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12 July Re Interim Restriction Order


12 July Re Interim Restriction Order

The Society has made an application to the President of the Film and Literature Board of Review, Ms Claudia Elliott, for an Interim Restriction Order with respect to Film "Anatomie De L'Enfer" ("Anatomy of Hell"), scheduled to screen at Telecom sponsored NZ Film Festival directed by Mr Bill Gosden and Mr Anthony Timpson. A copy of the letter of application dated 8 July 2004 is set out below.

Attention:

Ms Claudia Elliott

President

Film & Literature Board of Review

C/- Mr Owen Davie

Board Secretary

Department of Internal Affairs

Wellington

8 July 2004

RE: Application to Board President by Society for Interim Restriction Order with respect to Film "Anatomie De L'Enfer" ("Anatomy of Hell"), scheduled to screen at Telecom sponsored International Film Festival directed by Mr Bill Gosden and Mr Anthony Timpson

Dear Ms Claudia Elliott

Our Society, as an applicant to the Board for a review of the above publication under s. 47 of the Films, Videos, and Publications Classification Act 1993 ("the Act"), is entitled under s. 53(2)(a) to make written submissions to the Board in relation to the review. As such, and under s. 49 of the Act, "... at any time before the review is completed" it is entitled to "apply to the President of the Board for an interim restriction order in respect of the publication to which the review relates, and the President may, if satisfied that it is in the public interest to do so, make such an order accordingly."

The Society has made an application for an interim restriction order with respect to the highly controversial film "Anatomie De L'Enfer" under s. 49 and has been notified that it has until 4.00 p.m. today to make any submissions it wishes to with respect to that application.

The Society wishes to make the following points by way of submission:

1. The Society has received legal advice from its lawyer Mr Peter McKenzie QC that because the Secretary of Internal Affairs has determined that the Society has established a "prima facie" case that a review is warranted and that the application is neither "vexatious" nor "frivilous" ["trivial, needless or unfounded, or so untenable that it could not succeed"] nor "motivated by malice"; then any suggestion(s) to the contrary, by any of the parties to the review, or involved in its application for an order under s. 49, must not be taken into account by the president or Board, or be allowed to prejudice the applicant's cases. The Secretary's findings [in his letter dated 2 July 2004] must be treated in law as matters of fact.

2. The Society has received legal advice that neither the burden of proof nor any onus of responsibility lies with the Society (the applicant) to satisfy the President that it is in the "public interest" to have an interim restriction order granted. To assert that it does lie with the applicant is a serious legal error and any suggestion to this effect by the president will be vigorously challenged by way of a judicial review by the Society.

3. The statutory responsibility of any president is to satisfy herself/himself that it is, or is not, in the "public interest" to make an interim restriction order, after carefully viewing the publication and applying the legal definitions of what constitutes "objectionable" content, and assessing the likely injury to the "public good" (see s. 3(1) of the Act) of the "availability of the publication" to those who are the intended audience in terms of the rating/classification determination.

4. One critical question for the president to determine is: what constitutes the "public interest" in the context of s. 49? The Society's legal advisor points out that the President has a statutory duty to perform, namely to prevent any likelihood of injury to the "public good" - which can occur when corrosive, corrupting and harmful "objectionable" content is classified in a way that it is likely to be accessed by those to whom it should be off-limits, (as a result of a wrong classification in law).

5. The Act sets in place defined boundaries to acceptable content matter and its manner of depiction, description etc. Excision(s) can be required by censors to remove "objectionable" content that transgresses into categories specified in s. 3(2) and/or s. 3(3) of the Act.

Points regarding the content of "Anatomie De L'Enfer"

6. The depiction of three prepubescent boys who explore the vagina of a little girl, constitutes content that comes within s. 3(2)(a); s. 3(2)(a)(ii); s. 3(2) (a)(iv) and s(3)(2)(b) of the Act. Explicit depiction of the sexual abuse of children is exploitative by definition. No Board president, properly fulfilling her/his statutory role, can turn a blind eye to objectionable content of this nature.

7. The Society has forwarded details of this content matter (in 6) to the Commissioner of Children, ECPAC (a national lobby group concerned with the exploitation of children for sexual purposes), VoTE, the Head of CYP, the leaders of the main political parties and civic leaders. The effect of these depictions is to advance the view that film-makers are somehow entitled to use children as subjects in explicit sex acts, provided adults can provide some intellectual rationale justifying good intention, e.g. to advance a theme or explore a causative factor in behaviour, etc. The sexual exploitation of children in this manner cannot be justified under any circumstance.

