Mackenzie and Smith and Television New Zealand Ltd - 2004-167
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Benjamin Smith
- D Mackenzie
ProgrammeLexus Sunday Theatre: Tomorrow La Scala!
BroadcasterTelevision New Zealand Ltd
Complaints under section 8(1)(a) of the Broadcasting Act 1989
Tomorrow La Scala! – Lexus Sunday Theatre – operetta company in maximum security prison using prisoners to rehearse and perform the musical “Sweeney Todd” – included scenes of male rape and consensual heterosexual intercourse, and use of word “fuck” – alleged excessive violence, alleged offensive behaviour and language, and unsuitable for children
Standard 1 (good taste and decency) – context – not upheld
Standard 9 (children’s interests) – not screened in children’s normal viewing time – not upheld
Standard 10 (violence) and Guideline 10d – violence was graphic but acceptable given theme of play and care shown with detailed warning – not upheld
Authority to consult further on arguments for more explicit warnings
This headnote does not form part of the decision.
 Tomorrow La Scala! was broadcast on TV One’s “Lexus Sunday Theatre” beginning at 8.30pm on 18 July 2004. The BBC drama, written by Francesca Joseph, told the story of an ambitious operetta company that rehearsed and presented the Sondheim musical “Sweeney Todd” in a maximum security prison, using prisoners as members of the cast.
 The programme included a male rape scene, a heterosexual scene between a prisoner and a member of the operetta company, and relatively frequent use of the word “fuck”. The programme was preceded by a visual and verbal warning that said:
This programme is rated adults only and is recommended for a mature audience. It contains violence, sex scenes and frequent use of language that may offend some people. We strongly advise discretion.
 In his complaint to Television New Zealand Ltd, the broadcaster, Mr Smith made seven points:
- The violent rape scene was inappropriate for children, adolescents and prison inmates.
- The warning did not spell out the level of violence and the graphic nature of the rape scene.
- The degree of violence contained in the rape scene was unexpected in view of the air of comedy that had earlier enveloped the inmates.
- The graphic violence shown in the homosexual rape was unnecessary.
- The graphic visuals used in the rape scene were unnecessary.
- The rapist was shown to suffer minimal consequences for his action, while the victim was not seen again.
- Had the scene involved heterosexual rape, Mr Smith contended, it would have been censored.
 Mr Smith argued that the “graphic and brutal” rape episode was unnecessary to the context of the play, and it was unnecessary to include such a high level of sexual violence.
 In addition to complaining about the “explicit” homosexual rape scene, Mrs Mackenzie was concerned about the “crude” heterosexual scene and the frequent use of the word “fuck”. Warnings before programmes, she wrote, did not excuse the broadcast of such material at 8.30pm. She expressed a concern about the increasing use of the word “fuck” and other language she found offensive in many television programmes.
 In view of the matters raised by the complainants, TVNZ assessed the complaints under the following standards and relevant guidelines in the Free-to-Air Television Code of Broadcasting Practice.
Standard 1 Good Taste and Decency
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.Guidelines
1a Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification. The examples are not exhaustive.
1b Broadcasters should consider – and if appropriate require – the use of on-air visual and verbal warnings when programmes contain violent material, material of a sexual nature, coarse language or other content likely to disturb children or offend a significant number of adult viewers. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.
Standard 9 Children’s InterestsDuring children’s normally accepted viewing times, broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
Standard 10 Violence
In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.
10d Programmes in which rape or sexual violence is a theme should be treated with the utmost care. Explicit detail and prolonged focus on sexually violent contact should be avoided. Any programme in which rape is depicted should be preceded by a warning.
Broadcaster's Response to the Complainants
 TVNZ explained to each complainant that the broadcast had attracted enthusiastic reviews, and quoted a favourable review from the British newspaper “The Guardian”. It also pointed out that the broadcast had been preceded with what it described as a “detailed warning”.
 Dealing with Mrs Mackenzie’s complaint about the use of the word “fuck”, TVNZ contended that, before it was used, viewers would have had plenty of opportunity to decide whether to watch the broadcast. It maintained that the first use of the word was contextually important to the programme’s plot, and its removal would have damaged the programme’s continuity. Other uses of the word later in the programme, it added, were not inappropriate given the “tough” prison environment being portrayed.
 In light of the warning, the item’s AO classification, and the broadcast of quality adult drama in the “Sunday Theatre” timeslot, TVNZ concluded that the item had not breached Standard 1.
