Investigationreport no. BI-203

Summary
File no. / BI-203
Broadcaster / Australian Broadcasting Corporation
Station / ABC1
Type of service / National broadcasting—television
Name of program / Rake
Date of broadcast / 26 May 2016
Relevant code / Standard 7.1, 7.2, 7.3, 7.6and 8.4 of the ABC Code of Practice 2011 (revised in 2016)
Date finalised / 5 August 2016
Decision / No breachof Standard 7.1 [harm or offence]
No breach of Standard 7.2 [warnings or advice]
No breach of Standard 7.3 [classification]
No breach of Standard 7.6 [mitigate risks]
No breachof Standard 8.4 [minimise risks]

Background

In July 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section151 of the Broadcasting Services Act 1992(the BSA) intoan episode of Rake,broadcast on ABC1 by the Australian Broadcasting Corporation (the ABC)on 26 May 2016 at 8.35 pm.

The ACMA received a complaint alleging:

Specifically, we object to the scene of simulated anal intercourse. We consider it was gratuitous pornography which depicted a perversion of sexual intercourse, gave tacit approval to the violent sexual expression of male dominance and encouraged the belief by younger viewers that such behaviour was normal and desired by women.

The ACMA hasinvestigatedthe ABC’scompliance with Standards 7.1, 7.2, 7.3, 7.6 and 8.4 of the ABC Code of Practice 2011(revised in 2016)(theCode).

The complainant also alleged that the broadcast did not comply with Standard 8.3 of the Code. The ACMA has not investigated this complaint because Rake is not content designed for children or young peopleto which the standard applies.

The program

Rake is a comedic drama program that was first aired in 2010.In Series 1 the protagonist, Cleaver Greene, a self-destructive criminal defence barristeris described as:

…one of life’s great addicts. Whether it’s women, gambling or drugs. Clever can resist everything but temptation…defending those who seem beyond redemption – society’s hopeless…[1]

Series 4,broadcast on ABC1 in 2016,is described as:

Last seen dangling from a balloon drifting across Sydney, Cleaver Greene crashes back to earth - literally & metaphorically, through a harbourside window into the unwelcoming embrace of chaos past.[2]

Episode 2 of Series 4 of Rake was broadcast on ABC1 at 8.35 pm on 26 May 2016. The ABC’s website provides the following synopsis:

Cleaver's been hiding out in the country posing as a writer, but his cover's blown when Barney appears on Australian Story, complete with images of his best friend. It isn't long before Thompson's goons arrive on the scene.[3]

Thompson is a former associate of Greene and is running a vendetta against him from prison.

The episode was classified ‘M’ and included consumer advice.

Assessmentand submissions

When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, images and any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.

Australian courts have considered an ‘ordinary reasonable’ listener or viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[4]

Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Code.

The investigation takes into account the complaints (atAttachment A) and submissions from the broadcaster (at Attachment B). Other sources are identified below.

Issue 1: Harm and offence

Relevant Codeprovisions

Standard:

7.1 Content that is likely to cause harm or offence must be justified by the editorial context.

7.2 Where content is likely to cause harm or offence, having regard to the context, make reasonable efforts to provide information about the nature of the content through the use of classification labels or other warnings or advice.

7.3 Ensure all domestic television programs – with the exception of news, current affairs and sporting events – are classified and scheduled for broadcast in accordance with the ABC’s Associated Standard on Television Program Classification.

[…]

7.6 Where there is editorial justification for content which may lead to dangerous imitation or exacerbate serious threats to individual or public health, safety or welfare, take appropriate steps to mitigate those risks, particularly by taking care with how content is expressed or presented.

The ACMA also takes account of the relevant Principles set out in the Code.

The ABC broadcasts comprehensive and innovative content that aims to inform, entertain and educate diverse audiences. This involves a willingness to take risks, invent and experiment with new ideas. It can result in challenging content which may offend some of the audience some of the time. But it also contributes to diversity of content in the media and to fulfilling the ABC’s function to encourage and promote the musical, dramatic and other performing arts. The ABC acknowledges that a public broadcaster should never gratuitously harm or offend and accordingly any content which is likely to harm or offend must have a clear editorial purpose.

The ABC potentially reaches the whole community, so it must take into account community standards. However, the community recognises that what is and is not acceptable in ABC content largely depends upon the particular context, including the nature of the content, its target audience, and any signposting that equips audiences to make informed choices about what they see, hear or read. Applying the harm and offence standard, therefore, requires careful judgement. What may be inappropriate and unacceptable in one context may be appropriate and acceptable in another. Coarse language, disturbing images or unconventional situations may form a legitimate part of reportage, debate, documentaries or a humorous, satirical, dramatic or other artistic work.

