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The Family Update On-line
Family Update is the regular publication of the Australian Family Association.
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Family Update - April-May 2007 Vol.22 No.1 2007
Download as a PDF
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Push to mainstream pornography in Australia
Many readers may recall the community and
political debates about the appropriate regulatory
and classification response to pornography that
took place during the 1980s and 90s in Australia.
Incorporated into Australia’s Classification Scheme
in 1984, the X classification was wrestled into its
current liberal formulation over nearly 20 years of
political wrangling and heated community debate.
Throughout that time large numbers of politicians
from across the political spectrum, and a range of
community groups advocating for the interests of
women, children and the traditional family raised
serious concerns about pornography. Whilst many
pushed for a complete ban on any explicit or real
depictions of sex, the federal government has
assumed that the majority of Australians wanted a
liberal censorship regime for this type of content.
However, the mixing of violence and themes of
degradation with explicit sex have been an ongoing
flashpoint in this heated debate. Essentially our
political leaders have wrestled with the question
of how to create a liberal censorship regime whilst
also employing just enough regulation to keep these
nastier elements of the genre out in an X category.
The States, including a number of Labor
Governments, perhaps less confident that such
a liberal regime would work in practice, elected
not to allow the sale or public exhibition of such
X classified films within their borders. However,
State laws say nothing about the possession of such
content and there has been a roaring and legal
trade across Australia in X rated films through sales
outlets in the Australian Capital Territory and the
Northern Territory.
For more than 20 years now, any Australian adult has
been easily able to purchase these films and many
do. Indeed, one major Industry player, Adultshop.
com boasts of its capacity to provide discrete next
business day delivery from its ACT warehouse to
most parts of Australia with the ease of just one
phone call or a quick online purchase.
However, the porn industry has continually chafed
against the restrictions placed on the content of such
films and also their sale. The Eros Foundation and
other industry players and advocates have regularly
sought a relaxation of the regulatory framework
and have attacked the continuing refusal of State
Governments to enter into the regulation of the sale
of X rated films.
Last year Adultshop.com began orchestrating a
legal challenge to the X Classification with its film
“Viva Erotica”. This film was made to order for
the Applicant for the purpose of running this legal
challenge. They requested from a US Pornographic
Film production company, a smorgasbord of scenes
from which they carefully chose a selection that best
represents the range and the limits of the content
allowable under the Classification Scheme and
the X Category. The Production Company then put
the scenes together to constitute Viva Erotica and
Adultshop.com submitted it to the Office of Film
and Literature Classification.
Meanwhile, the Applicant commissioned an AC
Nielson Online Poll of adults and began widely
publicising the results in September and October.
When the expected X Classification was given to
the film late last year, Adultshop.com lodged an
Appeal with the Classification Review Board. The
Australian Family Association and the Council for
Civil Liberties made submissions to the Review
Board on the matter. Adultshop.com argued that
their opinion polls showed that ordinary Australians
no longer found such films offensive and therefore
the film ought to be classified R. When the Review
Board rejected the Appeal, Adultshop.com then
began an Appeal to the Federal Court challenging
the X classification and calling for a removal of the
current restrictions on porn.
The Australian Family Association will seek to
appear as amicus curiae (a friend of the court) to
make submissions on the broader implications of
the matter and at this stage it is not anticipated
that there will be any objection from the parties,
Adultshop.com and the respondent, the Federal
Attorney-General.
The history of the changing formulation of the
X Classification provisions in the Classification
legislation is reflective of ongoing and substantial
community concern about keeping “non-violent”
pornography separate from any violent or coercive
content. A range of groups from across the political
spectrum voiced these concerns and included
feminists, conservatives, and members of all the
main political parties. Senator Brian Harradine
earned the undying enmity of the Eros Foundation
for his leadership on this issue.
Another key driver of the debate was the need to
protect children and adolescents who could be
harmed by the material and also adults who may
find the material offensive or disturbing.
But the provision of the X category, from the
beginning, reflected an assumption at the political
level that the majority of Australians were not
particularly offended by explicit and nonviolent
depictions of actual sex. An insistence on
Australians’ freedom to consume whatever media
took their fancy has also been a key foundational
assumption so that only extreme and obviously
injurious pornography involving children, coercion
or sexualised violence has been allowed to
constitute a limit on this freedom. The questionable
assumption that depictions of so-called “nonviolent”
consensual sex are not harmful has also
been foundational to our current Classification and
Censorship Scheme.
These assumptions (right or wrong) were evident
in the various parliamentary speeches and public
statements of political leaders at the State and
Federal level throughout the period. Attorney’s
General such as Gareth Evans and Daryl Williams
made these assumptions explicit in the context of
the debate on various legislative changes proposed
or passed during the period.
So Adultshop.com’s claims that there is now a
majority community acceptance of such content is
therefore no news at all - it was always assumed as
a fundamental rationale for the provision of the X
category from its inception.
The current Appeal rests on this claim about
community attitudes. Academics, Kath Albury,
Catherine Lumby and Jeffery Brand have provided
expert witness statements arguing that there is
acceptance and consumption of pornography
across a broad swathe of the socio-economic and
demographic spectrums.