 Turning to the complaints from both the complainants that the rape scene contravened Standard 10, TVNZ submitted that the scene could not have been excised “without damaging the construction of the drama”. It was not unexpected, it maintained, given the earlier depicted tension between the two characters. TVNZ wrote:
The impact of the rape was not, however, in its explicitness or duration, but in establishing the stark contrast between on the one hand the harsh reality of prison life and the brutality of some of the prisoners, and on the other the civilised, humane atmosphere of the opera rehearsals. To have cut or removed the scene would clearly have destroyed the continuity of the programme and lessened the message about the frailties of human nature which runs through the whole film.
 TVNZ referred to the wording of Guideline 10d, and said the scene, first, did not contain explicit detail, and secondly, had been preceded with a warning. It argued that care and discretion had been used. In response to Mr Smith’s comment about heterosexual rape, it referred to two “Sunday Theatre” programmes in which that had been portrayed.
 As for the scene of heterosexual sex, TVNZ contended that it was “visually innocuous” and again highlighted the theme of human frailty.
 TVNZ did not accept that it had failed to acknowledge the interests of children, explaining that the programme was classified AO and broadcast outside children’s normally accepted viewing times.
 TVNZ declined to uphold any aspects of the complaints.
Referrals to the Authority
 Focusing on his dissatisfaction with TVNZ’s response to his complaint about the portrayal of violence, Mr Smith referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
 Mr Smith gave a number of reasons why he considered that the broadcast had not complied with Guideline 10d. These included:
- The prolonged focus on the sexually violent contact, he wrote, left little to the imagination apart from not actually showing anal penetration.
- By showing the rapist as the apparent winner with regard to participation in the musical, he said that TVNZ had not treated the topic with the utmost care. Mr Smith disagreed with TVNZ when it had argued that the rapist had suffered as he was beaten up by another prisoner. The reason for that retribution, he submitted, was not related to a concern for the victim of the rape.
- The broadcast involved sexual double standards, Mr Smith believed, as a similar scene involving the rape of a woman would have been censored.
- The warning was inadequate, Mr Smith contended, as it failed to warn of the impending rape. TVNZ had again failed to take care.
- The rape scene, contrary to TVNZ’s argument, was not essential to the plot, Mr Smith maintained, as the tension between the two prisoners could have been illustrated in other ways. He suggested a number of ways in which that could have been done.
- As free-to-air television was available in prisons, Mr Smith was concerned that the scene could “engender a tacit acceptance of sexual violence in jail – particularly as the prison authorities in the play are shown to take no action…”
- The “Sunday Theatre” timeslot, Mr Smith pointed out, was subject to all broadcasting standards, including the standards dealing with violence. TVNZ’s attitude, Mr Smith warned, would allow the screening on television of films such as “Baise Moi”. If programmes were to include rape scenes, he said, the minimum warning should state “contains brutal sexual violence”.
 Mr Smith referred to an earlier decision from the Authority when it had upheld a complaint about an eroticised rape scene in a film broadcast on Sky at 12.30am (Decision No: 2004-007) and wrote:
I would submit that the “La Scala” rape was not eroticised, but violent and brutal. It was shown, not on a Sky paid subscriber network where viewers can automatically screen out R18 movies, but on free-to-air television. And the rapist was seen to escape largely unpunished by the authorities.
 Mrs Mackenzie’s dissatisfaction focused on the use of the word “fuck” as well as the “sickening” rape scene. She was also concerned about the secondary school children who could have viewed the item. Mrs Mackenzie lamented the need to include such language and scenes in so many programmes.
Broadcaster’s Response to the Authority
 In its response to Mr Smith’s referral, TVNZ described as “absurd” his suggestion that screening of Tomorrow La Scala! opened the way to “Baise Moi” on free-to-air television. It also argued that the warning was adequate, given its emphasis on “Adults Only” material. It expressed concern that a more explicit warning might attract viewers drawn by the reference to sexual violence.
 TVNZ did not accept that it would not show a similar female rape scene if dramatically required in the context. It noted that Tomorrow La Scala! had been broadcast directly after the Adults Only watershed in Britain.
 In its response to Mrs Mackenzie’s referral, TVNZ noted her concern about young people who might have watched and repeated the points that it was shown with an AO classification and preceded with a warning that stressed adult content. It added:
There has to be some time in the day when adult New Zealanders can watch mature and intelligent drama such as this.
