Date: October 2000
Applicant: The AXIS Group
Date: January 2001
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 T00/3332
REASONS FOR THE DECISION
When making classification decisions the Classification Board (the Board) is required to follow the procedure set out ill the Classification (Publications, Films 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 II 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 that: (I) 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 unanimous 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 Videos, material containing consensual sexually explicit activity cannot contain fetishes such as body piercing, application of substances such as candle wax, "golden showers", bondage, spanking or fisting. In the Board's view this film contains depictions of "fetishes such as spanking" which warrant an "RC" classification.
The scenes which warrant the "RC" classification are as follows:
5mins - A male cameraman is holding the camera pointed downwards at his penis, which a seated female is slapping repeatedly. The cameraman is gaining sexual gratification from this act, responding "that's good baby". In the Board's view this constitutes "a fetish such as spanking" as it is made clear that the act is solely for the purpose of sexual gratification and the focal point rather than an incidental by-product of sexual activity and further, that the slaps amount to "spanking".
13mins - A female kneeling in front of a male vigorously slaps his penis a number of times. In the Board's view this again was aimed at sexual gratification, in this instance of the female performing the act and that further, the slaps went beyond mere "taps" or incidental slaps and that as such they constituted "a fetish such as spanking".
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 The Butt Row Series - White Men Can't Iron - Butt Their Putters Sure Work (said to be White Men Can't Iron...on Butt Row).
DECISION AND REASONS FOR DECISION
The Classification Review Board decided to confirm the decision of the Classification Board to classify the film White Men Can't Iron - Butt Their Putters Sure Work RC.
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;
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 on 9-10 November 2000.
4. Matters Taken into Account
In reaching its decision the Review Board had regard to the following:
(a) the applicant's Application for Review
(b) the film White Men Can't Iron - Butt Their Putters Sure - Work
(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.
5.2 The Review Board considered the scenes cited by the Classification Board as leading to an RC classification. These included 5 mins (cameraman holding camera has penis smacked by female partner), and 13 mins (female kneeling in front of male smacks and spits at his penis a number of times).
5.3 The Review Board found that the scene at 5 minutes did not constitute a depiction of a fetish such as spanking, but was rather a depiction of playful smacks as a prelude to other sexual acts.
5.4 However, the Review Board found that the scene at 13 minutes constituted a depiction of a fetish such as spanking.
The recently revised Guidelines for films prohibit depictions of fetishes such as spanking in the X category. Accordingly, the Review Board found that the film should be classified RC Refused Classification.
6. Reasons for the Decision
6.1 The Review Board based its decision to confirm the Classification Board's decision to classify the film "RC" on its content as described in 5.1, 5.2 and 5.4 above
6.2 To aid it in its determination as to whether certain depictions constituted "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 "fetishes" listed in the Guidelines, 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 acts of spanking or smacking 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 5 mins, 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 playful smacks did not contain elements of punishment. As a consequence, the Review Board concluded that the behaviour depicted was that of smacking to promote sexual excitement, and there were no indicators that this was a depiction of "a fetish such as spanking".
6.8 In the scene at 13 mins, the male asks the female to smack his penis. This is followed by a sequence in which the female with an angry look on her face, smacks and spits on his penis in a derogatory fashion and snarls the words "your fuckin'cock".
The Review Board found that the female's actions had sadistic overtones and had a severity and intensity that appeared to contribute to the sexual gratification from the act.
The Review Board therefore took the view that this depiction was one of spanking as there were elements of punishment in the actions. It was also an action from which sexual gratification was gained. The Review Board therefore concluded that this was a depiction of a fetish such as spanking.
6.9 The applicant argued in part, that the Classification Board failed to
(a) take sufficient account of the conventions of adult films which
focus on sexual gratification which does not necessarily constitute fetish
(b) take full account of the wording of the Act and the National Classification Code.
(c) Reasonably apply the Film Classification Guidelines as they relate to depictions of fetish activity.
The Review Board found that these arguments had some validity in the first scene at 5mins, but not in regard to the scene at 13mins.
6.10 The Review Board therefore concluded that as the film contained real depictions of actual sexual activity between consenting adults in a way that is likely to cause offence to a reasonable adult, and also a depiction of a fetish such as spanking, it could not be classified X. It therefore classified the film "RC" Refused Classification.
7.1 The Review Board's decision is to confirm the decision of the Classification Board to classify the film White Men Can't Iron -Butt Their Putters Sure Work "RC."
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.
White Men Can't Iron 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 behavior.
- 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 a man having his penis slapped by a female for sexual pleasure to be seen as the fetishistic act of spanking is bordering on the ridiculous and not a representation of the fetish of spanking recognized by any reasonable adult.
This scene is part of a collection of vignettes by producer Joey Silvera featuring him 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. The cameraman/director Silvera who often engages in smutty colloquial banter with his actresses, is encouraging the female to slap his penis as part of their foreplay, which she does on a number occasions. They engage in consensual sex during this scene, with the slapping of penis being periodically repeated.
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 men having their penis slapped 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 11(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 11(a) no reasonable adult would see this as so offensive in relation to community standards that it should be refused classification.
In respect of S 11 (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.
These adult viewers are also very conversant with the categories within which sexual behaviors 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 and therefore its classification." (My emphasis)
A man having his penis slapped does not constitute and offensive fantasy such as spanking.
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 "White Men Can't Iron...On Butt Row" in no way conveys images, representations, suggestions or incitement to spanking as a fetish activity. It blatantly depicts consenting adults partaking in sexual activity including the brief slapping of a penis as part of this sexual activity for the purposes of sexual gratification but not solely for the purpose of sexual gratification as a focal point as stated in the refusal report. It is instead a perfectly acceptable part of the portrayed sexual process.
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.