropriate for adults to take a safe ‘sexual education’ role for the younger person. The fact that some of the younger actors portrayed as autonomous and independent individuals in the film may also send messages that young people are in the position to make informed choices about sexual acts with adults.

The images of sexual violation and implied incest (as illustrated by one male actor’s father touching him [Claude] while he was sleeping, and implied by the marital ritual between father and daughter [Peaches]) could have an adverse impact on viewers who are victims of sexual violation (e.g. by providing cues that could trigger Post-Traumatic stress reactions such as depression and anxiety)….

[Note: The scene between the father and son involves the former arriving home “heavily intoxicated having spent the evening ‘trawling’ for prostitutes, he enters his son’s bedroom, and attempts to engage him is sexual activity” OFLC decision 300048].

The Society is concerned that the OFLC has failed to address adequately issues relating to the age of the young persons as they are depicted (see discussion below).

Cerno then submitted that the film could be injurious to the public good in terms of s. (3)(2)(f) of the FVPC Ac, stating:

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

Dominant effect of the publication as a whole

The film is designed to evoke strong reactions through its graphic portrayal of sexual acts (e.g. masturbation to ejaculation, auto-erotic asphyxiation, sexual intercourse, group sex, sexual violation) and its acts of violence, some of which are extreme (e.g. killing one’s grandparents because the grandfather cheated at ‘Scrabble’, threatening to rip the leg off a dog… [etc]….

The development of the teenage characters (with the exception of the male who kills his grandparents), and the portrayal of their dysfunctional live [sic], appears intended to encourage viewers to identify, and possibly empathise, with the characters’ attempts to derive pleasure despite bleak life circumstances. For some viewers (e.g. at-risk teenagers with a propensity towards violence or drug and alcohol abuse, paedophiles) this has the potential to ‘normalise’ or ‘justify’ nihilistic acts. With the exception of the character who murdered his grandparents (who was viewed after his arrest), there did not appear to be any negative consequences of acts such as unprotected sex, recreational drug use, and consumption of alcohol while driving (as illustrated by the parent of one of the teenage characters, and his friend).

In a damning comment on this film dated 20 February 2003 The Office of the Commissioner for Children stated:

There is potential, considering the age of the characters being portrayed, for this film to be used as paedophile pornography [if it] is released to the general public and then certain scenes could be taken out of context.

The graphic content of the film, be it sex or violence, could be quite shocking to many viewers….

To narrow down the scope of our answer to the film’s harmful scenes, we feel that the graphic depictions of sex/sexual abuse and violence with young people involved are quite easily the worsts [sic] and most harmful parts contained in the film, especially the way the film throws viewers rights into the deep end by starting with such a graphic suicide which is repeatedly shown. The violence murder by the character Tate of his elderly grandparents is another example of this…

The Society takes the view that at least four salient points emerge from these comments:

the actors in Ken Park “present” as children or young persons in an age range targeted by paedophiles (the depiction of young persons masturbating, having unprotected oral sex with an adult etc. are exploitational in the extreme, as noted in public comments by the Commissioner of Children, Roger McClay, Sunday Star Times 6 April 2003 and Radio NZ).

“sex/sexual abuse and violence with young people involved are quite easily the worsts [sic]” aspects of this film in terms of “harmful” content.

as the FVPC Act is concerned about the “dominant effect” of the publication upon adult viewers including paedophiles, sexually violent adults and those with proclivities in these areas of sexual dysfunction; the “harmful parts contained in the film” are of such intensity and “shocking” nature to “many viewers”, that they must be excised to avert injury to the public good.

“the way the film throws viewers rights into the deep” (including those who have been victims of sexual abuse, sexual assault, paedophiles etc.) by its assault on the senses using explicit material listed in s. 3(2) of the FVPC Act, is undeniable, and contrary to the law. It is an abrogation of the rights of adult viewers to be protected from such “objectonable” material for it to not be excised.

Mr David Mason, currently Clinical Manager with a church based social support agency, whose work involves family counseling including extensive experience with teenagers, was also invited by the OFLC to give feedback on the film. The OFLC issued a “Summary of discussion” dated 24 February 2003, which stated:

Mr Mason … did express concern about ‘the potential for copycat behaviour in the practice of autoerotic asphyxiation’.

