Bill Henson and the Consent Fallacy: To Err is a Human Tempted to Forgive Devine

In her 14 June article in the Sydney Morning Herald, Miranda Devine is determined to convert the Bill Henson Case into an issue of consent, rather than art versus pornography.

This argument is bound to fail at a legal level on the current law.

The question is whether it might prevail as a basis for future change of the law.

No-One May Consent to a Criminal Act

It is not possible to consent to a criminal act.

In the context of the child protection laws, it is not possible for either the child or a parent to consent to a criminal act.

Who May Consent to a Non-Criminal Act?

However, to the extent that the DPP found that he had no reasonable prospect of convicting Bill Henson of a criminal charge, the issue ceased to be one of consent.

Because Bill Henson’s conduct was not illegal, a parent could consent to it on behalf of a child.

This is because, pending the age of majority, the right to consent on behalf of a child resides in their parents, because they are the legal guardians of the child.

Parents make decisions every day on what happens to their children. This is as it should be in any society.

Presumably, if there was a legal limit to the power of parents, any right would instead reside in the State.

However, the State could only acquire this right through the Law.

And the Law could only enforce the right to the extent of the Law itself.

The Limits of the Law

In the absence of a specific Law, to limit or erode parental power is to suggest that there is a limit to the power of parents which is above or beyond the Law.

Even if there was a moral case for this limit on parental rights, it would not follow that it could be enforced by the Law.

The Law exists to enforce itself, not what is above or beyond the Law.

To the extent that the Law can be used to enforce Morality, it is only because a particular aspect of Morality has been incorporated within the Law.

Miranda Devine actually acknowledges this without irony in her article, when she says:

“…police and government censors were always blunt instruments unsuitable for something that communal disapprobation is better placed to deal with.”

This is the same point I made in my 30 May blog:

“Morality is a social issue, not a legal issue.

“It can be enforced by social pressures within the social group that recognises the binding nature of the moral prescription.

“Morality is therefore its own enforcement mechanism.”

The Child’s Consent

The Devine position doesn’t seem to adequately respect the view of the child herself.

I think that most people would agree that, in the context of Art, the consent of the parents should not be used to override the objection of the child.

Instead, the artist should obtain the consent of both the child and the parents.

I have not seen any suggestion that Bill Henson did not obtain the child’s consent.

Instead, it appears that the child protection lobby argues that her consent was worthless.

This view appears to contradict the UN Convention on the Rights of Children (the source of the obligation to enact child protection laws) which states that children are entitled to the freedom to express opinions and to have a say in matters affecting their social, economic, religious, cultural and political life.

There is a point when you have to question whether the Devine lobby is genuinely motivated by the rights of the child as opposed to the desire to enforce their own morality on parents and children alike, through whatever means necessary.

Inability to Understand the Child’s Consent

This is implicit in a positive quotation of “family councillor” (I am not sure whether she meant “family counsellor”) Malcolm Robinson:

“It is, in developmental terms, certainly odd that these 12- and 13-year old girls would undress for Bill Henson and his camera.”

I wonder what this actually says about the Devine lobby and their ability to understand and empathise with children.

There seems to be a total inability to appreciate that the child might have willingly and proudly participated in the photo shoot.

As an adult, I can no longer think like a child. However, I have to ask whether any of the following thoughts were going through her head:

“This photo is a picture of me. It is a picture of me on a day that one day will be in the past and easily forgotten. I now have a record of me on that day. When I am older, I will have a material bridge between the me that I will be in the future and the me I was when the photo was taken. With this picture, I will live in the future and in the past.

“Through this picture, I will be able to see and understand how I have changed. I will remember the journey that I went on in order to become the new me.

“I would like people to look at this picture and see more than my breasts. I would like them to look at my head, my hair, my eyes, I would like them to try to imagine the real me as a person. I would like them to wonder what I was thinking at the time, just as we wonder what the Mona Lisa was smiling about.

“I am proud that I was able to help make a work of art. I am proud that someone thought I could be a work of art.

“It never entered my mind that people would look at a picture of the real me and say that it was dirty or revolting. This saddens me more than anything.”

One–Eyed Visions

The pornographic gaze, we are told, sees sex in images like this. It sees sex everywhere it looks.

However, to this extent, it’s not radically different from the moralistic gaze.

It too finds sex everywhere.

The only difference is that what one regards with desire or titillation, the other regards with shame.

We have to insist on the right to see human experience and the body, not with titillation or shame, but with reverence and respect.

We need to see with two eyes, not one.