Miller and TVWorks Ltd - 2008-037
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Susan Miller
Channel/StationTV3 # 3
Complaint under section 8(1B)(b )(i) of the Broadcasting Act 1989
Californication – episode contained language, simulated threesome, oral sex, and female ejaculation, as well as shots of a woman’s breasts – allegedly in breach of standards of good taste and decency
Standard 1 (good taste and decency) – sex scene explicit and gratuitous – upheld
This note does not form part of the decision.
 The tenth episode of Californication was broadcast on TV3 at 9.35pm on Thursday 17 January 2008. Californication was a black comedy about a self-obsessed novelist named Hank Moody.
 The episode revolved around the relationship between Hank and his good friend and agent Charlie who had recently separated from his wife and temporarily moved in with Hank. The two men went to the gym one night, where they met a woman, Laura, who turned out to be one of Hank’s past sexual partners. Laura held a grudge that Hank had never called her. Taking advantage of Charlie’s interest in her, Laura invited herself to their house, where she confronted Hank about why he did not remember her and why he did not call. Hank was apologetic but said “I just think that I had a very good reason”.
 In one scene, Hank and Charlie’s former partners were shown talking in a bar. As well as their use of the words “fuck” and “fuckin’”, their conversation included the following lines:
Do you know how hard it is to get a girl off? It is like disconnecting a bomb. I mean there’s all these wires and shit down there...
...So you wanna go back to the four-minute grunt-fest thing just like, in, out, done.
Yeah, give me a mouthful of cock any day... suck, gargle, spit – works like a charm...
...That lying, cheating, little cocksucker is not moving back into my house until I see some real fuckin’ remorsitude...
Okay, where to bitch?
...He just kinda makes my labia shrivel.
 In the following scene, Charlie woke Hank to convince him to have a threesome with himself and Laura. Hank grudgingly agreed.
 The threesome sex scene screened at 10.04pm. The opening shot showed Hank from the chest up lying on his bed, holding a bottle of beer and looking bored, with audible panting in the background.
 In the first part of the scene, Laura performed oral sex on Hank while having intercourse with Charlie. All three characters appeared to be naked, though no genitalia were shown. Camera angles alternated between looking up over Hank’s chest at his bored facial expression, shots of Laura’s head moving up and down below Hank’s waist implying that she was performing oral sex, and shots of Charlie from the chest up, who was positioned behind Laura moving his hips as if having sex with her. There were also shots which included all three characters (Charlie standing, Laura on the bed on all fours in front of him, and Hank lying beneath her), both from behind Charlie, and from Hank’s point-of-view at the top of the bed. On several occasions the camera panned slowly from one end of the bed to the other, from Hank, across Laura’s body to Charlie and vice versa. One such shot included a close-up of Charlie’s torso moving as he was having sex with Laura, and the top of Laura’s bottom.
 In the second part of the scene, Laura turned over and lay back on Hank, spreading her legs. Her head down to her pelvic area was shown, including her breasts but not her genitalia. Charlie performed oral sex on Laura. The camera looked down over Laura’s breasts and body at Charlie’s head between her legs, as well as from the opposite direction. Both angles highlighted the position of Charlie’s head and Laura writhing on the bed and moaning, while Hank lay underneath her.
 The scene was inter-cut with shots of Hank and Charlie’s ex-partners sneaking into Hank’s house, intending to surprise the men. Immediately after Hank said “she’s gonna blow!”, trying to warn Charlie that he had remembered the reason he had not called Laura, the women burst into the bedroom at the same time as Laura climaxed drenching Charlie’s face with ejaculate. The women looked disgusted and walked out, while the men laughed.
 The following verbal and visual warning preceded the episode:
This programme is rated adults only and is recommended for a mature audience. It contains sexual material and language that may offend some people.
 Susan Miller made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the episode breached Standard 1 (good taste and decency).
 The first part of her complaint related to the conversation between the ex-partners of Hank and Charlie. She referred to “extremely crass dialogue between two American women... they were gross and offensive, and I found it highly unlikely that normal women would talk like that”. She said that she found the dialogue “cheap, lewd and nasty”.
 Secondly, Ms Miller complained about a scene which she described as “hard pornography”, which involved:
...three people engaged in gratuitous sex. A naked male lying on his back was receiving oral sex from a naked woman on all fours, and behind her was another male having sex with her from behind. The implication was that it was anal sex.
 Ms Miller argued that although viewers could not see the details of sex organs:
...the programme makers intended us to see a threesome engaging in group sex, with a woman in an extremely degraded position, being required to ‘service’ two men at once. The sound effects were brutal and graphic.
