I don’t have time to write a proper post on this, but I will make two points that seem to have been missed in all the brouhaha. This has turned into a proper post by default, partly through offline questions and partly through reading other blogs around the traps.
First, it is not possible for a child (<18) to consent in the circumstances under which the photographs were taken. The creation of child pornography (or even fairly innocent nudie pics of young girls - Henson’s problem is the public display of same) is treated in much the same way as rape. No doubt there are plenty of 15 year old girls who ‘consent’ to sex with men who are well over the age of consent, but it is still technically rape, because they are deemed incapable of consenting. Most US jurisdictions use the phrase ’statutory rape’, which does make things clearer, at least for non-lawyers. The law draws a bright line in part because drawing a wriggly one leads to extraordinary confusion. Unfortunately, ‘bright-line’ rules occasionally lead to absurdities, and this is clearly one. Parents, also, cannot consent on their child’s behalf. This is why courts can override Jehovah’s Witness parents who refuse blood transfusions for their children, but cannot do the same to the parents themselves.
Second, I know Hetty Johnson personally - she’s also from Logan City originally - and she served the city with considerable distinction, first as local councillor (Democrats, then independent) and then as a child protection advocate. I find it difficult to imagine her going off half-cocked. Maybe she has changed since I knew her, or allowed herself to be embroiled in a moral panic of sorts. People involved in child protection - in part because child sexual abuse really is distressingly common, especially in step-family arrangements - do get very wound up about what they do, and anything that appears to legitimize it. The situation is awkward, especially as Henson’s photographs depend on the viewer’s gaze, rather than anything intrinsic. A paedophile, unfortunately, will get off on them. That said, a paedophile will also get off on the Bonds underwear catalogue.
In the meantime, there are two excellent threads on this issue (including some of the images) at Larvatus Prodeo and Junk for Code.
UPDATE: I’ve brought this up from the comments, mainly because it provides links to the relevant statutory requirements:
Part of the issue is that Hetty Johnson has taken it up; it’s clear from a google image search that Henson’s exhibited squillions of times before and nothing has happened. That is the moral panic part of the equation, into which Johnson appears to have allowed herself to become embroiled.
Prima facie, however, photographing naked children (especially those where the sex act is in process) under the age of 18 (or 16 in some jurisdictions) is not something to which the children (or their parents on their behalf) can consent. That is why pr*n sites in jurisdictions where pr*n is legal always go over the top about advertising that everyone on the site is over 18.
In response to tigtog’s question, playing volleyball with all your bits flying about is not obviously sexual, although I do suspect in the current circumstances a display in an art gallery or an advertising catalogue (’come and live in xyz nudist colony’) would generate moral panic. Not moral panic on this scale, perhaps, but moral panic nonetheless. If it went to trial, the lack of sexual charge would probably be decisive, but I’m not making any promises.
The problem for Henson is that he’s clearly - as an artist - playing on the boundary between art and pr*n. I suspect (without trying to read his motives here, I’m not an art critic) that he wants to challenge our depiction of children as asexual beings.
Another problem - and this is bitter experience speaking here - is his images are very similar to some of the artier pr*n pics out there, and his subjects are underaged.
This is the relevant section of the legislation. It’s worth noting that earlier legislation allowed for the admission of expert opinion on artistic merit [s 578C(6)], but also focused on the ‘publishing’ aspect in ways that newer obscenity legislation does not (the old phrase was ‘tends to deprave or corrupt’; the newer enactments are oriented differently). I suspect that David Marr and others who have been discussing this have the old s 578C in mind, not the new s 91H, which is designed to catch many more fish in its net.
It’s characteristic of much recent criminal legislation that it is drafted to resemble a strict liability regime in ways unimaginable to drafters in days gone by. Modern legislation is interpreted ‘purposively’, which means where the statute does not provide a convenient definition, it is useful to look at preambles and parliamentary debates/final reading speeches.
One such speech on the section in question is here.
UPDATE II: Well, I’ve now had a slew of emails asking me what I think, the law apart. Well, get ready for the libertarian with both barrels. Basically, I think that porn created with the consent of the parties involved (ie, delimited by contract) should be legal. If people get their jollies looking at porn, then so be it. Prohibition of victimless crimes has never worked, and viewing/making pornography is much like drug use. Illegality actually creates a mass of negative externalities that we (ie the taxpayer) finish up coughing for.
Aesthetically, it is not possible to have art (or advertising, or whatever) entirely defined in the eye of the beholder. If people are getting their jollies looking at the Bond’s underwear catalogue, that is not an argument for banning the Bond’s underwear catalogue.
Where does this leave Henson? This lawyer still thinks he’s a bloody idiot for taking nudie pics of underage kids. Even though they’re nice nudie pics of underage kids. The fact that he’s taken a lot of his photographs in various Eastern European countries (notably Romania) where consent is, ahem, more easily facilitated suggests that he might be aware of the issues, too. Word: next time, Bill, find an 18 year old who looks 13, and this whole issue will go away. Should he be prosecuted? No, of course not. In days gone by, this was called wasting the court’s time, and would have been greeted with guffaws. However, s 91H is so broadly drafted - largely in response to moral panics about child porn, advertising and ‘child sexualisation’ - that God knows what the outcome is likely to be.
That said, I do prefer the lawyer’s bright line with respect to consent, so if people want to look at kiddy porn, they’re going to have to settle for 18 year olds who look pre-pubescent, or CGI.
UPDATE III: Kim has written the mother-of-all exercises in nuance here.
UPDATE IV: More useful legal opinion on the consent issue here, from Justice Hampel, formerly of the Victorian Supreme Court (via Saint).