With respect to Standard 7.3, the ABC has released the Associated Standard: Television Program Classification and Principles:

[…]

The guiding principle in the application of the following classifications is context. What is inappropriate and unacceptable in one context may be appropriate and acceptable in another. Factors to be taken into account include: the artistic or educational merit of the production, the purpose of a sequence, the tone, the camera work, the intensity and relevance of the material, the treatment, and the intended audience.

Standard 7.3.1 Television Classifications

[…]

M – Mature

(Recommended for people aged 15 years and over)

Subject to the Implementation Guidelines at 7.3.2, M programs may be shown in accordance with the Time Zone Charts at 7.3.5.

The M category is recommended for people aged over 15 years. Programs classified M contain material that is considered to be potentially harmful or disturbing to those under 15 years. Depictions and references to classifiable elements may contain detail. While most themes may be dealt with, the degree of explicitness and intensity of treatment will determine what can be accommodated in the M category – the less explicit or less intense material will be included in the M classification and the more explicit or more intense material, especially violent material, will be included in the MA15+ classification.

[…]

Sex: Sexual activity may be discreetly implied.

Nudity in a sexual context should not contain a lot of detail, or be prolonged.

Verbal references to sexual activity may be more detailed than depictions if this does not increase the impact.

Finding

The broadcasterdid not breach Standard 7.1, 7.2, 7.3 or 7.6of theCode.

Reasons

The complaint concerns a scene that beginsat approximately 34 minutes, depicting a conjugal prison visit between Thompson and a female visitor. The ABC has submitted the following description:

[…] Edgar Thompson is in prison and engages in implied sexual intercourse with a woman in a prison cell. A partially clothed woman is facing the wall and a partially clothed man is thrusting from behind. The first view is a brief wide shot, where the woman’s hands are seen on the man’s buttocks. Continued thrusting is shown in a waist high close-up shot, the man’s hands are shown on the woman’s covered breasts. In the final wide shot showing the man thrusting behind the woman, the man’s nude buttocks are shown briefly. The image then cuts to outside the room, where a guard is shown listening to the moaning sounds and walks away. This entire scene is about 30 seconds long.

The scene also includes the following dialogue:

Female:I think about it almost every night

Male:About what?

Female:The way you used to tie my hands together with your belt. Fuck me.

[both moan]

Male: I don’t have a belt in here.

Female: I can get you a belt.

Male:I’d love it if you could get me a belt.

The ordinary reasonable viewer would understand that this scene is a depiction of consensual sexual intercourse between two adultswhich includes verbal references to a particular type of sexual activity previously engaged in by the couple.

Compliance with Standard 7.1 [harm and offence – justified by editorial context]

To assess compliance with Standard 7.1, the ACMA asks the following questions:

1.Does the material have the intrinsic capacity to be likely to cause harm or offence?

If it has no capacity to be likely to cause harm or offence, then the matter ends there. But if the answer to question 1 is ‘yes’, then the following further questions arise:

2.What factors are there moderating any harm or offence?

3.What is the editorial context?

4. Does the editorial context justify the likely harm or offence?

  1. Does the material have the intrinsic capacity to be likely to cause harm or offence?

In this case, the sexual activity isdiscreetly implied through the thrusting actions of the couple. The parties are clothedapart from partial buttock nudity and there is no genital detail in the scene. Sexual activity can be inferred by the viewer without actually being seen.

Although the complainant has submitted that the scene depicts anal intercourse there is nothing to indicate that this is the case. The sexual intercourse is consensual and not violent. It includes verbal references to previous sexual activitywith ‘my hands tied together with your belt’. However, this is not depicted or visually implied.

The episode also contains two other scenes (at 28 minutes and 44 minutes) depicting implied consensual sexual activity between the Cleaver Greene character and a female character Ali – both are brief and neither contains any nudity. Each of these scenes isless impactful than the scene at 34 minutes, and the subject of this investigation.

The ACMA considers that, depending on context, depictions of sexual activity have some intrinsic capacity to cause offence to some viewers. As the answer to this question is ‘yes’, the ACMA then asks the following further questions:

2.What factors are there moderating any harm or offence?

In this case,any harm or offence is moderatedwithin the episode by a lack of visual detail with respect to nudity. The scene with most impact,at 34 minutes,is relatively brief (30 seconds) and is shot in a naturalistic style consisting of two shots – a wide shot (which is used twice) and a closer angle from side-on. There is no significant focus on sexual organs.

Harm and offence is further moderated by the M classification of the episode (meaning it is recommended for people over 15) and the provision of consumer advice warning of sex scenes(discussed further below).

3.What is the editorial context?

As noted above, Rake is a television comedic drama series portraying the life of a fictional criminal barrister Cleaver Greene. The series deals with Greene’s self-destructive behaviour and his associations and disputes with people in the criminal legal system. It is a comedy thatincludes elements of farce and melodrama. The prisoner, Thompson,is a central character in Episode 2 and Greene is hiding from him and others.