3. Film Reviews

The ABC News-on-line website (Thursday Sept 5, 2002) reported:

Larry Clark’s film, “Ken Park”, has scandalised Venice with its shocking sex scenes, incest and explicit erotic acts ….

“Among the scenes that have caused the biggest sensation is one of oral sex between a mature woman and an underaged boy, … Il Gazzettino newspaper announced on Wednesday after seeing a preview screening of the film.”

http://www.abc.net.au/news/newsitems/s667411.htm

The Society takes the view that both positive and negative comments can be extracted from reviews on this film. However, it believes that the evidence is overwhelming, based on its extensive analysis of available reviews, that the majority of reviewers (some of whom are sympathetic towards aspects of the film’s contents) are alarmed at the exploitational aspects of its depiction of young persons for sexual purposes, the injury to the public good of the voyeuristic and gratuitous depiction of sexual violence and graphic violence, and the level of promotion and support given to harmful acts involving young persons (eg autoerotic asphyxiation, unprotected oral sex between adults and minors).

4. The definition of “children” and “young persons”.

No definition of “young person” is contained in the FVPC Act. In contrast, the Children Young Persons and Their Families Act 1987 defines “young person” as someone between the age of 14 and 17. The failure to define “young person” in the FVPC Act is significant. The Commissioner for Children Bill (a Government Bill) defines a “child” as being under the age of 18. The United Nations Convention on the Rights of the Child ratified by the NZ Government in 1993 defines a “child” as someone under the age of 18 years. Under Article 34 of the convention, signatory countries undertake to protect children from sexual exploitation. The Board has agreed that “New Zealand legislation should be interpreted in such a way as to ensure that it is complying with this Country’s international obligations” (p. 14 [par. 62] “Bully” decision dated 31 January 2003) and accepted “for the purposes of [the review of the film Bully]… that the definition of young person is someone under the age of 18 years.” It also accepted in this hearing that “the age an actor depicts may be as important as his or her actual chronological age.”

Section 3(2) is aimed at restricting the availability of material that promotes or tends to promote the exploitation of young persons for sexual purposes and it is certainly arguable that the creation of a market for exploitation should also be considered under this section.” [par 63, “Bully” decision]

The provisions of the proposed Prostitution Reform Bill, currently before the House of Representatives, also recognises the rights of children to be protected against the exploitation by adults for sexual purposes and children are defined as those under the age of 18 years. This age definition is accepted by proponents of the Bill with the stated purpose of upholding the definition in the UN Convention cited (above). Various prosecutions have occurred in New Zealand for possession of offensive material where the subject matter included photographs of young people described as being between the age of 3 and 17.

The Court of Appeal in Moonen v Film and Literature Board of Review (CA 238/01) and in particular paragraph 37 of that decision supports the proposition that the lack of a definition of a young person in the FVPC Act 1993 was deliberate. This was to ensure that presentation of the subject was the all-important factor when censors considered the potential “injury to the public good”. (A 21-year old dressed up as a 4th form school child was not acceptable. The OFLC has banned nude pictures of not only young persons under the age of 18 but also those over the age of 18 but dressed as if they were under the age of 18. In these cases no other persons were featured in the pictures).

The omission of an express definition [of the terms “children” and “young person” from the FVPC Act] was deliberate. This is apparent from the scheme of s3 and related provisions. Thus, s3(2) deems a publication to be objectionable if it tends to promote or support the exploitation of children or young persons for sexual purposes, s. 3(3)(a)(iv) is concerned with the depiction of sexual conduct with or by children or young persons, and s3(3)(b) with exploiting the nudity of children or young persons, in each case not expressly defined – but the age group of the persons to whom publication is intended or likely to be made available is identified as a relevant matter under s3(4) – and s23(2)(c)(i) provides for availability of publication to be restricted to persons who have attained a specified age…” [CA. Par. 37. Emphasis added].