UPDATE V: The UK is looking to close the CGI loophole that allows for digitally created images of minors; this is very bad law indeed (via DEM).
UPDATE VI: I wrote this comment over at LP, in response to Brian’s excellent post. It should probably go here, as well.
Interesting where this has gone. I should point out that when I supported tigtog’s ‘release and waiver’ suggestion, which is - as Dr S suggests above - almost identical to the regime for scientific studies - I was doing so in part because tigtog was honestly addressing the legal complexities. Parliaments make the laws, yadda yadda, but we lawyers (and the police, in the case of the criminal law) have to apply them to the facts. Law can be a scalpel, but even as a scalpel it’s an imprecise tool.
This means that it is very easy to drag law’s failures, blinking and squinting, into the sunlight. The ’special case’ is always easy to find (and it very often tugs at our heart) but perfect justice is impossible. As Richard Epstein has argued, we have to accept that ‘95% is good enough’. I still maintain (and I’ve said this at greater length at our place) that Henson was a fool to use minors in this way. He’s put himself in the law’s way, which is a little bit like tangling with a semi-trailer. You just don’t do it if you can help it. Does that make this fiasco part of Richard Epstein’s 5%? Quite possibly. Does that mean we should change the law? Maybe. Does this make Henson a pornographer? Of course not. Is he vulnerable to civil suit, as Steve suggests? Most definitely, and at greater risk of loss than he would be in a criminal prosecution, if Justice Hampel (formerly Vic SC) is to be believed.
Hard cases make bad law, simply because there is no right answer. Generous souls on both sides (and I particularly note PC’s comment about 7 Up above and Su’s contributions on one of the other theads) that there is something in the other side’s arguments.
One thing - independent of the law - is the media involvement in this. I’ve been arguing for years that pre-trial media speculation in cases like this (before someone has been charged, which is the point where they have to back off under the current regime) should be regulated far more heavily than it is (yes, you read that right, I’m actually advocating greater oversight of a bunch of corporations). Henson is now at risk of not getting a fair trial, simply because of the amount of piffle generated in the press on all sides.
UPDATE VII: There is an excellent post on exactly how these laws work in practice (using an earlier case) available at Marcellous’ place, one of our commenter’s blogs. Before you read it and assume that Marcellous is doing the lawyer’s trick and defending the indefensible, remember that the party in question has (a) served his time and (b) has been pinged for republishing police fact sheets and witness statements, none of which he generated himself. There’s is also a free speech issue buried at the bottom of it, but then - as Marcellous points out - we don’t have a great deal of that in Australia, either.
76 Comments
“in the circumstances under which the photographs were taken”
What circumstances are those?
Was wondering that too…!
Me too.
Hypothetical: can a teenage volleyball team from a nudist club give adequate permission, or can their parents on their behalf, for pictures of them playing a match, to be taken and displayed? This is not an idle question, volleyball is a hugely competitive sport amongst nudists and inter-club championships are common.
If it would be OK for pictures of naked teen volleyballists spiking a ball over the net to be displayed, then is that bright dividing line actually so bright?
Part of the issue is that Hetty Johnson has taken it up; it’s clear from a google image search that he’s exhibited squillions of times before and nothing has happened. That is the moral panic part of the equation, into which Johnson appears to have allowed herself to become embroiled.
Prima facie, however, photographing naked children (especially those where the sex act is in process) under the age of 18 (or 16 in some jurisdictions) is not something to which the children (or their parents on their behalf) can consent. That is why pr*n sites in jurisdictions where pr*n is legal always go over the top about advertising that everyone on the site is over 18.
Playing volleyball with all your bits flying about is not obviously sexual, although I do suspect in the current circumstances a display in an art gallery or an advertising catalogue (’come and live in xyz nudist colony’) would generate moral panic. Not moral panic on this scale, perhaps, but moral panic nonetheless. If it went to trial, the lack of sexual charge would probably be decisive, but I’m not making any promises.
The problem for Henson is that he’s clearly - as an artist - playing on the boundary between art and pr*n. I suspect (without trying to read his motives here, I’m not an art critic) that he wants to challenge our depiction of children as asexual beings.
The problem is - and this is bitter experience speaking here - his images are very similar to some of the artier pr*n pics out there, and his subjects are underage.
This is the relevant section of the legislation. It’s worth noting that earlier legislation allowed for expert opinion on artistic merit [s 578C(6)], but also focused on the ‘publishing’ aspect in ways that newer obscenity legislation does not (the old phrase was ‘tends to deprave or corrupt’; the newer enactments are oriented differently). I suspect that Marr and others who have been discussing this have the old s 578C in mind, not the new s 91H, which is designed to catch many more fish in its net.
It’s a characteristic of much recent criminal legislation that it is drafted to resemble a strict liability regime in ways unimaginable to drafters in days gone by. Modern legislation is interpreted ‘purposively’, which means where the statute does not provide a convenient definition, it is useful to look at preambles and parliamentary debates.
One such debate on the section in question is here
Actually, tonight I heard that there had been calls to take nappy ads off television because paedophiles may get their jollies from such ads. Hmm. The thought of people getting off on such images makes me feel ill…but I think that taking nappy ads off TV is taking it too far.
The whole thing is quite rightly labelled a fiasco, LE. Frankly I have a bit of a problem viewing the world through paedophiles’ eyes, which is what some of this amounts to (the complaints about nappy ads are Exhibit A of this - it involves ‘imagining’ oneself thinking about babies as though a paedophile - blech).
