[2010]
22 May, Sydney Morning Herald: (Miranda Devine article)
22 May, Sydney Morning Herald: (Miranda Devine article)
23
May, Sydney Morning Herald:
25
May, The Age: http://www.theage.com.au/articles/2008/05/24/1211183189567.html
26
May, Sydney Morning Herald: http://www.smh.com.au/news/technology/web/blacklist-snares-bill-henson-fan-site/2009/03/26/1237657050527.html
Photographs
in Question:
Photography
or Pornography?
On
22 May 2008, the opening night of Bill Henson’s art exhibition at the Roslyn
Oxley9 Gallery in Sydney was cancelled. Why? Because the event invitations,
sent out via e-mail, featured a naked 13-year old girl. A child protection
advocate, Hetty Johnston, lodged a complaint to NSW police. Miranda Devine, a
Sydney Morning Herald columnist, wrote a scornful article about the exhibition
titled “Moral backlash over sexing up of our children.” Immediately, the nude
photos became a matter of intense public debate. Police raided the
gallery, found more nude photographs of children, and an investigation of the
artwork ensued. On 6 June, it was reported in The Age that police would not prosecute Henson. The Office of Film
and Literature Classification declared the photographs in question to be “mild
and justified” and gave them a PG rating[1].
But on 4 October, the affair continued. David Marr published a book titled The Henson Case, revealing that Henson
had visited St.vKilda Park Primary School in 2007
to select potential models; he was allowed entry into the school and shown around
by former principal Sue Knight. One of his selections—a young boy—was later
photographed. The school had approached the boy’s parents on behalf of Henson,
and they agreed to allow their son to be used as an artistic subject. Another
investigation was launched two days later—this time by the Department of
Education—into Knight for allowing Henson to enter school grounds to select a
model. But the investigation found that Knight had followed departmental
policy, and the case was dropped. How should artwork be censored, especially
when it’s made available on the Internet? Should private art exhibitions be
censored? Where does one draw the line between art and pornography, and what
does the law say about these issues?
The
basic ethical dilemma surrounding this issue is determining whether Henson’s
photographs of young nude children are artwork or pornography. Bill Henson is a
renowned Australian artist and photographer. The New Yorker has said of his work: “rarely has colour photography
captured so profoundly the furry texture of night time.”[2]
Artists might argue that censoring artwork is a dangerous violation of creative
expression. Admiring the photographs from an artist’s point of view, one might
note the photographer’s portrayal of the innocence of childhood, the use of
shadow and balance, texture and pose. To an artist, the nudity and ages of
subjects may be irrelevant to the artistic purpose; bare breasts and visible
skin aren’t the point. In fact, the human body is rarely viewed with offense
and inappropriateness in the art world,
and the young body has always been revered. In Australia, indigenous children
and teenagers run around without clothes on in their communities, and photographers
often capture them (without their consent) for “cultural studies.” The
adolescent body, to many, represents the thin line between innocence and
adulthood, and is admired and respected for its inner beauty and uniqueness.
The creative community also might point out that Henson’s art has provoked
discussion and controversy throughout the artistic community and beyond. Isn’t
this what good art is supposed to do? Many people see the photographs as
sexualised and paedophilic, but advertising, television and cinema have caused
an automatically generated response of immediate offense and opposition. The
point, many would argue, is for artistic expression, and nothing
else.