Thompsonis having an affair with a female character who is a senior police officer. The sexual activity depicted in the scene beginning at 34 minutes occurs within the context of this relationshipand depicts a conjugal visit in a prison. Aspects of the scene are farcical:the sexual activity is highly animated and is overheard by a bemused prison guard.

4. Does the editorial context justify the likely harm or offence?

The Principles (set out above)note that what ABC content is acceptable to the community depends on the nature of the content, its target audience and any signposting that is provided. Any content which is likely to harm or offend should have a clear editorial purpose.

The content in this episode of Rakeis a depiction of consensual sexual activity between two characters.This episode was classified M and was signposted by appropriate consumer advice.

The narrativeinvolving the characters depicted in the scene at 34 minutes includes a sexual component. The sexual activity in the scene takes place during a conjugal visit. The sexual activity therefore has a clear editorial purpose within the context of the narrative.

The Principles also note that what may be inappropriate and unacceptable in one context may be appropriate and acceptable in another. Coarse language, disturbing images or unconventional situations may form a legitimate part of, among other things humorous, satirical, dramatic or other artistic work.

In the context of the story line of the episode and the overall themes of the Rake series consisting of adult storylines – interpersonal relationships, political life, criminality and corruption –targeting a mature audience, the depiction of thesex scene is editorially justified.

The program, therefore, complied with the requirements of Standard 7.1

Compliance with Standard 7.2 [harm and offence –provide classification labels]

Standard 7.2 requires that viewers are provided with information about content they might find offensive ‘through the use of classification labels or other warnings or advice’.

As noted above, the ACMA considers that some viewers would have found find the depiction of sexual activity in the broadcast offensive.

However, visual and audio consumer advice wasprovided to the viewer at the beginning of the program. This advice stated the program was classified M for ‘viewing by mature audiences’ and contained ‘coarse language, drug use, sex scenes and violence’. The ACMA considers that reasonable efforts were made to provide information about content likely to cause offence.

The program,therefore,complied with the requirements of Standard 7.2.

Compliance with Standard 7.3 [appropriate classification]

Standard 7.3 requires that domestic television programs are classified and scheduled in accordance with the ABC’s Associated Standard on Television Program Classification.

This episode of Rake was classified M. At the M classification level, sex activity may be discreetly implied and nudity in a sexual context ‘should not contain a lot of detail, or be prolonged’.

The ACMA considers that the scene can be accommodated within the M classification level because of:

  • the relative brevity of the scene,
  • the lack of detailed nudity in a sexual context (both characters are predominantly clothed with only partial buttock nudity visible),
  • the lack of overall detail present in the two wide shots,
  • the lack of detail in the close up shot which depicts the clothed characters from waist level up, and
  • the verbal references to sexual activityare limited.

Associated Standard 7.3.5 indicates that M classified content may be broadcast after 7.30 pm. The program commenced at 8.35 pm on 26 May 2016.

The program, therefore, complied with the requirements of Standard 7.3.

Compliance with Standard 7.6 [harm and offence – dangerous imitation]

The complainant stated that the sexual activity depicted ‘a perversion of sexual intercourse, gave tacit approval to the violent sexual expression of male dominance and encouraged the belief by younger viewers that such behaviour was normal and desired by women’.

The ACMA accepts the ABC’s submission that the Rake series is designed for an adult audience. As noted above, the episode was classified ‘M – Mature’ which permits sexual activity to be discreetly implied. Material in this classification is recommended only for people aged over 15 years. Consumer advice was provided for coarse language, drug use, sex scenes and violence so that the audience was adequately informed about any likely harm or offence.

Given that the depicted sexual content was consensual and non-violent, and was discreetly implied,the ACMA does not accept that it gave tacit approval to the violent expression of male dominance suggested by the complainants.It would not lead to dangerous imitation or serious threats to individual or public health, safety or welfare.

In any event, for the reasons set out above, appropriate steps were taken by the ABC to mitigate any such risks by appropriately classifying the material.

The program, therefore, complied with the requirements of Standard 7.6.

Accordingly, the broadcast did not breach Standard 7.1, 7.2, 7.3 or 7.6 of the Code.

Issue 2: Children and young people

Relevant Code provision

Standard:

8.4 Take particular care to minimise risks of exposure to unsuitable content or inappropriate contact by peers or strangers.

The ACMA also takes account of the relevant Principles set out in the Code.

The ABC aims to provide children and young people (under the age of 18) with enjoyable and enriching content, as well as opportunities for them to express themselves. Children and young people participate and interact with the ABC in various ways – as actors, presenters, interviewees, subjects, content makers and audience members.

The ABC has a responsibility to protect children and young people from potential harm that might arise during their engagement with the ABC and its content. The ABC shares this responsibility with parents/guardians and with the child or young person him/herself. In particular, the ABC recommends that parents/guardians supervise children and young people’s access to content, their participation in interactive services, and their exposure to news and current affairs. It is not always possible to avoid presenting content that may be distressing to some audience members.