The NSW Crimes Act contains two main provisions that deal with child pornography.
The Director of Public Prosecutions has formed a view that it is unlikely that Bill Henson could be successfully prosecuted under either.
However, there are at least two reasons for understanding what those provisions actually say:
• Bill Henson won’t be the last artist to have to employ a lawyer to defend the threat of charges under these provisions; and
• There will no doubt be an effort to change the provisions in the lead up to the next election.
There are two sections: section 91G and section 91H.
The best way to understand them is that one protects children and the other protects the audience.
It is most convenient to consider them in reverse order.
Section 91H (Production, dissemination or possession of child pornography)
This section focuses on the finished product (the child pornography or pornographic material) and its impact on the audience.
The most relevant parts of the section define "child pornography" as material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:
(a) engaged in sexual activity, or
(b) in a sexual context.
Assuming the subject of Bill Henson’s photos were (apparently) under the age of 16 years, the State has to prove that the photos:
• depict the child in a sexual context; and
• in a manner that would, in all the circumstances, cause offence to reasonable persons.
I have discussed the concept of “sexual context” in an earlier blog.
The second requirement is a little harder to explain.
Firstly, it has to be capable of “causing offence”.
Secondly, it has to be capable of causing offence to “reasonable persons”.
I have divided the terms into these two components, partly to highlight the potential difference between the concept of “offensiveness” and “causing offence to reasonable persons”.
Earlier legislation has used the term “offensive” and there is a history of case law trying to fathom its meaning.
Ultimately, when a court attempts to understand the term “offensive”, it will obviously understand that some people have a lower offence threshhold than others.
It will therefore strive to interpret the term in a way that applies to the majority of people.
You would expect it to emerge with a definition that applies to a median of the population.
On the other hand, the concept of “causing offence to reasonable persons” could constitute a deliberate movement away from the practice of finding a social median.
There doesn’t appear to be any specification of the number or proportion of people who need to be offended.
The important requirement is that they must be reasonable people.
To put it another way, one definition would mean that the material had to be reasonably capable of offending a majority of the population, while the other could mean that it was enough that it offended some people, as long as they were reasonable people.
A court would probably end up interpreting the definition to mean the same as the traditional meaning of offensiveness.
However, the drafting of the section needlessly departs from traditional drafting and case law that would help a court apply the law.
Artistic Purpose Defence
If the material satisfies the above definition of “child pornography”, the section gives the defendant a defence that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine artistic purpose and the defendant’s conduct was reasonable for that purpose.
A defendant would have to prove that:
• they were acting for an artistic purpose;
• their purpose was genuine; and
• their conduct was reasonable for the purpose.
When considered together, these requirments would deny the defence to someone who pretended to be an artist to obtain sexual gratification.
It would also deny the offence to an artist who touched the child in a sexual way while producing the material.
There is no express need to prove relative artistic merit.
Therefore, it seems that mediocre art would be protected, as long as the artist was genuine and his conduct was reasonable.
Section 91G (Children not to be used for pornographic purposes)
I have defined section 91H in terms of protection of the audience.
While a child might be depicted in the material, it is ultimately the effect on the audience that determines whether it is offensive.
In contrast, while section 91H applies to the “production” of child pornography, section 91G focuses on the “use” of the child for pornographic purposes.
In a sense, it is less concerned about the impact of the material or image than the conduct during the photographic session.
It is concerned with the session at which the child was present and what happened during this session.
While section 91H used the term “child pornography”, section 91G uses the terms “pornographic material” and “pornographic purposes” .
The section states that a child is used by a person for “pornographic purposes” if:
• the child is engaged in sexual activity, or
• the child is placed in a sexual context,
for the purposes of the production of “pornographic material” by that person.
Assuming there was no sexual activity, the section requires that the defendant:
• placed the child in a sexual conext;
• for the purposes of the production of pornographic material.
It is not enough that the child be placed in a sexual context, it must be for the purposes of the production of pornographic material.
As a result, the purpose or intention of the defendant is relevant.
It is at this point that drafting anomalies become apparent.
It’s almost as if the two sections were drafted by two different people.
Normally, if terms were to be used in a number of sections, it would be clear from the drafting that the definitions applied to multiple sections.
However, the term “child pornography” is not used in section 91G and its definition in section 91H is restricted to section 91H.
This might not sound like a big deal. However, one consequence is that there is no express reference to the concept of “offensiveness”.
Does this mean anything?
If sexual context was established, would it matter that it wasn’t “offensive”?
In other words, was it intended that you only had to establish sexual context, not offensiveness?
This is a possible literal interpretation. However, unlike section 91H, section 91G requires the proof of another issue: “pornographic purpose” or “pornographic material”.
“Pornographic material” is not defined in either section.
“Child pornography” is defined in section 91H, but solely for the purposes of section 91H.
It is possible that a court would “import” the definition into section 91G.
If not, it would have to resort to the meaning of the term as defined by common law (i.e., previous case law).
This issue might not be significant in its own right.
However, it impacts on the defence available to artists.
The “artistic purpose” defence is only available to defendants charged under section 91H.
There is no express defence available to artists under section 91G.
This raises the possibility that it was not intended that there be a defence available to artists.
In other words, once “sexual context” and “pornographic purpose” were established, it wouldn’t matter that the defendant was an artist.
The logical response is that the concept of “pornographic purpose” or “pornographic material” comes with a “built in” defence of “artistic purpose”.
You would need to resort to common law to establish this.
Artists would therefore have to argue that there was a defence available at common law that placed them above statutory law.
You can see that this justifies the assertion that artists are seeking to be placed above the Law (at least as far as it has been enacted by parliament).
Alternatively, you would need to argue that all of the concepts in section 91H were imported into section 91G (including the “artistic purpose” defence), notwithstanding that it appears that these concepts appear to have been restricted to section 91H.
At this stage, we haven’t seen the opinion of the Director of Public Prosecutions in which he concluded that a successful prosecution was not possible in the Bill Henson case.
It might shed some light on the above issues.
However, the drafting anomalies mean that, regardless of any lobbying to change the substance of the Law, it is desirable that the anomalies be removed.
Either way, it seems that we have not seen the end of the battle between Morality, Art and the Law.