As noted in par. 22 of the Court of Appeal decision (CA 238/01):

The Board, and the High Court, focussed on the effect of the publication … in relation to s3(2)(a) [of the FVPC Act 1993]. The sexual activity was, the Board found, depicted … as normal and pleasurable and without consequences .. hav[ing] the effect of encouraging those who might consider engaging in such activities. [Emphasis added]

Summarising the Court of Appeal’s reported decision Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, which remitted the case back to the Board, the High Court in its decision dated 2/10/01 stated: (AP208/00, at par. 15[h]):

[The Court of Appeal ruled that]… the Board should reconsider the book on the correct basis. That involves treating the concepts of promotion and support as concerned with the effect of the publication, not with Mr Moonen’s purpose or intent. The concepts denote an effect which advocates or encourages the prohibited activity. Description and depiction (the words used in s 3(3)(a) of the Act) of a prohibited activity do not of themselves necessarily amount to promotion or of 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 it.” [Emphasis added]

The Board was obviously mindful of the Court of Appeal’s criticisms of its earlier decision in not explaining why it saw the book as promoting the exploitation of children or young persons for sexual purposes and for failing to explain the meaning it gave to the concept of promotion. It explained that its view was that the nine stories in the book:

…depicted sexual activity between men and boys under the age of 16 in such a way as to give the impression that such activity is both normal and pleasurable and without adverse consequences or effects: in other words that the stories would have the effect of encouraging those who might consider engaging in such activities. It was this very apparent normality of the depicted activity which, in the Board’s opinion, brought the book within the terms of the statute. The Board did not consider it necessary to go beyond the plain and ordinary meaning of the words ‘[tend to]’promote or support’ in order to arrive at this conclusion.

The publication deals with matters of sex, crime and violence and therefore passes through three of the five “jurisdictional gateways” set out under s 3(1) of the FVPC Act. In terms of matters of sex, the following activities are “explicitly depicted” as noted by the OFLC decision: “masturbation, cunnilingus, fellatio, and vaginal intercourse… Tate [a teenage boy] is shown masturbating … Masturbation, including the ejaculation, is explicitly shown”.

Some of the characters who engage in the sexual activity present as being aged 16 or 17, although the actors themselves are over the age of 18. In one scene, a younger character engages in sexual activity with an older woman…. [This] scene depicts a teenage boy, Shawn, engaging in sexual activity with Rhonda, an older woman who is his girlfriend’s mother. The woman controls the situation, undoing Shawn’s trousers and kissing his body. She instructs him on what to do, and on what feels good, as he touches her and then performs cunnilingus on her. This is shown quite explicitly … One scene depicts a man attempting to engage in sexual activity with his son.

It is quite disingenuous for the OFLC to claim that the explicit depiction of children (defined as those who “present” as 16 or 17 year olds or younger) engaged in sexual acts is not exploitational of children, on the grounds that “the film clearly exposes such behaviour as being potentially harmful to those involved”. The intention of the film maker may well be to expose the harm, but the effect of such depictions is the focus of s. 3 of the FVPC Act (see quotes from Moonen v Film and Literature Board of Review provided above). The film does have a tendency to promote or support the exploitation of children, or young persons for sexual purposes making it “objectionable” under s. 3(2)(a) of the FVPC Act. As the Cerno psychologists note:

The film could be construed as exploiting young persons for sexual purposes. In addition, the film may be perceived as legitimising sex with young persons … [and] support some of the more common rationalisations (e.g. among paedophiles) that it is appropriate for adults to take a safe ‘sexual education’ role for the younger person. The fact that some of the young actors are portrayed as autonomous and independent individuals in the film may also send messages that young people are in the position to make informed choices about sexual acts with adults.

The OFLC decision admits that the publication “exploits the nudity of young persons to a limited degree” addressing that concern under s3(3)(b) of the Act. “The focus given to the nudity of the characters could be read as exploiting them to a limited extent.” However, the Office argues that this exploitation is justified because:

The film is about exploitation. The film does not exploit the young persons in it.

The Office has failed to understand that the Court of Appeal (Moonen) has ruled that it is how the actors “present” that is fundamental to applying s. 3(2), not their chronological age. Also it has failed to understand that the Court has ruled that it is the effect of the presentation upon the viewer(s) not the intention of the filmmaker that is at issue in applying s. 3(2). A filmmaker may intend to produce a film about the negative impact of paedophile activity on children. However, if his actors present as 16 and 17 year olds, while in reality they are 18, and the effect of the depiction is a tendency to support and promote the legitimacy of paedophilia; then the publication contravenes s. 3(2)(a) of the FVPC Act. His stated intentions are irrelevant to the application of the law. This is exactly the case for “Ken Park”.

