No animals were harmed in the making of this image by Pants
The New South Wales State Government is considering a recommendation to scrap the existing defence of 'artistic merit' in criminal law where images have been deemed 'pornographic' by the censor. If passed, the legislation will bring the law into line with Federal and other state law. I know, I know, there are more rules than people in this country. Never mind statutes of limitation, they might try a limitation on statutes.
As some of you may know, this is another flea on the very long tail that started wagging when celebrated Melbourne photographer Bill Henson had some photographs of naked teenagers confiscated from a Sydney gallery by NSW police back in 2008. The pictures were soon after passed by the state censor and returned to the exhibition. They may not have been legally pornographic but many people found both the pictures themselves and the fact that they existed at all uncomfortable. Parents couldn't help thinking that they'd have their own kids taken into care if they took pictures of them that looked like these. And they probably would have been right. And this is where our story really begins.
Now, depending on who you read on this subject, the proposed change is either a triumph of civil society over rampant paedophilia or the end of a golden age of Australian artistic world domination. This saga brings with it more baggage than Liz Taylor. When the original controversy broke, the elites and the prols immediately began splattering each other with righteous indignations. The luvvies lined up to discredit the reactions of the plebs who prefer footy to Fellini as emissaries from the Inquisition. Politicians and journalists shuffled themselves into two teams comprising those who'd been in a rock band and those who hadn't and started trading rhymes like rival MCs.
This largely irrelevant endgame has been cheered by child protection campaigners and jeered by the self-selected enlightened but the real issue is no closer to being sorted. The elevation two years ago of a routine Bill Henson exhibition into the national consciousness, raised an anomaly that will not be resolved by this proposed change in legislation. To an audience not conditioned by familiarity with Henson's work, and this includes your Pants, the images were disturbing. An artist may assume that his/her obligation is to challenge public perceptions but I personally feel under no reciprocal obligation to comply. But to demur in any way at all was to find oneself dismissed as a book-burner in this imbroglio.
It came as a bit of a shock to find an almost total lack of a measured view. And it raised no small amount of suspicion in the Pants camp. Some people thought then, and still think that the case exposed a situation where an artist was exploiting a toleration gap, and reaping substantial gain into the bargain. This did not make Bill Henson a pervert. But it did make him someone who was privileging himself by virtue of his position. That a substantial cohort put their hands up to indicate a line had been crossed should have surprised no one, least of all Bill Henson. Artists are supposed to be sensitive to the zeitgeist, aren't they?
David Marr in The Henson Case inadvertently deepened the divisions by revealing that the photographer had been given permission by a primary school principal to scout for potential models in her school. The author was geniunely shocked and horrified when the public found this not altogether an entirely toward arrangement, signalling a further disconnect. Marr also reveals in the book that some of Henson's friends were concerned that he was on dangerous ground with his chosen subject. They may not have thought he was doing anything wrong but they certainly recognised he was at least in high-risk territory.
The subsequent hysterics, from both sides, were impossible to fathom for those of us who were trying to reason it out from the middle-ground. The general public felt itself bullied by artists who it seemed were trying to dictate the boundaries of personal taste. Just because one didn't much like the idea of a middle-aged man taking nude photos of a 13-year-old girl didn't mean one was a Cromwellian throw-back. Their agenda seemed wholly self-serving and worse, some artists seemed to be saying that exemption for them from the rules of behaviour that govern the rest of us was the price of a genuinely free society.
But back to the proposition. According to this editorial in the Sydney Morning Herald, the defence of 'artistic merit' is only applied after an image has been deemed pornographic anyway. The editorial also points out that there has never been a successful case using this defence in NSW. You don't need to be Rumpole to deduce it's a pointless device. How does one prove 'artistic merit' in the post-modern era? If the court were to take into account reputation, it would privilege the famous and wealthy in ways we thought went out with top hats.
The concept of 'intent' has came up a lot in discussions about the Henson case. It seems to me that proving 'intent to do harm' is difficult enough, (although not impossible as convictions for planning crimes that are not actually carried out do happen), but proving 'intent to do something other than harm' seems a nonsense. What would the evidence for it be? Intent is defined by thought. If laws were framed by the capacity to think evil thoughts, Quentin Tarantino would be on death row along with P.D. James and Ruth Rendall. Until judges learn to read minds, we're never going to know whether an artist means to do something other than make a picture for a gallery. The boundary of acceptability is not defined by what the artist thinks but rather what the artist does. The central issue in the Henson case was not the artwork itself, which was found not to be pornographic, but the behaviour of the artist. Child protection laws are predicated on the assumption that children may be at risk in certain situations involving adults who may have predatory motives and that some situations are more dangerous for children than others. There is no certainty about it, which is precisely why no exceptions can be made.
It seems absurd in the context of a society that operates largely free of censorship that a law even existed which purports to offer a defence to an arbitrary group of people simply because of their profession. I don't know how old the statute is but it must have been penned for a time when artists met fellow seditionists in coffee houses and planned revolutions as opposed to the present day when they meet their agent in Starbucks and plan what they're going to wear to the Venice Biennale.
On the subject of disturbing images, please don't fret about the scary-looking alpaca above. Her stylist may not have been trained by Vidal Sassoon but she would have been grateful for that buzz-cut with yesterday's temperatures souring up to 43.