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 The VAC Appeal

 The R18 Story: Chapter 5



 Unlikely Ruling on Makin' Whoopee

The R18 Story, the legalisation of hardcore: Chapter 5: May 1999

 Based on an article by Helen Rumbelow & Dominic Kennedy

The Times, 15th May 1999


R18 StoryA low-budget blue video called Makin' Whoopee! and a little-known committee including the former Blue Peter editor Biddy Baxter are threatening to change home entertainment in Britain. The committee set up by the Home Office to quell public concern over "video nasties" in the 1980s is about to exercise its powers to decide if people can buy hardcore pornography.

Makin' Whoopee DVD coverThe Video Appeals Committee has already overturned the official censor's ban on Makin' Whoopee! which contained explicit scenes of heterosexual and lesbian sex. Now the pornography industry has submitted seven more sample videos for approval at a two-day hearing in July. They include such titles as Miss Nude International and Office Tart.

If approved, it will spell the end of the ban on explicit scenes of penetration, masturbation and close-ups of erect penises. The floodgates will open for pornographers to sell real sex on the small screen. The industry has long eyed Britain as a lucrative market kept from it by obscenity laws which are much tougher than in many European countries. Some believe public attitudes are growing more relaxed, citing the cinema release yesterday of the Danish art film The Idiots, which includes a penetration scene and has an 18 certificate.

Jack StrawThe Home Secretary, Jack Straw, has opposed the sale of pornographic videos which portray actual sexual activity, and the BBFC backs his stance. But the appeals committee, whose members were chosen by the board, legally has the final say. The current debate is over how far a sex video can go. All the titles are seeking an R18 certificate, which means they can be sold only to adults in licensed sex shops.

The pornographers are complaining that the BBFC shows no consistency in its rulings. Since 1991, sex-education videos such as The Lovers' Guide have been granted 18 certificates, allowing films of erections and sexual intercourse to be bought in the high street. Two years ago, under the BBFC's then director James Ferman, hardcore pornographic videos began getting R18 certificates provided the sex was consenting, non-violent and legal. The idea was to create a legitimate alternative to black-market videos from the Continent and America, which often portray violence and use under-age actresses and actors.

Two films, The Pyramid and Batbabe, which contained real sex scenes, were approved, attracting the displeasure of the Home Secretary. The experiment abruptly ended. The video distributor Sheptonhurst, reluctant to cut the real sex out of Makin' Whoopee!, then launched an appeal, hiring the respected lawyer David Pannick, QC.

Enter the Video Appeals Committee, created as a safeguard for distributors when the Video Recordings Act was introduced to ban "video nasties" in 1985. The committee has met infrequently, with no great surprises. Five of the ten members sit at each hearing. Lately it upheld bans on the women's prison sex-slave drama Bare Behind Bars, and Boy Meets Girl about the torture of a man by a woman. So it was a shock to the BBFC when last summer it delivered a unanimous 11-page ruling concluding that Makin Whoopee! was not obscene.

It may offend or disgust, but it is unlikely to deprave and corrupt that proportion of the public who are likely to view it, the committee, whose panel members that day included Ms Baxter. The whole purpose of the R18 Certificate is to cater for those whose tastes are for works which may be said to be filthy and lewd. Sheptonhurst and its main rival, Prime Time Promotions, immediately bought the rights to many similar American films, only to be told by the censors that they would be banned.

Robin DuvalThe new censor, Robin Duval, in his strongest criticism yet of his predecessor, has told The Times that he disagrees with Ferman's attempt to permit some hardcore pornography. He doubts that liberalising pornography will reduce demand for black-market material. It is not clear to me that it follows that by liberalising one end of the spectrum you discourage people from moving on to the other end of the spectrum, Duval said.

On July 27 and 28, the appeals committee will consider Sheptonhurst's Horny Catbabe, Nympho Nurse Nancy, TV Sex and Office Tart.

Prime Time Promotions is appealing on three more: Miss Nude International is about a beauty contest where the models cheat by dispensing favours to the judges; Wet Nurses 2: The Continental Version, in which the heroine persuades a potential suicide not to jump by having sex with him; and the trailer to Carnival: International Version, for which the full video was granted a certificate but the trailer, which contains the same explicit material, was refused one.

