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

Monday, May 26, 2008

Scandalous mischief

Without too much editorialising, I'd like to publish this link to an earlier (2005) brush that I had with freedom of expression, teens-and-sex and the law, etc., issues. What was a stake here was rather different, in some respects, from the Bill Henson incident - arguably, the legislation that was proposed by the Victorian government was more draconian (whatever it actually meant), particularly in that it would have prevented the depiction of anyone who was under, or looked under, eighteen in a sexually indecent manner (whatever that is, exactly). Still, the article may shed some light on the debate.

In this case, the government did actually water down its proposed legislation, thanks to opposition from the arts community.

Victorian censorship legislation, in so far as it applies to child pornography, now refers to the age of sixteen - not that that would help Henson. For someone who merely possesses child pornography (rather than creating it) there is a defence of artistic merit but it has only limited application and would again not help Henson.

I played only a tiny role back in 2005, in giving some quotes to Helen Razer. Still, the government did take some notice when concerns were expressed.

What this incident confirms for me is that there are social and political forces - though it was never clear, with the Victorian legislation, where the impetus came from - that can push supposedly enlightened governments in a very restrictive direction.

For any comments from readers.

Edit: I've edited this post a few times in an endeavour to get it as legally correct as I can in the limited time I have (given that I don't have anyone I can charge for my time). I've now had a look at what appears to be the relevant legislation under which Henson would be charged in New South Wales. See section 91H of the NSW jurisdiction's Crimes Act.

Interestingly, this section has a quite sweeping defence provision that appears relevant: "It is a defence to any charge for an offence under subsection (2) or (3) ... (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 ..."

This would seem to give Henson a good defence.

However, there's another section that may apply, relating to using children under 14 for pornographic purposes.

I guess we need to wait and see what charges, if any, are laid. Meanwhile, I'll go on questioning the current witch-hunt.

2 comments:

Thymeforart said...

It is great to see someone showing the legal side of this debate rather than the overall sense of moral superiority of the media's commentary, Mr Rudd and 'blogging pedestalists' (not that I can rule myself out of that category).

He is a fine photographer with international acclaim, and whom I respect. I would hate for the floodgates to be opened enough to prosecute every artist who does anything that slightly pushes the envelope.

Anonymous said...

I think Scotland Yard are about to go raiding the bastion of culture in search of 'refreence' photos illegally retained in the country (UK). Henson's kiddie fetish material is child porn in London.