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Australian philosopher, literary critic, and professional writer. Author of FREEDOM OF RELIGION AND THE SECULAR STATE and HUMANITY ENHANCED.

Wednesday, May 28, 2008

The open letter from the arts community

Here, with no editorialising from me (except to say congratulations), but probably some format mistakes when I paste it in, is the open letter that Alison Croggon organised for signature by a large number of people who attended the 2020 summit, supporting Bill Henson and artistic freedom. I've made some comments of my own over on Alison Croggon's blog.

===

PRESS RELEASE: MAY 27, 2008

Open Letter in support of Bill Henson
From Creative Australia 2020 Summit representatives

Wednesday, May 28, 2008

As members of the Creative Stream of the Australia 2020 Summit, we wish to express our dismay at the police raid on Bill Henson’s recent Sydney exhibition, the allegations that he is a child pornographer, and the subsequent reports that he and others may be charged with obscenity.

The potential prosecution of one of our most respected artists is no way to build a Creative Australia, and does untold damage to our cultural reputation.

The public debate prompted by the Henson exhibition is welcome and important. We need to discuss the ethics of art and the issues that it raises. That is one of the things art is for: it is valuable because it gives rise to such debate and difference, because it raises difficult, sometimes unanswerable, questions about who we are, as individuals and as members of society. However, this on-going discussion, which is crucial to the healthy functioning of our democracy, cannot take place in a court of law.

We invite the Prime Minister, Mr Rudd, and the NSW Premier, Mr Iemma, to rethink their public comments about Mr Henson’s work. We understand that they were made in the context of deep community concern about the sexual exploitation of children. We understand and respect also that they have every right to their personal opinions. However, as political leaders they are influential in forming public opinion, and we believe their words should be well considered.

We also call on the Minister for Environment Heritage and the Arts, Mr Garrett, to stand up for artists against a trend of encroaching censorship which has recently resulted in the closure of this and other exhibitions.

We wish to make absolutely clear that none of us endorses, in any way, the abuse of children. Mr Henson’s work has nothing to do with child pornography and, according to the judgment of some of the most respected curators and critics in the world, it is certainly art. We ask for the following points to be fairly considered:

1. Mr Henson is a highly distinguished artist. His work is held in all major Australian collections including the Art Gallery of NSW, Art Gallery of SA, Art Gallery of WA, National Gallery of Victoria and the National Gallery of Australia.

Among international collections, his work is held in the Solomon R Guggenheim Museum, New York; the Victoria and Albert Museum, London; San Francisco Museum of Modern Art; the Los Angeles County Museum of Art; the Denver Art Museum; the Houston Museum of Fine Art; 21C Museum, Louisville; the Montreal Museum of Fine Art; Bibliothèque Nationale in Paris; the DG Bank Collection in Frankfurt and the Sammlung Volpinum and the Museum Moderner Kunst, Vienna.

Major retrospectives of Mr Henson’s work at the Art Galleries of NSW and Victoria attracted more than 115,000 people, and produced not one complaint of obscenity. His work has also been studied widely in schools for many years.

2. Mr Henson has been photographing young models for more than 15 years. Until now, there has been no suggestion by any of his subjects or their families of any abusive practices. On the contrary, his models have strongly defended his practice and the feeling of safety generated in his process, and have expressed pride in his work.

We suggest that the media sensationalism and the criminalisation of laying charges against Mr Henson, his gallery and the parents of the young people depicted in his work, would be far more traumatic for the young people concerned than anything Mr Henson has done.

3. The work itself is not pornographic, even though it includes depictions of naked human beings. It is more justly seen in a tradition of the nude in art that stretches back to the ancient Greeks, and which includes painters such as Caravaggio and Michelangelo. Many of Henson’s controversial images are not in fact sexual at all. Others depict the sexuality of young people, but in ways that are fundamentally different from how naked bodies are depicted in pornography. The intention of the art is not to titillate or to gratify perverse sexual desires, but rather to make the viewer consider the fragility, beauty, mystery and inviolabilty of the human body.

In contrast, the defining essence of pornography is that it endorses, condones or encourages abusive sexual practice. We respectfully suggest that Henson’s work, even when it is disturbing, does nothing of the sort. I would personally argue that, in its respect for the autonomy of its subjects, the work is a counter-argument to the exploitation and commodification of young people in both commercial media and in pornographic images.

Many of us have children of our own. The sexual abuse and exploitation of children fills us all with abhorrence. But it is equally damaging to deny the obvious fact that adolescents are sexual beings. This very denial contributes to abusive behaviour, because it is part of the denial of the personhood of the young. In my opinion, Mr Henson’s work shows the delicacy of the transition from childhood to adulthood, its troubledness and its beauty, in ways which do not violate the essential innocence of his subjects. It can be confronting, but that does not mean that it is pornography.

