Date: October 2000
Applicant: The AXIS Group
Date: January 2001
Rating: X18+ (Contains real depictions of actual sexual activity)
Applicant: AXIS (A Division of Adultshop.com)
Comment: Review Board Appeal
In September 2000, stricter guidelines were introduced for the X18+ rating. This resulted in confusion between the OFLC and distributors as to what was now permitted. In November 2000, as a way of clarifying the new standards, appeals against nine RC-ratings were made to the Classification Review Board.
The titles and outcomes were:
Board Report T00/2910
REASONS FOR THE DECISION:
When making classification decisions the Classification Board (the Board) is required to follow the procedure set out in the Classification (Publications. Film and Computer Games) Act 1995 (the Act). The Board is also required to apply the National Classification Code and the Classification Guidelines, while taking into account the matters set out in section 11 of the Act. In arriving at this decision the Classification Board assessed the film in accordance with the statutory requirements set out in the Act.
The National Classification Code (the Code) states in the Films Table
(1) Films that:
(a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty. violence Or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency or propriety generally accepted by reasonable adults to the extent that they should not be classified are to be classified 'RC'.
In the Board's majority opinion under Section 1 (a) of the Film Table in the Classification Act this film deals with matters of sex in a way that offends against the standards of morality, decency and propriety generally accepted by reasonable adults.
Under the Guidelines for the Classification of Films and Videotapes, films containing consensual sexually explicit activity cannot contain "fetishes such as.....spanking". In the Boards opinion depictions of "fetishes such as .spanking'' occur at the following times:
1, 2mins - The camera focuses on a female wearing white briefs who puts her hand on her genital area and calls it her "monkey". The male cameraman tells her "spank 'your monkey, spank it" in reply to which she slaps her vaginal area repeatedly.
2- 3mins - A female says "spank me", a male spanks once on her buttocks and she exclaims "ow!", He than spanks a second time.
3- 7mins. A male tells a female "spank your pussy" after which she spanks herself several times.
9, 10, 17 NOVEMBER 2000
23-33 MARY STREET
SURRY HILLS NSW:
8 DECEMBER 2000 (BY TELECONFERENCE)
PRESENT: Ms Barbara Biggins (Convenor)
Mr Jonathan O'Dea (Deputy Convenor)
Ms Glenda Banks
Ms Joan Yardley
Ms Robin Harvey
Mr Ross Tzannes
APPLICANT: AXIS, a division of Adultshop.com Limited
BUSINESS: To review the decision of the Classification Board to assign the classification RC (Refused Classification) under the Classification (Publications, Films and Computer Games) Act 1995 to the film Butt Row Pink Hotel (said to be Pink Hotel on Butt Row).
DECISION AND REASONS FOR DECISION
The Classification Review Board decided to set aside the decision of the Classification Board, and to classify the film Butt Row Pink Hotel X18+ with the consumer advice "contains real depictions of actual sexual activity".
2. Legislative Provisions
The Classification (Publications, Films and Computer Games) Act 1995 (the Act) governs the classification of films and the review of classification decisions. The Act provides that films be classified in accordance with the National Classification Code and the classification guidelines. Relevantly, the National Classification Code (the Code) in paragraph 1. of the Table under the heading "Films" provides that films that "depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified" should be classified "RC."
Further, the Code provides that films that
a) contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaultive language, or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers, in a way that is likely to cause offence to a reasonable adult; and
b) are unsuitable for a minor to see
may be classified "X".
In addition, the Guidelines for the classification of films and videotapes (Amendment No.3, 18 September 2000) provide, in part that, "No depiction of violence, sexual violence, sexualised violence or coercion is allowed in the category. It does not allow sexually assaultive language. Nor does it allow consensual depictions, which purposefully demean anyone involved in that activity for the enjoyment of viewers. Fetishes such as body piercing, application of substances such as candle wax, "golden showers", bondage, spanking or fisting are not permitted.
3.1 Four members of the Review Board viewed the film at its meeting of 9-10, 17th November 2000.
4. Matters Taken into Account
In reaching its decision the Board of Review had regard to the following:
(a) the applicant's Application for Review
(b) the film Butt Row Pink Hotel
(c) written and oral arguments made by Ms Elvis Caneers-Barnes and Mr John Davey on behalf of the applicant
(d) the relevant provisions in the Act
(e) the relevant provisions in the National Classification Code as amended in accordance with section 6 of the Act and endorsed by Censorship Ministers
(f) the current Classification Guidelines for the classification of Films and Videotapes determined under section 12 of the Act.
5. Findings on material questions of fact
5.1 The film contains a series of unrelated scenarios containing real depictions of actual sexual activity between consenting adults.
5.2 The Review Board considered the scenes cited by the Classification Board as leading to an RC classification. These were at 2 minutes, 3 minutes and 7 minutes. At 2 and 7 mins, the female is instructed to spank her monkey (or pussy) and does so with a few light smacks. At 3 minutes, the female is smacked once on the buttocks and exclaims. This is followed by a further smack.