Adultshop.com contends that the X classification
is no longer appropriate for films like Viva Erotica
with explicit depictions of actual sex because they
are no longer offensive to mainstream community
attitudes.
The AFA believes that the appeal should therefore
fail as a proper construction of the X classification
provisions in the legislation reveals that the test of
offence was introduced to delineate depictions of
acceptable types of fetishes or other practices from
those that would be unacceptable or sufficiently
offensive to warrant a refusal of classification.
Hence classifiers are to refuse classification of films
that contain real and explicit depicitons of actual sex
along with depictions of “violence, sexual violence,
sexualised violence, coercion, sexually assaultive
language”, and depictions of “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..”. The Classification Guidelines, since 2000,
have expressly prohibited certain fetishes in an
attempt to sketch out the lines of offensiveness in
regard to such content. Therefore, some fetishes are
considered harmless or “mild” whilst others are held
to be harmful, degrading or offensive. Viva Erotica
contains some depictions of fetishes deemed mild
or inoffensive.
Straightforward explicit depictions of actual
consensual sex without additional complicating
elements of violence or offensive depictions are the
core concern of the X classification and no test of
offensiveness is tied to it.
Liberal journalists with short memories and little
desire to research the facts and history of our
classification system have been quick to accept
the claims being made by Malcolm Day, the
majority shareholder and CEO of Adultshop.com.
At the very least, journalists ought to reflect on the
likelihood that the substantial monetary investment
being made by Adultshop.com in this campaign to
get rid of the X Classification is in fact indicative of
a commercial agenda rather than unbiased altruism
in the public interest.
A whole range of controversial issues are thrown up
by this campaign by Adultshop.com.
For a start there are issues of States’ rights to legislate
as an outcome of proper political and democratic
processes in regard to X rated materials. Essentially,
Day and Adultshop.com want to ride roughshod
over the States despite a documented and long
history of political and community debate about
the regulation of pornography.
In addition, twenty years of political and community
debate that shaped the X category are to be thrown
out by the legal action of one corporate industry
player. Isn’t this enough cause for concern amongst
the chattering classes of the liberal left?
Day has argued that the current regulatory regime
is feeding a black market in illegal pornography. It
is however likely that whether he succeeds or not,
this trade will continue unabated. Unfortunately,
there appears to be a growing demand for extreme
and illegal content such as child pornography, and
depictions of coercive sex and sexualised violence.
Day, and other industry advocates, refuse to
acknowledge publicly their possible role in feeding
this demand through the marketing of thousands
of DVD titles designed to push the boundaries of
current classification laws.
One of the genres offered through the Adultshop.
com online store is “gang bang” films made available
through aomovies. Crate loads of Adultshop.com’s
titles on offer boast of the youth of the women in
the films: they are “barely legal” and suffering from
the pent up sexual cravings of their teenage years.
DVD titles offer “fresh faced babes” who are “young
and tender”, “fresh meat”, the “kind of hotties who
you lived next door to while growing up”.
One title in Adultshop.com’s catalogue is “Be Gentle
It’s My First Time“ featuring “young, fresh lovelies
who don’t know what they’re in for…”. Another
title is “I Dig ‘Em In Pigtails”. Another title promises
“Once these girls endure their rites of initiation,
they just can’t get enough!” In the lingerie range,
customers can choose from a selection of “sexy”
“baby doll sets”.
Adultshop.com’s X rated DVD range also includes
hundreds of film’s with themes of S&M and fetishes.
In most of the titles, women are described as being
subjected to being “done” using descriptors with
violent or physically damaging connotations.
Sexually assaultive language such as “slut” is used
frequently in the promotional text for these DVDs.
The women in these films are always characterized
as craving such treatment.
Presumably all of this has been judged as sufficiently
inoffensive by the Classification Board to warrant
being given an X rating. The politicians who
agreed to the current formulation of the X category
must surely be marveling at the dexterity of the
classification scheme to accommodate depictions
that were supposedly to be refused classification.
Adultshop.com, however, remains dissatisfiedperhaps
because some of its titles have had to be
censored to fit our laws.
If Adultshop.com’s legal action succeeds it is not at
all clear how pornography will be handled in the
R classification. The whole point of the X category
was to keep it separate from violence and sexualised
violence. Increasingly we have seen these elements
feature in horrifically explicit detail in R rated films
like Irreversible or Wolf Creek.
Day and his supporters argue that the current
restrictions on the X category constitute an unjust
limitation of freedom of expression. It is hard to
imagine how such freedom of expression is actually
limited at present, given the extremely liberal X
classification regime in place. Day’s explanation of
his campaign’s endpoint has continued to be vague.
It seems clear that if he succeeds, 20 years of political
and community debate and parliamentary work will
be thrown out in order to satisfy the agenda of the
pornography industry. Porn could well be available
at your local video store or at the local cinema and
it will most likely be increasingly mixed up with
depictions of violence, sexualised violence and
coercion. With the heightened realism of modern
film making the mix could be very toxic indeed.
Letters to newspapers will be helpful to raise
concerns about Adultshop.com’s legal action. In
writing it is helpful to insist that there has been
ongoing political and community debate about the
X classification and the community continues to be
extremely concerned about the mixing of violence
with pornography.
Angela Conway, AFA National Research
Officer.
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