BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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A request by the BSA for an order striking out its name as respondent was successful in the High Court:   AP 298/94 PDF1.26 MB

An appeal against this decision was dismissed in the High Court: AP 35/95  PDF283.51 KB

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Summary

Kia Marama, a therapy unit for convicted child sex offenders in Rolleston Prison, was
examined in an item broadcast on Frontline between 6.30–7.30pm on 27 November
1994.

Mr Moonen, Chairman of AMBLA (Australasian Man Boy Love Association),
complained to Television New Zealand Ltd, the broadcaster, about the use of the
word paedophile by the presenter during the item's introduction. He argued that
broadcasting standards requiring accuracy and balance had been breached when the
presenter used the word paedophiles as a synonym for criminals and child molesters.
Moreover, because the word had been misused, paedophiles had been treated as
inferior and discrimination against them had been encouraged.

Pointing out that the item discussed a group of convicted sexual offenders, TVNZ said
it was accurate to describe them as paedophiles - as they had been convicted of
paedophilia – and as a group who were despised within the community. Dissatisfied
with TVNZ's decision, Mr Moonen on AMBLA's behalf referred the complaint to
the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declined to uphold the complaint.

Decision

The members of the Authority have viewed the item complained about and have read
the correspondence (summarised in the Appendix). As is its practice, the Authority
has determined the complaint without a formal hearing.

A Frontline item about Kia Marama, a unit at Rolleston Prison for convicted child sex
offenders, was broadcast between 6.30–7.30pm on 27 November 1994. Part of the
item's introduction reported:

To most of us such a despicable crime as the sexual abuse of a child is a
mystery. We are totally baffled as to how anyone can violate a child's
innocence and rob them of their trust in adults. Tonight Frontline brings you a
rare opportunity to look inside the minds of probably the most hated men in
the country – paedophiles.

Mr Moonen, Chairman of the Australasian Man Boy Love Association (AMBLA),
complained to TVNZ that the word paedophile had been misused in the above
comment. Arguing that paedophilia meant a sexual orientation towards young
children, he said the comment assumed that paedophiles acted on that orientation and
were criminals.

TVNZ assessed the complaint under the standards nominated by AMBLA. The first
four require broadcasters:

G1   To be truthful and accurate on points of fact.

G5   To respect the principles of law which sustain our society.

G6   To show balance, impartiality and fairness in dealing with political matters,
       current affairs and all questions of a controversial nature.

G13  To avoid portraying people in a way which represents as inferior or is
        likely to encourage discrimination against any section of the community on
        account of sex, race, age, disability, occupational status, sexual orientation
        or the holding of any religious, cultural or political belief. This
        requirement is not intended to prevent the broadcast of material which is:

                i) factual, or

                ii) the expression of genuinely-held opinion in a news or current affairs
                   programme, or

               iii) in the legitimate context of a humorous, satirical or dramatic work.

The final standard states:

G21 Significant errors of fact should be corrected at the earliest opportunity.

TVNZ emphasised the context in which the word had been used and maintained that it
was indeed accurate to describe paedophiles as probably the country's most hated
men. As the comment was a statement of fact, TVNZ added, it was exempt from the
requirement in standard G13 in view of the provision in standard G13(i).

In addition to declining to uphold the complaint given the context in which the word
paedophile had been used during the item, TVNZ referred to the Concise Oxford
dictionary definition of paedophile to question AMBLA's assertion that it referred
only to an orientation. The Concise Oxford, TVNZ pointed out, defined a paedophile
as one who "displayed" paedophilia.

When he referred AMBLA's complaint to the Authority, Mr Moonen referred to
alternative definitions to advance the argument that paedophilia was an orientation – or
a "sexual love" – but not necessarily a "sexual activity". The item had breached the
standards, Mr Moonen insisted, when it had inaccurately used the word paedophile as
a synonym for a child sex offender.

In its report to the Authority, TVNZ repeated its emphasis on the context in which
the word had been used and added that regardless of the dictionary definitions and
past usage, in current usage the word paedophile did in fact mean a child abuser.

In determining the complaint, the Authority considered that it was not necessary to
enter the debate about the appropriate dictionary definition or current use of the
words paedophilia or paedophile. It was of the view that in the specific context in the
broadcast in which the word paedophiles was used, the term had referred to the
convicted child sex offenders who were confined to the Kia Marama unit.

The Authority accepted that AMBLA's complaint principally focussed on standard
G13 – that the item had suggested that all paedophiles were active child abusers and
therefore had encouraged discrimination against a section of the community on account
of its sexual orientation.

Standard G13 gives effect to s.21(1)(e)(iv) of the Broadcasting Act 1989 which
provides:

21. Functions of the Authority – (1) The functions of the Authority shall be –

...