5.3 The Review Board found that none of the three scenes contained a depiction of a fetish such as spanking. The Review Board found that the film contained real depictions of sexual activity and was appropriately classified X 18+.
6. Reasons for the Decision
6.1 The Review Board based its decision to classify the film X18+ with the consumer advice "contains real depictions of actual sexual activity" on its content as described in 5.1 to 5.3 above.
6.2 To assist it in its task of determining whether the scenes cited above in 5.2 constituted depictions of a fetish such as spanking, the Review Board examined the intent of the Code and Guidelines in this regard.
6.3 The Review Board found that while some of these "fetishes" such as the application of candlewax, golden showers, bondage and fisting can be fairly easily recognised, the same cannot be said of "fetishes such as spanking". The Review Board saw a potential distinction between individual acts of spanking and "a fetish such as spanking".
6.4 The definition in the glossary to the Guidelines provides that a fetish is "an object, an action, or a non sexual part of the body which gives sexual gratification". This definition also gives rise to problems of interpretation, viz there are many actions which give sexual gratification but which would not usually be deemed to be "fetishes"- such as kissing, and playful slapping or smacking.
6.5 The Review Board looked at the Macquarie Dictionary (3rd ed.) for a definition of 'spanking". It found that "spanking" means to strike (quickly and vigorously) with an open hand as a punishment. "Smacking" is to strike smartly or forcibly with an open hand, or a smart resounding blow.
6.6 The Review Board found that a common characteristic of the list of "fetishes such as " in the Guidelines, and which arise from the Code, was that these either demean, or cause harm or pain, in a sexual context, and for sexual gratification.
6.7 Using this analysis, the Review Board observed that the depiction at 2 minutes contained no elements of a portrayal that was demeaning to the participants for the enjoyment of viewers (in the sense used in the Code and Guidelines). Further, the few soft smacks on the perineum did not contain elements of punishment. As a consequence, the majority of the Review Board concluded that the behaviour depicted was that of soft smacking to promote sexual excitement, and that there were no indicators that this was a depiction of "a fetish such as spanking".
6.8 Further, in the scene at 3 minutes, the woman invites the man to give her a smack, responding with an exclamation when he does. In the opinion of the Review Board, there are no elements of punishment, or of a demeaning portrayal. Consequently the Review Board concluded that this did not constitute a depiction of a fetish such as spanking.
6.9 In the scene at 7 minutes, the woman masturbates and pats her perineum, and in response to the male telling her to "spank your pussy", does so again. In the opinion of the Review Board there were no elements of punishment, nor of demeaning portrayals. The actions were considered to be part of the consensual sex play which both were enjoying. The Review Board concluded that the depiction did not constitute a fetish such as spanking.
6.10 The applicant argued that the Classification Board failed to
(a) take sufficient account of the conventions of adult films that focus on sexual gratification which does not necessarily constitute fetish behaviour.
(b) recognise the use of colloquial vernacular language in relation to the unacceptable activity depiction
(c) take full account of the wording and intent of the Act and the National Classification Code
(d) reasonably apply the Film Classification Guidelines as they relate to depictions of fetish activity.
6.11 The Review Board found that the applicant's arguments had some validity.
6.12 The Review Board concluded that as the film contained real depictions of actual sexual activity between consenting adults, in a way that that is likely to cause offence to a reasonable adult, the film was appropriately classified "X18+". The Review Board's decision to apply the consumer advice line of "Contains real depictions of actual sexual activity" is made having regard to the content as described in 5.1.
7.1 The Review Board's decision is to classify the film Butt Row Pink Hotel "X18+" with the consumer advice "contains real depictions of actual sexual activity".
This decision is taken after full consideration of the applicant's submission, and after assessing the film as a whole against the relevant legislative criteria, including those contained in the Code, and in the current Classification Guidelines for Films and Videotapes determined under Section 12 of the Act.
PINK HOTEL ON BUTT ROW
DIR: Joey Silvera
Grounds for Appeal
This appeal is against the decision of the Film Censorship Board to refuse to classify the above named film. The grounds for the appeal are that the decision makers:
- did not take sufficient account of the tenets of adult films i.e. - the focus is inherently sexual gratification, this does not necessarily constitute fetish behaviour.
- Failed to recognize the use of colloquial vernacular in relation to the refused activity.
-failed to take full account of the wording and intent of the;
Classification Act and, in particular, of the Code attached to the legislation as a schedule; and
- did not reasonably apply the film classification guidelines as they relate to depictions of fetish activity with reference to the incident cited clearly not reflecting the intensity and specific nature of the fetishist.
In our opinion the film is not so offensive that it falls into the Refused Classification category, and should be given an X classification. It does not offend, in our view, against the stricture that X films should not contain depictions of fetishes "such as spanking" and that the inclusion of the phrase "spank your monkey" with specific reference to previous dialogue, as well as other slapping incidents do not constitute spanking as an offensive fetish such as spanking.