Legal opinion is that if charges were laid against Mr Henson, he would be unlikely to be found guilty. The seizure of the photographs, and the possible prosecution of Mr Henson, the Rosyln Oxley9 Gallery or the parents of Henson’s subjects, takes up valuable police and court time that would be much better spent pursuing those who actually do abuse children.

4. Perhaps the most distressing aspect of the trial-by-media to which Mr Henson and his work has been subject over the past few days, is how his art has been diminished and corrupted. The allegations that he is making child pornography have done more to promote his work to possible paedophiles than any art gallery, where the work is seen in its proper, contemplative context. It is notable that the attacks on Mr Henson’s work have, almost without exception, come from those who are unfamiliar with the photographs, or who have seen them in mutilated or reduced images on the internet.

If an example is made of Bill Henson, one of Australia’s most prominent artists, it is hard to believe that those who have sought to bring these charges will stop with him. Rather, this action will encourage a repressive climate of hysterical condemnation, backed by the threat of prosecution.

We are already seeing troubling signs in the pre-emptive self-censorship of some galleries. This is not the hallmark of an open democracy nor of a decent and civilised society. We should remember that an important index of social freedom, in earlier times or in repressive regimes elsewhere in the world, is how artists and art are treated by the state.

We urge our political leaders to follow the example of Neville Wran, when in 1982 a similar outcry greeted paintings by Juan Davila. At that time, Mr Wran said: “I do not believe that art has anything to do with the vice squad”. With Mr Wran, we believe the proper place for debate is outside the courts of law.

Alison Croggon
Writer



Signatories:

Louise Adler, CEO & Publisher-in-Chief, Melbourne University Publishing
Geoffery Atherden, Writer
Neil Armfield, Artistic director, Belvoir St Theatre
Stephen Armstrong, Executive Producer, Malthouse Theatre
James Baker, Tax advisor and accountant
Geraldine Barlow, Curator
Larissa Behrendt, Professor of Law, University of Technology Sydney
Cate Blanchett, Actor
Daryl Buckley, Musician
Leticia Cacares, Theatre Director
Karen Casey, Visual Artist
Kate Champion, Choreographer, Artistic Director Force Majeure
Rachel Dixon, New media developer
Phoebe Dunn, Chief Executive Officer, Australian Commercial Galleries Association
Jo Dyer, Executive Producer, Sydney Theatre Company
Kristy Edmunds, Artistic Director, Melbourne International Festival of the Arts
Saul Eslake, Economist
Richard Gill, Artistic Director, Victorian Opera
Peter Goldsworthy, Writer
Marieke Hardy, Writer and broadcaster
Sam Haren, Artistic Director, The Border Project
Frank Howarth
Cathy Hunt, Creative consultant
Nicholas Jose, Writer
Andrew Kay, Producer
Ana Kokkinos, Film maker
Sandra Levy
Matthew Lutton, Theatre director
Nick Marchand, Artistic Director, Griffin Theatre
Sue Maslin, Producer, Film Art Doco Pty Ltd
Elizabeth Ann Macgregor, Director, Museum of Contemporary Art
Callum Morton, Visual Artist
Rosemary Myers, Artistic Director, Windmill Performing Arts
Rachel Healy, Director Performing Arts, Sydney Opera House
Liza Lim, Composer
Jan Minchin, Director, Tolarno Galleries
Helen O’Neil, Executive producer
Charles Parkinson, Artistic Director, Tasmanian Theatre Company
David Pledger, Theatre director
Marion Potts, Theatre Director
Katrina Sedgwick, Festival Director, Adelaide Film Festival
Mary Vallentine, Arts manager

Additional signatories:

The following support the appeal contained in this letter without necessarily endorsing the detailed argument:

John Coetzee, Novelist
Ramona Koval, Writer and broadcaster
Julianne Schultz, Academic

22 comments:

Brian said...

Wow, there's some pretty wild comments over there. Lot's of equivocating nudity with peadaphilia and other weirdness.

Russell Blackford said...

I love the way we get commenters who appear as "anonymous" wanting to interrogate Croggon about her private life. A touch of irony there.

Stephen said...

Russell since you have a legal background, how would you write legislation that would separate artists making commercial photos of minors from pornographers making commercial photos of minors? I think such law(s) would be very subjective and establish a loophole precedent for child pornography. One US Supreme Court Justice said, "I may not be able to define pornography, but I know it when I see it." I used to have a hobby:
Other Supreme Court rulings will comment that in a particular case, the law under investigation doesn't seem to handle that case well. But the Court declines to overturn an earlier ruling and create a precedent because they feel in the long run that will do more harm than good. Rights and laws are not set up so that they can always harmonize and not conflict with other laws.
For instance my girlfriend used to belong to a local women's group. They had quite a debate about taking action against a local pornography store which sold material which depicted sexually abusing women cruelly. They said that such materials increased the likelihood of violence to women in our society. A portion of the group felt that picketing the pornography shop would abuse right similar to the freedom of speech and artistic expression. I believe in principles before personalities because that errs on the side of objectivity, rather than enforcing the law for some and not for others which is why the "Equal Protection" amendment was enacted in the US. Perhaps some countries have evolved past the need to regulate the application of double standards so that its ok if a privileged few are judged as if they earned a nobility which exempted them to law made for all are equals in the sight of the law. I find it remarkable that you, Russell, view this situation as if it were one-sided without factoring in the consequence of setting a precedent as an issue.

