BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Concerns about violence and sexual abuse at a Catholic Maori boys' boarding school,

Hato Paora, were examined in an item broadcast on 20/20 between 6.30–7.30pm on 2

March 1997.

Bishop Cullinane complained to TV3 Network Services Ltd, the broadcaster, about a

former pupil being asked to describe the nature of the sexual abuse he had experienced.

He considered the question to be an intrusion into the boy's grief. Bishop Cullinane

also complained directly to the Broadcasting Standards Authority that the question

invaded the former pupil's privacy.

In regard to the broadcasting standards matters, TV3 advised that the boy and his

mother, who were both interviewed, were aware of the matters to be covered in the

interviews. The boy's pained response, it said, added to his veracity and it declined to

uphold the complaint.

Dissatisfied with TV3's response on the standards matters, Bishop Cullinane referred

the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

As for the privacy complaint, TV3 stated that the item had not breached the privacy

of the former pupil because, first, the item dealt with an issue of public interest, and

secondly, the former pupil and his mother had consented to the interview.

For the reasons below, the Authority declines to uphold the complaints.

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

determines the complaints without a formal hearing.

The infliction of violence by senior boarders on junior boarders at Hato Paora College

was explored in an item broadcast on 20/20. The item also referred to allegations of

sexual abuse. Most of the evidence about the above was given by a mother. She said

that her son had enrolled as a boarder at the beginning of 1996. Because of the

incidents he had raised with her, she had made a number of unsuccessful attempts to

have the school authorities take action. Her son was also interviewed and he described

the violence he had experienced.

The interview also raised the question of sexual abuse and the boy was asked "Can

you say how you were abused?" He replied by initially trying to answer the question

but, evidently very embarrassed and after several efforts to answer, he said that he did

not want to respond.

Hato Paora is a Catholic school and Bishop Cullinane, in his complaint, was explicit

that his criticism focussed solely on the question when the boy was asked about the

sexual assault he had experienced. He considered that there were good reasons to raise

the other matters dealt with. However, the question about sexual abuse, he wrote,

intruded on the child's grief and privacy and should never have been asked. Moreover,

as it exposed the child to embarrassment and ridicule, it was insensitive and

irresponsible.

TV3 declined, incorrectly, to accept the privacy complaint at first on the basis that the

Bishop had no standing to bring a complaint alleging a breach of someone else's

privacy. After the Authority explained to TV3 that anyone can allege a breach of

privacy, TV3 dealt with the matter. Bishop Cullinane also complained to TV3 that

the item breached some other broadcasting standards. This correspondence is covered

in the Appendix.

TV3 finally assessed that complaint under s.4(1)(c) of the Broadcasting Act 1989

which requires broadcasters to maintain standards consistent with the privacy of the

individual, and under standards G4 and G17 of the Television Code of Broadcasting

Practice. The former requires broadcasters:

G4   To deal justly and fairly with any person taking part or referred to in any

programme.

The latter reads:

G17   Unnecessary intrusion in the grief and distress of victims and their

families or friends must be avoided. Funeral coverage should reflect

sensitivity and understanding for the feelings and privacy of the bereaved.

In its response to the privacy complaint, TV3 explained that both the mother and the

boy were fully informed of the nature of the interview, and the matters to be raised, on

the day before the interview was taped. While not conceding that the question

involved a breach of privacy, TV3 said that the two defences listed in the Authority's

privacy principles applied. First, the question was in the public interest, and

secondly, the mother and son had consented to the matter being dealt with.

Furthermore, TV3 added, the question was not asked in a prurient manner and the

boy's response left no doubt that the abuse had occurred and, moreover, had caused

him great pain. TV3 also explained that the boy and his mother had felt empowered

by the programme and the boy had received considerable support from other pupils.

TV3 made the same points in its response to the complaint that the item breached

standards G4 and G17. In dealing with the standard G17 aspect, TV3 noted further

that the boy's manner of replying established the veracity of the sexual assault, and

countered any criticism that the item was merely dealing with traditional boarding

school behaviour.

In his comments on TV3's explanation, Bishop Cullinane questioned whether the

consent of the pair to the interview was truly given freely in view of the mother's

determination to gain publicity and the boy's inexperience as a television interviewee.