Interestingly, there’s an awkward confluence between elements of feminism, extreme anti-pr*n campaigns and extreme elements of conservatism - all coupled with artists who think that ‘transgression’ is the only game in town when it comes to ‘challenging the philistine public’ in all of this.
Glad it’s not me drawing the line, is all.
My take on this copied from my own post
The Art VS Porn controversy also boils down to the issue of duty of care. You have to ask just what sort of parent would consent to allow someone to take photos of their naked pre-pubescent children. Now the images (from what I have seen) are certainly “artistically shot” with a skilful use of lighting that is vaguely reminiscent of the old master technique of chiaroscuro to let light give their bodies an almost painterly rendition. Each of pictures in question* appear to be just of the child against a black background so there is no doubt that we are being invited to consider the physicality of their naked bodies. I find it impossible to reconcile the reported claims that the children being on the edge of adulthood is one of the things that the photographer was seeking to capture with the denials by the show’s supporters that the images are “not for titillation”. A viewer will make of the images what they please no mater how lofty the claims of the images’ creator by say in words about the pictures which is well explored in John Berger’s book “Ways of Seeing” . By the same token a paedophile may derive their sick jollies from seeing images of children in department store catalogues. We cannot just accept at face value claims that pictures of naked children are benign because the “artist” asserts that they are. Nor can we accept the notion that because the children are not depicted in any kind of sex act that these are not images that pertain to the sexuality of the children or that they are being seen as objects of desire by those who would look at or even purchase the images.
The internet has democratised pornography, made it so cheap and readily available that it seems that an image has to be cheap to be pornographic, and I am certain that in the minds of the “art lovers” who have expressed “outrage” the “exclusivity” of these images and the cost of their purchase lends some legitimacy to the subject matter. But strip the images of this notion of “exclusivity” and the context of the art gallery but compare them to say an image from the internet like the one at the top of this post and you can find the photographer may have used light in just the same style as Bill Henson has in his “art works”; a casual observer would be hard pressed to see a significant difference between pictures from that art gallery and pictures from a gallery on the net, except that in the gallery on the net will in all likely hood contain images of models who are over the age of eighteen and therefore no longer children.
The whole defence of this exhibition by the likes of David Marr and his pals is rooted in the notion of the artist as the transgressor, the fantasy of the “avant garde” and that moral behaviour is somehow only meant to apply to we lesser mortals; artists are meant to cross any and every line of behaviour and decorum, concerns about the depiction of naked children is just another line to cross in their minds. But to ordinary people outside the “artistic circles ” artists are subject to the same expectations as everyone else.
A rose by any other name Comrades.
sorry I link to this picture to demonstrate my point about how the pictures were composed.
http://iainhall.files.wordpress.com/2008/05/vibeke_4.jpg
Wonder if TigTog is a long-time fan of Health & Efficiency magazine?
This at least explains why UK schools have started refusing parents permission to film Nativity Plays (though it’s been a while since I’ve noticed any ‘wardrobe malfunctions’ during one of these).
Pretty incredible how many people think they are informed enough to comment on the basis of having seen a single small reproduction of Henson’s work, more likely than not one captioned ART OR PRON U DECIDE!!!
I made the mistake last year of saying in a thread at LP that I had a pdf copy of the Australia Institute’s paper ‘corporate pdphlia’ with the discussion image included (shortly after releasing the paper they removed the pictures.) Since then I have had quite a few emails from total strangers asking for it. They don’t say what they want it for.
Is isn’t technically, even CGI in some Australian jurisdictions, illegal because it /depicts/ child sex, (i.e. constitutes a thought-crime), besides the fact that “no child was harmed” in its making? And by the same laws, therefore, an 18 yo that looks 13 is also banned, as is, for example, schoolgirl fetish style stuff even though the model is over 18? (i.e. depictions of minors, not just minors).
Here’s the relevant section (91H)of the NSW Crimes Act:
“(1) Definitions In this section:
“child pornography” means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:
(a) engaged in sexual activity, or
(b) in a sexual context, or
(c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).”
As Sections (a) and (c) are clearly inapplicable, it remains to be seen what the court (if it gets that far) interprets “in a sexual context” to mean. To this non-lawyer’s mind, it would have to entail something more than simply a portrayal of nakedness per se, given that most of us are naked when stepping out of a shower, getting out of bed in the morning or stripping off for football, netbal and/or the gym, none of which are, in themselves, sexual contexts.
What if someone gets off on a perfectly normal picture of a cow? Should we ban pictures of cows? The nappy example is a salutory one - a perfectly normal image which some people might get excited by - there’s not much we can do about the excitement of those people.
I do think Henson has crossed the line, however - the soft focus images, the emphasis on the girls’ bodies. This is designed to highlight the sexuality of the girls.
In some ways, however, I consider his images as on a par with, say, a teenage girl magazine, full of vamped up teenagers in pouting poses. Does the state of dress or undress matter if the pose is provocative, and the girl is behaving in a sexualised manner? So it is very hard to draw the line. In some ways, a woman who is semi-dressed is more provocative than a naked woman.
I would probably tend towards allowing the exhibition, but would refuse to give it publicity by creating a furore.
However, as SL has argued, the way in which legislation is drafted suggests that this may transgress the law… we’ll watch this space.
Laura - Erk about the image from corporate paedophilia!
Reminds me of a story about a school teacher who confiscated some icky pr*n from a student - she was amazed some months later when various male colleagues approached her asking if they could “just have a look”!
scepticlawyer, my apologies for not noticing you’d already linked to the legislation.
