all eyes on the ruling about intersex film

By Mongezi Mhlongo (BTM Reporter)

SOUTH AFRICA – 06 March 2009: Out In Africa (OIA) is awaiting judgment on the case where the Film and Publications Board (FPB) forbade OIA from screening the award winning film XXY, during the opening of the 2008 Gay and Lesbian Film Festival, saying that it contained child pornography.

OIA appealed after the FPB declined to issue certification for the screening of the film on the grounds that it contained scenes of child pornography as defined in the Film and Publications Act 65 of 1996.

The Act describes child pornography as “Any image, however created or any description of a person, real or simulated who is or described as being under the age of 18, engaged in sexual conduct, participating in, or assisting another person to participate in, sexual conduct, showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation.”

FPB also instructed OIA to surrender all copies of the film in the country to the South African Police Service (SAPS) where they will be destroyed with immediate effect.

The board argued that the film could be seen as child pornography because the characters portrayed are underage and some scenes contain sexual conduct.

However, OIA says even though the scene in question portrayed characters under the age of 18, the actors were both over 20 when the film was made.

On 27 February, OIA, represented by the Freedom of Expression Institute (FXI) and Advocate Steven Budlender, presented its case to a quorum of the review board maintaining that the film does not constitute child pornography and nor does it intend to exploit or degrade children.

OIA argued that the case of Tasco Luc De Reuck vs Director of Public prosecutions gives meaning to and clarification in respect of the definition of child pornography as contained in the current act and its predecessor.

“In essence what the Constitutional Court held in de Reuck was that the question as to whether the material constitutes child pornography must be judged in context, and that in order for it to qualify as child pornography, the material must stimulate erotic as opposed to aesthetic feelings.”

It was OIA’s contention that if viewed within context and in light of the fact, the scene in question does not stimulate erotic feelings and therefore does not qualify as child pornography.

“XXY is an award winning film dealing with the emotional and physical trauma faced by intersex persons, their families and friends. It is by all accounts, a serious and tragic drama, finely and sensitively produced, a work of great artistic merit and deals with the issues in coherent and sensitive way”, OIA declared. 

On the other hand, the FPB’s contention is that the definition in the Act is exhaustive and must be strictly interpreted as any depiction of sexual activity by a person or persons under the age of 18, consensual or otherwise and despite the fact that actors in the scene are over the age of 18.

FPB even went as far as disputing the correctness of the decision by the Constitutional Court on De Reuck’s case saying that the decision does no apply to the current definition of child pornography.