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 The VAC R18 Appeal

 The R18 Story: Chapter 8



The Video Appeals Committee R18 Appeal

The R18 Story, the legalisation of hardcore: Chapter 8: July 1999

By Shaun Hollingworth

with supplemental information from an article in the Times by Helen Rumbelow


R18 StoryAs I looked for the entrance to the Soho Centre for Health and Care a grey haired bespectacled chap told me sternly You can't come in this way! I couldn't help wondering if he was one of our overly strict video censors. He certainly seemed apt for the part and was in the right place at the right time. With no help from this player, I found the public entrance to the venue I had chosen to attend, on Tuesday the 27th of July 1999, a date and venue which may present an opportunity for those present to witness British history in the making. The BBFC, the state censor of nearly all commercial video recordings had refused to classify some seven video recordings with the R18 certificate (the only certificate the recordings owners were seeking, which would only allow sales from licensed sex shops) on the grounds NOT that the works were obscene, but on the grounds that they may be harmful to children if they were bought by adults in licensed sex shops.

In prior cases, such refusal has always been because of the fact that they may be criminally obscene. However, so many legal cases have now found that 'explicit adult erotica' is not obscene, thus the BBFC cannot now use this as a reason to refuse a classification to such video works, which I can only assume to be quite tame, when compared to works freely available all over continental Europe, even from news-stands in Spain, Italy and Greece, from the author's own personal experience. And of course, obtainable legally here by satellite.

So, in order to perpetuate perhaps forever, the severe restriction freedom imposed upon us by the BBFC, they now SUDDENLY proclaim that the material is seriously harmful to children, an argument never previously used in respect of explicit consenting adult erotica videos, considering the very few minors (if any at all ) who were likely to see such works even by accident.

The venue was scheduled to begin at 10:30 am prompt, and I took my own seat, at 10:00 am, within a large room, I can only describe as an inside out castle, with lower green tiles, white walls, and the windows looking for all the world like the battlements....

It was, quite an appropriate scenario, as there was certainly a battle to be fought.....

A battle for our right to freedom of expression.

After all, if they can get away with applying this argument to adult erotica they can apply it to many things that upset children and use that as an excuse to control so called free born adults. The scene was set, and I awaited the start of the proceedings. As I waited, I could not help but notice a large television monitor and professional video playback unit, as far away from us as they could place it. I wondered if they were going to show us some of the works ?. I had ideas that the monitor was so far away so that what we were to see, wouldn't deprave and corrupt us! During my presence it was not however to show anything. At exactly 10:30 PM, the whole appeal commences, with the appeal committee member John Wood CB discussing an appropriate time for lunch.

The players in this drama were

THE COMMITTEE MEMBERS:

  • Nina Bowden
  • Neville March Hunnings.
  • John Wood CB.
  • Fay Weldon,
  • Professor Philip Graham.
  • Derek Mills, the secretary to the Appeals committee sat at the back.

THE BBFC:

Robin Duval, and a Robin Duval clone.

THE ADULT VIDEO COMPANIES:

  • PrimeTime promotions (Shifnal) Ltd.
    Video works refused classification:
    (1) Carnival International Continental Version Video trailer. (The actual video which is the subject of the trailer has been classified!)
    (2) Wet Nurses 2 Continental Version
    (3) Miss Nude International Continental Version.
  • Sheptonhurst Ltd.
    Video works refused classification:
    (1) Horney Catbabe
    (2) Nympho Nurse Nancy
    (3) TV Sex
    (4)
    Office Tart

THE BARRISTERS:

  • For the appellant Sheptonhurst and Primetime: David Pannic QC, and a female legal assistant
  • For the BBFC: Lord Antony Lester QC

James FermanAndreas Whittam SmithIt was interesting to note, that both James Ferman, the former director of the BBFC, and Andreas Whittam Smith the current director, both sat in the public and press area, on different rows and appeared as 'members of the public', even leaving the room when required, for one particular 'closed' session.