I think this is an issue of conflicting principles - freedom of expression (artistic or otherwise) versus protection of children. Principles can rarely apply absolutely without eventually coming into conflict with other principles, and as in many other situations where this occurs, one principle or the other has to take priority.
I normally lean towards freedom of expression in most cases, not least because in reality trying to legal suppress expression often doesn’t help address the problem that is allegedly trying to be fixed.
But when it comes to protection of children and improving social attitudes towards the way children are treated, I definitely lean in the direction of children.
That said, I don’t see any point in actually prosecuting the photographer or the gallery (I’ll leave it to te legal types to decide what the viability of such a charge would be). I think the public debate about what is approriate and why is the most valuable thing that could come out of this, and I think Helen’s post does a good job in teasing out some of the contradictions and complexities in social attitudes towards this.
In a simple but rather telling example of such a contradiction - (double standards might be a better term) - many mainstream media outlets continue to display some of the most explicit of the photos from this exhibition on their website, days after they were removed from the gallery’s site, all the while publishing screeds about how depraved the photos are. If the photographer or gallery is to be charged, then so should every media outlet that put some of these images on their websites.
PS: On a pedantic point which is mostly off-topic, (but is in the orginal post):
Hetty Johnstone ran a couple of times for election to Logan City Council (once as a Democrat and once as an Independent), but although she polled well both times (once only beaten on preferences), she didn’t win either time, so she was never actually a local councillor. But I agree she was an active and effective member of her local community, on local enviromental and social issues beyond the child protection matters which have dominated her work for the last ten years or so.
Andrew Bartlett wrote:
“That said, I don’t see any point in actually prosecuting the photographer or the gallery (I’ll leave it to te legal types to decide what the viability of such a charge would be). I think the public debate about what is approriate and why is the most valuable thing that could come out of this, and I think Helen’s post does a good job in teasing out some of the contradictions and complexities in social attitudes towards this.”
I’d go further and say that if the prosecution proceeds to trial this would be a classic example of a hard case making bad law.
The law being what it is, it is unlikely that a legal judgement one way or another could achieve the nuanced balance between conflicting principles which is needed, and which could be achieved by the kind of public conversation Andrew is calling for.
The outcome of a court case will almost certainly entail one principle prevailing, if not absolutely or to excess, at least to the point where one side of this controversy feels seriously aggrieved. The risk then is that political pressures and opportunistic considerations could lead to a legislative response which is even further removed from the balanced response required.
Andrew and Dr Paul, I think you are both right - a prosecution would be unlikely to resolve this matter in a way which would recognise the competing principles at hand. The very nature of legal actions is adversarial, and one side generally has to “win” whereas the other “loses”.
Of course it is pornography. You cannot show full frontal nudity of boys and girls and deny it is pornographic. And he should be prosecuted so that everyone knows that consent of a child or a child’s parent is meaningless, that art has no place in kiddie porn, and that we as a society ensure our children are protected. They lose their innocence far too early and we should be shamed of it.
What the hell were these parents thinking allowing their 12 yr old daughter to be photographed naked and have them posted on the web. outrageous.
Even debating it as art is frightening.
Assume for the moment there were no pedophiles. Think of these young model subjects, being exposed to a photographer who sought to capture their emotions of being naked in front of the camera. Think about what you do each day to preserve your modesty. These photos once put on the web cannot be pulled off it. How will these kids be unaffected by this? How can a 12 yr old be judged to know all of these implications?
It is / was so unnecessary. Go find some adults Bill and forget about your interest in naked children.
Wow. What a bad law.
By that statute all parents can be arrested.
Too many “reasonable persons” and “depict or describe”
This would mean that a parent discussing walking in on their 15 year old child having sex, say for advice from an online forum, would be in breach of the law.
Any photos of your own children that may be construed by moral crusaders as having any sexual content, clothed or not.
Writing about your own experiences of sexual abuse.
This law casts far too wide a net.
I said most of what I have to say over at GS-T’s Junk For Code. Except that I like to repaet what I know to be true: The most common photos found in the posession of convicted child pedophiles are K Mart and Target catalogues with kids in underwear.
The most common sexual abusers of children are not strangers or “perverts on the internet” but are parents, de-factos or in loco parentis or relatives or friends.
The most common murders of children are people with the same sort of relationship.
Oh yes, we are currently mired in ‘hard cases make bad law’ territory, although there’s an element of ‘bad law makes hard cases’ swirling around in there as well.
As several people have pointed out, and as I know from legal practice, s 91H is deliberately drafted in such a way that there’s no guarantee that tigtog’s ‘Health and Efficiency’ volleyballers would not be caught out. The lack of legislative reference to an expert is particularly telling.
That said, the ‘experts’ haven’t exactly been covering themselves with glory on this issue, either - a point Kim made over at LP and Iain has made here. It’s a fine line between rejecting someone’s taste, and rejecting the person, especially when the artworks themselves seem designed to conflate author and subject in all sorts of weird ways.
One of my criminology tutors here in Oxford has a theory about the prevalence of this kind of ‘moral panic’ legislation, which she in part ascribes to a strain of feminism (but not what you would expect). I’m currently debating with myself whether to share it, as it’s monumentally controversial.
DeusExMacintosh asked, I think with an implicit leer, whether I was a long-time fan of a magazine about nudism that is widely sold to non-nudists. No, I am a woman who once was a teenage volleyball player at a social nudist club myself.
I’m wondering about the number of people who claim that Henson’s images are full frontal nudity and therefore obviously pornography. Apart from begging the question of whether nudity is automatically pornography anyway, how revealing such claims are. It takes only the smallest amount of reading beyond the moral outrage pieces in the tabloid press to know that while the occasional nipple is shown, the genitals of his underage subjects are not shown in these images - the groin area is always either shadowed or out of frame.