(e) To encourage the development and observance by broadcasters of codes of
      broadcasting practice appropriate to the type of broadcasting undertaken
      by such broadcasters, in relation to -
     ...
   
   (iv) Safeguards against the portrayal of persons in programmes in a
         manner that encourages denigration of, or discrimination against,
         sections of the community on account of sex, race, age, disability, or
         occupational status or as a consequence of legitimate expression of
         religious, cultural or political beliefs.

This provision in the legislation does not refer to "sexual orientation" and it was not
included in the standards originally adopted by the Authority in 1989.

"Sexual orientation" was added to standard G13 at the time the issue was proposed
for inclusion in the Human Rights Act and, subsequently, became one of the
prohibited grounds of discrimination in the Human Rights Act 1993. Because of the
relationship between standard G13 – as it is now written – and the Human Rights Act,
the Authority considered that the term sexual orientation in the standard should be
defined with reference to that Act.

Section 21(1) of the Human Rights Act 1993 lists the prohibited grounds of
discrimination and paragraph (m) reads:

(m) Sexual orientation, which means a heterosexual, homosexual, lesbian, or
      bisexual orientation.

The Authority applied this definition to standard G13 and, consequently, decided that
"sexual orientation" did not include paedophilia. Accordingly, it declined to uphold
the complaint from AMBLA that the Frontline item had contravened the standard.

As noted above, the Authority was of the opinion that the word paedophiles when
used in the item's introduction referred specifically to the convicted and imprisoned
child sex offenders portrayed and, thus, standard G1 had not been breached. As a
result, standards G5 and G21 had not been transgressed. As the allegation that the
item breached standard G6 was advanced on the basis that the introduction involved
the "repetition of prejudice based on ignorance", the Authority was of the view that
this concern had been canvassed in its discussion of the complaint about the alleged
breach of standard G13. Consequently, it declined to uphold this aspect as well.

For the reasons given above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
13 February 1995

Appendix

AMBLA's Complaint to Television New Zealand Ltd – 8 December 1994

The Chairman (Mr G Moonen) of AMBLA (Australasian Man Boy Love
Association) complained to Television New Zealand Ltd about a Frontline item
broadcast on TV One between 6.30–7.30pm on Sunday 27 November.

During the item's introduction, he said, the presenter had described paedophiles as
abhorrent and as criminals. However, Mr Moonen continued, while a paedophile had
an orientation to pre-pubescent children, how that person acted on it was an entirely
different matter. Accordingly, the word had been misused.

Mr Moonen said that misuse of the word during the broadcast had contravened the
following standards.

First, as paedophiles were not the same as criminals or child molesters, the
requirement for accuracy in standard G1 had been breached.

Secondly, standard G5 requires broadcasters to respect the principles of law and as a
process had to be followed before a person could be described as a criminal, the
broadcast transgressed the standard by implying that all paedophiles were child
abusers.

Thirdly, the presenter's comment was "mindless repetition" of ignorant prejudice and,
accordingly, breached the requirement for balance in standard G6.

While most people were heterosexual, he continued, it was not wrong to suggest any
other sexual orientation was inferior as was recognised in standard G13. The misuse
of the word paedophile in the item encouraged discrimination against people with an
inactive paedophile orientation. The use of the term could also be considered a
contravention of the requirement for fairness, accuracy, objectivity in standards G14
and G20.

While commending TVNZ for the programme which made people aware of the evil of
abuse, Mr Moonen concluded:

I hope that for the future you will instruct your staff to be more discerning
about the use of the word paedophile and please don't confuse this word with
being a criminal, child abuser or molester. Too much harm to innocent
individuals is being justified by the incorrect use of this word.

 TVNZ's Response to the Formal Complaint – 22 December 1994

In its summary of the complaint, TVNZ wrote:

You will recall that your objection was to paedophiles being described as
"probably the most hated men in the country" – a description which you
believed encouraged hate crimes and unfairly tarnished the reputation of men
whose orientation is towards paedophilia but do not molest children.

It proceeded to assess the complaint under standards G1, G5, G6, G13 and G21 of
the Television Code of Broadcasting Practice.

Pointing to the context in which the term had been used, TVNZ argued:

The [Complaints] Committee considered that in this context, and in the broader
context of crimes against children in recent times, the use of the word
"paedophile" is clearly in reference to those guilty of paedophilia. It was
accurate, in the Committee's view, to describe such men as "probably the most
hated" in the country.

Moreover, TVNZ referred to the definition of "paedophile" in the Concise Oxford
Dictionary which instead of Mr Moonen's reference to "orientation", described a
paedophile as a person who "displayed" paedophilia.