Russell Blackford said...

I'm not quite sure where you're coming from on this, Stephen. The law is always going to depend on judgments of "reasonableness", the weighing up of a range of statutory and/or judge-made indicia, the use of concepts such as proportionality, and so on. What I do say is that where there's doubt we should try to err in favour of liberty. It seems clear enough to me that any principled use of these kinds of concepts would exonerate Henson. It also appears to me that it's the Miranda Devines, Andrew Bolts, Kevin Rudds, Brendan Nelsons, etc., who show a lack of ability to appreciate nuance. I do appreciate the nuances, and I'm happy to write the law in a way that enables judges to deal with questions of nuance. But there's no reason to be anything other than forthright in our rejection of views that totally lack nuance themselves. Sometimes you just do have to stand up passionately for the values that you believe in.

Geoffrey said...

Hi Russell

Here is a link to my petition.

http://www.petitiononline.com/bh280508/petition.html

Stephen said...

I think that since the advent of the Internet, there has been a strong reaction against sex exploitation of children. Henson was either quite uninformed or naive if he thought there would be no backlash to exhibiting those child nudes. I mean the political climate (US) is one of strenuous prosecution of child sex slavery and any ideas even remotely related. I see stings every night on the news for just "visiting" a minor with an internet appointment.
To the point, Henson should have known there was a good chance he would be prosecuted (especially if there is another picture of someone under 16 in a sexually suggestive pose). I just don't believe he thought there was little risk, and I think he counted on his status as an artist to apply enough pressure from the intelligentsia to bail him out of trouble. Also I think that if some local artist of little renown would have exhibited that art, then that artist would have been prosecuted which much less ado. People with a lot of influence sometimes feel they can flout authority. I don't think action against Henson was taken _because_ he had a lot of important friends. It was genuine moral outrage over the content itself, not obscene but indecent. I don't know if Australian law covers "indecent". But if AU law reflects the current moral climate surrounding child sex exploitation then they will take legal action to plug the dyke from a flood of ever more boundary stretching further encroachments. I don't think Henson can expect different treatment than somebody else in similar shoes because too many people would resent it. Maybe I am sharing a prejudice. I don't think displaying a 12/13 year old's vagina is art.

dot said...

Stephen said: "People with a lot of influence sometimes feel they can flout authority."

In this case the "authority" is a lot of people with pretty sick minds, throwing their weight around in a McCarthy-ist frenzy. I don't understand how anyone could conflate Henson's work with pornography. Nakedness does not equal porn - there's a world of difference. Who are these strange throwbacks to the 19th century who can't look at a naked child without thinking there's something salacious about it.

As for Henson being "uninformed or naive", I do not see why his failure to anticipate the dirty minds of a bunch of so called "protectors" of children is a fault. If you're disturbed by "a 12/13 year old's vagina" (which, by the way, is not in evidence in any of Henson's photographs) then there's something wrong with you.

I am so glad Henson has refused to cooperate in naming the girl in the first controversial image. Can you imagine the damage the police and the press would do to the girl in the name of "protecting" her if they knew her identity?

Stephen said...

dot said...

Stephen said: "People with a lot of influence sometimes feel they can flout authority."

In this case the "authority" is a lot of people with pretty sick minds, throwing their weight around in a McCarthy-ist frenzy. I don't understand how anyone could conflate Henson's work with pornography. Nakedness does not equal porn - there's a world of difference. Who are these strange throwbacks to the 19th century who can't look at a naked child without thinking there's something salacious about it.
-----------------------------
SH: If there isn't an existing law that can be used to prosecute Henson then he will be exonerated, or if he is charged and tried and found not guilty.
----------------------------

Dot:As for Henson being "uninformed or naive", I do not see why his failure to anticipate the dirty minds of a bunch of so called "protectors" of children is a fault.

SH: Why do you think Henson didn't anticipate that he could be charged with violating an indecency statute? I argued that he did know it, and I used the word uninformed
when I meant he wasn't that stupid.
--------------------------------
Deb wrote:
If you're disturbed by "a 12/13 year old's vagina" (which, by the way, is not in evidence in any of Henson's photographs) then there's something wrong with you.

SH: The "vagina" was reported in a news source I read, I haven't seen them uncensored. If his "art" is a violation of the law, then he will be prosecuted and it doesn't matter whether you or anybody else agrees that the law under which he will be prosecuted is "unenlightened". One doesn't get to avoid obeying the law because one feels it is a bad law. -----------------------

Deb:I am so glad Henson has refused to cooperate in naming the girl in the first controversial image. Can you imagine the damage the police and the press would do to the girl in the name of "protecting" her if they knew her identity?
SH: Do you mean this one?

