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L.A. Zombie [2011] NZFLBR 2 (7 June 2011)

Last Updated: 12 November 2011

IN THE MATTER OF: The Films, Videos and

Publications Classification Act 1993

AND

IN THE MATTER OF: And application under s47 by the Society for the Promotion of Community Standards Inc for a review of the publication entitled L.A.Zombie (DVD)

DECISION OF THE FILM AND LITERATURE BOARD OF REVIEW

The Board

1. The members of the Board who presided over the review were:

Dr Don Mathieson (President)

Andrew Caisley (Deputy President)

Judith Fyfe Guy Royal

Garth Gallaway

This is a decision of the majority, from which Dr Mathieson dissents. Submissions

1. The Board received written submissions from:
1. The Office of Film and Literature Classification; and
1. Reel Queer Inc Appearances
2. There were no appearances by any party.
   Introduction
2. "LA Zombie" is a short feature film written and directed by a Toronto based filmmaker,
   writer, director, photographer and artist, Bruce LaBruce. It tells the story of a zombie creature who emerges from the sea and lives as a homeless person in Los Angeles. Apparently, there are several versions of the film, included a 63 minute version, and a shorter version prepared for the purposes of showing at film festivals.

5. Reel Queer Incorporated (RQ) proposes to show a shorter version of the film, occupying
   less than 60 minutes, at two scheduled screenings (one in Auckland and one in Wellington) during the Out Takes Film Festival.
5. The version of the film proposed to be shown has been submitted to the Office of Film
   and Literature Classification (OFLC), which has given it an R18 rating.
5. The Society for the Promotion of Community Standards Inc (SPCS) has sought a review
   of the classification.
5. The review was conducted by the Film and Literature Board of Review at a meeting called
   for that purpose on 3 June 2011 in Wellington. The Board of Review viewed the film, and read submissions provided by the OFLC and RQ. It also read and considered correspondence received from the SPCS.
5. Because it was a matter raised in submission by RQ, and traversed in correspondence
   from the SPCS, the Board notes that it accepts that the application for review filed by the SPSC was filed in good faith and for genuine and proper reasons. The film is controversial. Indeed, the very fact that the Board was unable to reach a unanimous decision on the application underscores the degree to which this film raises challenging questions about the proper interpretation and application of the tests set out in the Film, Videos, and Publications Classification Act 1993 (the Act).

Content of the Film

5. The film is fairly and accurately described in the submissions from the OFLC as being one
   where a zombie emerges from the sea and:

"encounters various men who have been killed, and he has sex with their bodies, often focussing on their wounds, to bring them back to life, and temporarily restore his own human experience. Self-consciously contentious, the feature challenges viewers' expectations of genre, fusing high-brow and low-brow elements of popular horror, irony, fine art aesthetics, gay eroticism, humour and dramatic tragedy. The sets and scenarios are contrived rather than naturalistic, and have a surreal, art-film aesthetic. Shots are long, slow and contemplative, and are accompanied by a musical score, with virtually no dialogue. The narrative is self-consciously minimalist and fragmented. The subject matter is somewhat allegorical. Concerned with loneliness, the state of being an outsider looking in, and fleeting intimacy as a way of becoming human again, the dominant imagery is of the forlorn man/monster, transient sex, bloody injury, and urban wastelands where the homeless dwell. The final scene involves the forlorn zombie starring wistfully, weeping, and ineffectually digging at a grave, suggestive of him mourning the loss of his life and humanity.

The feature contains numerous strong depictions of sexual activity, most of which are also horrific. There are segments which deal with crime, specifically drug dealing, and associated violence."

11. There can be no doubt that the film describes, depicts and otherwise deals with matters

such as sex, horror, crime, cruelty and violence. It therefore makes it through the subject matter gateway prescribed in section 3 of the Act.

12. The film will therefore be objectionable if "the availability of the publication is likely to be

injurious to the public good" (see s3(1) of the Act).