I believe that the law used to be more simple - if genitals or actual/imitated sex acts were not shown, then the image could not be legally categorised as pornography (although it may still be regarded as indecent). It appears from SL’s links that the changed law is less concrete, but to me that seems like it was a fairly good set of criteria. Not all nudity is sexual.
I also think it is possible to examine sexuality without necessarily sexualising one’s subjects.
In line with what my criminology tutor argues, here is Jill Singer in today’s Hun. Money quote:
Ah lookin’ around for someone to violently disagree with. And I found him. Pete, mate, having just reasonably rebutted your stance on drugs (at Catallaxy) I’m gonna do my best to be civil viz Art.
Of course it’s pornography sayeth Pete. And hear hear to that. And whilst we’re at let’s clear the galleries of other nefarious smut. For starters let us nix Michelangelo de Carravagio, dirty man. And thence let’s proceed to Rubens. Should be flogged what…
See the dark background? It’s making us pay attention to the flesh damn you. The flesh!
The flesh is evil! Flay it, beat it, kick it and whip it. And if it should happen to give you pleasure - for shame!
I’m being serious. The law seems to’ve grown more and more puritanical perchance because society, particularly younger generations have grown more libertine? Do the comfortable middle people read Tom Wolfe’s latest novel and freeze up anxious for their ‘little’ girl (who is probably indulging in Babylonian excess on the week-ends).
Probably. But the law is somewhat clumsy. I remember a few years ago when background checks for sex offenses and the like were made compulsory in certain fields. Some young man wrote into the paper looking for advise. When he was 16 he’d been caught makin’ it mo’ better with his girlfriend aged 14. He was put on a sex offenders register!
Now when I was fourteen there were quite a few girls who were sexually active. Most of ‘em with older boys. And contrary to popular lore and presbyterian statistics they weren’t ‘deranged sluts’ either. They were just ready.
About the same time I found Henson’s work. I fell in love with it.
Now this is not pornography however the law likes to define it. There is sexuality in the pictures but it’s the fey, androgynous, anxious sexuality in early bloom. It is of the time of unrequited yearnings, of lonely long nights when only music understands you. It was not pornographic. And everything’s pornography to a 14 year old boy.
Pornography is material designed to arouse. To provoke a sexual response, to get you hot and bothered. Yes? Henson’s work doesn’t do that. And since that time I first found it I’ve been in many a gallery with persons of all ages and no pandemonium has resulted. I’m certain some were disturbed - it’s work that’s designed to disturb.
Naturally the court’s view will be based not in the real world but in the realm of those rules that underpin it. It will be an argument about the ’sexual context’ and if it succeeds we’ll be going back to the Lolita trial.
Unfortunately the capacity of the morally puritan to create a frenzy of unreason and tubs of mouth-froth is extensive and in this environs anyone seeking to put a reason’d voice in opposition will be tarred an ally of infamy. It is this that I most detest. If Henson is jailed however I will be ashamed of this country. Truly.
I can only wonder at those who view the depiction of the nude to be inherently pornographic. There are several much more blatantly sexual sculptures in the NGV (Victorian of course). Should we hand out tissues?
Those who refuse to see that sex doesn’t switch on upon one’s 18th birthday, or 16th birthday or whenever the law says it should either can’t or refuse to acquire any understanding of sex not limited to Sunday school simplicity. Those who can’t see the difference between a nude depicted for art and pornographic material frankly don’t know what they’re talking about.
There is art that is pornographic. Henson’s isn’t.
Addressing the theme of the post rather than opening my usual hot vent…
If this goes to trial I imagine that it might become something worthy of dramatic performance. The arguments will be about the concept of ’sexual context’ which will bring into the legal arena all those questions that’ve been discussed re is it pornography etc.
Another front for the Culture Wars ‘ey. The most marvelous waste of fighting spirit since Cardigan led the Light Horse somewhere south of Ukraine.
Oh yes, the lawyers will be lovin’ it.
Tigtog, I take your point about exploring sexuality without necessarily sexualising the image.
In that way, I still think that images in a teen girl’s magazine are more sexualised than these images. And more harmful, because they are held up as role models for girls to imitate.
Helen
You say it’s not possible for either a child or its parent to consent to nude pictures (I think that’s your meaning) in any circumstances.
What about a doctor taking photos of a naked child whose symptoms are externally visible (say a skin condition)?
What about models working for Vogue while underage? Those photos are often highly sexualized.
Surely there are some forms of consent that are legal?
That used to be the default position, JM, and it appears that even under the new legislation the doctor is still covered, as are parents taking holiday snaps of their own kids. However, the Vogue issue has now been notably complicated, which is why the fashion industry voluntarily adopted a code of practice that excludes girls under 18 from the catwalk last year.
Thanks Helen,
I was actually thinking of the many magazines that utilize young models rather than the catwalk. You seem to be saying that my local newsagent is stocked with kiddie-porn. Which seems to be relevant because Henson will probably argue that he has releases, in exactly the same way he would if he were working for Australian Vogue.
Anyrate, a couple of other minor questions
91H 4(c) says “(c) that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose, or”
I can see that ‘medical’ purposes have an out but isn’t the ‘artistic’ purpose where Henson gets off?
Secondly, 578C 3A says “A person cannot be convicted of an offence against this section and section 91H in respect of the same matter.”
Doesn’t that imply that 91H is supplementary to 578C which remains in force?