Henson defended
his work as seeking to explore “something which is absolutely inviolate and
unknowable” and told The Australian that
“you can’t control the way individuals respond to the work.”[3]
Indeed, individuals have responded in great number, provoking public
discussions, investigations and even talk of policy changes. Accusations of
Henson’s work as child pornography have been shot in newspapers, blogs and
discussion boards alike. The naked children in the photographs are as young as
12 years old, and many people define child pornography as exposed bodies of
kids. “He has a tendency to depict children naked and that is porn," said Hetty
Johnston.[4]
Questions are raised as to how the artwork will affect the young subjects in
years to come. Also in consideration are the parents who allowed their children to be
photographed and used as artistic subjects. Do they need to be investigated? It
is important to note that the parents one of Henson’s subjects, a young teenage
girl, have known Bill Henson for more than a decade. They were aware of the
nature of Henson’s work before their daughter posed nude, and defended their
decision by stating “we are very strong supporters of Bill Henson and his
work.” [5]
The
law can help us determine whether Henson’s photographs are art or
pornography. Because the photographs were published on the web, the
Australian Communication and Media Authority is the governing body “responsible
for the regulation of broadcasting, the internet, radiocommunications and
telcommunications.”[6]
The ACMA Classification Board found the images to be not sexualised and “mild
in viewing impact and justified by context,” giving it a rating of PG.
According to ACMA guidelines, PG material “may contain material which some
children find confusing or upsetting…It is not recommended for viewing or
playing by persons under 15 without guidance from parents or guardians.” This censorship
seems appropriate, as the audience for a prominent art gallery is mostly
adults.
According to the Crimes Act 1900 (NSW)
section 91H, child pornography is defined as “material that depicts or
describes, in a manner that would in all the circumstances cause offense to
reasonable persons, a person who is a child: (a) engaged in sexual activity ,
or (b) in a sexual context…” The Act includes photographs in its definition
of child pornography production.[7] Whether or not Henson was creating child
pornography according to this law depends on if the naked children in question
are seen in a “sexual context.” There is legal ambiguity as to whether or not
naked bodies of young children or teenagers are necessarily sexual by default. Unfortunately,
the term “sexual context” is not defined in the legislation. However, the same
act states that if the defendant was acting for an “artistic or other public
benefit purpose and the defendant’s conduct was reasonable for that purpose”
than it is a defence to any charge for a child pornography offense. Henson
could argue in court, as many of his advocates have in public discussions, that
he was photographing nude children with an artistic purpose. Was his conduct
reasonable for the artistic purpose? Could he have captured childhood innocence
or accomplished other artistic goals without the use of naked children and
teenagers? Many would argue yes, but it remains debatable.
Section
578C of the same Crimes Act 1990 (NSW)
says that a person who publishes an indecent article is guilty of an offense,
defining publication of an indecent article as anything that “is to be looked
at” (as are the photographs in his exhibition). However, it also states: “the
opinion of an expert as to whether or not an article has any merit in the field
of literature, art, medicine or science (and if so, the nature and extent of
that merit) is admissible as evidence.”[8]
If the legal proceedings against Henson had continued and the photographs’
indecency had still been an issue, a series of art experts
testifying the value of Henson’s photographs in the art world could suffice as
evidence. The
image on the exhibition invitation alone violates Commonwealth legislation.
Section 474.20 of the Criminal Code Act
1995 states that a person is guilty of an offense for “possessing,
controlling, producing, supplying or obtaining child pornography material for
use through a carriage service.” The act defines child pornography material as
anything that “…describes the breasts of a female person who is, or is implied
to be, under 18 years of age.” This classifies some of Henson’s photographs as
pornographic, as young female breasts were sometimes shown, and using e-mail as
the means of communication justifies a “carriage service.” But importantly, the
act also states that the material must be presented “in a way that reasonable
persons would regard as being, in all circumstances, offensive.”[9]
Of course, a reasonable amount of people would regard the photographs to be
offensive, but a reasonable amount of people would also not. In every instance
of Henson’s art being legally pornographic, legal arguments can be made that it
is not.
An important social issue to consider in this case is the
media’s portrayal of young people. Australian Democrats leader Lyn Allison
initiated a Senate inquiry into the “sexualisation of
children in the contemporary media environment” on 23 June, 2008—not long after
the Henson censorship debate. The inquiry found that “there is considerable
community concern in relation to the issue of the premature sexualisation of
children within contemporary media” and concluded that “Australian children
need protection from premature sexualisation.”[10]
Such initiatives show that many people are concerned about the effects of
premature sexualisation on children, while other academics maintain that such
concerns are nothing more than “moral panic,” as Professors Lumby and McKee
stated in their contribution to the final report.[11]
Such debates on social norms are important factors to consider in the
censorship of contemporary photography.
