By Elizabeth Beal, Former Arts Law Supervising Legal Officer, with assistance from Gulley Shimeld and Claire Featherston.
As first published in ART+law July 2002
Recent police closure of the sexually explicit French film Baise Moi and the ensuing community debate remind us of the severity of censorship and importance of sensible classification regimes within society. The Classification Review Board's decision to refuse classification to the film Baise Moi has sparked debate sufficient to host a lively forum at the recent Sydney Film Festival.
Baise Moi is a French film about two women (a young rape victim and a sex worker) who embark on a sex and violence rampage as they attempt to deal with the violence and humiliation to which they have been habitually subjected¹. The film was initially classified as R18+ by the Office of Literature and Film Classification ("OFLC"). However, a request to review its classification was lodged by Federal Attorney General, Daryl Williams, which resulted in the OFLC Review Board reclassifying the film as RC, i.e. refused classification. This has the effect of placing a ban on the film.
When the film was first submitted for classification, the OFLC Classification Board gave Baise Moi an R18+ classification based on its determination that:
- The general rule provides the Board with discretion in certain limited instances to permit explicit depictions of sexual activity within an educational or artistic context within the R18+ classification;
- The impact of the violence and depictions of actual sexual activity is mitigated by its artistic merit and serious cultural purpose;
- The film has been released internationally and is already well-heralded to prospective viewers, it is intellectually challenging, it is a foreign language film and is not likely to have wide public appeal in Australia;
- The depictions of actual sex in the latter part of the film are in line with other films such as Romance which have generally been accepted by the public; and
- A film that can polarise people such that there is no clear agreement on the film?s offensiveness or effect deserves to be viewed by the widest possible audience.²
The Board specifically considered the requirements for an RC classification and determined that:
"In the majority of the Board's view this film does not deal with matters of sex and violence in such a way that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should be refused classification."
However, the OFLC Review Board disagreed with the Classification Board's reasoning. According to the Review Board, Baise Moi violates the OFLC's guidelines for the R18+ classification. It said that, "whilst acknowledging the film has artistic merit, the Review Board did not consider its 'serious cultural purpose' was sufficient to warrant a classification except 'RC'."³
How does the Classification System Operate?
Classification systems generally profess to balance the demands and needs of society against an adult individual's right to think, express and see what they choose. In Australia the Classification (Publications, Films and Computer Games) Act 1995 ("the Classification Act") provides for the establishment of the National Classification Code ("the Code"). The Code contains general principles, which form the basis of the Classification Guidelines ("the Guidelines").
The Classification Guidelines
The Guidelines require that films and videotapes, whether they are locally made or come from overseas, have to be classified before they can be sold, hired or shown publicly in Australia. Classification is done by the OFLC Classification Board. The Guidelines provide detailed information on the different classification categories and also set out specific descriptions of the content which, for example, may result in a film or video being refused classification.
When making its classification decisions the Classification Board is required to reflect contemporary community standards and must apply criteria, which are set out in the Code.
National Classification Code
The Code states that:
"Classification decisions are to give effect, as far as possible, to the following principles:
- Adults should be able to read, hear and see what they want;
- Minors should be protected from material likely to harm or disturb them;
- Everyone should be protected from exposure to unsolicited material that they find offensive; and
- The need to take account of community concerns about:
- Depictions that condone or incite violence, particularly sexual violence; and
- The portrayal of persons in a demeaning manner."
How does this apply to Baise Moi?
Under the Guidelines, material that will result in a film being refused classification includes "gratuitous, exploitative or offensive depictions of ...violence with a high degree of impact or which are excessively frequent prolonged or detailed; cruelty or real violence which are very detailed or which have a high impact; and sexual violence ...".
Additionally, section 11 of the Classification Act also requires that:
"The matters to be taken into account in making a decision on the classification of a film include:
- the standards of morality, decency and propriety generally accepted by reasonable adults; and
- the literary, artistic or educational merit (if any) of the film; and
- the general character of the film; and
- the persons or class of persons to or amongst whom it is published or is intended or likely to be published."
To assist in classification determinations, the Guidelines provide the following definitions:
"Excessive: Treatment, which exceeds reasonable limits, especially in terms of detail, duration, or frequency.
Gratuitous: Material which is unwarranted or uncalled for, and included without justification of a defensible story-line or artistic merit.
Reasonable Adult: Possessing common sense and an open mind, and able to balance personal opinion with generally accepted community standards.
Sexual Violence: The act of sexual assault or aggression in which the victim does not consent.
Treatment: In a realistic treatment the material appears real to the viewer. It may be close to real life, and feel authentic."
The OFLC Review Board referred to the violence and explicit sexual content as justification to grant Baise Moi the RC classification. It "formed the view that the inclusion of detailed and prolonged scenes of sexual violence which included actual sex, and the combination of sex and violence, meant that the film fell outside what was considered generally acceptable by reasonable adults."
The Review Board also found that, when considering the principle that adults should be able to see, hear and read what they want, "the Code's explicit statement of concern regarding sexual violence and the extensive nature of such sexual violence in the film would override the principle in this instance".
This lead to the view that "despite significant cultural merit found in the film ... the general character of the film, its artistic merit and any educational value it might have was not such as to justify a classification except RC."
What now?
The Baise Moi classification decision is of interest to Arts Law, in particular, the following determinations made by the Review Board:
- that the film fell outside what was considered generally acceptable
- that despite having significant cultural merit, the film did not justify classification, i.e. being permitted to be seen
- that the Code's explicit statement of concern regarding sexual violence overrode the principle that adults should be able to see hear and read what they like.
There is very little guidance either in the published reasons, or forthcoming from the Convenor of the Review Board under questioning at the recent Sydney Film Festival forum on the decision, as to how these determinations were arrived at. Because each determination that makes up the ultimate decision falls on the side of conservatism, Arts Law is of the opinion that the net result restricts artistic expression. Arts Law supports an adjunct to the principle that adults should be able to see hear and read what they want, being that artists have the right to have their work seen, heard or read.
¹ Synopsis taken from the Classification Board Report
² Summarised from the decision of the Classification Board
³ Reasons for decision, Classification Review Board, 19 June 2002
Classification and Description of films
RC 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 and propriety generally accepted by reasonable adults to the extent that they should not be classified; or (b) depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 (whether the person is engaged in sexual activity or not); or (c) promote, incite or instruct in matters of crime or violence.
X Films (except RC films) that: (a) contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualized 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.
R Films (except RC and X films) that are unsuitable for a minor to see.
MA Films (except RC, X and R films) that depict, express or otherwise deal with sex,violence or coarse language in such a manner as to be unsuitable for viewing by persons under 15.
M Films (except RC, X, R and MA Films) that cannot be recommended for viewing by persons who are under 15.
PG Films (except RC, R, X, MA and M films) that cannot be recommended for viewing by persons who are under 15 without the guidance of their parents or guardians.
G All other films.