At stake is a lucrative trade in pornography. Greg Hurlstone of Prime Time Promotions decided to distribute blue films when he learnt that the rights for a horror title cost 50,000, but for a "porno" was about 650.

There is huge demand for hardcore videos, which cost about 20. Batbabe sold 25,000 copies: five times as many as R18 titles.

The Home Office acknowledges the power of the Video Appeals Committee as an independent body and says there is no role or interference which the Home Secretary can make in its decisions.

Curiously, the videos might still be illegal under the Obscene Publications Act. Neither Customs & Excise nor the police recognise the Video Appeals Committee standards. The videos could still be seized and shown to a jury to decide if they are obscene, ie, tending to deprave and corrupt.

The Home Office has brought together Scotland Yard, Customs & Excise and the BBFC to agree a common standard of obscenity but, 18 months later, there is no sign of agreement.

 

On the Committee

The chairman is John Wood, who has held the posts of Deputy Director of Public Prosecutions, Director of the Serious Fraud Office, and Hong Kong Director of Public Prosecutions.

The members are the former Blue Peter editor Biddy Baxter, the novelist Fay Weldon, the agony aunt Claire Rayner, the children's writer Nina Bawden, Laurie Taylor, the broadcaster and sociology professor, Clive Hollins, a forensic psychologist, Philip Graham, chairman of the National Children's Bureau, Sara Morrison, former director of Channel 4, and Neville March Hunning, editor of the Common Market Law Reports. 

Biddy Baxter said: It is a huge responsibility because in principle I am not particularly keen on censorship. The Makin' Whoopee! decision was on the basis that it was not involving children or animals, everything was totally consensual and it did not involve violence against women. It was the sort of material that is readily available on late-night television either from here or from France.

Nina Bawden, whose books include Carrie's War and The Peppermint Pig,said: Most of the pornography I've watched for this has been bad; by that I mean silly or badly made. There have been some issues like mud-wrestling women: I pointed out that I'd seen that before the war in the Odeon on Sundays . . . Most of the stuff we've seen has been more likely to cause laughter than erections."

Pregnant & Milking DVD coverClaire Rayner said: I have never objected to normal, healthy sex being portrayed if it is non-violent, consensual and non-exploitative. Just a couple of people having sexual fun and allowing people to watch them: what harm is there in that? On the panel, she spoke up for another video on appeal for a more lenient certificate Pregnant and Milking: They were fetish films for people who have a thing about lactating. It was desperately boring but harmless enough.

Ms Morrison said: I probably do agree with the argument that something that can be controlled in licensed sex shops is better than it being driven underground. If the video is done in the mood of a jolly romp, that is totally different to something that seems cruel or done under duress. It is not the sex that causes the problem but the context.

Dr Graham said: It isn't so much what is actually portrayed as whether it is likely to cause harm to viewers themselves or to other people as a result of them seeing the film.



Legalisation of R18 Hardcore  Chapter 1: Jacking Off the Censor Hardcore snippets temporarily got BBFC approval in 1997
 Chapter 2: Makin' Whoopee in Summer 1998
 Chapter 3: Rumours of a Return to Porn in November/December 1998
 Chapter 4: Porn is In & Out & In & Out Again the state of play in January 1999
 Chapter 5: The Video Appeals Committee Forcing the BBFC to respect the law, May 1999
 Chapter 6: Censoring Safer Sex Discrimination at the BBFC. May 1999
 Chapter 7: Hiding Behind Children Giving up on obscenity and using concern for children, July 1999
 Chapter 8: The VAC R18 Appeal Report from the VAC Appeal, July 1999
 Chapter 9: An Appealing Victory Video Appeals Committee judgment allows hardcore, August 1999
 Chapter 10: The Censor and the State BBFC seek Judicial review, winter 1999/2000
 Chapter 11: Judicial Review Confirms Legality of Hardcore: Spring & Summer 2000
 Chapter 12: More Sex Shops Required according to Andreas Whittam Smith, November 2000
 Chapter 13: The Legalisation of Hardcore: A recap 1997-2000