13. The Act prescribes that the test for "objectionable" may be met in two ways:

1. A publication must be deemed objectionable if the test set out in section
   3(2) is met; or
1. Even if a publication is not automatically deemed objectionable under
   s3(2), it may nevertheless be objectionable if the test set out in s3(1) is met, taking into account the matters required to be considered under s3(3) and s3(4).

14. In conducting a review, the Board is therefore required to assess whether the publication

falls within the test in s3(2) and whether it is otherwise objectionable under s3(1), taking into account the matters set out in s3(3) and s3(4).

The Section 3(2) Test

15. Section 3(2) deems a publication to be objectionable if the publication "promotes or

supports or tends to promote or support"... sexual conduct with or upon the body of a dead person.

16. The Board has no hesitation in unanimously agreeing that the film does, at least, depict

sexual conduct with or upon the body of a dead person. In particular, there are five scenes during which the zombie engages in sexual activity in connection with persons who have been killed by way of crime or accident. Through this sexual activity, he restores those persons to life. The five scenes follow something of a pattern, and after the shock of the first one, they become somewhat predictable. The general activity revolves around the insertion of the zombie's somewhat disfigured penis into the wounds of the dead people. At the point of climax, the zombie sprays the bodies of the dead people with a black fluid which, for reasons that are not evident, has the effect of restoring the victims to life.

17. The question for the Board to determine is whether these scenes in the movie can be

said to "promote or support' or "tend to promote or support, sexual conduct with or upon the body of a dead person.

18. In interpreting and applying the phrase "promotes or supports or tends to promote or

support' the Board has been guided by the observations of the Court of Appeal in Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9. In that decision, the Court of Appeal observed, at paragraph 15, that:

"Under section 14 of the Bill of Rights, everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form. The right is as wide as human thought and imagination. Censorship of publications to any extent acts as a pro tanto abrogation of the right to freedom of expression. The rationale for such abrogation is that other values are seen as predominating over freedom of expression. Nevertheless the extent of the pro tanto abrogation brought about by censorship legislation must, in terms of section 5 of the Bill of Rights, constitute only such reasonable limitation on freedom of expression as can be demonstrably justified in a free and democratic society."

19. The Court of Appeal went on to observe, at paragraph 29, that:

"The concepts of promotion and support are concerned with the effect of the publication, not with the purpose or the intent of the person who creates or possesses it. The concepts denote an effect which advocates or encourages the prohibited activity... Description and depiction... of a prohibited activity do not of themselves necessarily amount to promotion of or support for that activity. There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity."

19. Although this film, without doubt, depicts acts of sexual conduct upon the bodies of dead
    persons the Board is not satisfied that it does so in a way that tends to promote or support such activity.
19. In its submissions, the OFLC notes that:

"There are a number of scenes which depict sexual conduct with or upon a dead person...However, these scenes are highly stylised and contrived. Some occur in artificially theatrical sets, for example against an entirely white background reminiscent of an art gallery. The protagonist is monstrous and absurd and the material is presented in a way which is clearly intended to be both farcical and horrific. While the viewer is entitled to feel some sympathy for the monster he is portrayed as a tragic figure, and certainly not one which the viewer would wish to emulate or be like. These factors make it difficult to see the material as salacious, or in any way endorsing sexual conduct with dead people. The overall effect places the material in the realm of horror, fantasy and myth in a way that is clearly divorced from real life."

19. We accept this submission accurately characterises the film. It is clear throughout the film
    that although the monster may achieve sexual climax through his actions, he does not achieve any lasting happiness or satisfaction. Indeed, it is central to the film that the monster's actions are fundamentally unsatisfying. They leave him lonely, depressed and unsatisfied. At the conclusion of the film, as he reflects on his recent past, he weeps tears of blood. His random and fleeting sexual encounters clearly serve to emphasise for him the isolation and the profoundly unsatisfactory nature of his existence.
19. The Board accepts, without hesitation, that any film which normalises, or portrays as
    satisfactory or pleasurable, or in any other way supports or promotes sexual activity with dead

persons, would be objectionable under the Act. This film however does not normalise the activity portrayed. On the contrary, it occurs within a context that is very clearly fantastic, implausible and incredible. Furthermore, it is at the heart of the film that the monster does not achieve any pleasure or satisfaction, beyond the direct sexual climax, from his actions. On the contrary, his sexual activities make him increasingly lonely, isolated and monstrous.

