There is nothing more likely to get the media over-excited than a conflict between (in capital letters) the Law, Morality and Art.
The case of Bill Henson is just the latest example.
Who is Bill Henson and What Did He Do?
Bill Henson is one of Australia’s best known photographers.
For many years (in addition to other subject matter), he has photographed adolescent children in various degrees of nudity or explicitness.
His artistic motive seems to be to portray the experience of moving from childhood to adulthood.
All of the images that I have seen use darkness and shadow to suggest uncertainty, doubt, lack of confidence and a sense of being in transition between two worlds.
I don’t think there is any serious question whether Bill Henson is a competent or talented photographer.
The media and legal debate concerns his subject matter and his motivation.
The media case against Bill Henson and his photographs is that the photographs:
• Are nude and/or sexually explicit photographs of children;
• Are indecent and offensive;
• Place children in a “sexual context”; and
• Sexualise children.
The allegation is that he is a pornographer, whether or not he considers himself (or the art world considers him to be) a serious artist.
This raises a number of questions:
• Can Art still constitute pornography?
• Is an artist allowed to do what a pornographer may not do (because somehow it is Art)?
I start from a very simple premise as far as the Law is concerned.
The Law is different from Morality.
The Law is not necessarily and automatically and inevitably a tool for enforcing Morality.
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.
Art has no personal or social or moral or legal obligation to conform to Morality.
The Moral Basis of the Law
Morality can, however, be subsumed or embodied within a Law that Art must comply with.
Most Laws have some kind of moral basis.
However, to become a Law, a moral prescription has to be enacted by an appropriate legislative vehicle (such as the Parliament of a state or country) or a judicial institution (such as a court or a tribunal).
We assume that legislative and judicial institutions will act soberly and seriously in deciding what Laws deserve to be made and therefore what activities deserve to be prohibited or regulated.
Governments are also subject to the risk that unpopular Laws might lead to electoral defeat.
However, ultimately, when a Law has been enacted, the defendant is entitled to insist that the State prove its case beyond reasonable doubt.
If a court finds some imperfection in a Law that enables a defendant to be acquitted on a technicality, then the legislature is able to “fix” its own Law.
The State therefore has the ability to make appropriate Laws and improve them over time, subject only to meeting the procedural requirements of a valid Law.
The Doctrine of “Laissez-faire”
The starting point of all Law should be the doctrine of “laissez-faire”.
All activity (whether artistic or creative or personal or social or economic) is entitled to be free of legal sanction or interference, unless it has been prohibited or regulated by a valid Law.
Thus, a person (or the activity of a person) is entitled to be free, unless it is proven in a court that the person or activity has breached the Law.
That which is not prohibited is automatically permitted.
The doctrine of “laissez-faire” is used to justify minimal interference in economic activity or free enterprise.
However, there is no reason why “laissez-faire” should be restricted to economic libertarianism and not applied equally to social and artistic libertarianism.
Why should economic activity be unregulated, but social and artistic activity be regulated?
Why is it that the greatest advocates of “free enterprise” complain loudest about “political correctness” in the context of social and artistic issues?
What is the difference between an advocate of “political correctness” and an advocate of censorship designed to protect society or children?
In an article in the Age on 28 May, Steve Biddulph writes:
“Art is part of society, and however it serves to provoke, it has to do so within moral limits. Were an artist to launch an installation, and shoot those art patrons in the head who first walked in the door, he would still be a murderer.”
This comment confuses Morality and the Law.
Firstly, it asserts that Art must comply with Morality.
There is no such moral obligation. Any perceived obligation would have to derive from the voluntary acceptance of the obligation by the Artist and other members of the society or group.
Secondly, the comment assumes that the proposed obligation is a legal obligation, not a purely moral obligation.
As argued above, there is no legal obligation, until the obligation has been recognised by the Law through the act of a legal or judicial institution.
My argument is that Art is not subject to any obligation or prohibition or regulation, unless it is legally sanctioned.
This argument doesn’t seek any special status for Art. It applies equally to any personal, social or economic act.
The area of pornography and censorship is one area where the State has considered it appropriate to elevate moral prescriptions into legal obligations.
The rationale has been an interesting and changing one.
Originally, the argument was that sexually explicit material would “deprave and corrupt” society.
This would undermine the social cohesion of the society and make it vulnerable to attack from outside.
Thus, the State considered it necessary and appropriate to legislate in order to protect itself.
In more modern times, the damage to society became less credible as a scientific justification.
More recent legislation used the language of indecency and offence.
The concept of indecency sought to protect social norms of propriety.
Similarly, the concept of offensiveness sought to protect people from being involuntarily subjected to material that might offend their sensibilities.
Obviously, it was implicit in these concepts that what might be improper or offensive from one person’s point of view might be proper (or not improper) or inoffensive from another person’s point of view.
As social norms became more permissive, it became harder to prove that material was indecent or offensive.
It was also implicit within these concepts that people could voluntarily submit to explicit material in a way that waived any right to complain.
This type of regulation paved the way for explicit material to be made available, provided there was an appropriate warning or rating or limited time for viewing (e.g., late night television).
This implicitly allowed adults to view the material, but usually not children.
This differentiated between audiences on the basis of age and perceived vulnerability.
It is also the justification for more recent legislation aimed squarely at prohibiting child pornography.
