Morals, Mores & Minors

Lewis Carroll and Edgar Degas in the 19th Century, Balthazar Klossowski (Balthus) and Robert Mapplethorpe in the 20th Century, and Tierney Gearon and Annalies Strba at the beginning of this century, each produced artworks that were subjected to severe criticism of their chosen subject matter: children, naked or partly so.

The most recent incidence occurred in the UK last December when the Swiss artist Strba’s 1990 photograph (of her then 12-year old daughter naked in the bath) became the subject of London’s Metropolitan Police’s enquiries into the possible commission of a criminal offence following a complaint by a local resident (via a local newspaper) to the Police. The picture was being shown at the Rhodes + Mann Gallery in East London where it had been seen through the gallery’s street window by the passer-by, who is reported to have complained about its ‘paedophiliac and offensive’ content. At the time of writing, the UK’s Crown Prosecution Service was still considering whether to prosecute the gallery’s directors – possibly for offences under the Obscene Publications Act or the Protection of Children Act.

In 2001, artist Tierney Gearon’s photographs of her own children, naked or partly naked playing on the beach or in snow, were similarly threatened with criminal prosecution under the Protection of Children Act, following a tabloid newspaper’s complaint to the Police about the images being shown at the Saatchi Gallery in north London. In the event, the Crown Prosecution Service decided not to prosecute – but this decision cannot be regarded as a legal precedent, because each case has to be considered on its own merits (see AM245 and 248).

Mapplethorpe’s photograph of a partly clothed three-year old girl, Rosie, with part of her genitalia in view was voluntarily removed by the Hayward Gallery from the artist’s 1996 major retrospective shown there. This excision from the show was due to self-imposed fears of public complaints possibly leading to criminal prosecution under the Protection of Children Act.

Lewis Carroll (photographs of six-year old Alice Liddell), Balthus (portraits of naked or partly naked girls) and Degas (sculpture of a 14-year old girl scantly clad for dance) were merely subjected to severe adverse public criticism of the chosen subject matter at the time.

Context is important when evaluating the appropriateness or otherwise of exposing images to the public, whether such a judgement is made by artists, arts administrators, Police or Crown Prosecutors. Time and place, contemporary social and moral values and mores are all relevant to contextual judgements; as is the context in which such works are made and are offered for public viewing. For example, under the Protection of Children Act it is a criminal offence to show or distribute ‘any indecent photograph of a child’. But what is indecent for this purpose? The naked body of a child is not of itself indecent, so there would have to be some additional element of prurience or sexual provocation for there to be offence. Then there is the artistic value and context: in Strba’s work, for example, she has visually recorded the ageing process of her family for over 20 years and exhibited the results; and the choice by an established contemporary gallery to show the work, amongst others, in an appropriate and relevant context is also an important consideration.

Legal considerations would include, for example, the distinction between an ‘obscene’ publication under UK law and ‘indecency’. The legal test for obscenity requires a jury to decide whether the viewer of the image is likely to be ‘depraved or corrupted’ by the picture; whereas, for indecency the question is whether the image is of itself indecent. Furthermore, both those criminal statutes have provisions enabling a defence to be mounted: in the case of obscenity it is a defence to the charge to show that the work was possessed or published for the purposes of art, science, learning or other worthy purpose; in the case of indecent images of children, it is a defence to show that the work was possessed or shown for a ‘legitimate reason’. In both cases, therefore, an established gallery showing work of respected artists is very likely to succeed with such defences. In the EU in recent years, the European Convention on Human Rights (now specifically enacted into UK law) gives artists the legal right to ‘freedom of expression’ – even in relation to work that is shocking or disturbing.

There are several other difficult contextual matters which will inevitably influence those making judgements about the appropriateness of making or showing such work. Over the past five or six years in the UK there has been discernable and increasing pressure within society expressing strong concerns about the need to protect children against paedophiles, particularly given the widespread use of computers and the internet. London’s Metropolitan Police Service now has a Paedophilia Unit, which last month arrested the musician Pete Townshend, amongst others, on suspicion of downloading indecent images of children.

There is also a significant role played by tabloid newspapers in this regard. Some have been keen in recent years to pursue their own campaigns to expose alleged or convicted paedophiles; to complain on behalf of their readers about the relocation of paedophiles after release from prison to live near children’s playgrounds, schools and so on; and some newspapers have actively sought out potentially ‘offensive’ artworks in order to complain to the Police that artists or curators should be investigated for possible criminality. The Police are in a difficult position: they may have their own views and judgements about artwork and its appropriateness for public exposition, but they also have a duty at least to investigate complaints by or on behalf of the general public and to refer matters to the Crown Prosecution Service.

There are those who argue that UK society currently operates double standards, in that the media contains many images of children in sexually provocative contexts: through their appearance to advertise designer clothes, make-up, and as members or fans of young pop music and dance groups. On the other hand, there is increasing public concern about child abuse (which is the rationale behind child protection legislation, including the criminalisation of the taking, possession of distribution of indecent images of children). Increasingly, news stories report the public admission, by victims now well into their adult lives, of their being abused when they were children.

As for visual art, UK legislators last addressed the question of indecency in 1991 when Parliament enacted the Indecent Displays (Control) Act. In that statute, art galleries and museums are excluded from prosecution for displaying indecent work pictures so long as such works are ‘visible only from within’. In other words potentially indecent work shown inside an art gallery or museum should not be made visible from the street, in order to guarantee immunity from prosecution. This will be a particular consideration in the most recent incident at Rhodes + Mann. As ever in such cases, an important and difficult responsibility falls upon gallery directors: to strike an appropriate balance between, on the one hand, their right to show work they consider worthy of public exposition; and on the other, their duty to society not to cause offence or harm.

As for artists making work involving naked or partly naked children – which have been the legitimate subject matter of visual art for centuries – nowadays the question of prior parental consent would appear to be a very important consideration; this approach is generally supported by child protection agencies and professionals.

© Henry Lydiate 2003

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.