There were at most, some thirty five (approximate figure) press and members of the public. The appeal kicked off at 10:30 AM on Monday the 27th of July.

The case for the appellants who wish to sell R18 videos in licensed sex shops:

Mr Pannic, the barrister for the appellant Sheptonhurst suggested that the BBFC had now NOT rejected the videos on the grounds of obscenity, but on the grounds that they were harmful to children. No suggestion was made (or was to be made in the case) that the videos were in fact legally obscene. Mr Pannic stated that such a severe test of harm to children would defeat the very purpose of the R18 video certificate. Such material he said, is OBVIOUSLY not suitable for children. (At 10.40am ten minutes into the proceedings,  Andreas Whittam Smith arrived and took a seat next to the author...)

Makin' Whoopee DVD coverMr Pannic QC declared that the video works were all similar in nature to Makin' Whoopee (a work originally declared obscene by the BBFC, and then granted certificate on a previous appeal) ie, a work containing no violence, children, animals etc, and that such R18 works can only be purchased from licensed sex shops, which can only be licensed by local authorities who can decide if they wish to have such shops in their area. Items sold in such premises are wholly unsuitable for those under eighteen. He added It is a criminal offence for anyone to allow a person under eighteen to enter a sex shop. Police can inspect a sex shop to see if anyone under eighteen is in a sex establishment.

Mr Pannic said it was appropriate for videos to be available in licensed sex shops for adults who wish to buy them. Such a place is not a venue to appraise the works themselves which would be unlikely to win an Oscar. The BBFC is accused by the appellants for rejecting the video because they do not have a storyline and Mr Pannic submitted that they don't need one. An R18 video is a sex item. he stated. People do not go into licensed sex shops to purchase uplifting videos. This issue isn't about whether people should spend their time watching videos. The question is: Is there a positive reason to prevent adults from viewing such videos ? Mr Pannic for the appellants, then stated that the board had abandoned the fight to restrict the videos on the grounds of obscenity, and gave to the tribunal the legal 'deprave and corrupt' definition of obscenity, and said that BBFC had rejected the works because they were likely to be seen by children. although their was no official contention that children are in fact likely to see such works. It is now very well established that the Crown Prosecution Service won't prosecute and juries do not convict such images he said. They concentrate on the really nasty violent material, and that which involves children and animals. The BBFC has suggested imposing the standards of the ITC on videos, in that R18 videos are not permitted on satellite television, even sex shops, disclosed Mr Pannic. He also told the committee the BBFC has declared that it is inappropriate to apply the same standard as allowed in sex magazines (now VERY explicit, even when sold in news agents) to video works. He addressed the Appeals committee saying A relevant factor for you, is to consider what other types of material can be sold in licensed sex shops. There is no evidence that children are 'likely' to see the material. These videos (the ones under appeal) are 'tame' in comparison with other material in licensed sex shops.

Mr Pannic then related to the committee how a jury had found a sex shop who was selling pictures of ejaculation, not guilty after ONLY thirty minutes of deliberation, and he said that given the graphic detail of the photographs compared with the video images under appeal the defence cannot understand why they were rejected, and that the BBFC had produced no evidence whatsoever that the works will be likely to be seen by children. He quoted a reference to section 4a of the Video Recordings act, in reference to a "likely" audience. He then referred to the 1960 case of Lady Chatterley's lover, which the board "now echoes. Such an argument has no more credence now, as it did then."

The question of dysfunctional adults was then raised, and Mr Pannic said You cannot seriously say that such videos should be denied on the basis that this material will have an effect on an abnormal person.The same could be said about 18 videos and material currently sold in licensed sex shops. This argument with great respect is ridiculous. No Bibles, or kitchen knifes would be sold.

The story was told how Mr Ferman, the previous director of the BBFC was advised that the video Makin' Whoopee and similar works would not be classed as obscene after a meeting with CPS, HM Customs and Excise, and the police. This work was then unexpectedly rejected by the BBFC on the grounds that it was obscene!

The European convention of Human Rights, Article 10, Freedom of expression which the BBFC is bound to consider, was then discussed.