Accordingly, TVNZ declined to uphold the complaint. Specifically, in regard to the
complaint under G13 which Mr Moonen said was the crux of the Association's
concern, TVNZ wrote:

In considering G13 the committee considered the code was not endangered
because of the factual nature of the programme (allowed for under clause i) and
because the subject was convicted paedophiles upon whom public odium is
rightly heaped.

AMBLA's Complaint to the Broadcasting Standards Authority – 6 January 1995

Dissatisfied with TVNZ's decision, Mr Moonen on AMBLA's behalf referred the
complaint to the Broadcasting Standards Authority under s.8(1)(a) of the
Broadcasting Act 1989.

Mr Moonen said that TVNZ had argued that because the dictionary definition of
paedophilia was "sexual love for children", paedophilia meant "sexual activity with
children" and, thus, a paedophile was anyone who engaged in sexual activities with
children and, therefore, all paedophiles were criminals.

TVNZ's reasoning, he argued, involved a misinterpretation in suggesting the phrase
"sexual love" meant "sexual activity". To clarify the situation, Mr Moonen said he
had consulted the Collins Dictionary where paedophilia was defined as a condition of
being sexually attracted to children. The Oxford definition cited by TVNZ, he
concluded, meant sexual emotion as well as sexual activity. He summarised his
argument:

There is no reason to believe that a person with paedophilia as his or her sexual
identity will translate their feelings of sexual love into sexual activity. That
sexual love of children could be repressed. Or it could be sublimated into
creative activity (such as Leonardo da Vinci did with his own paedophilia). It is
slander to assume, as did the Frontline programme, that having paedophile
feelings (ie having sexual love for children) is prima facie evidence of having
committed a crime.

Mr Moonen maintained that paedophile was not a synonym for child sex offender.
The item had breached the standards not only by stating that paedophiles were child
sex offenders, but also by stating that all the convicted child sex offenders who had
been through the Kia Marama programme were paedophiles.

TVNZ's Response to the Authority – 13 January 1995

In its report to the Authority, TVNZ maintained that it was clear from the context
that the reference to paedophiles was to men who committed crimes against children.
It recorded the presenter's introduction to which AMBLA objected which said:

To most of us such a despicable crime as the sexual abuse of a child is a
mystery. We are totally baffled as to how anyone can violate a child's
innocence and rob them of their trust in adults. Tonight Frontline brings you a
rare opportunity to look inside the minds of probably the most hated men in the
country – paedophiles.

TVNZ wrote:

In our view, the context makes it absolutely clear that the "most hated men in
the country" are those that have sexually abused children. As such the reference
is accurate and fair.

As for Mr Moonen's discussion of dictionary definitions, TVNZ argued that the
community definition of the word paedophile was now a synonym for a child abuser.
TVNZ did not dispute that in the past, eg in Ancient Greece, the word paedophile
was not linked to child abuse but as language evolved, that definition had changed.
TVNZ commented:

There would seem to be implicit acknowledgment of the fact that the word does
not have an unblemished image in that Mr Moonen's organisation does not
include the word "paedophile" in its title.

TVNZ concluded:

We reject absolutely Mr Moonen's suggestion that describing paedophiles as
the most hated men in the country could incite hate crimes against innocent men.
The reference is clearly to those who have committed child abuse and we submit
that no viewer watching would be prompted to direct any feelings of contempt
to men other than those convicted of such heinous crimes.

AMBLA's Final Comment – 26 January 1995

Emphasising that AMBLA condemned child abuse, Mr Moonen repeated the
organisation's concern that Frontline used the term paedophile to refer to a child sex
offender. He also repeated the argument that the programme was inaccurate to
describe the men at Kia Marama as paedophiles. Child abuse, he wrote, arose from a
number of reasons and not just because of an offender's sexual preference for children.
"Only a minority of child sex offenders", he wrote, "are paedophiles, properly so
called."

Mr Moonen stated that AMBLA wanted to maintain the established use for the word
and the dictionary had not contained the pejorative use of the word used in the
broadcast. It was not for TVNZ, he wrote, to decree a change in the English language.

Pointing out that homosexuals were persecuted for committing "crimes against nature"
less than a century ago, Mr Moonen said the unthinking and unprincipled attitude
embodied by TVNZ resulted in the harassment of paedophiles and the gradual erosion
of the basic legal principles. He concluded:

You may remember the articles about a "sex-ring" in Wellington, two years ago.
People were accused, named, and yet never charged with any criminal offence.
Their lives were devastated. I myself have been branded and harassed by the
Media. I have never abused anybody, I am not even a paedophile, but I have
been made a scapegoat for having dared to speak out for innocent people, as I
am doing now.