24. For these reasons we do not consider that "LA Zombie" can be said to promote or support, or
    tend to promote or support, sexual activity with dead persons.
24. A publication may also be deemed to be objectionable under s3(2) if it promotes or supports,
    or tends to promote or support the use of urine in association with sexual conduct.
24. There are two scenes in the film which portray urination. In the first, there is no association
    with sexual conduct whatsoever - the monster merely urinates. Accordingly, we do not consider this scene is objectionable under s3(2).
24. In the second scene, there is no depiction of direct sexual activity, but it is easy for the viewer
    to infer that there is a sexual element to the activity being portrayed. The viewer sees a kneeling man in the middle of the screen. To either side of him are the two other men are standing on chairs or stools, although it is only the lower half of their legs that is visible. A stream of liquid can be seen falling onto the kneeling man and although no-one is actually seen urinating, it is easy to infer from the colour of the liquid and the overall scene that this is in fact what is occurring. When viewed in the context of the film overall, however, we consider that the oblique reference to a sexual practice involving urination is nothing more than a mere depiction of a sexual activity being undertaken by the particular community of individuals portrayed. The scene occupies no more than 30 seconds, in the context of a film that is almost an hour long, and given the shock and horror which other scenes in the film provoke, this scene passes largely unnoticed. For these reasons, the Board does not consider that the particular scene, in the context of the particular movie, can in any way be said to promote or support, or tend to promote or support, the use of urine in association with sexual conduct.
24. In the opinion of the Board, none of the other elements of s3(2) are relevant to this film. The section 3(1) test
24. Having determined that the film is not automatically deemed objectionable under s3(2), it is
    necessary to determine whether the film is objectionable under s3(1). In undertaking this assessment the Board must be particularly guided by the matters set out in s3(3) and s3(4).
24. The Board is also mindful of the guidance provided by the Court of Appeal in Living World
    Distributors Ltd v Human Rights Action Group Inc (Wellington) [2000] NZCA 179; [2000] 3 NZLR 570, particularly regarding the need for there to be a likelihood of injury to the public good, and for that risk to be linked to the depiction of the sex , horror or other subject matter.
24. The Board accepts that the film depicts sexual conduct of a degrading, dehumanising or
    demeaning nature pursuant to s3(3)(a)(iii) of the Act. Accordingly, the Board accepts that if this depiction is "likely to be injurious to the public good', then the film will be objectionable.

32. The Board further accepts if the film in anyway normalised, or tended to make more
    acceptable, or otherwise depicted the conduct in question as being acceptable, pleasurable, meaningful, rewarding, enriching or satisfying, then it would be likely to be objectionable.
32. In the context of this film, however, the Board considers that the conduct concerned is
    portrayed as so surreal, fantastically, other-worldly and so wholly beyond the bounds of normal human experience, that it cannot be said to in anyway normalise, condone, treat as acceptable or otherwise depict the conduct in a way that is likely to be injurious to the public

good. Indeed, the film actually depicts the conduct as aberrant, monstrous, surreal,
unsatisfying, unrewarding and isolating.