Moreover, in these circumstances, they were unlikely to criticise TV3 after the

broadcast. He maintained that the question was both inappropriate and intrusive. He

wrote:

To "raise the question of sexual assault" is one thing; to ask the boy to describe

the experience of it is quite another.

On the question of embarrassment, he said:

TV3 believes that the boy himself is best placed to judge whether or not he was

embarrassed. The whole nation saw that he was embarrassed; he couldn't

answer. But even apart from what the boy is saying after the event, my

complaint is about the kind of questioning that had very real potential to cause

that kind of embarrassment in those circumstances.

The Authority takes account of the full content of the programme in its approach to

these complaints. It notes that the item was made with the consent and total co-

operation of the mother, and that the boy apparently had expected to be interviewed.

As for the specific question on which the complaint focussed – "Can you say how

you were abused?" – the Authority considers it to have been a little insensitive. The

Authority also takes account of the point that after the boy's awkwardness, his

limited response was respected. The question was not repeated and the boy was not

forced to answer.

When she was interviewed, the mother referred to both violence and sexual abuse. The

issues had been raised and while the question to the boy could be regarded as a little

clumsy, his reaction, as TV3 pointed out, eradicated any doubt as to the validity of

the concern. While the Authority is of the opinion that a question asking the boy

whether he was abused would have been sufficient, in the circumstances, nonetheless,

the boy handled the question very well.

The Authority's privacy principles are relevant when information is disclosed without

consent or when there is intentional interference with an individual's interest in

seclusion. As consent had been given for the interview, and as the boy's refusal to

answer the questions ensured that offensive facts were not disclosed, the Authority

concludes that s.4(1)(c) was not contravened.

Dealing jointly with the requirements in standards G4 and G17, the Authority accepts

that there was, given the allegations made by the mother, a need to confirm with the

boy that sexual abuse had taken place. The Authority has expressed above its concern

with the specific question put. After careful consideration, the Authority decides that

the question did not amount to "unnecessary" intrusion or that TV3 had dealt with the

boy unjustly or unfairly. Accordingly, the Authority does not accept that the

standards were breached. Nevertheless, in conclusion, the Authority records that it

understands the concerns raised in Bishop Cullinane's complaint.

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

Signed for and on behalf of the Authority

Judith Potter
Chairperson
15 May 1997

Appendix

Bishop Cullinane's Complaint to TV3 Network Services Ltd - 3 March 1997

Bishop P J Cullinane of Palmerston North complained to TV3 Network Services Ltd

about an item broadcast on 20/20 on 2 March 1997 between 6.30 - 7.30pm.

Bishop Cullinane noted that a child was terribly embarrassed when asked to describe

the nature of the sexual assault he had experienced. In Bishop Cullinane's opinion, the

question intruded on the child's grief and privacy and should never have been asked.

Moreover, as the question exposed the child to embarrassment and ridicule, it was

insensitive and irresponsible. He considered that it involved a breach of broadcasting

standards. He advised that he was also complaining directly to the Broadcasting

Standards Authority on the basis that the broadcast invaded the child's privacy.

Further Correspondence

In a letter to the Bishop dated 4 March 1997, TV3 advised that it intended to assess

the complaint which alleged a breach of broadcasting standards under standard G4.

However, it added, as the Bishop had no standing to bring a complaint alleging a

breach of someone else's privacy, it declined to accept that aspect.

The above correspondence was copied to the Authority and, in a letter to the

Authority dated 10 March, Bishop Cullinane advised, first, that he considered the

standard G4 dealt with the matter too narrowly, and secondly, he was unaware of any

restrictions on his right to complain about a breach of someone else's privacy.

Noting that the boy's mother was not interested in complaining, he wrote to the

Authority:

The mother's position notwithstanding, I would have thought the nature of the

question and the age and circumstances of the boy made the kind of questioning

complained of a matter that impinges on the public good. And so as a member

of the public, I would still like to challenge the right of the interviewer to put the

boy through that embarrassment. The boy himself, and to some extent the

mother, were both very vulnerable when she agreed to the programme. The boy

was subject to the mother's strong line of action, and the mother herself was

depending on the TV programme to get the kind of help she felt the College

Board was not giving her. This made the boy doubly vulnerable, and the

producers of the programme must have known this.

