Monday, June 16, 2008

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.

Friday, June 6, 2008

The NSW Crimes Act Provisions on Child Pornography

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.

Child Pornography

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.

Sexual Context

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.

“Pornographic Purposes”

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.

Drafting Anomalies

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.

Guy Rundle on Bill Henson

Guy Rundle’s recent article on the Bill Henson case in the Age has provoked some positive and negative criticism.

Even Andrew Bolt has quoted it positively, which suggests that something strange is afoot!

Left Wing Turncoats

I suspect that Bolt has embraced Rundle, because the Right loves no-one more than an apparent Left-wing turncoat. Not that the reverse isn’t equally appealing to the Left.

Bolt has quoted Rundle precisely because he appears to have broken ranks with the Libertarian Left and sided with the Moralistic Right on the issue of Bill Henson, Art, Pornography and the Law.


This issue reminds me of an earlier generation of American Leftists, some of whom crossed the border and became Neo-Conservatives.

One of them (and I just can’t remember who at the moment) once defined himself as a cultural radical, a social liberal and an economic conservative.

Having ceased to be (or never been) a communist or fellow-traveller, he still wanted to hold onto some sense of “radicalism” in the cultural sphere.

Since then, Neo-Conservatives have turned the word “liberal” into a pejorative.

It’s almost as if there is no middle ground, so that the world is now divided into conservative or radical (and god help you if you’re radical at the moment, even culturally).

There doesn’t seem to be any place anymore for a person who is prepared to question the basis of things that everyone else takes for granted.

Hard Cases Make Bad Law

Every now and then, even within a less radical world, there emerges an issue that forces us to re-think our values and our prejudices.

The Bill Henson case is one of these issues.

In Rundle’s words, it was a car crash waiting to happen.

And it was a car crash, precisely because it brought Art, Morality and the Law into conflict.

In a conflict like this, it’s interesting to see which side we fall on.

Rundle clearly falls on the side of Morality. In doing so, he chooses to take Art down with him.

Rundle’s Historical Perspective

Rundle starts by establishing an historical conflict between:

• philistine police and a smug general public; and

• artists bravely pushing the limits of freedom and critical thought.

He pretends to speak romantically of this era and the manner in which the Ern Malley case symbolised the conflict.

However, then he asserts that:

“60 years on, the country and the culture have changed.

“Globalisation, deregulation and higher education ensured that the problem with explicit material was not how to get it, but how to avoid it.

“As mass culture changed, so did mass values - Australians were at home with explicit treatments of sex, drugs and violence.”

So far so good from an historical point of view.

Elitist Privilege

We have become a more tolerant society and there are some things that we can now tolerate that we didn’t tolerate before.

“Yet,“ he continues, “elite artists continued to tell the Ern Malley story in defence of their projects”.

Suddenly, he implies that, now that the battle has been won, anyone seeking anything more is over-reaching.

And the word “elite” has creapt into the debate.

Cultural conservatives always argued that any attempt by the Art World to exempt itself from the rules of propriety or decency was elitist.

They were trying to be above the Law.

The conservatives lost up to the extent that exemptions for Art exist in the Law today.

However, now we have Rundle and the conservatives on the same team.

Why did this happen?

The Car Crash Metaphor

Rundle constructs his car crash metaphor on the foundation of the following views:

“Henson's photos are not problematic because of what they depict, but because of who is involved in the depicting.

“The issue isn't a free speech one, it revolves around the status of children.

“Henson's defenders know this, and few of them, if any, believe the more libertarian case - that parents should be able to circulate explicit images of their children in any medium they like - so they have to fall back on a series of archaic judgements: Henson is a genius whose motives are pure, and the images circulate only in a gallery and art magazines, the argument goes.”

The first sentence states the nature of the conflict. And it is probably right.

However, the second sentence is the one that betrays his prejudice.

Because the status of children is involved, he asserts, the issue ceases to be a free speech issue.


Suddenly, the conflict ceases, because one value is self-evidently more important than the other.

The High Art Slur

I appreciate that a newspaper article isn’t the best opportunity for Rundle to explain the logic of his argument.

However, I wish that it had been a bit easier to follow.

OK, so Rundle assumes that the defenders of Henson will resort to the defence that Henson is pure and his images will only be displayed in galleries and art magazines.

Rundle reckons that they’re wrong because “the special status accorded gallery artists is simply a hangover of the exhausted high art/mass art distinction”.

At this point in his argumant, Rundle implies that he is vaguely embarrassed about his membership of an apparent elite and wishes to rescind his membership.

Later, he asserts that this elite is attempting to seek an “artistic privilege”.

In doing so, the supposed elite is out of step with mainstream society.

The radical wishes to become a populist.

The Limits of Permissiveness

Rundle is probably right when he asserts:

“People like child protection laws. The existence of a permissive society relies on law limiting the exploitation that it brings.”

This paragraph probably says most about the sophistication of his views.

Starting at the back end, we all object to the exploitation of children.

This is probably an issue on which the Left and the Right can agree (although it would have been nice if it had taken less then a century for the economic exploitation of children to cease).

However, ultimately, what the people like is Laws like the child protection laws.

This is where Rundle is most lacking in his analysis.

You don’t get any sense that Rundle knows what these Laws prohibit or exempt.

In particular, Rundle doesn’t seem to know how these Laws treat or exempt Art as they currently stand on the statute books and bind all of us.

What the Law Actually Says

Bill Henson is subject to New South Wales law.

The NSW Legislature has enacted a Law that it thought was necessary and appropriate to defend the interests of children in the context of pornography.

And it is that Law that we should all be concerned about enforcing.

Firstly, it must be said that the Law was expressly enacted to protect children from being used for pornographic purposes.

This, presumably, is the Law that Rundle thinks people like.

Yet, this Law itself contains an exemption for Art.

Artists Don’t Have to Change the Existing Law

It is not a matter of the artistic elite seeking an exemption from the Law or some unique “artistic privilege” that does not already exist.

The artistic elite (and any artist for that matter, no matter how high or low their brow) is entitled to the exemption contained in the Law that has been enacted, provided that they can satisfy the terms of the exemption.

If Henson is charged, then he is entitled to prove that the exemption applies to him.

He will have to argue, not that the Law doesn’t apply to him, but that the legal exemption contained within the Law does.

To constitute “child pornography”, Henson’s photgraphs would have to depict a person under (or apparently) under the age of 16 years in a sexual context in a manner that would in all the circumstances cause offence to reasonable persons.

If this basic offence was proven, then Henson would be entitled to rely on a statutory defence that he was acting for a genuine artistic purpose and his conduct was reasonable for that purpose.

In deciding to prosecute, the Director of Public Prosecutions has to decide whether he can successfully prove the charge and deny the defence.

Today’s decision shows that he thinks he can’t.

The Law has worked to achieve the goals set for it by the NSW Parliament when the Law was enacted.

If anybody doesn’t like it, they can lobby to change the Law, and no doubt they will.

Hopefully, we won’t see picketing and harassment of people who are working within their legal rights.

As for Rundle, I hope he enjoys his new bedfellows!