32. As it is required to do, in considering the likelihood of there being any injury to the public good
    and the s3(1) test, the Board took into account the factors listed in s3(4) of the Act. In particular the Board considered:
    1. The dominant effect of the publication as whole. This is an art house film in the horror/zombie genre. It plays with traditional expectations of films within the genre in particular because the zombie in this film is an agent of life, rather than death. He is also a character to be pitied, rather than feared. Overall, the film is an allegorical tale of loneliness and despair brought about by being different and not conforming with social expectations or community norms. The film is not, predominantly, pornographic. Nor does it celebrate, or represent as normal, or even represent as pleasurable or rewarding (beyond the immediate sexual release) the sexual activities which it depicts.
    1. The impact of the medium in which the publication is presented. This is a film to be shown within the context of a film festival with a particular character. It will be available to members of the public, but only if they choose to attend. Provided the film carries an appropriate classification and warning, it is unlikely that it will be seen by anyone other than those who specifically choose to see a film of this nature.
    1. The character of the film, including its artistic and other merits. While the film cannot lay claim to any particular literary, artistic, social etc merit, it is thoughtfully and carefully put together in a way that lifts it well beyond a conventional pornographic film. It is clearly a self-consciously art house film. It is intended to be, and is, challenging and provocative. It intentionally plays with expectations of the genre, and has a purpose and a resonance well beyond mere titillation.
    1. The intended audience. The film clearly has the ability to shock and disturb. It is intended to, and does, achieve this purpose. However, at least in New Zealand, it is intended to be shown only at two screenings within the context of a specialist film festival. We accept that submission of the OFLC that provided it is limited to viewers 18 years or older, who are likely to appreciate its context and are unlikely to be harmed by it, then it is not likely that the film will be injurious to the public good.
    1. The purpose for which the publication is intended to be used. The film is intended as a form of entertainment within the context of a specialist film festival. As noted above, we accept that, provided it is limited to viewers 18 years or older, it is unlikely to be injurious to the public good in this context.

Summary

35. There is no doubt the LA Zombie is a disturbing, challenging and at times shocking film. It
    quite obviously sets out to challenge viewers, and many will find it deeply unpleasant and entirely unmeritorious.
35. However, a film is only "objectionable" under s3 of the Act if it promotes or supports, or tends
    to promote or support certain activities prescribed in s3(2), or if it otherwise deals with certain activities in a manner which is likely to be injurious to the public good.
35. Having viewed the film, and considered the submissions and correspondence received, the
    Board does not consider "LA Zombie" can be said to have a tendency to promote or support the activities it depicts. Furthermore, provided it is given an R18 rating and carries a warning that "Sex scenes and graphic content may disturb", we do not consider it is likely to be injurious to the public good.
35. Accordingly, the Board hereby classifies the film under s23(2)(c) of the Act as objectionable
    except if the publication is restricted to persons who have attained the age of 18 years. Pursuant to s27 of the Act, the Board also requires that any public display of the publication carry a descriptive note reading "Sex scenes and graphic content may disturb".
35. The Board hereby issues directions to the Office of Film and Literature Classification in terms
    of s55(1)(c) of the Act to:
    1. Provide the Applicant with a copy of this decision; and
    1. Enter the Board's decision on the Register; and
    1. Publish this decision in the next list produced in accordance with s40 of the Act, after the end of the month in which this decision is given.

For and and on behalf of the majority P.A. Caisley

Deputy President

7 June 2011

Dissenting Decision of Dr Don Mathieson, President

The version of LA Zombie which the Board viewed should be classified as objectionable.

2. My assessment of the DVD which the Board saw and discussed at length may be summarised as follows:

(1) The publication "tends to ...support" sexual conduct with or upon the body of a dead person, and is therefore deemed to be objectionable for the purposes of the Act: Films, Videos and Publications Classification Act 1993, s. 3 (2)(c).
(1) Alternatively, the publication depicts both sex and violence matters in such a manner that the availability of the publication is "likely to be injurious to the public good": s. 3(1) of the Act.
(1) In reaching that determination, particular weight must be given to the extent and degree to which, and the manner in which, the publication depicts "other sexual or physical conduct of a degrading or dehumanising or demeaning nature": s. 3(a)(iii) of the Act.
(1) It is therefore a particularly weighty consideration that there are 5 scenes involving sexual conduct upon the body of a dead person, and that these are very explicit, and that they occupy a considerable proportion of the showing time of the DVD. The 5 scenes are a principal focus of the film, and are not incidental to an unobjectionable storyline.
(1) The "dominant effect of the publication as a whole" must also be considered: s. 3(4). The dominant effect of this film influences the conclusion in paragraph (2): a principal message is that deviant sexual conduct is a natural response to loneliness and homelessness.
(1) The publication has almost no "merit, value or importance" in terms of s. 4(4)(c).
(1) The publication will be available to members of the public, albeit with an R18 classification, in accordance with the majority decision.