This scene is part of a collection of vignettes featuring producer/ director Joey Silvera and a variety of women in sexual situations unrelated to any fetish activity. They are portraying consenting adults engaged in sex that while leaving the safe boundaries of the missionary position, stray not too far from the known permutations of straightforward intercourse and sexual fore, during and after play.
Silvera who often engages in smutty colloquial banter with his actresses, is encouraging the female to "spank her monkey" the monkey referring to her previously articulated statement the her vagina is called "monkey".
A spank/slap is very different from "spanking" which involves a discourse of power, punishment reform and ritual on the part of the participants. Those familiar with Silvera's work, who frequently includes light buttock, penis, thigh and vagina slapping as part of his foreplay, will recognize this vignette as being very in keeping with the standard fare he produces, aimed at a straight non fetish market.
Factors supporting the appeal
The nature of the film
The film is essentially in the genre of many American adult films, a series of
vignettes which are occasionally themed or have a scant plot, and after a premise has been established, revert to sex for the duration of the scene. As an entity, this film is light-hearted and spiritedly sexual, Joey Silvera the director/producer has a particular style about his work that reveres the female form and tends to celebrate it rather than demean or abuse it.
To align what amounts to a convention of foreplay in this video is to
completely ignore the tenets of fetishism and spanking referred to in one
academic definition as "The term "spanking" refers to open palm, on the
bottom, over-the knee chastisement and punishment"
There is no reference throughout the litany of reference material available documenting various fetishes to the slapping of body parts as part of this fetish or such like.
The Act and the Classification Code
The Classification (Publications, Films and Computer Games) Act 1995, Section 9, requires that films are to be classified in accordance with the Code and the classification guidelines.
Section II (a) and (d) of the Act requires the classifier, in making a decision, to take account of:
(a) the standards of morality, decency, and propriety generally accepted by reasonable adults;
(d) the persons or class of persons to or amongst whom it is published or is intended or is likely to be published.
We are of the view that, in respect of S ll (a) no reasonable adult would see this as offensive in relation to community standards that it should be refused classification.
In respect of S ll (d) people who view this film will be well aware of the conventions attaching to sex films, particularly their function as specifically for sexual gratification, including the forms of a narrative or plot based work as well as realistically styled vignettes.
While the inclusion of fetishes are a new inclusion to the guidelines, there is no recognizable or available benchmark for what actually constitutes spanking as a fetish. The definition of a fetish in the guidelines is listed as
"Fetish- an object, an action, or a non sexual part of the body which gives sexual gratification
This is so broad a definition as to cover nearly all activities contained within adult films. A sexual fetish can be more narrowly defined as a singularly sexually focused activity which is specifically performed to a target audience who use these visual signifiers as an integral part of their sexual enjoyment.
Fetish videos are specifically marketed and crafted to appeal and serve the user group that defines them. The scene referred to in this video does in no way constitute a fetish scene. There is a very distinct difference between the slapping / spanking of a body part during sex, even if it is repeated more than once and a; fetish 'such as spanking'.
These adult viewers are also very conversant with the categories within which sexual behaviours are classes and sold to the general public, which on the whole does not include fetishist styled inclusions to these mainstream titles.
The National Classification Code (Amendment No.2) requires that:
Classification decisions are to give effect, as far as possible, to the following principles:
(a) the standards of morality, decency, and propriety generally accepted by reasonable adults,'
(d) the need to take account of community concerns about:
(h) sexual activity accompanied by fetishes or practices which are offensive or abhorrent
We are of the view that an X classification for this film would give
effect to these principles.
(N .B. We believe that principles (b) and (c) are satisfied in this case by the restricted category into which the material is likely to fall.)
The Code further states within Amendment No 3 the following definition of the classification process with regard to this matter:
"The board makes classification decisions based on the impact of individual elements and their cumulative effect. The content and treatment of such elements contributes to the impact. The board takes into account factors such as tone, duration, frequency and the amount of visual or verbal detail. The relationship of classifiable elements to the narrative also contributes to the impact of a film and therefore its classification. "(My emphasis)
The depictions of slapping/spanking in this title and the accompanying dialogue in no way constitute the fetish of spanking or any related 'such as' categories.
Application of the classification guidelines
The guidelines for REFUSED CLASSIFICATION films, specifically the phraseology relating to the refusal of classification due to depictions of violence, state titles will be refused if they contain:
"Fetishes such as spanking"
In our view the Classification Board did not reasonably apply the film classification guidelines as they relate to depictions of fetish activity specifically spanking.
In conclusion we would reiterate most emphatically that the film
To suggest that Joey Silvera asking the female to "Spank her monkey" is part of a greater narrative on spanking is so laughable as to make a complete mockery of the classification process in trying to unclassify offensive titles. As an industry great investment is being made to comply with the guidelines with little in the way of actual benchmarks or definitions, with severe financial detriment to the industry. '
The film therefore fits into the X classification as specified in the guidelines. We can only add to this conclusion that the board is urgently in need of an understanding of the very significant differences between slapping during consensual penetrative sex as a convention of sexual play and the very specific and ritualized detail in fetishes such as spanking.