I don’t think so. If I was prosecuting I’d prepare the indictment in the alternative, which would have the effect of neutralizing any expert fielded by the defence under s 578C. OTOH, it could become a battle of the experts if the Crown decided to charge ‘in addition’ rather than ‘in the alternative’. Arguably, this could help the defence, but an impressive psychologist on the witness stand almost always comes over better than an art critic. Iain and Kim are right in that Henson’s artistic defenders haven’t exactly covered themselves with glory on this.
If you look at the second reading speech, ‘artistic’ is not discussed at all, which will make it difficult for Henson simply due to the ages of the models, and the presence of full frontal nudity.
Any DPP office will have a vast bank of similar ‘artie porn’ pics in their archive (I know, I’ve seen plenty of same) to exhibit to the jury.
For the last few days I’ve been waiting for this Henson bloke to come forward and utter the triumphant GNAA cry:
YHBT.
YHL.
HAND.
DeusExMacintosh asked, I think with an implicit leer, whether I was a long-time fan of a magazine about nudism that is widely sold to non-nudists.
Not a leer, TigTog - just a healthy Carry-On style chortle.
Pornography and the issue of ‘decency’ is difficult to legislate as so much is culturally determined. Japan has a pretty racy sexual culture in its Manga (comic books) which are widely read across the social and gender spectrum. The Hentai strand of animation has explicit depiction of male/male, male/female, female/monster and all gender and species combinations but in the UK these DVDs are considered ‘pornographic’ and are illegal except in a very censored form despite Tyro Rex’s point that ‘no real person was harmed in the making of’. In Japan, it only qualifies as pornography if pubic hair is shown.
I prefer Skeptic’s legal bright line on “consent” to the endless quagmire of “is it art, is it pr*n?”. I never had the stomach to see Puppetry of the Penis live, but nor do I find the image of an erect penis ‘indecent’ despite it still being illegal to show one in film. On any other basis it’s trying to legislate taste.
Consistent with Laura’s point above about ‘prurient’ interests, the spambots love this post. I keep having to empty the spam can…
Whether this is defensible as art or not is one issue, but more to the point are you suggesting it is never legal to take naked pictures of underage people because they can’t consent?
Ie. can parents take pictures of new borns?
Can they send these pictures to their friends?
Can anatomy books print pictures of naked underage children?
I don’t think it’s never legal, Steve, but the new law makes it legal in an ever narrowing range of circumstances. The old law cut all of us a bit more slack.
Henson (like it or not) has planted himself very close to a particular line, and then exacerbated his situation by sourcing his young models overseas, and repeating the behaviour (how many arty nude photoshoots do you need to make your point?) Google his stuff - it’s beautiful, but very same-y.
I have a bad feeling we are in for the mother of all obscenity trials, followed by a couple of civil suits from now-grown models who are unhappy with their depiction as children. Indeed, Justice Hampel thinks the latter is more likely.
(sigh) The law is such a blunt instrument. It will not make things easier, or change behaviour - much. It will just drive up transaction costs, compliance costs and externalities.
/End Hayekian rant.
I think Steve, it would would be illegal to take naked sexually explicit (ie. showing the gender defining bits regardless of any sexualised context) pictures of underage people because they can’t consent. Apart from specific medical records (anatomy texts are able to use illustrations) why would anyone need pictures like this?
Are you suggesting I can’t take my nude baby pics of my kids out at their 21st birthday? That the cover of Nevermind is kiddy porn?
Seriously Deus, are you suggesting why would anyone not want to have a picture of their baby having their first bath etc?
Personally I think this is line of thinking that naked pictures of children should all be illegal is utterly ridiculous, and trivialising the very serious issue of pedophilla.
I agree with Steve.
I think people are conflating the nude with the sexual.
On the question of being later embarrassed; I’d be far more embarrassed about someone representing a first-year uni essay of mine at my 40th than them representing a baby pic or me nude at the beach when 3.
The reaction to this has, I think, been hysterical and I’m politically conservative.
No Steve, I’m not saying that would be pr*n. Pr*n is a definition of taste rather than fact (see my previous comment). Nowt wrong with naked kids and in the bath is fine, just don’t flash the ones with their legs wide open in public. Thanks to digital photography it’s now easy to delete those shots.
Unless you feel a particular need to be able to say “Look, it’s a boy. I can PROVE it.”
[groan] I’ve just heard a radio news report that it’s now going to be illegal to have explicit ILLUSTRATIONS of under age sex.
Very true. It seems to me that the whole thing will spin on what is understood by ’sexual context’. Pedophiles (or more accurately ephebophiles) may find this material ‘pornographic’ but the rest of us don’t. Why let criminals or those afflicted by psycho-sexual disorder dictate what the rest of us see?
Also this has inevitably raised the ire of a certain hardline branch of the Judeo-Christian fraternity. Again these people, presumably with God’s authority, claim exclusive domain over public space. Why? And why now. As SL’s said Henson’s work displays stylistic and thematic continuity. I’ve seen it exhibited in four major public galleries people of all ages present - why now?
DEM - just had a scan of baby no. 2 - I think I’d better be careful! There were definite boy bits (circled by doctor) - so it’s a BOY, I CAN PROVE IT!
The problem with this whole debate is that it is being run by people who clearly are not very familiar with porn. There is nothing necessarily antithetical about art and porn. Great porn can be great art, and vice-versa.
Me thinks it is a lot of the - “what would you know about art, I’ve studied it and like stuff” - Luvvies who clearly do not understand what is at stake here.
I think you’re right, John - I made that point over at LP. Anyone who reads Latin knows that great art can be great porn. It’s a real conundrum. Still, I’m just a humble lawyer (and honest philistine), so don’t really enter into the ‘artistic merit’ part of the argument.