Art is not definable. What one
considers an artistic breakthrough, another considers sexual imagery. In
today’s society especially, beauty is in the eye of the beholder.
Works
Cited
“About the ACMA’s role,” in Australian Government: ACMA, viewed on 11 September, 2009,
<http://www.acma.gov.au/WEB/STANDARD/pc=ACMA_ROLE_OVIEW>.
“Bill Henson to be charged over child porn
photographs,” in The Courier Mail, 24
May 2008, viewed on 11 Sep 2009,
<http://www.news.com.au/couriermail/story/0,23739,23745226-952,00.html>.
Crimes Act 1990
(NSW) s 91H, viewed on 11 September 2009,
<http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s91h.html>.
Crimes Act 1990
(NSW) s 578C, viewed on 11 September 2009,
Criminal Code
Act 1995 s 474.20, viewed on 11 September 2009,
<http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html>
“Exhibition: Press Release” in Bill Henson: 3 Decades of Photography, viewed on 11 September 2009,
“Model’s mother defends Henson,” in The Sydney Morning Herald, 30 May, 2008,
viewed on 11 September 2009,
<http://www.smh.com.au/news/arts/models-mother-defends-
henson/2008/05/29/1211654225893.html>.
“No charges for Henson” in The Age. 6 June, 2008, viewed on 11 September 2009,
<http://www.theage.com.au/national/no-charges-for-henson-20080606-
2mnv.html>.
“Roslyn Oxley9 Gallery pics of children dumped,” in Perth Now, 23 May 2008,
viewed on
11 Sep 2009,
“Sexualisation of children in the
contemporary media,” in Standing
Committee on
Environment, Communications
and the Arts, June 2008, pp 90.
“Submission from Victoria’s Child Safety Commissioner,”
in Senate Inquiry into the
Sexualisation of Children in the
Contemporary Media Environment, 23 June 2008.
[1] “No charges for Henson.” in The Age. 6 June, 2008, viewed on 11
September 2009, <http://www.theage.com.au/national/no-charges-for-henson-20080606-2mnv.html>.
[2] “Exhibition: Press Release,” in Bill Henson: 3 Decades of Photography. Viewed
on 11 September 2009,
<http://www.artgallery.nsw.gov.au/sub/billhenson/exhibitions/press.html>.
[3] “Roslyn Oxley9 Gallery pics of children
dumped,” in Perth Now. 23 May 2008,
viewed on 11 Sep 2009,
<http://www.news.com.au/perthnow/story/0,21598,23745340-948,00.html>.
[4] “Bill Henson to be charged over child porn
photographs,” in The Courier Mail. 24
May 2008, viewed on 11 Sep 2009, <http://www.news.com.au/couriermail/story/0,23739,23745226-952,00.html>.
[5] “Model’s mother defends
Henson,” in The Sydney Morning Herald. 30
May, 2008, viewed 11 September 2009,
<http://www.smh.com.au/news/arts/models-mother-defends-henson/2008/05/29/1211654225893.html>
[6] “About the ACMA’s role,” in Australian Government: ACMA. Viewed 11
September, 2009,
<http://www.acma.gov.au/WEB/STANDARD/pc=ACMA_ROLE_OVIEW>
[7] Crimes Act 1990 (NSW) s 91H. Retrieved 11 September 2009.
<http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s91h.html>
[8] Crimes Act 1990 (NSW) s 578C. Viewed on 11 September 2009,
<
http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s578c.html>.
[9] Criminal Code Act 1995 s 474.20. Viewed on 11 September 2009,
<http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html>.
[10] “Submission from Victoria’s
Child Safety Commissioner.” Senate
Inquiry into the Sexualisation of Children in the Contemporary Media
Environment, 23 June 2008.
[11] “Sexualisation of children
in the contemporary media.” Standing
Committee on Environment, Communications and the Arts, June 2008, pp 90.
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