Complainants’ Final Comments
 Mr Smith dealt with TVNZ’s concern that a warning which referred to “sexual violence” might attract viewers. He considered the argument was spurious. It was more important, he argued, for viewers to be informed of the explicit material which a programme might contain in order for them to make an informed choice. A more explicit warning, he remarked, would require TVNZ to cast a more critical eye over the scenes which were shown.
 Moreover, he wrote, Guideline 10d suggested that an explicit warning was necessary if a programme was to contain rape scenes.
 The rape scenes earlier screened by TVNZ, Mr Smith wrote, were an indication that TVNZ was “pushing the envelope”. Moreover TVNZ had earlier shown “near rape scenes” while Tomorrow La Scala! contained an actual rape.
 Furthermore, Mr Smith pointed out that the New Zealand standards, not those in Great Britain, were the rules that had to be followed.
 In her final comment, Mrs Mackenzie stated it was an insult to describe obscene language and explicit sex scenes as “mature and intelligent” drama. Moreover, the 8.30pm watershed was “too early”.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Standard 1 (good taste and decency)
 When the Authority determines a complaint that a broadcast contravenes Standard 1 of the Television Code, it is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The Authority regards the following matters as relevant to its determination:
- the broadcast was in AO time
- the broadcast was preceded with a clear warning
- the broadcast portrayed a clash between two vastly different cultural environments
- the use of the word “fuck” was not used gratuitously given the maximum prison culture and its probable acceptable use in certain situations in the theatrical culture
- the scene of heterosexual sex involved minimal exposure of the parties
- the homosexual rape scene contained no nudity
- the homosexual rape scene was an integral part of the story line and was not included for “titillation”
- the consensual sex scene and the rape scene were both integral to the programme’s theme of human frailty and its realistic portrayal of the brutal prison environment in which the drama was set.
 Overall, while the homosexual rape scene was challenging, the Authority considers that, given the context, it was not in bad taste such as to threaten the standard. Further, after weighing all the contextual matters noted, the Authority concludes that the consensual heterosexual sex scene was well within the boundaries of the standard. In addition, giving particular attention to the tone, manner and situations in which the language complained about was used, the Authority finds that Standard 1 was not breached by the broadcast’s use of language.
Standard 9 (children’s interests)
 As the programme was not broadcast in children’s normally accepted viewing time, the Authority does not uphold the Standard 9 aspect of the complaints.
Standard 10 (violence)
 Mr Smith expressed particular concern about what he described as the “graphic and brutal” rape scene. Under Standard 10, broadcasters are required to exercise care and discretion when dealing with the issue of violence.
 The Authority notes above that it regarded the rape scene as challenging. Nevertheless, in view of the context of the broadcast as set out in para , the Authority considers that TVNZ, especially given the theme of human frailty contained in the broadcast, displayed appropriate care and discretion.
 TVNZ emphasised the warning that was broadcast before the programme which it described as “detailed”. Mr Smith pointed out that the warning referred to “violence” and “sex scenes”, and suggested that the warning would have been more useful if it had used the phrase “sexual violence”. He argued that Guideline 10d required a more explicit warning.
 While the Authority does not agree with Mr Smith’s interpretation of Guideline 10d, it has some sympathy with the view that programmes which include the portrayal of a rape scene should be preceded with a warning that refers specifically to sexual violence. The Authority is aware from its consultation with the public to date that many viewers would prefer warnings that refer directly to the material that might be found challenging. The Authority gives notice of its intention to pursue further the issue of the content of warnings in its forthcoming consultations with both the public and broadcasters.
For the above reasons, the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
25 November 2004
The following correspondence was received and considered by the Authority when it determined these complaints:
- Mrs D Mackenzie’s formal complaint to Television New Zealand Ltd – 22 July 2004
- TVNZ’s response to the complainant – 26 August 2004
- Mrs Mackenzie’s referral to the Broadcasting Standards Authority – 7 September 2004
- TVNZ’s response to the Authority – 28 September 2004
- Mrs Mackenzie’s final comment – 18 October 2004
- Benjamin Smith’s formal complaint to Television New Zealand Ltd – 19 July 2004
- TVNZ’s response to the complainant – 26 August 2004
- Mr Smith’s referral to the Broadcasting Standards Authority – 6 September 2004
- TVNZ’s response to the Authority – 28 September 2004
- Mr Smith’s final comment – 10 October 2004