SL
And anybody who knows Greek knows pornographia was the place in ancient Athens where the skanky prostitutes - pornai - had to apply for a licence to “work.” The more fragrant hetaerae - such as “Pericles’ tart Asphasia” were spared such insult.
“The creation of child pornography (or even fairly innocent nudie pics of young girls - Henson’s problem is the public display of same) is treated in much the same way as rape.”
How on earth did we get here?
I know you are just stating what you think the law is, but I would have started at the point that if a proposition sounds ridiculous, there must be something wrong with it.
And I can’t share your high opinion of Hetty J at all. I don’t know about where she started, but I judge her from where she is now, and that is riding the apocalyptic horse of a contemporary moral panic.
Read s 91H, Marcellous. Then compare it to the earlier legislation. Then read the second reading speech. The people who came up with this stuff clearly didn’t mean it to be ridiculous. In fact, they just ‘meant it’, period.
I should also point out that I have tried to be very reasoned - nay nuanced - in this debate, in part because I knew Hetty personally for a number of years. The arts community have done themselves no favours in dismissing her as a philistine.
FWIW, I think she’s clearly in moral panic territory here, but that just dismissing her concerns is contributing to the polarizing characteristic of the debate. I disagree with her - as I think I’ve made clear, but I’ve tried to keep the tone moderate.
[... I have been mulling over whether to post some thoughts on the current debate over the exhibition of Australian photographer Bill Henson .... I would direct people to an interesting post on the Skepticlawyer site, who writes with much more authority on the legal issues than I ever could, and expresses an opinion that sounds like the one I have in my head, but cannot quite get out today!...]
What makes you think I haven’t read this section, SL?
Even before we get to the defences, you have to consider “depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons.”
I have written here about the very similar Commonwealth provisions (save that the relevant age is 18 in relation to one Geoffrey Leonard, who, probably understandably, lacks Bill Henson’s high-power friends. Leonard has fallen foul of the proscription of dissemination on the net of “child abuse material.” Hetty Johnson had a part to play in that story too, as you can see if you click through to the youtube link there, assuming it is still live.
I’m adding your link to my post, Marcellous, for the simple reason that it gives a clue as to how these laws work in practice. I agree with you that Leonard is in a much grayer area than Henson, but I also think it’s very clear that child abuse campaigners have managed to change materially the way many ‘reasonable persons’ would view such material.
I hope you don’t get any more idiots accusing you of sundry weirdnesses as a result.
SL
Re Hetty Johnson. What is exquisite about The Luvvies’ latest diabolical being on the wrong side of a public debate is just how in love with Hetty they were when she got rid of Hollingworth as GG. Ah Luvvies, the gift that keeps on coming.
Pornai refers to slave-prostitutes in ancient Greece. I’ve never heard that the term added to graphis denoted a licence or a place to get one. In fact I believe that the pornai were not licensed; licensed prostitutes were on the next level up but below the hetaerae - the courtesans.
As far’s I’m aware pornography means the writing of or about harlots.
I know you won’t believe me, John Greenfield, but I’m probably a luvvie but I was never keen on Hetty J.
It is well known that paedophiles hang out at Arts centres waiting for the next set of images to salivate over.
How ironic, when I googled the name a Google ad for porno movies came up! Yeah, the publicity is really helping stamp out porn …
Just the other day there was a study claiming that women in bikinis stimulated men. Ya think? Who would have thought. Must ban bikinis, children must bathe fully clothed, and men must stop wearing Speedos.
It has been argued, and I believe there is some empirical evidence for this, that those men most opposed to homosexuality do exhibit sexual arousal when confronted with provocative male images. Well it’s a long bow but you just gotta wonder …
“Even before we get to the defences, you have to consider “depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons.”
What is a reasonable person? That is so vague. Which legal draftsperson came up with that? Hey SL and LE, think you two could have fun with that in court?
I can’t establish who is making all the fuss.
Replace “reasonable people” with “a random selection of the general populace where the selection is in accord with the accepted principles of statistical analysis.”
Could that work?
Lawyers are usually perfectly capable of making ‘reasonable person’ clear in practice. It does, however, become more difficult when the definitional ground underneath the phrase has shifted - which is what’s happening here, I think.
I’m sure they can SL but in this context it does become very problematic. For example, European movies have a much more relaxed attitude to sex on the screen than in Aus. Who is being more reasonable here? Them or us?
This is about a general societal attitude towards sexuality and and that shifts and floats with the times. If we argue that Hensen is not offending reasonable people aren’t we then saying that the protestors are unreasonable? Can we regard differing values on this matter as being reasonable or unreasonable? I just don’t know. That’s why I thought perhaps an approach that calls upon the opinions of the general populace as guide is better.
Help!
I sympathise John - I don’t know what’s reasonable in this circumstance either. What happens if society is split 50/50 on this issue? What’s the reasonable view then?
{Sorry, I know as a lawyer, I’m supposed to be deeply familiar with the reasonable person, but I’ve always found him/her to be a difficult kettle of fish.}
Wicked question LE! And there I was hoping to avoid some moral minority controlling the debate. I suppose, but I’m no statistician, one would have also take into account p values and confidence degrees. That is, even if it comes in at 48-52, a good legal eagle could argue on the grounds of the vagaries of statistical analysis … . Oh well, another idea bites the dust. I’m getting used to that.
The legal concept of ‘the reasonable person’ does depend on a degree of social uniformity - google ‘the man on the Clapham omnibus’ (how the idea was originally expressed) to get an idea of its evolution over time.