Child Pornography Legislation
This legislation creates the offence of causing or procuring a child under the age of 14 years to be used for “pornographic purposes” (i.e., which is established by proving that the child has engaged in “sexual activity” or been “placed in a sexual context”).
The second requirement is the reason it has been asserted in the media that the Bill Henson photos have placed the models “in a sexual context”.
Obviously, this legal requirement makes it necessary to determine what “placing” somebody in a “sexual context” means.
This is likely to create significant legal and semantic problems.
Normally, you would assume that context was a social creation, where the artist and the viewer are both responsible for creating the context.
In other words, a viewer with a different life experience could identify a different or more extensive context than might have been intended by the creator of the work.
However, if the crime is the “placement” of the child “into” the “context”, then it would not be legitimate to hold the defendant responsible for a context created or inferred by someone else after the physical act of placement.
In other words, the defendant could not place something “in” a sexual context, if the sexual context did not exist at the time or if it was subsequently created.
No doubt the Law will apply an “objective” test to this requirement.
Presumably, it will assume that the context consists of what a “reasonable person” would have perceived the context to be. (This will be a definitional and practical problem in its own right.)
This is important, because the context that the artist creates might mean different things to different people.
Nudity as “Sexual Context”
In the Bill Henson case, this issue is important, because the “sexual context” has been inferred primarily from the nudity of the model.
At this level, the age of the model is irrelevant.
To prove its case, the State would have to prove that “nudity” equates to “sexual”. Objectively.
This presumably means that nudity must necessarily be seen only as a precursor (or accompaniment) to “sexual activity”.
Presumably, it is not legitimate to think of it as a precursor to having a shower or a swim or a sleep, or changing clothes or seeking medical advice.
To confine the meaning of nudity in this manner is either a failure of the imagination or the product of a perverse or single-minded imagination.
Interestingly, one of the meanings of the word “perverse” is to misconstrue something.
Ironically, there is a sense in which the equation of nudity and sexuality is a misconstruction of nudity.
Context Created by the Viewer
To reflexively insist on giving nudity a sexual context is an act of the viewer, not necessarily an act of the artist.
To this extent, the context has been created by the viewer, not the artist.
If the sexual context wasn’t there when the artist took the photo, it is a context that the artist could not have placed the child “into”.
The Sexuality of Children
Another question is whether the concept of “sexual context” is intended to prohibit any discussion or portrait of the sexuality of children as a subject matter (as opposed to a source of prurient interest or titillation for the viewer).
If this were the case, it would be impossible to discuss the sexuality of children from an academic or medical point of view.
It must be legally permissible to discuss sexuality in the sense of the difference between genders or the nature and development of sexual characteristics or behaviour.
If not, the media reporting of the Bill Henson case would itself place children in a sexual context.
It is arguable that the media has contributed more to creating a sexual context and breaching the privacy of the model (see below) than the original photographs.
Normally, children are not able to consent to an act, if they are under the age of majority or consent.
Normally, the consent of a parent is required in these circumstances.
However, where the act is a criminal offence, neither the child nor a parent is able to consent to the act.
Breach of Right to Privacy
The Bill Henson case has seen the introduction of a new issue: the child’s right to privacy.
This argument seems to suggest that, even if the photograph is not pornographic, it breaches the child’s right of privacy.
In the case of an adult, the right of privacy can be waived.
However, it is argued that this right cannot be waived by a child (or a parent on behalf of the child).
The concern is that at some time in the future the child might realise that what they had consented to was embarrassing and wish to change their mind.
Therefore, the consent of a child or a parent should not be adequate to permit a non-pornographic photo.
However, while a parent cannot consent to a criminal act, they can consent to a non-criminal act on behalf of a child.
It doesn’t matter if the child or parent subsequently changes their mind.
The Sexualisation of Children
The Bill Henson case comes in the middle of an unresolved debate about the “sexualisation of children”.
The concern is that adolescent children are being introduced (or forced to conform) to adult concepts of sexuality prematurely and that they are having their childhood stolen from them.
Phillip Adams has described this practice in the media as “corporate paedophilia”.
However, ultimately, this is a powerful, but misleading, metaphor.
It confuses two different practices (each of which needs to be questioned independently):
• The practice of encouraging children to look or behave like adults sexually before maturity; and
• The practice of regarding and treating children as sexual objects.
The first practice is an advertising practice that is designed to create an appetite for “adult” consumer products in children.
The target of this practice is children.
However, the immediate result is the sale of consumer products to children, not the physical abuse of the children.
The second practice is a predatory sexual practice in which adults prey on children.
Children are both the targets and the victims of this practice.
The Bill Henson Case
Some of Bill Henson’s photographs portray children in various states of nudity.
The photographs seem to be about the journey from childhood to adulthood or the journey from innocence to experience and sexuality.
The question is whether this is enough to constitute a “sexual context”.
There are four responses:
• Nudity is not in itself sufficient to prove a “sexual context”;
• “Sexual context” relates to “sexual activity” rather than sexuality in the sense of the difference between genders or the nature and development of sexual characteristics or behaviour;
• It is possible to discuss or illustrate sexual or physically explicit subject matter without creating a “sexual context” in the pornographic sense;
• The legislation contains a defence that the defendant was acting for a genuine artistic purpose and the defendant's conduct was reasonable for that purpose. The State would have to prove that Henson’s conduct was not genuine or reasonable.