Will controversial arts events have to flag their exact content following this week's court case, asks Belinda McKeon
For International Dance Festival Ireland (IDFS), a Circuit Court judgment this week delivered victory - but with a twist. It successfully defended a court action against a claim, made by a member of the audience at one of the shows staged in 2002, that the show contained indecent acts (primarily simulated masturbation and urination) of which he had "not been informed adequately", constituting an alleged breach of contract. But the relief was tempered somewhat by the decision of Judge Joe Mathews not to make an order on costs in the festival's favour.
What this means, effectively, is that while IDFI has been vindicated in bringing to the festiva the French choreographer, Jérome Bêl, and his eponymous performance, it must still pay for the days it was obliged to spend in court because of Raymond Whitehead's action. He brought a civil case against the festival after he was offended by several elements of the performance and was refused a refund. IDFI says, in concrete terms, this will cost it the price of a full production in next year's festival.
"It struck me afterwards how ludicrous that was," says the director Alan Gilsenan, a festival board who, although present in court as a witness for IDFI, was not called to give evidence because the judge ruled that Whitehead's case was "not a sustainable one". "We came away and won, and then thought: but anyone can walk in and decide for a personal reason, or any reason, that a piece offends them, and take a civil action, involving arts bodies with scarce time and resources and no funds to spare. And then, if the judge doesn't award costs against the claim, the arts body has to carry the can. Through no fault of their own."
Gilsenan feels the case has worrying implications for arts organisations staging more provocative productions in future. And Jérome Bêl was nothing if not provocative, with scenes of "genital manipulation", in the words of Whitehead's solicitor, Vincent Crowley; in one instance, a male performer pulled a woman's hair between his legs to create a "moustache" over his penis - a scene which, according to one source, was described in detail this week in court to the apparent bemusement of the judge. At a later stage of the action, two performers urinated onstage before scooping up their urine and smearing it across a blackboard.
Although the performance had been advertised in the festival brochure with a photograph of two hands clutching a man's genitals, Raymond Whitehead denied that this had given him sufficient indication of the performance's nature.
However, Gilsenan says that in any event, the pointers were there in the wording of the brochure.
"It said this is a very challenging, provocative contemporary dance piece. It didn't flag up the urination because the urination in it was very subtle, and was a culmination of evocative exploration of the body. To flag it would have been like having to put a note in the Waiting for Godot programme and saying, by the way, Godot never turns up."
Marina Rafter, general manager of IDFI, agrees. "By making obvious that it's about x, y, z, you prejudice someone's experience of an artistic event." There is a worry, says Rafter, that already cash-strapped arts organisations will be dealt financial blows by offended patrons with the means to take a civil case. But this is a worry which has always been present. "It boils down to money," she says. "If anyone feels strongly about something and has the money, they have the legal right to do this."
The greater concern is that theatres and other venues may now find themselves cornered into the position where they may have to classify, or possibly even place age restrictions on, performances of a less conventional nature. "We have a responsibility to do that, to flag up, through a photograph and a description, what type of performance is in question," says Gilsenan. "But we have to flag it in the context of the art, not in a way that would undermine the artist and the relationship of the audience with a piece of art. That would reduce it immediately. It's not like saying there are nuts in this food."
But after the case, Vincent Crowley insists that the nuts, and all other contentious ingredients, need to be clearly signposted. He points to the the fact that urination in public can carry a criminal sentence, and says that a line must be drawn somewhere between public decency and the freedom of artistic expression. Classification exists for cinema and video, but not for performance art of any sort.
In fact, says the Irish Film Censor, John Kelleher, the incorporation of video art in theatre or dance performances will often escape censorship too, since it is judged to have "an educational function". "Theatre is not regulated, and that's the point my client was trying to make," says Crowley. "There are only voluntary guidelines. So strip clubs and lapdance clubs could conceivably say that what they are doing is theatrical. And that could lead to exploitation too."
Crowley repeats his client's claim that he was "going to bring children" to Jérome Bêl. "What was witnessed on stage wasn't art," he says. "If you brought children to it . . . some would class it as child abuse. In 20 years' time that could be seen as child abuse."
It's a complaint which could cost Raymond Whitehead up to €15,000 in court and legal costs, estimates Crowley.
Willie White, artistic director of the Project Arts Centre, feels reasonably confident that the case, by setting a precedent, will not exact a crippling cost from arts organisations generally. "Only time will tell if this will have a wider effect, but I think it's an isolated case," he says, adding that he would be "loathe" to see the dawn of what he calls "self-censorship" in the marketing of artistic events. "We care about our audiences, and we want to be as honest as we can without undermining their experience of a show. And often that experience is to be surprised and provoked. It's a tricky thing to communicate a show, which is a live thing, an alive and evanescent phenomenon, in dead prose. And we are mindful that if content is not appropriate for children, we will warn that they should not see it without a guardian. But you can't legislate for individual sensibility," White says.