Hueting and SKY Network Television Ltd - 2004-007
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Rudy Hueting
BroadcasterSKY Network Television Ltd
Emmanuelle 7 – adult movie – rape scene – offensive
Standard S2 – eroticised rape scene – unacceptable in context of adult movie – upheld Standard S29 – rape theme not treated with utmost care – upheld
This headnote does not form part of the decision.
 The adult movie Emmanuelle 7 was screened at 12.30am on 13 September 2003 on SKY 1. The movie is rated “18”.
 Rudy Hueting complained to SKY Network Television Ltd, the broadcaster, that a rape scene in the movie was unsuitable for broadcast.
 Declining to uphold the complaint, SKY maintained that in context the scene did not offend against broadcasting standards relating to good taste and decency or programmes which have rape as a theme.
 Dissatisfied with SKY's decision, Mr Hueting referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds the complaint.
 The members of the Authority have viewed a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Emmanuelle 7 is an adult film rated “18”, which was screened on SKY 1 at 12.30am on 13 September 2003 About half way through the film, there is a rape scene.
 Mr Hueting complained that the rape scene breached broadcasting standards concerning “the portrayal of sexual violence”. He considered that it was unacceptable material, regardless of the time of the day it was broadcast. In his view, most of the scene could have been cut with minimal disruption to the flow of the story.
 In the complainant's view, the rape scene was similar to the rape scene in the movie Basic Instinct , which had been the subject of previous complaints to the Authority. He submitted that the scene in Emmanuelle 7 was worse than the scene in Basic Instinct as:
- it was presented in a very similar way to the consensual sex scenes
- it did not appear to suggest that rape should be viewed in any way other than as mild entertainment, emphasised by the voyeuristic attitudes of the other men present
- it was two minutes long
- the rape was observed by several other men “either passively or with approving smirks”
- there was considerable emphasis on the victim's crying.
 In view of the matters raised in the complaint, SKY assessed it under Standard S2 of the Subscription Television Code of Broadcasting Practice. The standard requires SKY:
S2 To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.
 SKY also noted that Standard S29 might be relevant to the complaint. Under this standard, broadcasters of subscription television acknowledge:
S29 That programmes having rape as a theme must be treated with the utmost care. Explicit detail and prolonged focus on sexually violent contact must be avoided.
Broadcaster's Response to the Complainant
 SKY declined to uphold the complaint. It noted that Emmanuelle 7 is a film rated “18”, which it said had never been screened before midnight, and was screened with an appropriate warning. It also wrote:
SKY digital subscribers (who comprise approximately 75% of all subscribers) had to “opt in” to view the film. There is also an option available to block access to all R18 films. UHF subscribers have an ability to [restrict] viewing with the use of a PIN and customers may order an R18 restriction card.
On that basis, SKY considered it “highly unlikely that anyone other than an adult could have viewed Emmanuelle 7”.
 Dealing specifically with the scene, SKY wrote:
Any depiction of rape is likely to be unpleasant. However, the scene in question was integral to the storyline. It was necessary to explain the respective women's attitudes to men and to sex. The context did not endorse rape; rather the rape was shown as an horrific incident, which permanently coloured the victim's attitudes towards men. The detail of the rape was not explicit and the focus was not on the sexually violent contact, rather the focus was on the impact and effect on the victim.
 SKY said it regretted that the complainant had been offended and advised that it would not screen the movie again. It also advised that it was phasing out adult entertainment on SKY 1.
Complainant's Referral to the Authority
 Dissatisfied with SKY's decision, Mr Hueting referred his complaint to the Authority. He submitted:
I continue to be dismayed. Sky Television feel, when they screen an extended and graphic depiction of rape in an entertaining and titillating context, that this does not breach New Zealand's broadcasting standards.
 In addition to reiterating his concerns, Mr Hueting commented on the length of time it had taken SKY to respond to his complaint and the informal process the broadcaster had initially followed, by telephoning the complainant.
Broadcaster's Response to the Authority
 SKY repeated its response to Mr Hueting in its response to the Authority. It also added:
- The delay in providing a response might have been due to the fact Mr Hueting was not a SKY subscriber and “therefore no customer details would have been available”.
