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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019) and AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021).

Saturday, May 24, 2008

The Henson debate: take a stand for art and freedom

Right now, Bill Henson, an artistic photographer of international repute, stands in danger of criminal proceedings over certain photos that were to appear in a (now-cancelled) exhibition of his work in Sydney.

The photos concerned were nude portraits of young teenagers. Nobody with any sense - I don't count our deplorable prime minister, Kevin Rudd, or our equally deplorable opposition leader, Brendan Nelson - disputes the artistic merit of the portraits. Nor does there seem to be any doubt that Henson acted with all propriety in obtaining the permission of the subjects' parents. We are not confronted with a case of child abuse. Moreover, as The Australian newspaper alludes to in a wishy-washy editorial today, there is a tradition in visual art of depicting emerging teenage sexuality.

Yet, there is a prospect that Henson will be prosecuted for, in effect, creating child pornography. The New South Wales police are investigating. If the material is considered child pornography, then if you so much as attempt to inform yourself by searching for the photos on the Internet you risk being charged with a crime.

This is outrageous; if child pornograpy laws are broad enough to have these effects then they urgently need to be narrowed.

As has happened so often in human history, we are seeing a witch hunt by nasty-minded prudes and panic-merchants - among them, smiling Kevin who is proving once again that he's little better than his troglodyte predecessor - against the work of a genuine and talented artist. There are no shades of grey here: we have every reason for anger at such repression.

The extensive popular support that the witch hunt appears to be receiving is further proof that we have a long way to go before this is a genuinely free society, and we can be sure that we've shaken off the influence of puritanical religious traditions. Goddammit, this is happening in Sydney, Australia, of all places: a sophisticated international city, not some backwater of illiterate red-necks in the American bible belt.

Please do whatever you can to stand up for art and freedom of expression.


Buckyboy said...

Fucking academics, all of you should of been culled at birth

Anonymous said...

Thank you, agreed 100%. This is really disturbing me, that we can have such idiocy in this day and age, with an artist of such high regard as Henson.

Anonymous said...

I agree that the prosecution of Henson for child pornography would be completely inappropriate, and should he be found guilty and receive a prison sentence that would be grotesquely unjust.

However, I am not at all convinced that there should be no age-based restriction on nude modelling, even in contexts like this that are clearly distinguishable from pornography. There are many activities that we don't consider to be appropriate for minors, with or without parental assent and supervision, and some of the arguments for an age of consent for sexual activity, relating to the potential for exploitation and emotional harm, do, I think, still apply to taking and publishing a nude image of a child -- even when the circumstances and purpose are utterly different from those of intentionally exploitative pornography.

Russell Blackford said...

I don't think there's anything in your comment that I can disagree with, Greg. I'd add that the line drawn might have to be rather arbitrary.

But there's no doubt in my mind (as there doesn't seem to be in yours) what side of the line this episode falls on. The trouble that I see is that we can end up, as a society, drawing the line so protectively that we suppress work of artistic value in circumstances where no real harm is done (I'm not going to count the lonely gratification of some pedophiles, or whatever, as harm; I'm happy to have quite harsh laws against pedophile activities, but I won't freak out whenever, as a side-effect, some pedophile somewhere gets some pleasure from works of art). I also have a concern that the continual hysteria about pedophilia and similar issues has reached the point where grotesquely unjust outcomes (if, Zeus help us, Henson does actually end up being convicted) won't even seem grotesque or unjust to a lot of people, and there'll be no effective opposition.

Given all that, I do think it's important to defend art and freedom (within some difficult-to-define limits, but much broader limits than Mr Rudd and Dr Nelson seem to acknowledge).

I also think it's important to defend the rights of teenagers not to be treated as infants. We infantilise teenagers too much already, IMHO; I well remember how deeply I resented it when I was a teenager, and nothing in my experience since tells me that I was wrong to do so.

Anyway, I'm just saying. I imagine you might agree with most of the above.

Anonymous said...

You use at least 2 logical fallacies in your argument in support of Henson - an appeal to antiquity (it's traditional to depict emerging teenage sexuality), and the slippery-slope fallacy (that some event must inevitably follow from another). Arguments based on Henson's status as an artist of "high regard" and the parent's consent are also on shaky ground, as Greg suggests.