On receipt of a copy of TV3's 4 March letter, the Authority advised Bishop

Cullinane on 6 March that TV3's stance in regard to the question of privacy did not

reflect the Authority's practice. It advised him that his privacy complaint had been

accepted by the Authority and, consequently, TV3's response to the matter had been

sought. In a further letter to the Bishop dated 10 March, the Authority repeated these

comments and advised him that he could ask TV3 to assess his complaint under

standards in addition to G4.

These responses were copied to TV3 which reported to the Authority on 13 March

that it intended to assess the privacy complaint and would report to the Authority in

due course.

TV3's Response to Bishop Cullinane on the Standards Complaint - 24 March

1997

Assessing the complaint under standards G4 and G17 of the Television Code of

Broadcasting Practice, TV3 was of the opinion that the complaint raised the following

two matters:

a) The fact the question was put to Beau Barlow in the first place, and:

b) The decision to broadcast the question and the response.

In response to the first point, TV3 said that Ms Andre Barlow and her son Beau were

advised, on the day before the interview, that the questions to be asked would cover

all aspects of the assaults and abuse at Hato Paora. They were also advised that they

were not obliged to answer any of the questions. TV3 continued:

Beau Barlow had already indicated he had difficulty discussing the nature of the

sexual assault he had endured but did not object to 20/20 asking the question of

him. Neither Beau nor his mother subsequently expressed any disquiet about

the putting of the question or with how Beau dealt with the question.

As for the second point - broadcasting the material - TV3 argued that it added

significantly to the viewer's comprehension of the item. It explained:

One of the reasons Andre and Beau Barlow agreed to appear on 20/20 was that

they felt they were being ignored and 'hushed up'. For the programme to talk of

the sexual assault against Beau but then not to be seen confronting it would, as

the Barlows have indicated to 20/20, be once again avoiding the issue. The TV3

Standards Committee believes viewers would have felt for Beau as he was so

obviously distressed by recalling the assault.

TV3 considered the question and the broadcast of the response to be fair. The

Barlows, it added, were happy with the programme and felt vindicated in having

elected to speak publicly.

Turning to standard G17, TV3 said that the programme discussed initially the

physical assaults inflicted on Beau Barlow. Such assaults, TV3 added, could possibly

be considered by viewers as traditional boarding school behaviour. It continued:

However, a sexual assault cannot be so easily dismissed. Therefore the

Committee is of the view that to raise the sexual assault was necessary to show

the full extent of the complaint against the school.

Because it was important to establish the veracity of the sexual assault, TV3 said that

it broadcast Beau's response as that left no doubt that the assault had occurred.

Bishop Cullinane's Referral to the Broadcasting Standards Authority - 26

March 1997

Dissatisfied with TV3's response, Bishop Cullinane referred it to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

He questioned first whether the boy was aware of the specific question even when

advised that the interview would include "difficult questions". He also questioned

whether consent was fully informed or truly free in view of the mother's

determination to get publicity and the boy's inexperience with television interviewing.

In these circumstances, he added, it was not surprising that there was an absence of

subsequent critical comment from them. They could well have been satisfied, as he

was, with the rest of the programme. The Bishop wrote:

Whatever the boy "agreed" to beforehand, the fact is that he was terribly

embarrassed, and could not have properly anticipated what it would be like.

In addition, Bishop Cullinane said he objected to the potential for embarrassment and

ridicule among the child's peers in view of the line of questioning. He maintained:

The number of comments I have received from other members of the public

confirms my view that the question was intrusive and totally inappropriate. To

"raise the question of sexual assault" is one thing; to ask the boy to describe the

experience of it is quite another.

While neither condoning the offences nor the College's tardy response to Ms Barlow's

concerns, and while applauding the media's efforts, Bishop Cullinane stated that he

objected to the inclusion in the broadcast of the specific question.

TV3's Response to the Authority on the Standards Complaint - 18 April 1997

Referring to its reply on the privacy complaint dated 24 March (see over), TV3

advised that the 20/20 production team had discussed the specific areas to be covered

in the interview, and that consent was freely given. Contrary to the complainant's

belief that Beau Barlow was embarrassed by the question, TV3 reported that Beau had

not been embarrassed at the time or as a consequence of the broadcast. Beau's real

pain, it wrote, was at the abuse he had experienced and at the school's lack of action.

