Man-boy ‘Love’ House file examined by Chief Censor
The Society for the Promotion of Community Standards
P.O. Box 13-683 Johnsonville http://www.spcs.nz
15 April 2005
Man-boy ‘Love’ House file examined by Chief Censor
The Society has made a submission (dated 14 April) to the Chief Censor’s Office on the “pro-paedophile journal” Unbound Vol. 1 No. 4 that was tabled in Parliament on Tuesday the 29th of March 2005 by the Rt. Hon. Winston Peters in the context of allegations he had made (and repeated outside the House) against Mr Jim Peron, owner of Aristotle’s Bookshop and Director of the Institute for Liberal Values. The Society was invited by the Office to make a submission in a letter dated Friday 1 April 2005, written the same day that the Secretary of Internal Affairs, Mr Christopher Blake, submitted the publication to the Office of Film and Literature Classification for classification. He obtained a copy by instructing the Censorship Compliance Unit of the Department of Internal Affairs to secure a copy through the Clerk of the House. Members of the parliamentary press gallery and various MPs and Ministers had been supplied with copies of Unbound (presumably by Mr Peter’s Office) on the day it was tabled in the House.
In a letter dated 4 April 2005 the Chief Censor, Bill Hastings, refused to grant leave to the Society to have the same publication classified following receipt of its letter of application sent by fax to him on 30 March 2005 (a copy of the application was published on Scoop News Website on 31 March 3.47 p.m.). The Society’s completed official application form was faxed to his Office on the 30th AND 31st of March and its receipt confirmed by the Office on Friday 1 April 2005.
The Secretary submitted Unbound for classification AFTER the Society’s application letter and application form had been received by the Chief Censor. The application fee of $25 (a waiver had been applied for in the application of 30 March) was posted by the Society to the Office on 1 April and was received by the Chief Censor on Monday 4 April 2005. On 4 April the Registry Office refunded the fee to the Society and enclosed a copy of a letter from the Chief Censor dated 4 April giving his reasons for not granting the Society leave. In essence he said that the Secretary’s submission of Unbound Vol. 1 No. 4 for classification on Friday 1 April rendered the Society’s application (received on 30 March) obsolete and void because the Office did not receive the Society’s payment until 4 April. He did add: “The Society will be given the opportunity to make a submission on the classification of this publication”.
The Society’s submission dated 14 April (copied below) seeks only to highlight to the Chief Censor the importance of his Office assessing Unbound Vol. 1 No. 4 correctly in terms of s. 3(2) of the Films, Videos and Publications Classification Act 1993. The Society submits that his Office has a statutory duty to correctly assess the tendency of a publication to promote or support activities listed in s. 3(2) of the Act - such as bestiality, necrophilia, and paedophilia - and classify it as “objectionable” simpliciter if does tend to promote or support any of the listed activities.
The Society has called a number of times on the Minister of Internal Affairs, the Hon. George Hawkins, to replace the Chief Censor, his Deputy Ms Nicola McCully and the nine-member Film and Literature Board of Review, for their respective repeated failures to apply s. 3(2) of the Act correctly in classification decisions (most notably the films Baise-Moi, Irreversible and Visitor Q).
In determining whether a publication like “Unbound” deals with “the exploitation of children, or young persons, or both, for sexual purposes” (paedophilia - an activity defined in s. 3(2)(a)); censors must address the question of whether it tends to promote or support the activity. If it does do this then it must be classified “objectionable” simpliciter.
Set out below is the Society’s submission calling on the Classification Office to fulfill its statutory duty. Mr Hastings will be aware that his Office’s classification of Unbound can be appealed to the Board of Review, even if it has been submitted for classification by the Secretary of Internal Affairs. A prima facie case (demonstrating that a review by the Board is warranted) must be established to the Secretary before leave can be granted to an applicant who must also establish to the Secretary’s satisfaction that the application is not frivilous or deliberately vexatious.
Submission to the Office of Film and
14 April 2005
Re: Unbound: Volume 1. No. 4
(Free Forum Books, San Francisco 1987)
s. 3(2) Films, Videos and Publications Classification Act (1993)
1. The Office of Film and Literature Classification (OFLC) is required by this subsection of the Act to consider whether the publication “promotes, or supports, or tends to promote or support” any of the named activities in s 3(2) of the Act. If it determines that it does, it is required by this subsection to classify the publication as “objectionable” simpliciter under s. 23(2)(b) of the Act and has no discretion in that respect.