8. The above groups and agencies have been informed that the film the President of the Board is viewing, based on Catherine Breuillat's recent book "Pornocratie", contains what reviewers have described as "ultra-explicit" and "revolting scenes" covering aspects of female sex and sexual functions – the effect is the degrading of women.

9. The film opens with a close-up of a young man slowly sucking another man's penis among trashcans in a black alley. For four days a woman hating homosexual (a misogynist) - played by an Italian hard-core porn star Rocco Siffredi – is payed by a beautiful woman (played by Amira Casar) he meets, to watch her perform sex acts over four consecutive nights. One of many demeaning things he does to her is to insert a rake up her anus while she is sleeping - a real turn-on for this sick homosexual misogynist. As Saul Symmonds writes in his critical review "The man doesn't only watch, he touches too, sticking fingers and rods and large rocks up her anus and vagina, staring at and smelling and tasting the blood that she secretes. After having vaginal intercourse with her, she gushes her menstrual blood onto his penis and groin area. The woman dissolves her bloody tampon in a glass of wate

10. The Weekend Australian (26 June 2004) reports:

"There is little to commend in Anatomy of Hell as a piece of film-making. Pretentious, dull and repellent in roughly equal portions the film's chief virtue is its extreme brevity (at 74 mins.). Low points, too many to enumerate".

There is nothing in the aspects film-making that might be considered to counterbalance the highly "objectionable" content that is depicted throughout.

11. The publication is highly degrading, demeaning and dehumanising to women in its revolting treatment of sexual matters and it content comes within s. 3(2)(a) (iii) & s. 3(2)(c) of the Act. The director has stated publicly that its dominant effect is to "repulse", "revolt" and "shock" in its treatment of sexual matters, (in a manner that is injurious to the public good.)

12. The high degree to which it degrades men in general comes from the theme and message that all are afflicted with the same misogynous tendencies as the homosexual character played by Rocco Siffredi. It advances a thesis concerning members of particular class of society, both males and females, that is deeply offensive, respectfully, to them both, thereby contravening s. 3(3)(e) of the Act.

The Intentions of Parliament

13. The clear intention of parliament as embodied in s. 3 of the Act is to require censors to make excisions to "objectionable" content that falls within s. 3(2) and/or alternatively falls within s. 3(3). The portrayal of the sexual abuse of children by children or adults, explicitly portrayed, is banned under the Classification Act. Focusing on the academic question as to whether such portrayals "promote or support, or tend to promote or support" (s. 3[2]), the activity misses the point. There is no leeway for "freedom of expression" 'justifications' when children are so maliciously and callously exploited as in this film.

The Function of an Interim Restriction Order.

14. The Society views its task of seeking an order in this case as the only socially responsible action open to it under current law. The Society has not exploited the law as its misguided detractors have claimed in the past, but has merely used avenues open to it that were deliberately created [in law] by the government for such a situation. It is the president of the Board whose decision should be under the spotlight by the public, not the Society's decision to raise an alarm. There is no question in our minds that an order is called for so the Board can assess the film properly, before the proverbial horse has bolted from the stable and done its damage.

Burden of proof

15. The decision of the president regarding the granting or otherwise of an order under s. 49 is open to judicial review. (Two of this presidents' decisions have been the subject of reviews to the High Court by the Society, which won both cases). The Society intends to pursue this if there is any hint whatsoever in the president's report, that it has somehow failed to justify the imposition of an order under s. 49.

The relevant issue

16. Matters of inconvenience, financial loss, timing of application, how many times the applicant has viewed the film etc, pale into insignificance, relative to the fundamental question for the president: Is there any likelihood that this publication could injure the public good, and if so what remedy will prevent this, (e.g. by way of excisions, higher rating, banning etc)? This is the question for the president to address.

17. The Society is particularly concerned about the large numbers of young people close to 18 years of age that are drawn to objectionable films like this one. We hope that the president will consider the impact of the material depicted in this film on minds of those that are still very impressionable at this age. It goes without saying that all those with proclivities to sexual deviancy and criminal intent towards vulnerable women in our society would be drawn to a depraved film like this one. The Board president cannot ignore the degrading impact this film could make on such individuals.

18. Finally and with respect, the Society notes that s. 49{2) of the Act requires the president to have this application for interim restriction order "dealt with as soon as practicable".

We look forward to your carefully considered response.

Yours sincerely

SPCS National Executive

Acknowledgments

The Society is grateful for the assistance of expert advisors and Society members in Australia and the friendly and supportive role of the Information Unit of the Office of Film and Literature Classification in Wellington. It acknowledges the very difficult task that the President and Board faces having to watch degrading and offensive films like "Anatomie De L'Enfer" that are an affront to societal standards of decency and human dignity.

Copied to individuals and organisations listed in point 7 above and others.

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