"Supt Sicard said the seized items
depicted a child under the age of
16 years of age "in a sexual context".

The unidentified 13-year-old girl,
who is not from NSW, is believed to
be the subject in all the seized
pictures." ------------

SH: I think you are confusing Henson's art with Henson gratifying his obsession. Laws are usually established by a majority vote and if Henson is not guilty of violating the law, then he will be found not guilty by a jury of his peers. Or maybe some portion of the public can apply enough political pressure so that the charges are dropped. I don't like the idea of people being held accountable to the law depending on how famous they are.

Russell Blackford said...

Stephen, these are not Penthouse-style images of someone's vagina. Indeed, I've never even seen it suggested until your comment that anybody's vagina was displayed. Let's at least discuss the actual scenario, not some images that could have existed, but (as far as I know) don't.

The images I have seen are very tasteful, though artistically powerful, and could not be considered pornographic or obscene by any stretch of the imagination - except by someone who is prudish about nudity, at least to the extent of thinking of it as especially problematic.

Yet, acting on complaints by a small number of such nasty-minded prudes, the police are threatening to lay criminal charges. Henson may well be found innocent if any charges are laid, but that is not the point: even having to go through a criminal trial is a traumatic experience. In any event, the police could have been left to get on with their work quietly without, for example, the prime minister claiming to find the images "revolting". (What psychological impact is that supposed to have on someone who chose to model for the images?)

Such images have been prominently displayed in art galleries here in Australia for many years, so it's a bit rich thinking that Henson was being especially naive to think they were not only legal but socially accepted.

What we have seen here is a furore whipped up after a small number of complaints (from among the thousands of people who have viewed images by Henson featuring nude bodies of a wide range of ages), poor handling by the police who keep suggesting in public that they intend to lay charges when their investigation is proceeding, dumb statements by politicians, and the cynical tactics of a group of extreme right-wing journalists. People who have modeled for Henson in the past have been saying it was a positive experiece. People who have suffered child abuse have been coming out expressing appreciation for Henson's art and saying how remote it is from anything they experienced.

As for protection of the teenagers concerned, I'm sure that they came from supportive family environments where they were considered to be smart young people whose wishes were worthy of respect. They consulted with parents - or were approached via parents - and the parents were there to make the final judgment and provide a supportive and protective milieu in which the teenagers could act on their wishes. This is all as it should be (it's certainly the account that's emerging as to how Henson and his models and their parents have worked in the past).

I see no reason why this wouldn't have been a purely positive and empowering experience for the young subjects of the portraits - though of course the braying media have now made that far less likely. Surely I'm not the only one appalled by the hypocrisy of journalists and shock jocks who must know that their recent actions are far more likely to cause psychological harm to the young people involved than Henson's actions.

All that said, this witch hunt has struck a chord with a lot of people who are suspicious of artists and intellectuals. As I said somewhere else during the debate over the past few days, it suddenly seems like a bad time to be a member of the so-called "elite" of artists and intellectuals here in Australia. Much of what has happened (I'm not so stupid or paranoid as to be saying "all"; I'm saying "much") really seems to be a case not of people being genuinely concerned about the welfare of the young people who have modeled for Henson. I'm sure that much of it is more a matter of right-wing culture warriors finding an opportunity to strike a blow against what they see as the effete, decadent values of artists and academics.

Stephen said...

russell blackford said...
Such images have been prominently displayed in art galleries here in Australia for many years, so it's a bit rich thinking that Henson was being especially naive to think they were not only legal but socially accepted. ...

SH: I didn't know that. Then the action against Henson appears to be a discrimination violation, I think the term is "selective enforcement"? If what you say is true then this action is very suspicious; there is something not right with this story. --------

RB: I'm sure that much of it is more a matter of right-wing culture warriors finding an opportunity to strike a blow against what they see as the effete, decadent values of artists and academics.

SH: But why now? What precipitated the persecution after "many years" of tolerance? I found this quote:

The images angered child protection group Braveheart, which labelled them child pornography and yesterday called for Mr Henson and the gallery to be prosecuted over the photographs.

SH: So this is mainly due to Prime Minister Rudd's zealous, rigid morals, looking for any excuse to lay low the liberals? How can Rudd afford to be so blatant? I find myself writing too many questions which means I can't make it add up.

Stephen said...

http://www.wsws.org/articles/2008/may2008/raid-m26.shtml

"Judy Annear, senior curator of photography at the Art Gallery of NSW, said: “Bill’s work isn’t the problem here, it’s just a convenient kind of whipping boy at this particular moment in time.... To take cheap shots at artists won’t change whatever the problems are in our social fabric.”

The implementation of such an agenda in every sphere of social life requires the cultivation of a certain atmosphere—of hysteria, suspicion and fear—and the suppression of critical thought. Central to this is the move to censor works of art and to intimidate the artists who produce them. The witch-hunting of Bill Henson constitutes both a continuation of previous attacks and a warning of what is to come."