When, as you say, there is disagreement across a large n over p value, you start to realise how hard it is.
I can fully imagine Henson’s trial in front of a deeply divided jury (selected fairly randomnly, but not as randomly as I’d like - jury service is too easy to evade) left - as Marcellous says - with all the hard questions that lawyers want to dodge.
That said, lawyers (judges) often want to dodge the hard questions because they know they’re unrepresentative of the general population, often in particularly blinding ways. Indeed, in jurisprudence, there is a serious debate about the wisdom of a very powerful judiciary because they are so unrepresentative of society (mostly blokes, for a start, but blokes with fairly ‘luvvie’ values, to use JG’s phrase).
It’s a tough one.
The unrepresentative nature of the judiciary is a necessary evil. It’s hard work in law, you have to be bright, that alone makes it unrepresentative. Where’s the wisdom of Solomon when I need it?
Thanks for education SL and LE, now I must sleep.
Must ban bikinis, children must bathe fully clothed, and men must stop wearing Speedos.
There’s a time and a place for hanging meat … and the beach isn’t it.
Law on child pornography has been upheld as constitutional
SUPREME COURT OF THE UNITED STATES
UNITED STATES v. WILLIAMS
http://www.law.cornell.edu/supct/html/06-694.ZS.html
Interesting, Nanu - a law preventing persons from communicating in such a way to solicit child pornography - valid according to US Supreme Court.
I have to say that I think the Eleventh Circuit were right in saying that “in a manner that reflects the belief” that the thing they are soliciting is child porn and “in a manner … that is intended to cause another to believe” that the thing they are soliciting is child porn are very vague.
I guess it’s calculated to cover “sting” operations, where police officers pretend to be suppliers or something of the sort?
L/eagal -
Problem…I guess…is that court have to make decisions that carry further than the original argument. I thought their reasonings quite good regardless that the 2(?) weren’t convinced. Shit like this hits home and the pressure I’m sure tests the best juris’purists.
(PS - I thought “L/eagal” clever????)
Photographing an 18 year old (or 16) in a manner that makes him or her appear to be 13 year old will not take you outside the compass of Sect 91H Crimes Act 1900 (NSW), which reads:
(1) Definitions in this section:
“Child pornography means material that depicts or describes, in a manner that would in all of the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years.
The relevant words are contained in the parenthesis.
When we do get our thing done, and that’s a when, not an if, we hope to get all the previous material as well, when we tackled indecent images of children in the UK, we made it retrospective.
‘The new Sexual Offences Act is due to come into effect in May 2004. One important change involves the definition of a ‘child’ under the terms of the Protection of Children Act 1978. Currently the Protection of Children Act defines a ‘child’ as a person under 16 years of age and makes illegal the manufacture, possession and distribution of indecent photographs of children under 16. Section 45 (2) of the new Sexual Offences Act will raise the age of a ‘child’ for the purposes of this Act to 18. The effect of this will be retrospective, applying to all such images, regardless of when they first came into circulation.’
So in my view it would be as well, for galleries in Oz, to understand, that if we send money, to lobby for new legislation, or if we go ourselves, it *has* to be retrospective, just like the UK.
‘For the purposes of sections 48 to 50, a person is involved in pornography if an indecent image of that person is recorded; and similar expressions, and “pornography”, are to be interpreted accordingly.’
We will want indecency linked by statute to child pornography. The indecency hurdle, will be as per the UK.
‘In Regina v. Graham-Kerr, Stocker L.J. said that the appropriate test in the case of the Protection of Children Act was that as stated in R. v. Stamford [1972] 2 QB 391, which uses the formula ‘recognised standards of propriety.’
This, and the use of the word ‘impropriety’ by Lord Parker, point to the essential elements of indecency being offence caused, and inappropriateness, rather than that any amount of shock or disgust be caused in those forced to see it’
Say hello to your new draft legislation.
Respectfully submitted
Gregory Carlin
Okay, the obvious non-lawyer asking but, I thought that ‘retrospective’ law is extremely frowned upon?
David Marr, was pretty contempuous, but so was NAVA, a lot of the complaints came from various authorities overseas.
They didn’t know it was family viewing, because they’re not Australians, or Japanese, or that way inclined.
So the references to ‘three’ complaints is a crock. Other galleries were searched in Europe, why not report that?
Why this dialogue with Oz thing? Why not kick it out so everybody can play? Like the FBI, CEOP, IWF, RCMP, Interpol, all the galleries which have banned his kiddie fetish stuff.
Milan because Caravaggio was born there (I think) and I know they’ve never had a photog as good as Caravaggio, maybe they’re not camera people, like the S. Opera House is as cool as the Sistine Chapel
Or S. harbour is like the Bay of Naples, well maybe, but mostly no.
It continues.
Because of all this nude kiddie stuff I’ve finally started noticing cherubs in classical art. I took a Korean fellow on a tour and he really liked the cherubs.
Does this mean that we’re consuming child pornography? Perhaps they should ban Veronese.
why is it that no one has commented about bill actualy viewing these children totally naked and interaction (seting up poses) with them. mmmm… is that legal??? is that not carnal knowledge. How many men and wemon are in prison fro just this. I know a man who was charged under the telecomunication act for having a deleted image of an underage girl’s face and electrical wires on her tongue, 2yr susspended sentence wqs given for this.
Where is the ballance here. It’s bull shit.
Try taking pis of a naked underage girl today, then wait until she feels bad about it and has u arrested for child sex abuse and get 5 yrs prison. go ahead try it, if u dare.
David that has to be one of the most astute, well-developed and nuanced things I’ve ever read.
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