The OFLC acknowledges that Cerno “described a number of ways in which the film presented the main characters as being under 18 years, and said the film could be construed as exploiting young persons for sexual purposes.”

The injuries to the public good that Cerno outlined, including the endorsement of “the more common rationalisations … among paedophiles that it is appropriate to take a safe ‘sexual education’ role for the younger person”; undoubtedly impact upon those over 18 years. Paedophiles are predominantly adults – those over the age of 18 years. Limiting this film to adults in the misguided belief that this restriction will prevent injury to the public good is naïve, foolish and illustrates a failure by the OFLC to comprehend the intent of the FVPC Act. Section 3(2)(a) allows for no depictions of children and young persons that may tend to legitimising the sexual exploitation of children or lend support to the committing of acts of harm against young persons or children.

The recent public outcry in New Zealand against an adult female Wellington swimming coach who has had a long-term sexual relationship with a minor (commencing when he was just 13 years of age), and the speed with which the Minister of Justice the Hon. Phil Goff has moved to assure the public that he will deal with this aspect of the law; speaks volumes as to the appropriateness of screening films that sexually exploit minors for the entertainment of adults. Ken Park as the Office of the Commissioner Report states (expanded on by the Commissioner’s public comments on radio) tends to normalise paedophilia (the exploitation of minors by adults) by its gratuitous and explicit presentation of oral sex. This cannot be justified in view of the FVPC Act, on the basis that the director has an important social commentary point to make. The matter could still be powerfully addressed in a balanced and proper manner without the high level of exploitation and voyeuristic depictions of sexual acts involving kids.

As the consultants to the OFLC acknowledged, the publication contains depictions of violence. The strongest depictions involve a teenage boy killing his grandparents while they are sleeping, and the suicide of a boy who shoots himself in the head.

5. Conclusion

The Society is convinced that the OFLC has failed to apply sections 3(2) and 3(3) of the FVPC Act correctly in the classification of Ken Park and has failed to take full account of the serious concerns raised by its own OFLC appointed consultants. The Society seeks the leave of the Secretary of Internal Affairs to appeal the decision of the OFLC with respect to this publication, to the Film and Literature Board of Review. The remedy sought by the Society is:

An urgent independent appraisal of the OFLC decision to examine the legal concerns raised concerning the application of the FVPC Act and drawing upon a wider range of consultants with genuine expertise in the area of the welfare of young people, including the treatment of victims and perpetrators of sexual abuse (including adult paedophiles), and youth suicide experts.

A proper consideration of excisions to the film, allowed for under the Act, to avert the injury to the public good resulting from the film’s tendency to promote and support activities listed in s. 3(2) of the Act, including autoerotic asphyxiation (as acknowledged by consultants).

An urgent examination by the Board of the decision by the Chief Censor to release this film into a festival which has a long history of marketing in a sensationalised lurid manner, (eg. see the film festival brochure for 2002), exploitational films featuring sexual violence and rape (eg Baise Moi, Visitor Q), the exploitation of young persons for sexual purposes (eg Bully), gratuitous depictions of (unprotected) sex acts and sexual promiscuity (The Annabel Chong Story and Sex With Strangers), extreme graphic violence, incest, sex with corpses (necrophilia) and coprophilia (sex involving excrement) (eg. Visitor Q) etc.

ENDNOTES:

1. Application for Waiver of Classification Fees for Festival Purposes, Jan 10, 2003. Signed by Anthony Timpson, Film Director.

2. Dieltz, P. (1989). ‘Television inspired autoerotic asphyxiation’, Journal of Forensic Sciences, 34, 528. Dietz, P., Hazelwood, R., & Burgess A. (1983). Autoerotic fatalities. Lexington, MA: Lexington Books.

3. OFLC decision dated July 2001 Ref. No. 100914. Decisions of the Board No. 1, 20 September 2002, No. 2, 18 October 2002, No. 3, 29 November 2002, and No. 4, 24th March 2003.

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