See Also:
Australian Labor government threatens to censor Internet

SH: Well Russell, after reading that article I realized that living in a post-religious utopia was not all that it was cracked up to be. Really, I'm no longer envious of your advantages. I couldn't believe that Henson article because I just couldn't picture the truth of dot's McCarthy era comparison. The US has somebody like Rudd. Cheney the VP, who many would like to impeach, has an approval rating so low that they no longer bother running the poll, while Bush has a 28% approval rating.

Stephen said...

It is universal for cultures to develop self-imposed moral codes, even though those codes are likely to differ from culture to culture. It's inevitable that groups within any given culture are going to clash on what should comprise those moral codes. --------------------
Henson's pictures are judged as art by some and pornography by others. I think pornography is too strong a word to describe the element which some find objectionable in Henson's pictures. Voyeurism is a fairly recent legal violation in human history and men are mostly the attracted. Voyeurism is not only the blunt image most people have of somebody hiding behind curtains and observing others having sex:

http://www.ma-frey.com/texte_e.html
"The voyeur longs to see what
is not meant to be shown and
what is without intention:
the subject’s pureness."

SH: I can easily see how some images trigger Rudd's inner Voyeur invoking a judgment of prurience, whereas the same images pass under the radar of most women and men who are emotionally healthier. Politicians seem to be showing up more and more on the sexual fringe.

Nonetheless, I don't think these images fall within the photographer's purview of capturing unobserved, natural public behavior. Emotional health of a culture or of an individual requires establishing boundaries between what is private and what is public. Looking at the emotional health of child movie stars (or beauty pageants) after they grow up doesn't indicate that early exposure is all that constructive.
I'm going to repeat an earlier point so that I hopefully don't read a strawman response. I'm using the word "voyeurism" in a boundary emotional sense which is tied to feelings of privacy about the body which, when exposed, will appeal to the emotionally jaded.. *much* more so than classifying the images as sexually explicit sufficient to fuel fantasies with the subjects. This distinction may very well be too subtle to support legal prosecution, I haven't seen the uncensored graphics. But the furor clearly shows there is more here than meets the eye. How far does society's obligation to protect the sanctity of childhood emotional development extend? Does photographing images intended to display the "metamorphosis"(Henson) of adolescence to puberty encroach and unduly influence the purity of that transformation? On a practical note, if a kid is old enough to have to wear clothes in public, why is there a different decency age to photograph that kid in private and then publish it publicly? Is the answer, age doesn't matter when art is at the stake? I see a lot of comments which presume art has the right to an elevated status, one which allows art to impose its own boundaries which society should comply with rather than the other way around, like art is above the law, the lawgiver for society. I think there are some academics who would like to promote education to a similar extreme status as that proposed for art. Reminds me of Plato's nation ruled by philosopher > kings, which wouldn't work.

dot said...

Stephen says:
"Nonetheless, I don't think these images fall within the photographer's purview of capturing unobserved, natural public behavior."

Stephen, that's a very narrow definition of photography you have there. Your definition encompasses the work of people like Garry Winogrand. But artists like Henson, Gregory Crewson, and even, say, Diane Arbus, construct their photographs in a way that takes natural elements and creates stories from them. That's the art part. Photography is about a great deal more than "capturing" the natural world - it's about constructing new things in the process.

I see a lot of comments which presume art has the right to an elevated status, one which allows art to impose its own boundaries which society should comply with rather than the other way around, like art is above the law, the lawgiver for society.

I think I understand your argument, but I think in separating art from society, by creating an "us-and-them" paradigm, you're making a mistake. Art is not separate from society. It influences society, and in turn is influenced by society. it's not a separate thing at all, in fact it's usually entirely rooted in the society that spawns it.

Moral campaigners have long tried to stifle things that have made them uncomfortable - from the science and philosophy of Gallileo and Trounson, to the art of Michaelangelo and Henson. But all these things are in fact part of the society that spawns them - and the laws that existed to stop them may not be appropriate. You can't privilege law and say it ought prevent freedom of expression, because often freedom of expression helps change laws.

In any case I think it's doubtful there is a case to be made that Henson has broken the law. In fact there should be a presumption of innocence. Instead, we have seen a flouting of the law, a presumption of guilt, a seizing of work, and a flurry of defamatory comments. I ask you, Stephen, who it is who is putting themselves above the law? It's not the artist - it's the campaigners and the police who have placed themselves above the law and assumed guilt before charges have even been laid. Bill Henson is being punished when no charges have even been laid.

it's utterly shameful the way in which our democracy is being trampled upon.

There's a good argument here:

http://tinyurl.com/4eye7s

Stephen said...

Dot said...
Stephen says: "Nonetheless, I don't think these images fall within the photographer's purview of capturing unobserved, natural public behavior."

Dot: Stephen, that's a very narrow definition of photography you have there.

