Constables in the gallery
01 Oct 2009

Were police right to warn Tate Modern about displaying a naked image of a 10-year-old Brooke Shields, asks John Ozimek

Art or porn? This time the question raises its ugly head in respect of a picture of actress Brooke Shields — originally taken by photographer Gary Gross, and reproduced by artist Richard Prince in a work entitled Spiritual America — shot when she was ten years old. She is naked, posed next to a bathtub, gazing provocatively into the eye of the lens.

The picture’s composition is without doubt sexual in nature — and this has caused a few local difficulties for Tate Modern gallery curators who, following words with the Metropolitan Police, are now considering whether or not to continue to exhibit this particular work.

As the Met put it, they are “keen to work with gallery management to ensure that they do not inadvertently break the law or cause any offence to their visitors”.

As the law stands, the Met almost certainly have a point. The Protection of Children Act 1978 makes it illegal to possess or distribute indecent images of children. Indecency is not defined precisely in law — that is for a jury to determine — but over the years the courts have evolved a categorisation of imagery that ranges from level 1 (least serious) to level 5 (most serious).

For an image to be deemed illegal at level one, Crown Prosecution Service Guidelines require only that it include elements of erotic posing.

Level one is problematic. First, because it is at the lower end of what society considers wrong: in fact, it includes images that significant sections of society do not consider to be wrong at all. So it is the place where police and authorities are most likely to be accused of over-reacting. They have had to retreat before — most notably in respect of images by noted artist Nan Goldin.

It is, too, the site of a fierce debate about whether the law should be quite as prescriptive as it now is: first, because some critics argue that to ban level one imagery is to view children increasingly through the eyes of the paedophile; and second, because even those who are deeply committed to combatting child abuse feel that it can be a distraction, focusing debate on more ambiguous images — when in fact, the real issue lies in those images that depict, in horrific detail, real harm being inflicted.

So how should we react to this latest installment in the developing debate over child porn? First, the curious should be aware that if — as seems likely — this image does breach the law, curiosity is no excuse. Viewing it and, therefore, downloading it into cache may well be a criminal offence. Beware: you have been warned.

So will the Internet Watch Foundation act to block it? Having had their fingers well and truly burned over another popular artistic image of a naked child last year (the Scorpions’ Virgin Killer album cover), it is possible they will not take action this time round.

The problem, as they discovered to their cost then, is that the simple act of banning a widely available image tends to encourage its distribution. In the end they decided, pragmatically, that not banning might be the more sensible course of action.

However, this furore does raise one important issue that may in the end transcend the question of porn and indecency — and that, quite simply, is the question of an individual’s control over their own image. In the case of the Scorpions’ image, the picture was taken by the subject’s mother and the subject — now adult — has since been reported as being perfectly happy with it.

In this case, Brooke Shields is definitely unhappy with the existence of the image in the public sphere. Permission to use these images was signed away by her mother when she was just 10 — and Shields has been to court since in an unsuccessful attempt to regain control of the negatives.

It is clearly one thing for an adult to enter into a contractual arrangement in respect of images of themselves and in most cases, there are strong arguments for upholding that contract. Perhaps it is time to think again about contracts entered into by an adult on behalf of a child: not to outlaw them; but to give the adult that the child eventually becomes the absolute right to review such a contract.

If we genuinely believe that adults may suffer as a result of bad decisions taken when they were children, it is the least we can do.

2 responses to “Constables in the gallery”

  1. Julian Petley says:

    I know we live in the age of euphemism and nu-speak, but censorship excused and legitimated by the police on the grounds that they are helping art galleries to ‘ensure that they do not inadvertently break the law or cause any offence to their visitors’ really does take the biscuit.

    What this case requires is for two organisations to discover the courage of their convictions. The first is the Tate, which should do what the Saatchi gallery did in 2001 when the police tried to bully them into removing Tierney Gearon’s pictures from an exhibition: tell them to put up or shut up, and that they’d be delighted to see them in court. Like most bullies when challenged, the police backed down. The second is the Internet Watch Foundation which, given its habitual attitude to Level One images (those involving ‘erotic posing’), should, on the grounds of consistency, immediately block this image on the Internet – and bravely await the backlash.

    Both courses of action would have the merit of flushing the issues raised by this image out into the open, and the first would make it the subject of much-needed legal debate. In particular, the matter of Level One images needs urgently to be reconsidered if, under pressure of police zealotry, we are not to revert to the situation in which parents were prosecuted for taking photos of their children naked in the bath or the swimming pool.

    If the police are not challenged on this occasion, this act of censorship will simply go by default. Without any reference to the Director of Public Prosecutions, without any court passing judgement on the matter, and simply on the say so of the police, the barrier of acceptability will have been raised a little higher, and the Brooke Shields case will become a marker in future actions of this kind. This cannot be anything other than highly undesirable.

  2. The photography provisions of the Protection of Children Act are an example of overbroad legislation passed too quickly in a climate of moral panic. There is little doubt that it causes significant harm to some innocent adults and that it is results in widespread low-level harm to very large numbers of children. The vagueness and the overbroad definition provides little or no benefit to children.

    The article is nearly correct regarding the law. In the magistrates court there is a requirement for an erotic or sexual element (R v Oliver) but that does not apply to juries (R v O’Carrol). Juries are instructed that the threshold is “generally accepted standards of propriety” or words to that effect.

    A few days ago I was asked for guidance by one of our members. I had to reply that nobody knows what is legal. You have to guess, what a jury will guess, are “generally accepted standards of decency”. Hence there is a double layer of guesswork. Polling data shows that peoples perception of “generally accepted standards” are radically different from what people actually think so juries are unlikely to draw the line correctly.

    It is also unlikely that police, social workers, employers or anyone else will be able to draw the line correctly. They will almost certainly play “safe” and confiscate computers, children, family photo albums and so on. Low level stuff has low priority so it will probably be over a year before they even look at the computer so it will be over a year before any conclusion is reached. Even if found innocent a family, a career and a reputation has been destroyed, there is no prospect of any compensation, and it can even then be a fight to get property returned.

    A consortium of all the major child protection charities felt that the law went too far so they wrote to the Lord Chief Justice and they asked for the law to be clarified to require a sexual element. Subsequently, in R v Oliver, a ruling was made. Unfortunately, another court then ruled that it did not apply to juries. We now have the perverse situation that the law is different depending upon which type of court tries the case! If an Appeal Court Judge can’t get it right, what chance has anyone else got?

    By the very nature of the crime the public is not allowed to know what it is that has been found to be illegal and it is rare that they are even told. Almost invariably it is decribed as child pornography despite the law making illegal far more than just pornography. If the public was allowed to know what is being done in their name then there would be an outcry.

    The Coroners and Justice Bill currently before Parliament is creating new offences in this area. They should take the opportunity to sort out this mess.