Further, Beau had received positive responses from his peers and the interview had,

indeed, enhanced his mana.

Bishop Cullinane's Final Comment on the Standards Complaint - 24 April

1997

Pointing out that TV3 was basing its response on what the Barlows' had said, Bishop

Cullinane commented that the boy was undoubtedly gratified by the letters of support

which he received. However, that happened after the broadcast where he had been

clearly embarrassed by the question. Moreover, his complaint was not limited to the

Barlows, and he maintained that the question was superfluous, not in the public

interest, and had the potential to cause embarrassment and ridicule.

TV3's Response to the Authority on the Privacy Complaint - 24 March 1997

On the basis that the Authority's privacy principles (i) and (ii) were relevant, TV3

advised the Authority:

The [Standards] Committee is aware that both Beau and Andre Barlow were

fully informed of the nature of the interview at least a day before the interview

was recorded. They were told 20/20 may well have to ask Beau about the nature

of the sexual assault that occurred at Hato Paora College. Both Beau and Andre

agreed to the interview and co-operated throughout. They have both expressed

their support and approval of the programme as screened on TV3 on 2 March

1997.

The item was in the public interest, TV3 maintained, in view of the significant size of

the area from which the school drew pupils. Beau and Andre Barlow, TV3 continued,

consented to the interview. In view of these circumstances, TV3 expressed the

opinion that the complaint must fail on the basis of the defences contained in privacy

principles (vi) - public interest - and (vii) - consent had been given.

Acknowledging that the surrounding facts were of particular importance when

breaches of privacy were alleged, TV3 then considered the aspect of the complaint

which focussed specifically on the circumstances of Beau Barlow. TV3 reported that

Beau's age and circumstances were taken into account as the programme was being

prepared and, it observed:

He was asked "can you say how you were abused?" which is different from

some form of prurient question along the lines of "what was done to you ... ?"

Beau's response indicated he could not say how he was abused and that it was

painful for him to recall the abuse. His response left no doubt the abuse had in

fact occurred and that it had caused him great pain.

As for the aspect of the complaint referring to embarrassment, TV3 advised:

Contrary to embarrassment, Ms Barlow has stated Beau feels empowered by

the programme. Beau has received letters of support from a number of his

former schoolmates applauding his actions and sympathising with the pain he

endured, not at the hands of 20/20 but at the hands of the school and the

subsequent lack of action to redress the Barlows' complaints against the school.

TV3 concluded by arguing that the privacy complaint should not be upheld because

the broadcast had not infringed the privacy principles.

Bishop Cullinane's Final Comment to the Authority on the Privacy Complaint

- 8 April 1997

In his response, Bishop Cullinane made five points. First, in reply to the emphasis

TV3 placed on the Barlows' consent, Bishop Cullinane repeated the point made in his

complaint that they were vulnerable and "their consent, especially the boy's, would

have been less than free".

Secondly, while he acknowledged that the issues addressed in the programme were of

public interest, that did not justify asking the boy to describe the sexual abuse that he

had experienced.

As the third point, that TV3 considered the question not to be prurient one, Bishop

Cullinane argued that the precise wording of the question would have been irrelevant

to the boy.

TV3's comment that the Barlows were satisfied with the programme was the next

matter considered. The Bishop pointed out that he also acknowledged the merits of

the programme but his complaint referred to that one question.

As the fifth point, Bishop Cullinane wrote:

TV3 believes that the boy himself is best placed to judge whether or not he was

embarrassed. The whole nation saw that he was embarrassed; he couldn't

answer. But even apart from what the boy is saying after the event, my

complaint is about the kind of questioning that had very real potential to cause

that kind of embarrassment in those circumstances.

By way of summary, Bishop Cullinane commented that the class mates deserved

credit for the support Beau had received. However, he had been told by College

personnel that Beau should not be readmitted at this time in view of the resentment

felt towards him by some of the pupils. That matter needed to be resolved before

readmission took place.

Bishop Cullinane concluded by expressing his dissatisfaction with TV3's response to

his privacy complaint.

Further Correspondence

In a response to the complainant's final comment on the privacy complaint, in a letter

dated 29 April 1997, TV3 repeated that the boy was aware of the likelihood of the

question, and that the response showed his pain, rather than embarrassment at the

incident.