A scene from the banned film XXY

Out In Africa (OIA) has officially presented its appeal against the South African banning of the film XXY, about an intersex teenager.

On Friday, the lesbian and gay film festival, represented by the Freedom of Expression Institute (FXI) and Advocate Steven Budlender, presented its case to the review board of the Film and Publications Board (FPB).

The appeal came about because the FPB declined to issue the necessary certification for the screening of the multi award winning film at OIA’s 2008 film festival on the grounds that the film contained scenes of child pornography.

The FPB also issued the instruction that all copies of the film in the country be surrendered to the police and be destroyed with immediate effect.

OIA immediately lodged an appeal against the decision of the FPB due to lack of proper notification, failure of the FPB to provide OIA with all relevant documentation and lack of legal representation for OIA, the hearing was postponed.

Very technical arguments were delivered at the reconvened hearing on Friday in Johannesburg. The submissions revolved around the correct interpretation of what constitutes “child pornography” under the Film and Publications Act.

OIA argued that in the case of De Reuck vs Director of Public Prosecutions 2004 the Constitutional Court ruled that child pornography must be judged in context and that in order for it to qualify as child pornography the material must stimulate erotic feelings.

It was OIA’s contention that, if viewed within context and in light of the fact the scene in question does not stimulate erotic feelings, the film cannot be said to constitute child pornography nor does it exploit or degrade children.

On the other hand, the FPB contended that the Act says that any depiction of sexual activity by a person or persons under the age of 18, consensual or otherwise (and even if the actors in the scene are over the age of 18) must be considered child pornography.

The FPB went so far as to dispute the correctness of the decision of the Constitutional Court and that the decision does not apply to the current definition of child pornography.

OIA said that it now awaits the judgment of the review board.

XXY , which has been screened at film festivals around the world, is by all accounts, (including that of the FPB’s chief examiner and members of its executive committee), a serious drama, sensitively produced, a work of artistic merit and deals with the issues in a coherent and sensitive way.

One scene in particular was held to constitute child pornography within the strict reading of the definition contained in the Act. The scene in question portrayed persons under the age of 18, although the actors were both over 20 when the film was made, engaging in simulated sexual conduct.

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