SH: Hi dot. Maybe I shouldn't have used the word purview, which means:

MW: purview: 2: the range or limit of _authority_, competence, responsibility concern, or intention

Maybe I should have used the word
authority as in, ..."I don't think these images fall within the photographer's authority of capturing unobserved, natural public behavior."

I don't know as much about photography as you do, I watched and soaked up a really wonderful six part series by BBC called "The Genius of Photography". And a movie called Fur with Nicole Kidman about Diane Arbus which portrays here as a voyeur and later taking pictures within a nudist colony.
I gained the impression that it is ethical for a photographer to take pictures in public and she isn't required to get the permission of every passerby. This right is contrasted to the right of a photographer to take pictures within a private venue. I think it unethical to take pictures of somebody through their bedroom window, even if they have clothes on. And it is illegal to take pictures of somebody through their bedroom window if they have no clothes on which is very close to voyeurism. So my statement was meant to say there are two different standards for a photographer, one which applies to public places and another which applies to what is private = images which are not available not only to the photographer but to what the public could see in public places.
To sum it up, taking pictures in public is fairly open while taking pictures in a seemingly private setting has much more ethical and legal protection.
I had a reason for wording it the way I did with it being ok for the public to take pictures when the subject doesn't know he or she is being observed. The reason relates to a rather subtle definition or perhaps better an observation about the nature of voyeurism which I used.
http://www.ma-frey.com/texte_e.html
"The voyeur longs to see what
is not meant to be shown and
what is without intention:
the subject’s pureness."

SH: I don't mean some area which can be covered by parental permission. There is a religious sect which believes in faith healing and they don't send their kids to doctors. Well, when one kid died because of this, the state charged the parents for criminal neglect and they were found guilty and sent to jail. There are areas which the state makes the rules which takes precedence over what a parent thinks. With child pornography the child *can't* give consent and the parents don't have a right to give consent. In the Henson case I said I didn't think it was pornography. The question is how tinged is the photography with an element of voyeurism.
I don't mean that the photos were intended to be sold to voyeurs or even that they were posed so that they would attract prurient voyeur interest. But I think it is pretty much a fact that they could be used or would appeal to a certain class of voyeurs. The images are not available in public, they are taken from the private area which is covered by privacy laws which govern before getting to a level of sexual content which is even more stringently governed. I don't mean the blatant kind of voyeur found in Lolita, but closer to Lewis Carroll and the "peculiar" relationship he had with Alice Liddell.
"a 'perpetual child' who could only relate to children; a tragic deviant, whose lifelong passion for a child - Alice Liddell - fired his burning creativity."
SH: Perhaps this is nothing more than suspicion and it would be accurate to describe Henson's detractors as unduly suspicious. I think there is a reason for this reaction which arises from moral boundaries. It doesn't seem to me that the boundaries of pornography have been transgressed. But I do think there are a fair number of people who the images are too close for comfort to the proscribed, too close to crossing the line of decency. To use a new age term, the Henson issue is resonating with too many viewers holding strict moral values. deb also wrote:

"I think I understand your argument, but I think in separating art from society, by creating an "us-and-them" paradigm, you're making a mistake. Art is not separate from society. It influences society, and in turn is influenced by society. it's not a separate thing at all, in fact it's usually entirely rooted in the society that spawns it."

SH: I agree with that but I'm talking about people who defended Henson with: Henson is an artist fulfilling his duty "to push the envelope". I see pushing the envelope as an effort to 'move the boundary line'. The people on the other side of the moral territory divide are pushing back, they don't want their morality territory diminished. But this reaction seems delayed, and with curious support from both Rudd and Iemma, if such photos have been allowed in the past.
Well, deb this has gotten long so I may write to the rest of your post later. I think the area where we likely disagree is that I don't think the photos are completely innocent. Completely innocent would mean beyond exploitation. The reason exploitation is even possible is because the images are not the kind available to the public, it presents the kind of privacy found in the home which allows nudity as a commodity.
I will read your the url you recommend.

Stephen said...

dot said...
In any case I think it's doubtful there is a case to be made that Henson has broken the law. In fact there should be a presumption of innocence. Instead, we have seen a flouting of the law, a presumption of guilt, a seizing of work, and a flurry of defamatory comments. I ask you, Stephen, who it is who is putting themselves above the law? It's not the artist - it's the campaigners and the police who have placed themselves above the law and assumed guilt before charges have even been laid. Bill Henson is being punished when no charges have even been laid.
------------------------------

Well, it seems to me there is legislation which directly pertains to Henson's photographs and nude children, and it is against the law.
http://www.kidsguardian.nsw.gov.au/children-s-employment
Child Employment Requirements in NSW, CEGuideAndRegv2_2.pdf

Still Photography, Modelling,
Shopping Centre Performances,
Door-to-Door Sales

3.5.2
"Finally, you must not employ
a child in any situation in
which they or any other
person is naked."