The board is bound by freedom of expression (article 10) and the need for restriction must show a pressing social need, be proportional and relevant.

Mr Lester QC for the BBFC rose and discussed the same human rights issue stating the protection of morals might be a pressing social need. Mr Andreas Whittam Smith, who was sat at the side of the author, gave a distinctive murmur of approval at this comment!

Mr Lester then commenced the case for the BBFC:

Explicit scenes of real sex in explicit graphic details... Apart from a couple of trial periods the BBFC has always refused to classify such material. There are difficult questions about whether hardcore porn should be allowed. He related how issues of freedom of expression on the one side, must be balanced by restrictions necessary for the protection of health and morals, and for the rights of others. He said that the Video Recordings Act 1984 was a scheme for regulating videos protecting the health, morals and rights of individuals. In the case of hardcore porn the board takes the view that because of home viewing there is a real risk of harm to children and young people. Some 'limited' restriction is therefore necessary for the protection of children.

He then asserted that it was NOT true that such videos are NEVER seen by children . There was one case to be discussed where two little girls were harmed after watching a porn video.

Children of all ages know how to operate a video. Videos can be copied, sold, lent, rented, and therefore cannot be controlled by authorities. Parental control in the home is ineffective. There is now more than one video recorder per household in the UK. Children spend 2 hours 2 or three days per week watching videos. No research is carried out for ethical reasons into children watching pornographic videos. He said that 200-400 thousand R18 videos per year were sold, and the circulation would be greater than this, owing to copying and lending.

He said that the BBFC is not concerned with preventing adults from watching hard core porn, in an adults only environment - for instance in a sex cinema. It is concerned about allowing thousands of hard core porn videos to circulate around households where children can have access to them.

He then referred to video nasties, and how children got hold of them and a real social problem resulted. He did not state the truth that pornographic videos were just as freely available (usually under the counter) at that time. He said: Hardcore porn is not now the wide spread problem it might be, because it is responsibly regulated. The BBFC wants to ensure this remains the case.

Enter Dr Gordonna Milavic, exit us.

We were then asked to leave whilst the question of 'evidence' concerning an eight year old child who had seen a 'pornographic' video, and become upset by it was discussed. Dr Milavic, said such cases were "quite rare" and it transpired that she had dealt with only half a dozen such case in nineteen years. When asked about the effects of pornography she admitted that she was not an expert in this area

She did not know what was in this video, or where it came from. The author could only speculate what was in it.. and therefore would have discounted this "evidence"

A so called study in "Cosmopolitan" was discussed which said that one in ten children had seen pornography under the age of ten. No definition was given of pornography however, so it could have been a page three girl in the Sun, or a pin up model. The study was accused of being biased, by the appellants, in that an effort was clearly made, to adjust the study to get the answer the magazine wanted. It transpired that in the same study, 84% of respondents considered pin up pictures "pornographic". The use of adult pornographic pictures by paedophiles was discussed. In one list of strategies used to soften up children, pornographic videos were not mentioned at all. In another list it said 33% used videos or magazines. The author remembers reading that crayons and colouring books are also used, but does not recall any discussion that they too should be banned from possession in the home.. Dr Milavic said she did not know where such videos came from. The author wonders if she knew what was in them, which would have been far more relevant, but was not discussed in any way at all. Howitt, another well known researcher in this field however did say that use of pornography was rare before offending, and it was decided by Dr Milavic that It has been very difficult to find direct evidence between rape and pornography. She then mentioned how a small child (on TV) who could be seen in a recent program about twins covered up his face with his hands when looking at the siamese twins, who were joined at the head. Children try to avoid looking at things they don't understand said Dr Milavic.

Enter Mr Clive Sullivan AKA Frank. Management consultant for Sheptonhurst LTD, an appellant.

