BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

Some of the events in South Africa leading to the incident after which Wellington

Hurricanes rugby player Roger Randle was charged with rape were dealt with in an

item broadcast on 60 Minutes between 7.30–8.30pm on 20 April 1997.

Ms Smith and Ms Sammut-Smith complained to Television New Zealand Ltd, the

broadcaster, that the item breached broadcasting standards. Referring to the standard

which required programmes with rape as a theme to be dealt with sensitively, they

maintained that the item, rather than taking an impartial position on the accuracy of

the allegation, was biased towards Mr Randle.

Maintaining that the investigation made no assumptions and that the item accurately

reported the findings, TVNZ denied that the woman, who was referred to only as

"Sharleen", was treated unfairly. Further, it maintained, the item provided balance to

the earlier colourful publicity and had not breached the standards.

Dissatisfied with TVNZ's decision, the complainants referred the decision to the

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

For the reasons below, a majority of the Authority upholds the complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). On this occasion in view of the

matters raised, the Authority determines the complaint without a formal hearing.

A charge of rape earlier this year against Wellington Hurricanes rugby player Roger

Randle received considerable media coverage. The offence was alleged to have

occurred in South Africa while the team was playing a number of games there.

Before the case proceeded to a trial, the events were the subject of an item on 60

Minutes which included interviews with Mr Randle, his legal advisers, the police in

South Africa, and a former boy-friend of the woman who had complained. Filming

apparently through the fence at night, the item showed the reporter speaking with the

alleged victim at the front door of her house when she declined to be interviewed.

The complainants asserted to TVNZ that the item had not put both sides of the story

fairly. As the direct evidence consisted only of the woman's complaint and Mr

Randle's denial, the complainants argued that the item had to assume that the offence

had occurred. However, they wrote, that was not the approach taken. Rather, and

referring specifically to the comments made by the former boyfriend, they maintained

that the item had given the impression that even if the woman had been raped, she had

asked for it.

Because the woman had declined to appear on the programme, the complainants

added, a biased item had been broadcast which had not accepted the possibility that

the woman was telling the truth. Further, they argued, matters of fairness,

impartiality and sensitivity were particularly important in incidents involving rape.

TVNZ assessed the complaint under the nominated standards. The first two require

broadcasters:

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

programme.

G6   To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

The other two provide:

G20   No set formula can be advanced for the allocation of time to interested

parties on controversial public issues. Broadcasters should aim to present

all significant sides in as fair a way as possible, and this can be done only

by judging every case on its merits.

V5   Programmes having rape as their theme must be treated with the utmost

care. Explicit detail and prolonged focus on sexually violent contact must

be avoided. Any programme dealing with rape in any detail must be

preceded by a warning.

Emphasising the point that the 60 Minutes team had not started its investigation with

any preconceived notions about the event, TVNZ said it reported the facts which had

been ascertained in South Africa. It had a duty to report its findings, TVNZ added,

whether or not they were politically correct, and some of the information uncovered

differed from what had been previously published. The earlier reports of a "blood

splattered room" and the woman's screams being heard were found to be untrue.

TVNZ pointed out that the former boyfriend had been in the club where the woman

met the players from the rugby team, and in respect of the aspect of the complaint

which referred to his comments, it wrote:

You may feel that the exploration of the woman's behaviour and dress were

areas into which the investigation should not have strayed. We disagree, and

point out that the woman's dress and actions on the night were matters of

concern both to inquiring journalists and to lawyers and police officers

investigating this case.

While agreeing that in the ideal world these matters should not be relevant, TVNZ said

that they were important considerations in the real world and, it stated:

In this case, observation of the real (as opposed to the ideal) world suggests that

a woman wearing very short shorts and a low cut top attending a boozy

nightclub after-match function was bound to attract male attention and that is

what the programme said. It is not disputed that the woman did go to bed in a

room shared by Mr Randle with one of the other New Zealand players

apparently wrongly believing him to be Jonah Lomu.

TVNZ insisted that New Zealand viewers were entitled to the full picture of the story

which was still running.