SH: I suppose that it's possible that no renumeration for posing was made to the children or parents. Even so, I think Henson would still be found guilty under this provision. And of course it is very likely that there was some payment.

http://tinyurl.com/4eye7s
"Just 24 hours earlier, former
Cabinet minister Milton Orkopoulos
had been sentenced to 13 years’
jail for depraved s-x and drug
offences involving minors. There
were mounting questions about a
political cover-up and the savage
treatment of the whistleblower
Gillian Sneddon."

SH: Sex and minors had just become a large political embarrassment. So this type (or related) situation was sensitized and more volative. That explains why the crackdown came now, as well as Henson serving as a means to divert attention from
the political Orkopoulos case. I can see how this worked unfairly for Henson. However, it is evident that the 'no naked person' law was broken with Henson's own photographic evidence. That law dates from 2005. Henson was unaware of it? Being unaware of a law does not count as a defense, I think. But I doubt that the confiscations of photos followed procedures for a violation of employment laws. So Henson will likely be charged with the employment naked rule violation and wind up with a slap on the wrist. Child (sexual) abuse is the tip of an iceberg. Texas has a cult which marries 14 year old girls to old men who have several wives, and they routinely have several shared kids. The law makes it hard to prosecute them. The pope just visited the US and spoke with survivors of sexual abuse by priests. It makes me think of a crocodile lurking below the surface waiting to grab a victim and drag him/her down to the bottom.

Russell Blackford said...

I think that relying on what amounts to occupational health and safety law, designed to restrict the use of child employment in various ways for paternalistic reasons, would be a bit desperate (albeit creative). I don't have time to go into it now, but, apart from the fact that the mischief at which such laws are aimed is rather remote from what we're talking about here, there'd be all sorts of technical hurdles in trying to prosecute Henson under such legislation. I doubt that it even crossed his mind that he was breaching this kind of law in whatever jurisdiction he was in when he actually took the photos, and I doubt that he did breach any such legislation (for a start, this doesn't look much like an employer/employee relationship, even if money changed hands, so there's then a question as to whether the law would nonetheless deem it as such, and the problems just multiply from there).

Sometimes lawyers and officials can use the law in creative ways, so maybe some kind of prosecution could be mounted. But this is not the kind of case that such laws are centrally aimed at (such as employing young teenagers as strippers or topless waitresses), and it's very likely that they'd miss the mark for all sorts of reasons.

Stephen said...

Russell Blackford said ...
"Sometimes lawyers and officials can use the law in creative ways, so maybe some kind of prosecution could be mounted. But this is not the kind of case that such laws are centrally aimed at (such as employing young teenagers as strippers or topless waitresses), and it's very likely that they'd miss the mark for all sorts of reasons." ---------
SH: I must admit I am only familiar with US law. I quoted "Still Photography, Modelling,...", which specifies who the regulations apply to because I thought that the children who posed for Henson were part of the "Still Photography" category.
3.5.2 "Finally, you must not employ
a child in any situation in which they or any other person is naked."
So I thought the children were engaged in Still Photography and employed as models; that covers two of the criteria.
Again in the US the law is slanted toward classifying workers as *employees* (mainly because of income tax, FICA tax, and curtailing the hiring illegal aliens)and the criteria to qualify as self-employed are difficult to meet. Those children would be employees unless they had other photographer clients who combined paid them more than 50% of what Henson paid them. IOW, in the US, if you pay some guy to mow your lawn and do a little yard work every two weeks or so (consistenly) then technically you are an employer. So from what I read those children were employed and again in the US any gray doubts are resolved in favor of an employee status.
I work as a volunteer for a not for profit museum. Even though they don't pay me, they are required to carry disability insurance for me and the other volunteers which applies to other businesses as well. Thus employment protection laws extend to a worker even when he or she isn't being paid at a work place. Maybe this idea doesn't apply in AU but I would be surprised that if the children received renumeration for posing over a period of several months that this would escape classification as income. In the US the children would be *employed*, unless they had other significant paying clients, in which case they would be self-employed which covers the remaining criteria of the three mentioned above.
This employee status law is well developed in the US. I can see how the law could just be different in AU, or, leave more areas open to interpretation than the US.
I think being charged with an employment violation would work in Henson's favor as it would probably amount to paying a small fine, whereas those indecency charges come with possible jail time of 13 and 10 years.
Hannah Montana, 15, recently appeared on the front cover of Vogue in an alluring pose which showed most of a bare shoulder. That photo received a lot of criticism, mostly pointed at her parents, but it turned out that Vogue shot this picture when the parents were out of the room. Suppose Vogue also shot some nude pictures. Putting them on the front cover of Vogue would be illegal, even if they poses were not suggestive. Suppose instead, the nude pictures are published on the Internet. Are these images now legal? Or, instead of the Internet, the pictures wound up blown up and part of a public art exhibition; have the same picture(s) now become legal if shown in art exhibitions? How does it work consistently to have the images illegal in one public venue (cover of a magazine) while maintain that the same images are legal in two other public domains? Parental consent isn't really an issue because it is illegal for a parent to give such consent. And there are enough dysfunctional parents that it should be illegal for a parent to have the power to give such consent. My impression is that when one considers what is good for society as a whole, there are quite a few people who think that extending the limits of artistic expression is the default correct choice to ultimately benefit society (I don't know what other standard to use.). That "pushing the envelope" of artistic expression falls under the same umbrella as pursuing research into a general transhumanist agenda(not trying to be too precise). I tend to agree that such a view will often lead to a "healthy" choice. But, I'm afraid as unwieldy as it may be, as cost and time inefficient as it may be, there can only be one general rule, and that is to evaluate and judge each situation based upon its own merits within an unending stream of unique contexts with all the unpredictability that entails.
The US is entertaining the notion of electing a black President. That is so special that I can understand why Michelle Obama said, 'for the first time, I'm really proud to be an American'. Not that Americans didn't have the right to be proud of America, but that freedom has reached a new stature of maturity.