3. The majority's description of the Content of the Film (paragraph 10) is accurate for the most part, but "transient sex" inadequately describes the horror of repeated acts of necrophilia, including the insertion of the man/monster's penis into the bloodied wounds of dead persons, and nothing is left to the imagination. The "hero's" actions may be considered by him (whether he consciously analyses his condition is speculative) to be "a way of becoming human again" but, if so, that purpose is clearly not achieved.

4. The other members of the Board place weight, at several points of their decision, on the contrived nature of the sets and scenarios, and on the surreal character of many of the scenes. In my opinion that is legally erroneous reasoning. In the SPCS case in 2005, the Court of Appeal agreed with the submission that "a

publication which portrays in an absurdly magnified way the moral corruption of individuals...can still tend to promote or support a particular activity" (SPCS Ltd v FLBR [2005] NZCA 176; [2005] 3 NZLR 403 at [108]). In line with that, there can be no doubt that it is legally irrelevant, if the s 3 (2) test is satisfied, however the effect is produced, for example by depicting stick figures in cartoons, or monsters, or semi-human characters or ordinary humans.

5. Similarly, it is legally irrelevant that the "hero" of this film is only semi-human (e.g. his fantastically large sexual organ, and teeth like those of a jungle animal). If the depicted actions of an actor in a film fall within the s. 3(2) test, it matters not that no viewer could identify with the precise characteristics of the actor, or consider it likely that he or she will ever encounter the circumstances which that actor is shown as meeting.

6. I agree with the majority that it is the effect of the publication being reviewed which is the test, not the film-maker's motive or intention when making it: Moonen at [29].

7. In my view, it is unnecessary to go beyond s. 3(2) in order to dispose of this review. Propositions (2) — (7) in paragraph 2 above are merely an alternative route to the same conclusion should there be anything wrong with my interpretation of s. 3(2) or my application of it to the present film.

8. Section 3(2) recognises four possibilities. A publication may

(1) promote one of the matters set out in paragraphs (a) to (f), or
(1) support one of those matters, or
(1) tend to promote one of those matters, or
(1) tend to support one of those matters

9. The words "tend to" have occasioned some interpretation. The Board is bound by the Court of Appeal's pronouncement that "...a publication should not be seen as tending to promote or support a specified activity unless there is a real or material or substantial risk, as assessed by the expert classifying body, that it will do so..." (SPCS case at [105]).

10. Possibility (4) in paragraph 8 is pertinent here. It is less demanding, and more encompassing, than the others. The present review raises the question of law: what meaning should be placed on "tends to support". It is a question on which the Court of Appeal has not as yet found it necessary to concentrate. The meaning of the transitive verb "support" varies — as dictionary definitions illustrate depending on the thing, object or idea which is "supported". In my considered opinion, within the particular context of s. 3(2), a film "tends to support" sexual conduct with or upon the body of a dead person (or any of the effects listed in the other paragraphs) if it leads to a real (or material or substantial) risk that either (i) that sexual conduct will be encouraged; or (ii) that sexual conduct will be viewed as acceptable, or more acceptable, behaviour, whether or not viewers are led to engage in that behaviour themselves. The word "normalisation" may be used as shorthand for such effects as long as it is used to connote both (i) and (ii). It is sufficient if the statutory effect occurs within a recognisable section of the public (as opposed to the public as a whole) e.g. the gay community, or the armed forces, or pederasts.