When they referred the complaint to the Authority, the complainants maintained that

"political correctness" was not the basis for it. Rather, they said, screening the

conversation with the former boyfriend was neither objective nor impartial. They also

objected to TVNZ's response on the issue of the woman's clothing and manner, and

wrote:

The myth that unconsenting sex is OK because a woman was wearing particular

clothes merely perpetuates the acceptability of sex crimes, particularly in

situations like "date rape".

In this case the woman was wearing clothes that were appropriate for a night

club situation, and were not indecent. I am deeply concerned that TVNZ are

happy to defend an item that implied that even if there was a rape, the woman

had asked for it. In any view this is a completely unacceptable message to send

to all viewers, especially taking into account the media's influence over public

perceptions towards issues such as rape.

As the item did not contain any violence, or prolonged focus on sexual violence, or

any reconstruction of the incident, TVNZ said that standard V5 was not strictly

relevant.

The Authority sought more information from TVNZ before determining the

complaint. It asked about the media coverage given the woman in South Africa, the

extent of the efforts made to obtain an interview with her, and the efforts made to find

someone to speak positively about her on camera.

TVNZ advised that the incident had received wide coverage in the South African

media, but South African law prohibited the publication of the woman's name. It also

pointed out that it had only used the name "Sharleen". 60 Minutes, it added, had used

a direct approach to the woman after six unsuccessful telephone calls to her. The

conversation had been amicable. Finally, TVNZ advised, it had been unsuccessful in

its efforts to interview her mother or her employer on camera.

The Authority is divided in its determination of the complaint. A majority upholds

the complaint and finds that the approach displayed by TVNZ was unfair to the

woman in question. In the majority's opinion, the item sought to vindicate the alleged

offender by, amongst other things, presenting the woman as a person of dubious

morality. As the complainants wrote, the item suggested that the woman, if she had

been raped, had "asked for it". Moreover, that was in the context of a pending trial.

The majority appreciates of course that the trial was to take place in South Africa.

Nevertheless, it notes that it is highly questionable whether such a programme could

have been broadcast at the equivalent stage of legal proceedings in New Zealand. It

also notes that much of the material presented during the programme would have been

inadmissible in such a trial in New Zealand.

While acknowledging that this trial will now never take place, the majority points out

that this was not the situation at the time of the broadcast. In the end the issue is one

of fairness. Was it fair to the woman concerned in the context of a trial yet to take

place, and in which she would have to give evidence, to broadcast this sort of material?

In the majority's view, it was not.

The minority of the Authority disagrees with the above reasoning. It is of the view

that the item did not advance a predetermined vindication of the player. Rather, it

believes that it set out to tell the story of the impact on a young man and his family of

the allegation. In doing so, it may have displayed some sympathy for him, despite the

implicit possibility of his guilt. The minority believes that it is important to highlight

TVNZ's point that the item was part of a running story. When broadcast, the

possibility of the trial remained, and that was an issue which the item noted.

Nevertheless, because it was a running story, the item presented the facts which had

been ascertained. However, the minority observes, it did not advance as necessarily

conclusive the arguments to be drawn from these facts. Rather, it set out to explain

the context in which the complaint was made.

As part of its assessment, the minority sought more information from TVNZ about

coverage of the incident in South Africa, and its efforts to obtain comment from the

woman and those who might speak positively about her. It accepts that TVNZ's

efforts were appropriate and sufficient in seeking comment in support of the alleged

victim's character, bearing in mind that the sensitivity of the situation at the time was

such that co-operation from the complainant would have been most unlikely.

The minority also considers that it is relevant that the offence – and any subsequent

action – took place in a foreign country outside New Zealand jurisdiction. Reporting

of the circumstances surrounding the alleged incident which would have been

unacceptably detailed in a local context, was possible in view of the fact that it could

not prejudice any upcoming trial.

In the minority's opinion, taking into account the points that the item dealt with a

running story, it accepts that the item explained the alleged offender's predicament

rather than attempting to vindicate him. Accordingly, the minority declines to uphold

any aspect of the complaint.