He was asked by Lord Lester QC about the effect of the notices in his firm's sex shops. Better to have them, than not to have them said Mr Sullivan. When asked about the effects on his videos on children, he said that he had had no complaints about the videos falling into the hands of children, the authorities would act very quickly if there were. He also said You can sell a bottle of vodka even though a child can get it out of a drinks cabinet, and Cars kill thousands of children every year. We don't stop the sales of cars because of that. He also said that he does not believe violence or bestiality should be permitted in videos. But he said that he could not see how the board can justify not granting an R18 certificate to the new videos, when the 20 or so on sale were not proved to be causing any difficulty whatsoever. He said that much stronger material was available not much more than 20 yards away from where the appeal was being heard. (In Soho, London)

Mr Sullivan was asked if he agreed that there was a large market for pornographic material.

"Yes" said Mr Sullivan.

He said that the videos were edited to the appropriate UK standards and that Sheptonhurst had the UK rights to hundreds of 18 rated videos and 40 R18 rated videos.

He was asked by Lord Lester QC about export possibilities of these videos...

They'd laugh at us! He said: In Italy you can buy stronger stuff on news-stands, (a fact that the author can confirm, and also at news-stands in Greece, and Spain...)

Lord Lester asked if Mr Sullivan knew about German regulation. and that they have prosecuted close ups in respect to sexual organs
( Probably in the days of Hitler perhaps... the author knows that much more extreme material than this is legally available in Germany)

The questions of households with children then arose.  Mr Sullivan said that only 50% of households have children. (In fact the figure I believe is only 30% or so) Mr Lester wondered how many children would be harmed by Mr Sullivan's videos, and said even if only 1% of those that saw the videos it would be enough to change the law.

(The author wondered at this point, if the managing director of Vauxhall cars could guarantee that his product would not kill a child, and that nobody had died directly from watching a porn film. The same could NOT be said for cards, tobacco, vodka etc...)

Williams, and Cumberbatch and Howitt reports were discussed and how their conclusions had arrived at the fact that none violent porn was harmless....

Professor Philip Graham on the Appeals committee then asked Mr Sullivan questions about users of his sex shop. 60% male, 20% female, and 20% couples. He also wondered about the 200 children per year who may be harmed by the sale of R18 videos... (The author believes that even if 200 children a year where badly harmed we would ALL know about it...)

The boss of Primetime then rose to speak. He spoke of the inconsistency in the BBFC guidelines: There is no limits on length and strength apart from those in the criminal law Coupled with "No penetration etc..." This he asserted WAS the law when the guidelines were created. It ISN'T the law now. He said It smacks of a last ditch attempt by the BBFC to keep their restrictions.

He said that sex was a private matter in the UK, and that his videos would remain private.

On the matter of children he said giving his ten year old son a choice between Wet Nurses 10, Zombie Flesh eaters and Godzilla, Godzilla would win hands down.

He then expressed extreme irritation that a video with a trailer advertising a video which was legally for sale, was banned by the BBFC, because of them suddenly altering guidelines.

He then explained the USA softcore, (same as ours)  XX (same as the LIBERALISED) R18 standard, and  XXX which is far stronger than the material under appeal. He also said, that if it was legal under the obscene publications act, it should be classified.

This brought the first day to an end.

Robin DuvalOn the second day, the author could attend the morning session only, where MR Duval a director of the BBFC (a father of FIVE children) was questioned.

To summarise on Mr Duval, everything reverted back, on Mr Duval's arrival, to that which existed before the liberalising of the R18 category. He said he would NOT have classified any of these videos, even Makin' Whoopee. It seems he wants to apply ITC standards to videos...

Later in the morning Lord Antony Lester spoke about the role of Parliament, and that it "in its wisdom" by "sovereign power" had decided that the moving image was to be treated differently than still photographs, cars, or vodka... So that comparisons with these items were invalid.

(The author would not agree. Harm is harm)

He said "potential viewer" meant any viewer, and even one viewer harmed would be enough....

(So therefore everything should be prohibited... ?)