11. Suppose a feature film with no sex education pretensions depicted the life of a lonely and homeless person, and included long and explicit rape scenes involving that person. The film would properly be judged as (at the very least) "tending to support" the effect set out in paragraph (b). Or suppose a film showed soldiers repeatedly torturing prisoners with graphic detail. Such a film would tend to support the use of torture, if not by the public generally then at least by soldiers finding it difficult to obtain information from captured enemy, i.e. the effect listed in s. 3(3)(f). I cannot distinguish these examples from the present film. Moreover, if the present film does not meet the test in s. 3(2)(c), I cannot imagine any film depicting necrophilia, however explicit or outrageous, which would meet that test. It follows, in my opinion, that the majority of the Board cannot be interpreting s. 3(2) in the way Parliament must have intended.
11. My alternative line of reasoning is based on s. 3(3) and s. 3(4). Section 3(3) should be taken into account when considering a publication other than one to which s. 3(2) applies. The express references in s. 3(3) to "particular weight" and "the extent and degree" are important. The section 3(4) matters are merely to be "considered": Parliament has not directed that they be given particular weight. In s. 3(3) the only relevant subparagraph is (iii): "other sexual or physical conduct of a degrading or dehumanising or demeaning nature".
11. In my view LA Zombie, quite apart from s. 3(2), is dominated by "sexual or physical conduct of a degrading or dehumanising or demeaning nature". The sexual conduct depicted occupies a large proportion of the running time of the film. Part of the remainder is (i) a drug dealing scene which leads to several cold blooded murders; (ii) drawn-out and utterly loveless fellatio; and (iii) urination. The sparse dialogue features numerous uses of "fuck" and "fucking". The balance of the remainder depicts the character's loneliness and inability to establish any affectionate human relationship. Much of what is shown, for example the lengthy scene by a grave in the cemetery, may have been intended to convey some deep message. I for my part was unsure what the message was. Those parts of the film which were not shocking I found excruciatingly boring. But the effect that the film actually had on me must not be confused with the statutory test.
11. The sexual conduct shown was at once "degrading" and "dehumanising" and "demeaning" — giving those words their ordinary meaning. A dead body should be treated with dignity, not subjected to sexual invasion. The dead bodies in the film were depicted as mere sex objects, albeit overlaid with the absurd message that being so treated would serve to resurrect them.
11. Had the same activity been hinted at, or shown much less explicitly, it is possible that LA Zombie would not be properly regarded as "likely to be injurious to the public good" within s. 3(1). But the depictions are shown in a very explicit "manner" and each continues for several minutes.
11. The Board must also consider the s. 3(4) matters, and I have done so. My conclusions can be briefly stated:

16.1. Several of the s. 3(4) matters are neutral for present purposes;

16.2. The "dominant effect of the publication as a whole" (paragraph (a)) is that it conveys the message that sexual activity outside any human relationship can somehow restore life and meaning (even though the actor's hopelessness endures).

16.3. The black-and-white film may or may not be thought to enhance its surreal impact: this is neutral (paragraph (b)).

16.4. LA Zombie may have appeal to some "mostly gay and lesbian audiences" (Reel Queer Inc Programmers' submission), and the merit of novelty beyond all existing boundaries, but it has almost no merit, value or importance in relation to the matters listed in paragraph (c).

16.5. It is likely to be made available to a small festival film audience only, and this counts in its favour. It will nevertheless be open to be viewed by the general public (paragraph (d)).

16.6. The film is not intended to serve any educational or socially valuable purpose: paragraph (e).

16.7. There are no other relevant circumstances in terms of paragraph (f).

17. In short, when deciding whether the film is objectionable in terms of s. 3(1), the particular weight consideration in terms of s. 3(3)(a)(iii) decisively outweighs the combined effect of the considerations which must be brought into account under s. 3(4). The publication plainly deals (and at tedious length) with sex matters in such a manner that the availability of the publication is likely to be injurious to the public good. I would, with all respect to the majority of the Board, classify it simply as objectionable.
17. In my capacity as President, I record that the Applicant Society applied for an interim restriction under s. 49. When this was referred to me, I was unclear as to the need for such an order, noting that the first screening of LA Zombie would be on 6 June, and that before that date the Board would have met and reached and communicated its decision. Upon being advised that that was my approach the Society withdrew its application for an interim order.
17. The restriction on freedom of speech involved by classifying the film as an objectionable publication is in my view clearly justified in a free and democratic society. Further, I do not believe that two different interpretations can be given to s. 3(2) such that it would be obligatory to choose the interpretation yielding the lesser restriction pursuant to the NZ Bill of Rights Act 1990.

President