For the above reasons, a majority of the Authority upholds the complaint that

the broadcast by Television New Zealand Ltd of an item on 60 Minutes on 20

April 1997 breached standards G4 and G6 of the Television Code of

Broadcasting Practice.

The Authority declines to uphold any other aspect of the complaint.

Having upheld a complaint, the Authority can impose an order under s.13(1) of the

Broadcasting Act 1989. In view of the divided decision which, on this occasion,

reflected strongly held but opposing views, the Authority decides not to impose an

order.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
14 August 1997

Appendix

Melanie Smith's and Teresa Sammut-Smith's Complaint to Television New

Zealand Ltd – 29 April 1997

Ms Smith and Ms Sammut-Smith of Wellington complained to Television New

Zealand Ltd about an item broadcast on 60 Minutes between 7.30–8.30pm on 20

April 1997.

The item dealt with the charge faced by Wellington Hurricane rugby team member,

Roger Randle, of rape of a woman in South Africa. The complainants alleged that the

item breached standards G4, G6 and G20 of the Television Code of Broadcasting

Practice. They also referred to standard V5 which, they wrote, indicated that

sensitivity was required in programmes which dealt with rape.

Pointing out that the only direct evidence consisted of the woman's complaint and Mr

Randle's denial, the complainants argued that until the case had been adjudicated by

the Courts, it had to be assumed that the rape offence was a possibility. Arguing that

in such a situation it was imperative that a programme put both sides of the story

fairly, the complainants stated that the 60 Minutes item had not done so.

The programme which was broadcast included an interview with an ex-boyfriend of

the woman, who, the complainants said, was obviously not impartial, and whose

comments gave the impression that if the woman was raped, she had asked for it.

This message, the complainants continued, was unacceptable given the level of

domestic violence and sexual assault which took place in the community at large.

Expressing the opinion that the programme was unclear as to whether sex had taken

place, the complaints alleged:

... the tone of the programme was that she asked for it, and/or was in the wrong

place at the wrong time. In particular there was a man ... who talked about how

the New Zealand rugby players were treated when they toured overseas. He

said that basically they were treated like superstars in every way. Although I

can't remember the exact words, ... the implication was that if she was in the

room then she asked for it. It is difficult to see what other meaning can be taken

from what he said in that context.

Acknowledging that the woman had chosen not to appear on the programme, the

complainants maintained that her refusal to participate did not justify the broadcast of

a totally biased programme. They added:

The onus of fairness, impartiality and sensitivity in relation to themes of rape

remain with the broadcaster.

The complainants considered that the possibility that the woman was telling the truth

was completely overlooked.

TVNZ's Response to the Formal Complaint – 22 May 1997

Assessing the complaint under the standards nominated by the complainants, TVNZ

explained:

Your complaint raises the issue of what you expect from a current affairs

service. In this case the 60 Minutes team (it is not confined to a single reporter)

went into this story with no preconceived ideas, but aware of the publicity

about the case which had been circulated here in the time since the alleged

incident. When 60 Minutes got to South Africa it found that the facts of the case

were somewhat different from the lurid accounts they had seen in New Zealand.

The newspaper reports of a "blood spattered room" and of the victim's screams

being heard turned out to be untrue.

The 60 Minutes item broadcast properly reflected the fact that this was a case in

which "both sides claim to be the victim". It did not start with a preconceived

view that Mr Randle was innocent; it took the stories of both parties at face

value and examined them.

As a result of that examination, the 60 Minutes investigation concluded that there

were factors in this case which had not received wide publicity in New Zealand

and which they felt should be reported here.

TVNZ maintained that the duty of the item was to report its findings whether or not

they were politically correct. It had assumed neither innocence nor guilt and, at the

time, only the woman spoke of the incident on camera when she said that she had been

devastated.