- The Authority's decision about SKY's screening of Basic Instinct emphasised the importance of context when considering whether a scene in a film breaches standards.1
Complainant's Final Comment
 In his final comment, Mr Hueting said he was dismayed that SKY had:
…continue[d] to act as if unable to understand the main point of my argument.
 To clarify his complaint, Mr Hueting stated:
- He did not object to the broadcast of all erotic drama.
- He did not object to the broadcast of all rape scenes.
- He did object to the broadcast of an “extended depiction” of rape in the context of an erotic drama, where it was presented as a “voyeuristic and erotic thrill”.
 Mr Hueting also said he was mystified that SKY had attributed its failure to respond to his complaint to the fact that he was not a SKY subscriber.
 The Authority must consider the context of a broadcast to determine whether it breaches Standard S2 (good taste and decency). On this occasion it is relevant that the programme was broadcast at 12.30am. SKY also advised that it was preceded by a warning.
 However, it is also relevant that the material complained about was a rape scene which was included in an adult movie, comprising multiple scenes of “soft core” sexual depictions. In the context of an adult movie, the Authority considers that the rape scene appeared designed to be as titillating as the consensual sex which was depicted. The Authority also notes that there were close up shots of the victim licking her lips, in what could be interpreted as an erotic manner, and that the rape was voyeuristically watched by several men who displayed no expression except mild interest, and certainly conveyed no condemnation.
 The Authority rejects SKY's argument that the prolonged rape scene was integral to the movie. The Authority considers that the primary purpose of this movie was to titillate by showing people having sex, and that the story was, at best, peripheral to this objective.
 While programmes which are scheduled during “18” time2 and which are classified “18” are intended for adult audiences, broadcasters do not have licence to schedule programmes at this time which do not conform to broadcasting standards. In the context of voyeuristic erotica, the Authority considers that the eroticised presentation of the rape scene Mr Hueting complained about should not have been broadcast. It therefore finds that Standard S2 was breached.
 Standard S29 requires broadcasters to treat programmes having rape as a theme with the “utmost care”. For the reasons already given, the Authority considers that the broadcaster failed in this duty and finds that Standard S29 was breached.
 The Authority also observes that SKY's attempt to deal with Mr Hueting's complaint by telephone and its failure to respond to his complaint within the time limit prescribed by the Broadcasting Act amounted to a failure to follow proper processes for determining complaints. It reminds SKY of its obligation to have in place a proper complaints process.
 The Authority notes the broadcaster's argument about the “opt in” system which applies to SKY digital subscribers and the availability of the “parental lock” system, which blocks programmes by classification. It notes that the “opt in” system would not necessarily have applied to the broadcast of Emmanuelle 7. It also reminds SKY that locking systems, by themselves, do not fulfil SKY's obligation as a broadcaster to ensure that programmes which breach broadcasting standards are not screened.
For the above reasons, the Authority upholds the complaint that the broadcast by SKY Television Ltd of Emmanuelle 7 at 12.30am on 13 September 2003 breached Standard S2 and Standard S29 of the Subscription Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It notes that SKY has apologised to the complainant, undertaken not to screen the programme again and advised that it is phasing out adult entertainment on Sky 1. In these circumstances, the Authority concludes that it is not necessary to impose an order.
Signed for and on behalf of the Authority
26 February 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Rudy Hueting's Complaint to SKY Television Network Ltd – 23 September 2003
2. SKY's Response to the Formal Complaint – 12 November 2003
3. Mr Hueting's Referral to the Broadcasting Standards Authority – received
4 December 2004
4. SKY's Response to the Authority – 7 January 2004
1SKY said it was important to note that the BSA declined to uphold the complaint that the rape sequence in Basic Instinct breached standards. This is incorrect. In 1995, the Authority upheld six of the ten complaints it determined about SKY's broadcast of the rape scene in Basic Instinct. Those complaints which were upheld related to broadcasts before 10.30pm.
2The Standard Code of Broadcasting Practice for Subscription Television provides that programmes classified “18” may be broadcast between 8.00pm–6.00am each day and 9.00am–3.00pm on days other than weekends and school and public holidays.