It seems to the author, that being the father of five children Mr Duval will probably know all about sexual matters. It also seems that for no reason based on any proper evidence, he seeks to prevent other fellow British humans, (who may have no other outlet for their urges) from knowing about it, or experiencing it, even if only second hand. I believe this stance is in fact HARMFUL to society, helping to perpetuate lots of myths and hysteria about sexual matters simply NOT seen in those countries where discussion of sex is more open, and explicit depictions of sex are allowed.

It is quite clear, that Hard core porn videos are no longer considered to be obscene. It is also quite clear, that there is little evidence that the harm outweighs the good of them, in such proportion as they should be prohibited.

The author considers that this debate is not about children. It is about the imposition of the morals of one set of our society upon another. Mr Whittam Smith made that quite clear to me, when the subject of restrictions of free expression for the protection of morals was mentioned. The loud murmur of approval convinced me.

The author wonders, if the BBFC assumes the role of protecting ALL children from unsuitable videos, it can be sued if it fails to do so ? It is after all, a private company.. and to protect itself, it would have to ban ANYTHING remotely contentious. So we must all look forward to watching only the Wombles.

 

Based on an article in The Times

The chief film censor told a tribunal yesterday that he wanted to turn back the clock on Britain's pornography rules, which he said had become too lax. Robin Duval was being cross-examined over alleged inconsistencies in decisions by the BBFC, which had banned seven sexually explicit videos.

James Ferman, his more liberal predecessor, sat in the front row of the hearing of the Video Appeals Committee, an independent body that has the final say on video censorship. Ferman's approach was described as "incorrect" by Duval.

After Duval took office in January, he faced appeals over the seven banned videos because they showed real sex. If the appeals are upheld, it will force a change in British policy on pornography to bring it closer in line with the Continent. He promptly changed the board's argument to say that the films were not obscene, but were a danger to children, even when they had a R18 classification which restricts their sale to licensed sex shops. David Pannick, QC, acting for the distributors, Sheptonhurst Ltd - responsible for four of the seven films - asked Duval to justify his restrictive approach, saying there was no evidence to suggest that children had been harmed by R18 videos.

Duval said: You are dealing with a new director that has slightly different priorities. It is a renewal of the focus that was present before. He told the tribunal that this was why he had banned a short trailer for Carnival: The International Version, a film that was passed at full length by Ferman.

Committee Members:
Professor Philip Graham
Is the Chair of the National Children’s Bureau and Emeritus Professor of Child Psychiatry, Institute of Child Health, London
Fay Weldon
Prolific British authoress.
Sir John Wood CBE
Former chair of the Advisory Concillation and Arbitration Service, Chair of this video appeals commitee sitting
Professor Neville March Hunnings, LL.B., LL.M., Ph.D
lecturer at the London School of Economics, specializing in Common
Market Law. Former visiting lecturer at University of Kent at
Canterbury and King's College, University of London.
Nina Bowden
An authoress of children's books including such works as "Humbug","The
Witches Daughter" and "Carries War"


Legalisation of R18 Hardcore  Chapter 1: Jacking Off the Censor Hardcore snippets temporarily got BBFC approval in 1997
 Chapter 2: Makin' Whoopee in Summer 1998
 Chapter 3: Rumours of a Return to Porn in November/December 1998
 Chapter 4: Porn is In & Out & In & Out Again the state of play in January 1999
 Chapter 5: The Video Appeals Committee Forcing the BBFC to respect the law, May 1999
 Chapter 6: Censoring Safer Sex Discrimination at the BBFC. May 1999
 Chapter 7: Hiding Behind Children Giving up on obscenity and using concern for children, July 1999
 Chapter 8: The VAC R18 Appeal Report from the VAC Appeal, July 1999
 Chapter 9: An Appealing Victory Video Appeals Committee judgment allows hardcore, August 1999
 Chapter 10: The Censor and the State BBFC seek Judicial review, winter 1999/2000
 Chapter 11: Judicial Review Confirms Legality of Hardcore: Spring & Summer 2000
 Chapter 12: More Sex Shops Required according to Andreas Whittam Smith, November 2000
 Chapter 13: The Legalisation of Hardcore: A recap 1997-2000