As the debate about Bill Henson's nude portraits of young teenagers drags on, we need to worry about the immediate threat to Henson's liberty, and his good reputation as one of our fellow citizens, but also about general policy issues and about how the debate would have gone if it had been someone less famous.
At least in the media, Henson is being accused of serious crimes - which must itself be traumatic - and his freedom is at stake, as is his good name as a fellow citizen. He could end up being stigmatised as something akin to a creator of child pornography. But there are also issues of principle here, together with legitimate concerns about the direction of public policy and the development of our general social environment, here in Australia.
Let's keep this idea somewhere at the front of our thinking: in a modern pluralist society (or a liberal society, as I like to say) many people will have different responses to Henson's work, and many parents will have different views as to whether they would be happy permitting their children to take part as models in the way that's currently under discussion. The key thing about a liberal society is that it permits such differences and counts a wide range of different critical responses - and a wide range of different uses of parental discretion - as being "reasonable" for the purposes of the law.
The ethico-legal principles of a liberal society require that the coercive power of the state be exercised with great reluctance, and if it is going to be exercised at all then countervailing values, such as artistic expression, must be taken into account. Accordingly, it is relevant that what we're dealing with is, irrespective of all the differing judgments about its meaning or value, work that: (1) is genuine individual expression, and not something prepared for an overwhelmingly commercial purpose such as product advertising; and (2) of a certain level of artistic quality.
Even if some well-informed people have adverse critical responses to Henson's portraits, we ought to be defending the artist's right to create them and also the rights of the young models to take decisions, in consultation with their parents, to participate. This is not the sort of situation where the clumsy machinery of the criminal law should be involved, and it's incredibly dangerous for art and expression if, as a society, we are too quick to wheel out that machinery to settle cultural disagreements.
Perhaps a bit more needs to be said about this. I doubt that anyone who is defending Henson is unaware that paternalism has more role to play when we're dealing with younger people than when we're dealing with competent, consenting adults. But where does that get us?
In discussing the issue on her blog, Alison Croggon has made an important point, which I'm happy to adopt, though it has more weight coming from her than from me, since she is actually a parent of teenagers. Like Croggon, though, if I were the parent of one of the young people who are at the centre of the controversy I'd want them to talk it over with me first before they decided to be photographed nude, and I'd want to know quite a bit of detail. I'd reserve my right to veto their plans. That's what parents are for, the way this society works.
But I also agree with Croggon about the following: if they were smart young people who knew their own minds, I'd happily let them pose for any of the portraits that I've seen, in the circumstances I've seen described by people who are familiar with Henson's work methods. In fact, I'd be proud of them for doing so. I certainly wouldn't want the law coming in to overrule my judgment - implying that I was, in effect, an abusive, or at least unreasonable, parent for not stopping them. My concern would be to be careful and protective, but also supportive of my child's values and projects as far as possible.
Many people tend to think that every social issue must be resolved by having a law about it, at least if there's something like nudity involved, or anything that can be construed (by prurient minds) as "sexual". The extreme paternalism about nudity, as opposed to all the other decisions of consequence that are made by many people, including young teenagers, suggests to me that the human body is still, at some level, widely seen as problematic; there's a prudishness and shame about the body lying behind this debate. It goes back to St Augustine, at least ... and beyond to St Paul and even Plato.
Interestingly, we seem (as a society) to be much less keen to prevent teenagers or children making other kinds of decisions. We let them poison their minds with, say, fundamentalist religion - though the effects on their flourishing can be much worse (leading, them, perhaps, to live an entire life based on the ridiculous lie that our planet is only 6000 years old). In fact, we let parents do all sorts of things - and acquiesce in all sorts of initiatives from their children - that I consider far less reasonable than what was agreed to by parents who let their children be photographed by Bill Henson.
Of course, the positive experience of posing for Henson has now been poisoned. Now I'd be much less inclined to let my hypothetical teenage child take part. Again, I'm going to explain this by adopting a point that Croggon has made: I don't think it would have been psychologically harmful in the normal course of events, but now that the prudes and panic-mongers have made such a big issue of it, it might well be. I would be loath to let my child put herself (or himself) at the risk of having her image described as "revolting" by the prime minister, and of being the subject of endless discussion in the mass media in the way that has happened. With regret, I'd probably now veto participation in Henson's photography sessions. The prudes and panic-merchants have managed to do that much damage already, whether or not Henson is ever charged or convicted.
I'm not saying that the state should never have the last say where parents and their children are in agreement. Take two cases at opposite ends of the spectrum. It's clearly fine if a parent lets her teenage girl go topless on Bondi Beach (if the girl wishes). No one in their right mind would want a law about something as harmless as that. But maybe it's not fine for a parent to let a young teenage girl dance topless at a strip club - where she is going to be confronted with quite different dangers.
It may not be possible to draw lines that are absolutely defensible with no
exceptions, but there really are reasons, it seems to me, why it would usually be reasonable for a parent to go along with her teenager being photographed by Bill Henson in the ways we've seen, but not so reasonable for a parent to go along with her teenage girl posing for intra-uterine shots in Penthouse. A lot of this, unfortunately, involves subtleties such as taste and context, but those subtleties do matter - and some of it isn't all that subtle.
There are, then, issues of paternalistic concern for young people, though I hasten to add that there are also legitimate concerns about the ongoing infantilisation and disempowerment of young people by our social institutions (something that has become a serious problem for modern societies, which are plagued by the consequences of having created an adolescent maturity gap).
We must not forget that there are also genuine issues here to do with freedom of artistic expression. While it's correct to focus on the proper role in the criminal law for an element of state paternalism, we mustn't forget the ugly fact that, within some sections of the Australian community, there's widespread distrust - sometimes verging on contempt or hatred - of artists and intellectuals. Politicians are usually wise enough not to whistle this out of its kennel as a populist electoral tactic. However, it's the sort of vulgar populism that they've descended to in the current debate, and I think we have good reason to be fearful about where it will lead them now they've started. Not to mention where it will lead Australian society (this is not a crude slippery slope argument - there are genuinely nasty outcomes that could occur, and there are genuinely temptations for politicians to go down a populist road that leads to a certain amount of repression).
Artists and intellectuals need a wide margin in which to operate without having to fear criminal punishment and stigma. Like Henson and his work or not, it seems clear to me that he operated well within that margin - indeed, with great care and sensitivity, by all accounts. But serious efforts are now being made to narrow the margin, and I don't expect those efforts to cease any time soon.
Right now, the priority lies in defending Henson's liberty.
However, it would be just as important to defend an unknown artist, as discussed over here. If it had been someone less celebrated, we might not be able to confront politicians with the same prudential arguments ("think of Australia's international cultural reputation"), but I don't think we should eschew those arguments in the present urgent situation. When dealing with governments on policy issues, it's unwise to throw away whatever bargaining power you happen to have. But it would, nonetheless, be equally important to defend an unknown artist's liberty, reputation, and freedom of expression, as it is to defend Henson's.
The main difference is that with Henson we don't have to start from scratch: his fame and success don't give him any more right to be defended, but they do assist in putting the defence together. They provide some quick and compelling evidence of the fact that his work is of artistic seriousness and value ... and that fact is definitely relevant to public policy and to how his work should be regarded by the law.