In that light, Australia can be seen as standing up for freedom in the Henson affair, rather than the opposite case of: "It is necessary only for good men to say nothing for evil to triumph." from LOTR,
"A day may come when the courage of men fails, when we forsake our friends and break all bonds of fellowship, but it is not this day." I just read "The Hobbitt" is going to filmed in your vicinity.

Russell Blackford said...

Stephen, possibly they would be employees, but possibly they would be independent contractors or volunteers. There's a rich body of law on the subject but it does sound from your comment that the US has gone further than we have in trying to deem just about everyone to be an employee.

It's not just that, though. Perhaps that hurdle could be overcome by relevant deeming provisions (I haven't checked them). But the photos were very likely taken outside the jurisdiction, in which case the NSW law would, prima facie, not apply. It would be up to the prosecuting authorities in the jurisdiction concerned (perhaps Victoria). There might even be problems in establishing where and when the photos were taken and what kind of employment or other relationship was formed, if Henson simply exercised his right to silence (and any other identifiable witnesses were not cooperative). Also, the case would be a quite marginal one from the perspective of an agency outside of NSW charged with enforcing this kind of law. Such agencies tend to have pretty broad discretion whether or not to prosecute, might not be impressed by the kerfuffle in NSW, and might not consider this an appropriate case to run.

Those are just a few problems that I can see off the top of my head.

Some of them would also arise if an attempt were made to prosecute Henson under NSW child pornography legislation, but some wouldn't. E.g., a case could be run relating to possession of child pornography without any of these hurdles - but I suspect that the case would fail for other reasons (i.e. it would be found that the material was not actually child pornography within the statutory definition, and there would be possible statutory defences). Perhaps applicable Commonwealth laws could be relied on, but those laws might not have a lot of teeth for this situation, and again there could be difficulties if the material has to be found to be "indecent" for example.

Well, we're all waiting to see what the police and other authorities will actually do. I haven't spent a lot of time researching the legal possibilities yet, because it's still a mystery what, if anything, officials will ultimately charge Henson with. I'd rather not spend hours and hours thinking about every possibility. :)

Maybe we'll know soon (I haven't checked whether there are any very recent developments this morning).

Anonymous said...

Henson was banned from the UK in relation to that material regardless of the blog censorship and other moronic eforts by Alison Croggon to the contrary.


In the UK there's no artistic exception and the decency test isn't that challenging. The author of the support letter took the huff when she was chided on her legal fantasies.


"The provisions however allow a defence to the charge if:

* the picture is of a 16 or 17 year old

* the 16 or 17 year old consents to the picture being made and/or possessed

* the picture is not distributed

* the accused person and the 16 or 17 year old are married, civil partners or in an established relationship"

Which is the married or partner couple defense, Alison, is an complete idiot. she is also confusing indecency with obscenity, the test for indecency is

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.

http://www.geocities.com/pca_1978/pseudsCorner.html

Neither is expert evidence on the meaning of ‘indecency' admissible. Unfortunately, for those in the art world there is no legal defence of artistic merit or purpose available against charges of creating or distributing indecent photographs of children. It also doubtful whether a collector, curator or a dealer would be able to rely upon the defences of innocent possession or possession for a legitimate reason, e.g. research. It has been argued accordingly that the UK's anti-child pornography law is in breach of Article 10 of the Human Rights Act (1998), which protects an individual's right to freedom of expression, but the courts have been unsympathetic to this proposition.

http://www.withersworldwide.com/news-publications/252/nan-goldin-contemporary-art-works-seized-from-an-english-gallery.aspx

Alison, that lady doesn't know anything about the law, that is transparently obvious.

She also likes cewnsorship when she gets caught out trying to mislead people, that makes her a hypocrite into the bargain.

Henson's naked little childeren stuff is banned in several jurisdictions because it is child pornography, that's a fact.

These pro-Henson people, are big on censorship, they're in love with the porn industry, which is were they getv their best ideas, be they poetical, photographic or whatever.

Gregory Carlin

Irish Anti-Trafficking Coalition

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