A ”sensitive” film about an intersexed teenager, which contains non-explicit sex scenes, is not ”child pornography” — and the law restricting such films fails to make clear distinctions between child porn and legitimate, serious artistic works.
That is what the Out in Africa (OIA) film festival, supported by the Freedom of Expression Institute, was to argue last Friday at the final Film and Publications Board hearing over the latter’s refusal to grant a certificate to the Argentinian drama, XXY.
The film was to have shown at the OIA festival late last year, but the publications board informed the festival a day before it opened that XXY could not be screened.
The board justified its decision by stating that the film could be seen as child pornography because the characters are portrayed as underage (though the actors are not), that the scene of sexual conduct in the film, though not explicit, does not add to the development of the theme and could have been omitted and that the many awards XXY has received internationally are irrelevant.
OIA argues that the artistic merit and serious intentions of the film should be taken into consideration; the board has argued in the past that these do not stop such a film being seen as child porn.
In a 2004 Constitutional Court judgment Chief Justice Pius Langa balanced artistic merit against material that is clearly designed only to titillate.
Under existing law, any depiction of ”sexual conduct” by any characters, real or imagined, who can be seen as underage (even if they are not), is child porn.
The FPB’s former acting chair, Iyavar Chetty, has argued that child porn does not have to be pornographic, in the conventional sense, to qualify as such. In its report on XXY, the board said that in terms of the law ”there seems to be no option” but to designate the film child porn.
OIA will also argue that the board acted in ”an unfairly discriminatory manner” in that many films that are more explicit and deal with underage sex have been passed. Thirteen, for instance, was released with no restriction in South Africa but received an ”R” rating in the United States for drug use, self-destructive violence, language and sexuality. The local board said it was deemed educational for parents of teens.
Other films such as the three films by Larry Clark, Kids, Bully and Ken Park, were released in South Africa, with restrictions. The forthcoming Oscar-winner, The Reader, which shows male-frontal nudity and a great deal of sex between a 15-year-old youth (the actor is 18) and a woman in her 30s, will be released in March with an anticipated maximum 16 restriction. The trailer was given a 13 restriction.
Technically, the definition of child porn that blocked XXY would render it an offence to watch or own copies of such films as Death in Venice, Romeo and Juliet, American Beauty and Lolita.
In its submission OIA says it fully supports laws protecting children, such as those banning genuine child porn. It voluntarily restricts all its festival screenings to over-18s.
The festival says that based on statistical comparisons, there are probably about 1.4-million intersexed people in South Africa. Its application is supported by South African intersexed activist Sally Gross.