 The complainant argued that the degrading treatment of the woman in the scene was a typical feature of pornography. She said it was irrelevant whether or not the sex was simulated, because “to us as viewers, to all intents and purposes it looked real”. In essence, the scene consisted of “gratuitous perverted sex with only a thinly disguised storyline holding it together”, she said.
 Standard 1 of the Free-to-Air Television Code of Broadcasting Practice is relevant to the determination of this complaint. It provides:
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.
Broadcaster's Response to the Complainant
 TVWorks contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown, including the time of broadcast, the programme’s target audience, its classification, and the use of warnings.
 The broadcaster emphasised that the episode was rated Adults Only and restricted to screening after 9.30pm, an hour after the AO watershed, because it contained a greater degree of sexual material and potentially offensive language than could be expected at 8.30pm. It stated that the sex scene complained about occurred after 10pm in the episode. TVWorks emphasised that this was deliberate; the programme was structured so that the sex scene would be screened at 10pm or later.
 TVWorks accepted that the programme was not suitable “family viewing”, commenting that “the programme was not and has never been promoted as ‘family viewing’ and [was] scheduled appropriately in Adults Only time”.
 The broadcaster noted that the programme had premiered with a significant amount of publicity regarding its sexual content, and that its regular viewers now expected the programme to contain a certain level of sexual material, especially in a comedic context. The sex scene complained about represented the contrasting character development of Hank and Charlie, it said, which resulted in a “slapstick punch line when both the men’s former lovers walked into the bedroom at the same time as Laura climaxed”. While TVWorks accepted that this particular aspect of the sex scene was likely to offend viewers who did not regularly watch Californication, it did not consider that it was likely to be beyond the humour of the programme’s loyal following, or likely to have offended a significant number of regular viewers.
 TVWorks noted that eight minutes prior to the sex scene, Hank had reluctantly agreed to the threesome. This, it contended, would have suggested to a regular viewer that such a sex scene would feature soon after that, thereby giving viewers the opportunity to make another viewing choice in the advertisement break between the two scenes.
 The broadcaster argued that the episode did not contain any pornographic material, which, it said, is “defined as footage of actual sex acts (including the genitals of the people having sex) with the sex acts and genitals shown in close up and detail”. It maintained that the sex scene in this case was simulated, did not show any explicit nudity and was not intended to be titillating. Furthermore, TVWorks maintained that the scene was edited with the purpose of contrasting the two male characters. It was also inter-cut with scenes of their former lovers approaching the bedroom, the result of which viewers knew would become significant in the development of their respective relationships. For these reasons, the scene was not gratuitous, TVWorks said."
 TVWorks argued that the scene was not demeaning to women. It pointed out that the story, before Ms Miller “stumbled” across the scene, involved Charlie agreeing to meet up with Laura, and Laura requesting the threesome. It said there was no implication that Laura felt degraded, but on the contrary she was portrayed as “a strong woman who spoke her own mind and was capable of beating Hank in the boxing ring”.
 The broadcaster also disagreed with Ms Miller that there was an implication that the scene showed anal sex. It said that at no time was anal sex discussed, nor were there any images that suggested the characters were engaged in anal sex. The broadcaster maintained that “most viewers would not have that particular interpretation of the scene”.
 The broadcaster referred to the Authority’s Decision No. 2007-105, to demonstrate that the inclusion of a threesome in a sex scene was not unprecedented on free-to-air television. In that decision the Authority deemed that a sex scene after 10pm during the school holidays was acceptable in the context in which it was shown. TVWorks maintained that ejaculation in a comedic context, under certain preconditions, could be acceptable under the Free-to-Air Code, citing the movie There’s Something About Mary as an example. TVWorks contended that in Californication the female ejaculate was not realistic, and was exaggerated and timed for comedic effect. It reiterated that the scene was screened after 10pm in an AO-rated programme known for its challenging content, did not contain full-frontal nudity, and was preceded by a warning for sexual material. The warning was specific and gave viewers the opportunity to choose whether or not to watch the episode based on their own entertainment preferences, TVWorks said.
 Accordingly, TVWorks declined to uphold the complaint that Standard 1 was breached.
Referral to the Authority
 Dissatisfied with TVWorks’ response, Ms Miller referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 Ms Miller took issue with TVWorks’ definition of pornography. She cited the Compact Oxford English Dictionary, which defined pornography as “printed or visual material intended to stimulate sexual excitement”. She expressed concern that TVWorks was basing its decisions on an “inaccurate definition” and recommended that the Authority should adopt an established legal definition with which to work.