2. For example, the Classification Office must consider whether or not the publication deals with “the exploitation of children, or young persons, or both, for sexual purposes” an activity defined in s. 3(2)(a). If it finds that it does, it must then make a finding on the question of whether the publication “promotes, or supports, or tends to promote or support” this activity.
3. The Classification Office is required to deal separately with each of the activities it identifies under s. 3(2). Each of the paragraphs under s.3(2) is followed by the word “or”. Each stands alone and must be dealt with independently. A finding that the publication “promotes or supports, OR tends to promote or support” [emphasis added] any one of these activities means that the publication is deemed by the statute to be objectionable.
4. Having determined that the publication deals with the activity defined in s. 3(2)(a), for example, the Classification Office cannot simply make a finding that the publication does not “promote or support” the activity in question, which we can refer to as the higher threshold. It must also make a finding with respect to the lower/stricter threshold, by addressing the question of whether or not it “tends to promote or support” the activity defined in s. 3(2)(a). The word “or” in s. 3(2) makes it clear that a negative finding with respect to the higher threshold (that it does not promote or support …) does not mean that it follows that it cannot at the same time actually tend to promote or support the activity. However, it should be obvious that when a positive finding at the higher threshold (that it does promote and support) is made, it means that there is no statutory requirement to address the issue of tendency to promote and support.
5. With reference to s. 3(2) of the Act, Burrows and Cheer, Media Law in New Zealand, 4th ed, 1999 p.343 state “the threshold is a low one” and refer to certain OFLC decisions and to News Media Ltd v. Film and Literature Board of Review 1997 (4) HINZ 410, 418 as indicative of this strict approach. This judgment was corrected on appeal on the way the Bill of Rights was applied, but the Court’s statements on this matter are not affected.
6. The much lower/stricter threshold required by the words “or tends to promote or support” was recognised by McGechan and Goddard JJ in News Media Ltd v. Film & Literature Board of Review (supra):
“It is clear that s.3(2) creates its own distinct per se regime under which publications are deemed ‘objectionable’ – with no choice in the matter – if the publications promote or support or even tend to promote or support any of the six specified categories. It is a world of its own. If it applies, the more elaborate and general requirements under s.3(1), (3) and (4) do not separately apply.” [emphasis added]
7. Clearly both Judges interpreted s.3(2) of the Act to mean that censors have a statutory duty to determine and address whether or not any of the specific activities from the “six specified categories” listed in that section, are depicted in the publication in such a way as to “tend to promote or support any of the [six] specified categories”. The Judges’ use of the words “or even” emphasises that a negative determination with respect to “promote or support” that omits consideration of the tendency to promote or support, constitutes an error of law.
8. It is submitted that the word “tend” or “tendency” throws a very wide net. The Shorter Oxford Dictionary New Ed 1990 defines “tend” as:
“1 direct a course, move or be inclined to move;
2 be disposed to acquire or come finally to some quality, state or opinion;.
3 lead or conduce to some state, action, or result.”
“1 The fact or quality or tendency to something; a disposition leaning or inclination towards some purpose, object, result etc.
2 Movement towards or in the direction of something.”
9. It would be particularly important for the Classification Office to give proper weight to the word “tend” in a case which is right at the margins of objectionability. This is particularly true because if there is a finding under s.3(2), the Board [and the OFLC] has, as McGechan and Goddard JJ stated, “no choice in the matter”. The Board [and the OFLC] must classify the publication as objectionable.
10. If the Classification Office acknowledges that the extent and manner in which the content dealing with activities defined under s. 3(2)(a) is “extensive throughout the publication”, and/or “is high”, and/or they form a “major part of the publication so the extent and degree of them in Unbound Vol. 1 No 4 is significant” and/or “are lengthy and major parts of the publications”, then clearly it is objectionable simpliciter OR right at the margins. In the latter case it is even more important for the OFLC to pay very careful attention to the word “tend” and ask itself whether, even if the publication did not promote or support the particular activities, it had a tendency to do so.
11. The Classification Office cannot defend any failure to address the matter of tendency to promote and support by simply claiming that it issued its decision by acting in accordance with the correct legal principles (and therefore did not need to address this matter). It must address this issue of tendency to promote or support independently with respect to every activity listed in s. 3(2) that it determines is dealt with in the publication. Any failure to address tendency cannot be defended by merely saying that the public must grant the OFLC the benefit of the doubt that it carried out its statutory duty. It must state its case and the reasons and the grounds for the reasons for its determinations that the publication does or does not tend to promote or support a listed activity..
