censorship: May 2008 Archives
In my previous posting on the Henson saga, I wrote:
Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)The Sydney Morning Herald now reports that:
Online photographs used by media websites to report on the investigation into Bill Henson have been referred to the Classification Board, the Minister for Home Affairs, Bob Debus, said.
...
"Several online images of Bill Henson photographs from media websites reporting on the exhibition at the Rosyln Oxley9 gallery in Sydney have been referred to the Classification Board," he said.
They were referred to the board by the Australian Communications and Media Authority (ACMA), which investigates complaints about online content.
There's been stacks of media coverage over Bill Henson and some of his photographs, which a lot of people, Kevin Rudd included, are falling over each other to denounce as child pornography. That, and calling for Henson, the art gallery managers, and the parents of the models, to be jailed.
This is despite the fact that some of his earlier works, also depicting naked teenagers, have been featured in Commonwealth-supported exhibitions.
Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)
Some people are speaking out in support of Henson (also here), to varing degrees. Bernadette McMenamin, head of 'Childwise', describes the images as 'sexualised', plays the scare card by claiming that the images in question are 'probably already being circulated on pedophile internet sites', is 'pleased' that the police are taking action, and is waffling about the UN Convention on the Rights of the Child.
Hetty Johnson from Bravehearts -- who was the source of the police complaint which started the ball rolling -- has all but called Henson a paedophile, saying that he 'has a tendency to depict children naked'. The fact that the art gallery's website, which was hosted overseas, could not be shut down by the ACMA, has prompted her to call the ACMA a 'toothless tiger' and say that even works of art should be classified under the national scheme.
Both Bernadette McMenamin and Hety Johnson are also on Senator Conroy's 'Cyber-Safety Consultative Working Group'. Not that it's stacked with people who are likely to be pro-filtering (*cough*), but that's a different story.
I'll make other postings on the merits of the Art/Porn debate, if I have the stomach for it. What I want to discuss here is something that seems to have eluded the attention of the media, and perhaps the police. A SMH article makes reference to s 91G of the Crimes Act 1990 (NSW). It prohibits the 'use of children ... for pornographic purposes', which is defined as where the child is:
Anyhow, most of the media coverage is suggesting that these pictures may have been taken a long time ago. Apparently, Henson has been producing works of this type for over 20 years. Here's where things get tricky. Even assuming that the photos were taken in NSW, which seems to be in some doubt, s 91G of the Crimes Act 1990 has only been in its current form since 2004. Before 2004, the definition of using a child for pornographic purposes only covered situations where:
This is despite the fact that some of his earlier works, also depicting naked teenagers, have been featured in Commonwealth-supported exhibitions.
Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)
Some people are speaking out in support of Henson (also here), to varing degrees. Bernadette McMenamin, head of 'Childwise', describes the images as 'sexualised', plays the scare card by claiming that the images in question are 'probably already being circulated on pedophile internet sites', is 'pleased' that the police are taking action, and is waffling about the UN Convention on the Rights of the Child.
Hetty Johnson from Bravehearts -- who was the source of the police complaint which started the ball rolling -- has all but called Henson a paedophile, saying that he 'has a tendency to depict children naked'. The fact that the art gallery's website, which was hosted overseas, could not be shut down by the ACMA, has prompted her to call the ACMA a 'toothless tiger' and say that even works of art should be classified under the national scheme.
Both Bernadette McMenamin and Hety Johnson are also on Senator Conroy's 'Cyber-Safety Consultative Working Group'. Not that it's stacked with people who are likely to be pro-filtering (*cough*), but that's a different story.
I'll make other postings on the merits of the Art/Porn debate, if I have the stomach for it. What I want to discuss here is something that seems to have eluded the attention of the media, and perhaps the police. A SMH article makes reference to s 91G of the Crimes Act 1990 (NSW). It prohibits the 'use of children ... for pornographic purposes', which is defined as where the child is:
The models in question weren't engaged in sexual activity, or being tortured. That leaves 'plac[ing] in a sexual context', which I doubt they were. I don't think the mere fact that they were naked means they're in a 'sexual context'; arguably the intent of Parliament was to require something more than mere nudity. If they wanted to proscribe nudity, they should have said so.
- 'engaged in sexual activity';
- 'placed in a sexual context'; or
- 'is subjected to torture, cruelty, or physical abuse (whether or not in a sexual context)'.
Anyhow, most of the media coverage is suggesting that these pictures may have been taken a long time ago. Apparently, Henson has been producing works of this type for over 20 years. Here's where things get tricky. Even assuming that the photos were taken in NSW, which seems to be in some doubt, s 91G of the Crimes Act 1990 has only been in its current form since 2004. Before 2004, the definition of using a child for pornographic purposes only covered situations where:
Fairly clearly, the subjects of these photos aren't 'engaged in activity of a sexual nature', nor are they in the presence of somebody who is. If the photos were taken before the 2004 amendments commenced, I think a prosecution in reliance on s 91G will fall on its arse.
- 'the child is engaged in activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of the production of pornography'; or
- 'the child is in the presence of another person engaged in such an activity for that purpose.'