 The complainant maintained that there were references in the dialogue to Charlie’s “baby arm” and the benefits of anal sex, as well as a recommendation made by one of the characters to give “some of that daddy dick”. She said that this carried implications of incest and “trivialised and made light of criminal sexual acts against children”. She also said that the mention of “the benefits of anal sex” meant that the obvious implication of the following sex scene was that the characters were engaging in anal sex. She accepted that she may have been incorrect on that point, but still felt that the scene was pornographic.
 Ms Miller disagreed with TVWorks that the sex scene was screened after 10.00pm; she said she had recorded it as taking place between 9.50pm and 9.55pm. The broadcaster was therefore not mindful of children’s interests during the school holidays, she said, especially given that the sex scene screened only 15 minutes into the programme. The complainant argued that this constituted a breach of Standard 9 (children’s interests) and guidelines 9b and 9c.
Broadcaster’s Response to the Authority
 Following the release of Decision No. 2008-026, TVWorks accepted the grounds on which the Authority upheld two complaints that the sex scene in the 17 January episode of Californication breached Standard 1.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Ms Miller alleged in her referral that the episode breached the children’s interests standard. In the Authority’s view, Ms Miller did not raise Standard 9 in her original complaint, either implicitly or explicitly, such that TVWorks should have considered her complaint under Standard 9. Accordingly, the Authority has no jurisdiction to consider Ms Miller’s complaint that the children’s interests standard was breached.
Standard 1 (good taste and decency)
 When the Authority considers a complaint that alleges a breach of good taste and decency, it is required to take into account the context of the broadcast. On this occasion the relevant contextual factors include:
- the programme was broadcast at 9.35pm
- the sex scene screened after 10pm
- the programme was rated AO
- the programme was preceded by a verbal and written warning
- the expectations of regular viewers
- the title of the programme, Californication, indicated that it was likely to contain challenging content.
 The Authority determined two complaints in Decision No. 2008-026 about the threesome scene in the same episode of Californication. For the sake of completeness its reasoning is recorded below.
 A majority of the Authority (Joanne Morris, Tapu Misa and Diane Musgrave) considers that the sex scene was as close to being pornographic as is possible without actually showing genitalia. Repetitive shots of Charlie thrusting his hips against Laura’s buttocks, Laura’s head moving vigorously up and down below Hank’s waist, and Charlie’s face between Laura’s legs, left very little to the imagination. Even accepting, as the broadcaster argued, that the scene was designed to be comedic rather than titillating, the prolonged nature and gratuitous detail in the scene took it beyond the limits of what is acceptable on free-to-air television.
 Taking into account the above contextual factors, the majority considers that the sex scene was gratuitous and explicit, and therefore it upholds the complaint that Standard 1 was breached.
 A minority of the Authority (Paul France) considers that the sex scene, although it approached the limits of what is acceptable on free-to-air television, was clearly an integral part of the overall plot of the series. Based on its role in the storyline and the contextual factors outlined in paragraph , the minority would not uphold the complaint that the scene breached Standard 1.
 The complainant maintained that the language in the episode, particularly the discussion between the ex-partners of Hank and Charlie, was crass and offensive and therefore breached Standard 1. She also referred to conversations between the characters about the benefits of anal sex and the suggestion made by one character to “give her some of that daddy dick”, which she said trivialised incest and criminal sexual acts against children.
 The Authority notes that Ms Miller was mistaken about the latter conversations. The quotes she referred to were taken from episodes of Californication that were broadcast several weeks after the episode complained about.
 With respect to the language in the 17 January episode, the Authority considers that, although it was fairly graphic, it was acceptable given the pre-broadcast warning for “language that may offend” and the other contextual factors outlined in paragraph . Further, the language used by Hank and Charlie’s ex-partners was relevant to the storyline and was expressed in a humorous and conversational manner. For these reasons the Authority declines to uphold Ms Miller’s complaint that the language breached Standard 1.
Bill of Rights
 The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination. The Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.
For the above reasons a majority of the Authority upholds the complaint that the broadcast by TVWorks Ltd of Californication on 17 January 2008 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of the complaint, and taking into account that the decision to uphold the complaint was not unanimous and that TVWorks has accepted the Authority’s reasoning in Decision No. 2008-026, the Authority concludes that an order is not appropriate. It considers that the publication of its decision is sufficient to clarify the Authority’s expectations surrounding sexual content of this nature.
Signed for and on behalf of the Authority
26 May 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Susan Miller’s formal complaint – 13 February 2008
2. TVWorks’ response to the complaint – 10 March 2008
3. Ms Miller’s referral to the Authority – 23 April 2008
4. Further comments from Ms Miller – 28 April 2008
5. TVWorks’ response to the Authority – 29 April 2008