The issue arose when a Sydney gallery exhibited a series of photographic works by Mr Henson featuring pubescent children. Objectors denounced the exhibition claiming that the works were “child pornography” and called for the police to bring charges against the artist and the gallery. So, rather than merely saying that the works were either unethical or in poor taste, the allegation was that the artist and the gallery were criminals. Like many of the commentators, I haven’t seen the photos – other than the limited reproductions in The Age – which makes this an academic exercise.
Selected works were confiscated and the police announced that they were considering criminal charges. This grabbed my attention immediately because this was no seedy exchange of images between anonymous internet users but an internationally recognised artist exhibiting his work publicly. If it was child pornography, the NSW Crimes Act would say so.
So, what does the law say? Legislation often states the law in one section and then states the exceptions (or defences) in another. In this case, a plain reading of section 91G of the Crimes Act suggested that there was a case to answer if only because the works featured naked children under 14 years of age. However, even that section of the Act required a determination objectively that the children were “placed in a sexual context”. Even assuming the subjects were placed in a sexual context – which was itself well debated – there is an express defence under section 91H if Mr Henson or the gallery were “acting for a genuine … artistic … purpose and the defendant’s conduct was reasonable for that purpose”. Now, that’s when the commentators really sharpened their pencils. However, remembering that the criminal jurisdiction requires certainty “beyond reasonable doubt” rather than the “balance of probabilities” in a civil case (eg. negligence) – this case was never going to result in a conviction.
As a father of three I had my own view about the works which was separate to whether the works were “child pornography” as determined by the Crimes Act. If my personal views were aligned with anyone it was probably with Steve Biddulph. However the issue of the sexualisation of our children is a critical issue for debate and action. In fact, the controversy itself and the open community debate would assist a defence under section 91H that there was a genuine artistic purpose.A separate question is whether the second element that the conduct be reasonable and that Henson’s conduct was “reasonable for that purpose” was satisfied.