I do agree that artists need very broad freedoms, and I'd be concerned if Henson is charged over this. However, I'm equally convinced that Henson is a bloody idiot who must live in some strange world if he thinks that the vast majority of people in our society will be able to read his images as he (apparently) intends them to be read.

Russell Blackford said...

I don't see any fallacy. If the material is genuinely artistic it follows that we have a reason to be particularly solicitous about protecting it and particularly unwilling to allow its suppression by the power of the state. That principle is widely-accepted within the discourse relating to freedom of expression and I feel no shame about alluding to it and relying on it.

Moreover, if there is a well-established artistic tradition, that strengthens the argument that the material really is, or at least may be, genuinely artistic endeavour. It's good evidence for what is being argued. There's no fallacy here.

Nor is there any improper slippery slope argument involved. I wouldn't actually think of it as a slippery slope argument at all: a classic slippery slope argument would be something like "if we ban nude portraits of young teenagers we will find ourselves banning nude portraits of older teenagers, and ultimately of adults. But that is a bad outcome." That wasn't how I argued it, and I don't believe that that would be a good argument, at least not without more in support. There would need to be a mechanism identified to show how we would be driven down the slope. The mechanism could be, for example, logical, psychological, or sociological.

A good argument might be this: "If we ban nude portraits of young teenagers it will be a political victory for certain social forces, giving them encouragement and momentum. If they obtain encouragement and momentum they will be better placed to pursue bans on portraits of older teenagers and adults. Therefore, there is an identifiable mechanism by which bans on nude portraits of young teenagers could lead to wider bans. Therefore, if we oppose that outcome, we have a legitimate prima facie reason, under current circumstances, to voice our opposition to bans on nude portraits of young teenagers."

That is actually a perfectly valid kind of argument, and even if there's an element of it coming through in my thinking I have committed no logical fallacy.

Books and articles have been written on slippery slope arguments - including when they are good arguments and when they are not. It's a popular misconception to think that all slippery slope arguments are fallacious. If you're interested, I can recommend Douglas Walton's thorough book on the subject as a good place to start.

Brian said...

I once perused a book on human diseases. There were photographs (always naked) of old people, young people and everything in between. Some were healthy people, some not. There were pictures of young healthy (and unhealthy) female genitalia. I guess that's porn too (if this guys photos are porn). Lock up the doctors I say. Personally I didn't find it revolting or titillating, just informative.

I thought art was supposed to confront as much as provide solace. This is really bad. The guy isn't peddling some dodgy website. He may be a shite artist, he may not. But he's not abusing anybody.

By the way. I didn't vote for Kev'07. I won't claim prescience. But anybody who out Howard's Howard probably isn't a progessive.....

Anonymous said...

Russell, I suspect we're largely in agreement, but I guess I'm alarmed by a kind of polarisation that the issue seems to be generating. One group of extremists want to lump Henson in with pedophiles who procure children for sex, while the other group of extremists want to dismiss any debate on the subject as prudery and panic-mongering.

I think part of the problem is that the law, if I've understood it correctly, offers no middle ground: either Henson has committed the heinous crime of child pornography, or what he's done is beyond reproach. But I believe it's arguable that neither is the case.

To take a (slightly) less emotive situation, anyone who fed vodka to a 5-year-old clearly deserves to go to prison as a child abuser, but what about giving a beer to your 13-year-old son? Should that be perfectly OK? Or should the law discourage it as potentially harmful -- without going overboard and treating it as the kind of depravity that the first case would entail?

I think there's a non-hysterical case to be made that a pubescent girl who poses naked for images that enter the public domain might well be at risk of some emotional harm. Certainly, there are cases of adult actresses who have come to feel humiliated and exploited after agreeing to appear naked in movies, and I'm not just talking about blatant pornography: for example, Maria Schneider expressed precisely that feeling about Last Tango in Paris. Well, adults have to live with their mistakes, but should 13-year-olds be put in the same position?

On the freedom of expression issue, I think that needs to be factored out and treated separately. I don't care if an artist produces images that some people find unsettling, but if they have to find a way to produce them without naked child models, then that's not censorship, it's just a logistical hurdle -- no different in essence to the need to find a way to produce crucifixion scenes without driving nails through anyone.

Damien Sullivan said...

The fun case is of the 16 year old girl prosecuted for making child pornography... by posting nude pictures of herself on the Internet.

I wonder how much of the emotional harm Greg mentions is intrinsic vs. being a function of other societal hangups.

"anyone who fed vodka to a 5-year-old clearly deserves to go to prison as a child abuser, but what about giving a beer to your 13-year-old son? Should that be perfectly OK?"

AIUI a glass of wine with dinner starts being common in European dinners around that age. And I can gray even the first case, I think: suppose your 5 yo asks "what's that" and you let them take a sip so they can go "yech!" and write vodka off as another bizarre adult taste. Abusive? Greg probably meant letting a 5yo take a full shot, or get drunk, but under sexual style laws a prosecutor could go after any infringement.

(I think a lot of US drinking age laws turned out to be surprisingly friendly to parents, actually, as harsh as they are to public places. Or even friendly to private consumption, while banning sales or public possession.)

Russell Blackford said...

I think that there's a chicken and egg thing with the idea that merely being portrayed naked (but not in a way that is intrinsically humiliating) is something that it is rational to regret. We still live in a society with a strong puritan element, so people who are okay about nudity at some stage of their lives may come to feel shame at a later stage. That doesn't mean they were incapable of making a rational decision at the first stage, or even that a thirteen year old is (much) less capable of doing so than, say, a thirty year old.

It's also true that a thirty-year-old woman may, when she is sixty, come to regret having the abortion that she's in the process of deciding to have. This comes up with all sorts of emotionally- or morally-charged issues - you may do something that you later regret, not because of the consequences for you from others, but because (rationally or not) you come to think what you did was somehow wrong or shameful, or whatever - but it's not a reason to deny people their freedom.

I mean, it's one thing to say that a teenager should not have to live with her mistakes in later life, but it's not at all obvious to me that this was (at least in the absence of the notoriety) a mistake. Perhaps it would, and still might, be an important stage in a career as a model. Perhaps when the teenager is 30 or 60 she will even be proud of what she did. We can become so over-protective that we prevent teenagers having that kind of experience as well.

And we do let young teenagers make many other sorts of decisions. When I was 13, I chose what subjects I'd continue with at school, which was a very consequential decision. If I'd made a bad choice, I'd have had to live it. I also made many choices about friends, religious beliefs, and doubtless other things of considerable consequence for my life.

Of course, there must be some point at which paternalism takes over and we do deny young people the right to make certain specific decisions, though our reason is usually stronger than that they may later feel shame about it - it's often more that they may stuff something up and actually endanger themselves or others (so we don't let parents give (more than a sip of) vodka to their little kids; we don't put young teenagers behind the wheels of motor cars, and we don't even trust teenagers under 18 with the vote).

One way of introducing a shade of grey, or a sliding scale, into it is this. We might not want an actual child to be making a decision to pose nude. The child, we might think, is not in a position to make a rational decision about something that could be so consequential for her future. When it's not a child but a young teenager, we'd assume the teenager is rational and has her own moral views about what she's doing, which she should be allowed to act on. Nonetheless, as a further check, perhaps as a concession to the fact that she still doesn't have an adult's maturity, we might want the photographer or painter to consult with, and have the consent of, parents. (However, my understanding is that Henson did this.) We might even put the legal onus on the artist to prove this if it is ever an issue, making it a defence rather than its absence one of the elements of the crime. Even then, as a further protection, we might use language in our laws that is designed to impose some restrictions on how extreme the images can be.

Greg, I agree with you that the justification for banning child pornography is essentially that it's a way of setting a hurdle against the abuse/exploitation of the young people involved. That's a very important point, because it gives us a principled way to have a degree of censorship - i.e. we can ban only those images that were likely to have been produced by abusive methods, rather than banning all disturbing images (e.g., we might not have a reason, at least not that reason, to ban a similar cartoon). If that's the policy rationale, it means that we'd want to set the contours of the law no wider than what will have the desired effect, however. That doesn't mean we have to prove abuse in every single case, just that we don't make the prohibition to be more sweeping than necessary to address the mischief in a realistic way. My concern is that, in this case, with Henson, there's a prospect that the law is far wider than it should have been. I'm also concerned that there are always pressures to make it even wider. (It's not as if there's a social consensus that "of course this is not what the law was intended to prohibit".)

Guilty as charged on being a bit strident in the original post - i.e. you can classify me in the "down with prudery and panic-mongering" camp. I don't feel much shame about that (although it might not go well with my, perhaps delusional, self-image of calm and reason), because I think that much of the debate really is driven by ... well, prudery and panic-mongering.

We are, of course, having a good nuanced discussion here, but the fact remains that Henson's liberty and reputation are at stake. Among friends, I'm happy to nod along and say, "Yes, of course Henson may have been a bit naive; yes we do need an element of paternalism in public policy when dealing with people who are not mature adults; yes, the prudes and panic-mongers have freedom of speech, too, and I don't want it suppressed; yes, none of the liberal values that I'm defending are absolutes and there are genuinely countervailing ones..." and so on.

But I do actually feel a degree of outrage that works of art are currently being suppressed and that somebody who appears to be a good citizen is in danger of being punished and stigmatised. I also feel that's there's some urgency about people who feel outraged about that pushing back, and making clear that they also have strong feelings about the issue. Henson's detractors aren't the only ones who are driven by values to which they are passionately committed. I'm afraid that making this clear is unavoidable in a democracy.

Anonymous said...

I wonder how much of the emotional harm Greg mentions is intrinsic vs. being a function of other societal hangups.

That's an interesting question in its own right, though I don't think it has any bearing on how the current law ought to stand. Given that any reasonable person can easily imagine a 13-year-old posing nude willingly, but then coming to feel very differently about it a year or two later, there's not a lot of point trying to divide up the cause between innate adolescent emotional volatility and social attitudes to nudity. For whatever reason, adolescence is a time when people are exceptionally vulnerable to negative feelings revolving around their body image and sexuality.

Certainly, the example you give of European alcohol use reflects the way the social context might change the likely impact of an act, and I'm all for accepting shades of grey here. The bottom line for me is that in the culture where Henson did what he did, it's not unreasonable to question the appropriateness of his actions -- and entirely possible to do so without becoming hysterical and lumping him in with pedophiles.

Anonymous said...

the fact remains that Henson's liberty and reputation are at stake.

Absolutely, and I don't want to lose sight of that. Should Henson be charged with child pornography, I'd happily put my name to a petition stating that such a prosecution would be a travesty (so long as the petitioners avoided bombastic claims that the whole of Western art was now at stake, or that people would soon be imprisoned for snapping their toddlers taking a bath).

I think it's both honest and strategic to acknowledge that public disquiet is not confined to the lynch mob set (though obviously the latter are getting the most exposure). I guess in the end I do come down further on the side of paternalism here than you do ... but if we can discuss these differences in a civilised manner, what have you got to lose by extending that discussion to a wider arena? The aim is not to persuade the lynch mob themselves to act sanely; they're a lost cause. The aim, surely, is to argue past them to a wider public who are thinking "I certainly wouldn't want my daughter doing that, but the guy's not a child molester" and win their support.

Russell Blackford said...

It's a good question, but I do see a difference between writing something on my blog at a time when the public battle is at an urgent stage ... as opposed to writing something in a philosophy journal or a law review, or even a lecture to students (who have a legitimate expectation that lecturers display some detachment). The former is partly to let off steam, partly to rally any troops who are willing to be rallied, and partly to express outrage in public - I do think that it's important that we be prepared to express our outrage publicly against the mentality of the the lynch mob, because it's difficult to get political concessions unless an impression (a true one) is created that there's a constituency of people who feel passionately. Sometimes an impression is created that it's only prudes and panic-merchants who have strong values or feel passionately about anything. In my case, I do feel passionately about art and liberty, even, within broad limits, the liberty of teenagers.

That's not to concede that my original post contains logical fallacies, as someone accused me of, but it certainly takes short-cuts, rather than spelling out the assumptions at every step, complete with every nuance and qualification that could be added.

Of course, this blog will likely have no political impact whatsoever. The most I can do is persuade some of my friends and ideological allies to give the issue a slightly higher priority than might otherwise have been the case. If Emma Tom (for example) reads this, and if she's generally on-side - which she may well not be for all I know - she may give a slightly higher priority to the issue than she otherwise would have (hi, Emma!), and then that might have some cascading effect. To use Emma as an example, she has a much bigger audience than I do and has the talent to put things in a light-hearted way that may be more effective in the long run.

Anyway, it may not matter, in one sense, what tone I take. Perhaps I could express less passion. But I'd like to encourage people that there is some urgency about this, and about a larger question as to whether the incessant calls for paternalism towards teenagers have themselves become a problem that needs to be addressed.