TVNZ denied that the item arose from a predetermined view of Mr Randle's

innocence. It had outlined the allegations and the issues for consideration. It had

included the comments from the woman's former boyfriend as he had been present

when the woman went to the nightclub, and TVNZ commented:

You may feel that the exploration of the woman's behaviour and dress were

areas into which the investigation should not have strayed. We disagree, and

point that the woman's dress and actions on the night were matters of concern

both to inquiring journalists and to lawyers and police officers investigating this

case.

While agreeing that in the ideal world these matters should not be relevant, TVNZ said

that they were important considerations in the real world and, it wrote:

In this case, observation of the real (as opposed to the ideal) world suggests that

a woman wearing very short shorts and a low cut top attending a boozy

nightclub after-match function was bound to attract male attention and that is

what the programme said. It is not disputed that the woman did go to bed in a

room shared by Mr Randle with one of the other New Zealand rugby players

apparently wrongly believing him to be Jonah Lomu.

Acknowledging that this did not prove that the woman was not raped, TVNZ insisted

that it was entitled to put the full picture before New Zealand viewers.

Turning to the specific standards, TVNZ denied that the woman was treated unfairly

in contravention of standard G4. As the story was a running story, TVNZ said that

the item nevertheless provided balance to the colourful, earlier publicity. It argued

that it had complied with standard G20 and while standard V5 was not strictly

relevant, TVNZ pointed out that the item did not include a reconstruction or explicit

detail. It believed a warning as required by standard V5 was inappropriate for a

current affairs programme. TVNZ declined to uphold the complaint.

The Complaints' Referral to the Broadcasting Standards Authority – 4 June

1997

Dissatisfied with TVNZ's response, the complainants referred the complaint to the

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

Repeating their concern that the item assumed that Mr Randle was innocent, the

complainants explained that "political correctness" was not the basis of the complaint.

They would also have complained, they said, had it been assumed that Mr Randle was

guilty. They reiterated their argument that both sides on an issue such as rape had to

be dealt with sensitively.

However, they maintained the conversation with the ex-boyfriend was neither

objective nor impartial. They also objected to TVNZ's response on the issue of the

woman's clothing and manner. They noted that there was an international move to

bring an end to sex crimes and sexual violence and, they observed:

The myth that unconsenting sex is OK because a woman was wearing particular

clothes merely perpetuates the acceptability of sex crimes, particularly in

situations like "date rape".

In this case the woman was wearing clothes that were appropriate for a night

club situation, and were not indecent. I am deeply concerned that TVNZ are

happy to defend an item that implied that even if there was rape, the woman had

asked for it. In any view this is a completely unacceptable message to send to

all viewers, especially taking into account the media's influence over public

perceptions towards issues such as rape.

In conclusion, the complainants did not accept that the item provided balance at the

time in a running story as claimed by TVNZ. It could not be justified in view of the

sympathetic manner in which Mr Randle and his family were portrayed by the earlier

publicity.

TVNZ's Response to the Authority – 10 June 1997

TVNZ advised that it did not wish to comment further.

Further Correspondence

Following its initial discussion of this complaint, the Authority wrote to TVNZ (on

26 June 1997) and sought information on three points. First, it requested some

indication of the alleged rape victim's coverage in the South African media; secondly,

what approaches for an interview were made to her other than the approach shown in

the item; and thirdly, the efforts which it had made to find a person who would speak

positively about her on camera.

In its reply (dated 2 July 1997), TVNZ explained on the first point that the law in

South Africa prohibited the publication of the alleged victim's name. Nevertheless, it

added, the incident was covered in some detail and the photograph of the alleged

offender was published widely in South Africa. TVNZ pointed out that although it

could publish the alleged victim's name, it had only referred to her as "Sharleen".

In its efforts to obtain an interview, TVNZ said that the 60 Minutes team had

telephoned the victim's house on six occasions but there had been no reply. It then

made two direct approaches to the woman in her home and the second one was shown

during the broadcast. A further telephone request for an interview after that encounter

was again unsuccessful. TVNZ maintained that all the conversations, such as they

were, were amicable.

As for its efforts to obtain comment on the woman, TVNZ said it had held a

telephone discussion with the mother but she declined to appear on camera. Efforts to

speak to her employer were met with "a polite decline".