23 May 2008

Art or Child Porn -- An Update

The exhibition was to be of 41 photographs of naked teenagers, mostly. Some of the models were allegedly only 12 years old and by my reckoning makes them pre-teen. However, the police have seized 20 of the 41 photographs as evidence and it is expected that both NSW and Commonwealth charges are to be laid under Child Protection Act. My reckoning is that there are probably offences committed under the Crimes Act as well. The Commonwealth law is being used with respect to the publishing of an indecent article on the Internet.

The actual offence requires the depiction of a child under 16 years of age in a sexual pose. I must say that I have not seen the pictures and can only refer to what has been written by others, but it would seem that at least some of the photographs would fall into that category. This is probably also affirmed in the decision for the police to execute a search warrant and seize 20 of the items that were listed to be exhibited.

So, it seems as if the debate on what constitutes art and what constitutes porn is about to enter the legal realm and specifically the courts of NSW. This will pit the experts against each other from the art, porn, and child advocacy worlds and their respective supporters in opposing camps.

On the Federal level the PM has already weighed in with a statement that he finds the images revolting and a case of stripping away the rights of children to be children and in essence do things that normal children do. One assumes that his statement is based on a viewing of the offending images and not just hearsay. As PM he could demand a look couldn't he?

As an additional note. Bill Henson is one of the artists that Year 11 and 12 students in NSW can study as part of a course for their Higher School Certificate (HSC) for a Board of Studies approved subject titled "Photography, Video, and Digital Imaging". It should be pointed out that this comes with a disclaimer in the sense that it mandates that teachers must choose appropriate subject material for study.

5 comments:

Polar Bear said...

This has been brewing for some time. Arbitrary laws are imposed on the assumption that they will be tested and refined as trials are used to set precedents (which sucks if you happen to be the accused).
This case will test the use of underage models in Australia. In fact the most complex part of the case is the commonwealth charges upon the Gallery for publishing the images on the internet. Under current law there are greater penalties for looking at these photos on the internet than taking them, or posting them.
Netmodel has a good discussion going on the subject:
http://www.net-model.com/Forums/ReadThread.asp?ThreadID=1161966
As a photographer myself I see both sides of it. Where does art end and pornography start? Did I read Playboy for the articles?
A few years some guy took “artistic” photographs of a number of girls with a glass eye inserted in their vaginas. One girl was thirteen, and off he went to jail.
We may say – “but its art”. Art or not, we comply with the law, and break it at out peril.

Rob Baiton said...

Polar Bear...

Thanks for dropping by!

Yep, I think you break the law at your own peril in the sense you imply here. However, I guess what I was tossing out into the fray was who decides when it is art and who decides when it is something else like porn?

Contemporary art is often art that defies the traditional "norms" of art, is often confrontational, and always explores the outer edges of what one might consider to be art.

The fact that the images are (or were) to hang in a gallery indicative of the idea that this is art more than it is child porn. The images might not be to everyone's taste but does that make them something which has no artisitc merit?

But thanks for the comments...

Rob Baiton said...

PB...

Just checked out the discussion on net model...thanks for the link!

I do want to throw something else into the fray here, and that is; assuming that Henson did all the right things and asked for and was granted the consent of the parents for the photographs, then where should the blame be apportioned in this case?

If these images are in fact classified as pornography then why is no one talkign about the parents that allowed these photos to be taken? Has the child been removed from the family home because she is at risk from sexual exploitation by her parents?

When is too young for nude modelling work? Not a question I can answer. However, before a child reaches legal age to make decisions for themselves then these decisions are made by the parent(s) and as such the paretns must also be responsible for teh consequences of the decisions made.

Will these images do any psychological harm to the teen models that are the subject of these pictures, who knows? Only time will tell, won't it?

Art is such a subjective thing and I guess this is why this debate had to happen...one person's art is another person's porn!

Polar Bear said...

You raise a good legal point Rob. A recent discussion between two photographer friends went like this:
“I took some photos the other day of a 17 year old”.
“Be careful mate, that’s under age”
“But I got her consent. She signed the release form”.
“The form is worthless mate, being under age she doesn’t have the right to sign a release form because technically she is a minor”.
In fact the advent of digital cameras and handicams has challenged a lot of the laws. Can I for instance take a photo of a stranger on the street. Can I photo graph the same stranger on a beach? What if she is topless? Can I then sell those images? Sell them to an advertising agency to promote a beach, or sell them to a porn site. What if she happens to be under 18 and I do not know?
And how can anyone object to being photographed in a state of dress that is clearly visible to all on the beach anyway.
What if a 13 year old girl sunbathes topless on the beach. Am I arrested if I see her?
Remember that the age of sexual consent in Victorian England was 12 until it was raised to 13 in 1875, and then to 16 in wth the Criminal Law Amendment Act of 1885. And girls of today are far more advanced, both mentally and physically, than 100 years ago.

Rob Baiton said...

By the sounds of it the government is going to "white paper" the issue and then send it to a committee which should probably kill any real constructive debate on the subject.

There seems to me to be two diametrically opposed views on this at the extremes of the debate. I just do not see either side giving a centimetre or two in compromise. This will likely leave the middle ground in that legal limbo of not really knowing what is legally acceptable when it comes to art.

My question is that why is this an issue now? Why this exhibition? Why this artist? Why this gallery?

The images although controversial are images of a similar type and kind displayed by other artists at other galleries without attracting anywhere near the same kind of response as this one.