I suppose we'd all be having a completely different discussion if Henson's liberty and reputation were not at stake. In those circumstances, we'd be discussing in a more abstract way the wisdom and sensitivity of what he did, of what good practice would be for him and others in similar situations in the future, what he should be saying to explain himself now, and so on, without us all feeling that someone could have his work suppressed, his reputation destroyed, and his liberty taken from him - not to mention that the attacks on Henson are probably going to do more harm than good to the teenager subjects of the portraits concerned.

Indeed, that is the more analytical discussion we're now actually having to some extent, thanks to your admirably cool-headed intervention, but I would feel no temptation to be expressing outrage and so on in the first place if that were the situation we were in. Indeed, Henson himself might respond differently in a different kind of social atmosphere.

Anyway, if anyone out there in internet land with more clout than I have reads this, and wants to organise a carefully-worded petition, you now know that Greg Egan will sign it (at least if the matter becomes more urgent, with charges laid) and so will I.

Damien Sullivan said...

"people would soon be imprisoned for snapping their toddlers taking a bath"

I think people have actually been charged, at least.

search for Andrew Minsk, also Sally Mann

the 16 year old I mentioned

And I think the 1990s law in the US tried to ban even fictional portrayals, like the disturbing loli/shota branch of hentai. Hard to argue a bunch of made-up drawings are hurting children.

Anonymous said...

search for Andrew Minsk, also Sally Mann

Now that certainly is frightening, the Minsk case especially. I don't recall anything as deranged as that in Australia yet, though maybe I haven't been paying enough attention.

Russell Blackford said...

I didn't know about this case, either, Damien. Again, I don't want to argue that there is a direct line from having a ban on photographic depictions of young teenagers in a sexual context (whatever that means, though; this is not the first time the idea has created problems) to banning people taking photos of their toddlers in the bath. I do like to avoid naive slippery slope arguments. But cases like this show there can be a social mechanism operating to push us towards draconian outcomes, i.e. there's a certain influential mentality that has an attitude of avoiding at all costs any possible connection between sexuality and young people, even where it would take a prurient imagination to see sex as being involved at all.

As far as I know nothing that crazy has yet happened in Australia, but I certainly have good anecdotal evidence that there's something of a culture of fear in the Australian primary school system these days. I.e., school teachers are hampered in doing their jobs for fear of doing anything that could even remotely be interepreted as pedophilia. Is that the balance we want? Well, it's arguable, I suppose, since protection of children is a very important value, but still ...

Anonymous said...

I am pretty much in agreement with Greg (and Russell) on this one. The outrage of these pictures is disturbing, and it is yet another symptom of the obsessive paranoia that our society seems to have on it. Yet there still needs to be some sort of laws protecting the rights of child models. Where that line exists I have no idea, and am probably not in anyway qualified to comment.

I guess the point I want to make is that most iconic album cover of all time (well at least for my generation) is pure child porn according to current standards.

Anonymous said...

That link doesn't appear to work too well, but I am talking about Nirvana's Nevermind.

Anonymous said...

I'm with "pissed off pug" (not his real name): and all those other arty wanker paintings featuring cherubs and naked children should be white-washed. And given that paedophiles can be turned on by clothed as well as naked children, all kids under 16 should henceforth have to wear a burka in public.

More seriously, this would be hilarious were it not another sign of society slipping gradually into
the repression part of the cycle. Not helped at all by Rudd's knee-jerk (or just jerk) response. He finds the images "revolting". (Had he actually seen them?) I find his response revolting, and I'm sorry I voted for him.

I haven't seen the pictures in question -- and that is absolutely the key point. If I am denied the right to see particular images, then how, as a responsible adult, am I able to make up my own mind about their merit or otherwise?

(And didn't we determine all this years ago after the Lady Chatterly farce? Why do we have to fight the same battles over and over.)

Finally, can people not see that their response to an image is much more telling than whatever the artist intended? If a Kevin is revolted by a depiction of a naked 13 year old girl, doesn't that say more about him than the image? There has been much talk of "sexualised" images, this being some kind of new mantra bandied by those who probably don't understand what it means, but if simply being depicted naked is to be sexualised, then we've reached a desperate case as a society.

Thymeforart said...

1. How true your comment is about Sydney not being the Bible belt. I feel it has spread a lot further though if you think about it. As a society, or should I say as the representatives of society the 6 pm news, we are trying to legislate, condemn and wrap in cotton wool anything that could remotely be of any danger.

2. Concern for pedophilia in society is the new global warming!