12. It is submitted that the matters at issue here are of such significance in the overall classification decision that to dismiss or ignore their importance is a failure of statutory duty and constitutes an error in law. It is not acceptable for any Chief Censor or legal counsel to the Board to try and excuse a failure to address this issue by merely saying that the censorship body does not constitute a “counsel of perfection” (to quote the Board of Review’s lawyer, Mr John Oliver). For any Court to accept such reasoning provides the Office (or Board) with far too great a degree of latitude in a foundational area of its decision-making.
13. If there was to be no discernable clear indication whatsoever on the part of the Classification Office as to whether it had actually considered a tendency to promote or support paedophilia in its classification of Unbound, it would then be impossible to discern how it had arrived at any decision it might make to NOT classify it objectionable simpliciter, having identified activities under s. 3(2).
14. Setting up a false antithesis between issues of promotion and support and other imaginative readings of the material, as the OFLC and Board are so prone to do, is a deliberate attempt to evade their respective statutory duties as censors, under the Act. For example the OFLC is quoted [blue highlight] by the Board in para. of the its determination on Visitor Q.
“There are two ways of looking at the material presented. It may promote or tend to promote or support or it could ‘absurdly magnify the moral corruption of individuals and their relationship in Japanese society’. ‘American Psycho’ may speak to New Yorkers in the same way that ‘Visitor Q’ speaks to the Japanese.” [Emphasis added]
15. With respect, this is a blatantly false antithesis. There is no either/or consideration required to be made by the OFLC or Board as set out here, other than that between promote and support OR tendency to promote or support. A film that portrays in an absurdly magnified way the moral corruption of individuals, can still, at the same time, have a tendency to promote or support the activities dealt with and identified as present under s. 3(2). Otherwise the censors would find themselves driven to the absurd conclusion that the more “over the top” and exaggerated way in which a film portrays violence, the exploitation of children for sexual purposes, or pseudo-masochism, the less likely the film is to be caught by s.3(2). (Sadly this is the same absurd reasoning that has been used by the OFLC in its classification of Visitor Q and Baise-Moi). The filmmaker is put in the position that if it depicts any of the activities in s.3(2) in an exaggerated and/or grossly explicit and/or gratuitous way, the film can be said to be satiric and is thereby rendered no longer objectionable.
16. Applying this false antithesis common in many OFLC and Board decisions, consider the following reasoning:
There are two ways of looking at the material presented in Unbound. It may promote or tend to promote or support OR it could absurdly magnify the infliction of violent acts by fathers on their sons, with the morally elevating nature of manboy love relationships (illustrated so poignantly by author Jim Peron recalling his boyhood experiences with loving men). ‘NAMBLA ANAL DELIGHTS’ may speak to practicing homosexuals and lesbians in the same way that ‘Unbound’ speaks to those with proclivities towards and sympathy for intergenerational sex (paedophilia), but who choose to see the cause of “gay” liberation better advanced using non-confrontational erotica-images and rhetoric.”
17. The problem in this reasoning is that the issue before the Classification Office is NOT whether there might be a fanciful and imaginative way the material in Unbound might be read that allows it to be viewed as something other than paedophilia material. Having identified it as dealing with activities that fall within s. 3(2)(a) [paedophilia material] – the only issue is whether or not it promotes or supports OR tends to promote of support “the exploitation of children, or young persons, or both, for sexual purposes”.
18. The promotion of and support for OR tendency to promote/support manboy love relationships can be documented from a text and/or photos and/or moving images. Unbound contains both text and photos. Those in the homosexual community such as the publisher who publicly claim that ‘intellectual’ arguments supporting manboy love are valid and worthy of support, may need to think again.
19. The issue is not whether there might be ‘acceptable’ ways heterosexual or homosexual or transgender or transexual advocates of paedophilia might choose to read the material in Unbound. The issue is whether the material does in fact promote or support paedophilia OR tends to promote or support it. It is the effect of the material on the minds of those for whom it is intended that should be the focus of the censorship body in this case.
20. Unbound is clearly intended to be read by those with an interest in promoting paedophilia. It has been stocked in shops like that run by Mr Jim Peron in San Francisco from 1985-1990 that sold NAMBLA publications and was the subject of a police raid in 1987. The research report available through the Locke Foundation on Unbound Vol. 1 No. 4 has documented the circumstances surrounding its publication and distribution through Mr Jim Peron’s bookshop from 1985 to 1990. This report is submitted as an appendix to the Society’s submission and can be obtained from the internet: