Sexualizing The Child: The Strange Case of Bill Henson, His 'Absolutely Revolting' Images and The Law of Childhood Innocence

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Brian Simpson
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Sexualizing the child: The strange case of Bill Henson, his 'absolutely
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Article
Sexualizing the child: The
strange case of Bill
Henson, his absolutely
revolting images and the
law of childhood
innocence
1
Brian Simpson
University of New England, Australia
Abstract
In 2008 internationally acclaimed Australian photographer Bill Henson planned to
exhibit some of his work at a Sydney Gallery. This included photographs of a naked
12-year-old child. When one image was used in publicity to promote the exhibition it
came to the attention of the organizer of a child advocacy group who complained to
police that the image constituted child pornography. The subsequent seizing of the
images gave rise to a community debate about artistic freedom, what constitutes child
pornography and the capacity of children to consent. Although these events coinci-
dentally occurred at the same time as a Senate inquiry into the sexualization of children
in the media, the issue of childhood sexuality was a muted aspect of the ensuing public
debate.
Keywords
artistic merit, childhood, child pornography, innocence, sexuality, sexualization
In May 2008 the Australian photographer Bill Henson planned an exhibition of his
work at the Roslyn Oxley9 Gallery in Sydney, Australia. Invitations were sent out
for the event together with publicity being placed on the gallerys website. This
included images from the exhibition of a naked 12-year-old girl. These images
were seen by Hetty Johnston of Bravehearts, a Queensland-based child protection
advocacy group. She made a complaint to the police that the images were in eect
Corresponding author:
Brian Simpson, Associate Professor, School of Law, University of New England, Armidale, Australia
Email: brian.simpson@une.edu.au
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child pornography. To understand following events it is also necessary to appre-
ciate the nature of Hensons work. As David Marr explains:
Adolescence is clearly potent territory for Henson. He talks of the years he roamed the
shabby landscape on the edge of town, when he felt he was coming alive and the great
question he faced was: how will I turn out? . . . he speaks with some longing of the
stage when kids begin to move independently, go into town on their own, hang out
with friends on their own, be no longer attached, absolutely attached, to their parents.
I think that at about that point there is this remarkable oating world that interests
me so much. The potential there is immense, the potential for things to go either this
way or that way. (Marr, 2008: 34)
2
Much of the public debate that occurred after the reporting of Hensons images
to the police centred on the issue of free artistic expression and the point that for
centuries the naked body (including the childs) had been the subject of art (Marr,
2008: 129130) versus the appropriateness of exhibiting naked images of children
which might be used by paedophiles for their sexual titillation. There was also some
debate about whether a child could consent to being photographed naked, and
whether the parents could validly consent on the childs behalf. But for the most
part there was little direct engagement with the ambiguity of childhood that
Hensons work represents. It is my argument that the issues of childhood sexuality
raised by Hensons work lead logically to the complaints made against him as they
feed into the anxieties held by many about the meaning of childhood and childrens
sexuality. At the same time those who defended him tended to avoid the issue of
childhood sexuality raised by his work in preference to more orthodox stances
based on artistic freedom and denials that the images were sexual at all.
Sexualizing the childs body
When New South Wales police raided the Roslyn Oxley9 gallery and seized
Hensons photographs they said charges may be laid under child pornography
and indecency laws. Arguably, the immediate eect of this action was to sexualize
the images of the child for these were photographs of a naked 12-year-old girl
standing in the half light, almost brooding. The photographs needed to be read
as sexual to become sexualized and the police statement, by placing them in the
context of child pornography laws provided this context. Yet for others the images
were per se sexual. As the complainant said, the issue was simple:
He [Henson] has a tendency to depict children naked and that is porn, said child
protection campaigner Hetty Johnston of Bravehearts. (Masters and Vallejo, 2008a)
The then Prime Minister, Kevin Rudd, also oered an opinion, describing the
photographs as absolutely revolting, although he had not seen them. For him
such photography was against childhood:
Simpson 291
I dont understand why we cant allow kids just to have their childhood and just enjoy
their childhood. I really have a problem with this. (Trickey et al., 2008)
The then New South Wales State Premier, Morris Iemma, also condemned the
exhibition:
I nd it oensive and disgusting. I dont understand why parents would agree to
allow their kids to be photographed like this. (Trickey et al., 2008)
And the then New South Wales Minister for the Arts, Frank Sartor (who had seen
the images) said they crossed the line:
I have been shown some of the images and I dont like them. Im sure these images
will be debated by the community. Ultimately, I think these images do push the
boundaries and I can understand why people would be oended. (Masters and
Vallejo, 2008b)
In their desire to appear to be mainstream in their outrage about the images,
these politicians failed to understand that they were in eect describing a 12-year-
old females body as variously revolting, oensive and disgusting and porno-
graphic. They had eectively sexualized the image in the popular consciousness.
But this sexualization was clearly of a particular kind, for it may well be that
Hensons images do raise legitimate questions about the nature of childhood
sexuality. The language of the politicians and the complainant however was
designed to render discussion of childhood sexuality illegitimate. The naked
body of the child was pornographic, should not be seen, and must be banned.
This was about making the child invisible, not engaging with the serious issue of
the sexual transition from child to adult.
While the politicians comments sexualized the childs body in this manner, the
law reinforced this sexualization. The relevant oences that it was said Henson
could be charged under are contained in the New South Wales Crimes Act. Section
91G(1)(a) of that Act makes it an oence to use a child who is under the age of
14 years for pornographic purposes. Section 91G(3) provides that for the purpose
of this oence a child is used for pornographic purposes if:
a. the child is engaged in sexual activity, or
b. the child is placed in a sexual context, or
c. the child is subjected to torture, cruelty or physical abuse (whether or not in a
sexual context),
for the purposes of the production of pornographic material by that person.
Clearly in this case the child was not engaged in sexual activity nor subjected to
any form of abuse. The only possibly applicable provision was that the child was
292 Sexualities 14(3)
placed in a sexual context for the purpose of producing pornographic material.
This raises the problem of dening sexual context. For some, the mere fact that
the child is naked will be sucient. But for others the naked child is a long used
subject in art. This is even further complicated by the fact that many images
of children who are not naked are sexualized in the sense that others seek to
obtain sexual gratication from viewing images of children in, say, sportsgear
(Marr, 2008: 4041). The legal terms are vague because the notion of the sexual-
ized child is equally unclear. To a great extent these are essentially matters of
values as they often hinge on questions of what is inappropriate in relation to
childhood.
Sentencing guidelines for child pornography oences also illustrate some of the
vagaries of the notion of what is to be labelled as sexualized, particularly at what
may be described as the lower end of severity. The COPINE scale
3
seeks to grade
the severity of types of child pornography. It has been utilized in the New South
Wales Court of Criminal Appeal (Saddler v R [2009] NSWCCA 83) and is also
referred to in the Sentencing Guidelines issued by the United Kingdom Sentencing
Guidelines Council (Sentencing Guidelines Council, 2007; see also Sentencing
Advisory Panel, 2002). This scale has been translated from a 10-point scale to a
5-point scale for sentencing purposes. This was undertaken in 2002 when the
Sentencing Advisory Panel adapted the COPINE scale. In doing so it remarked
that:
We have not included COPINE category 1 (Indicative non-erotic/nonsexualised pic-
tures) because images of this nature would not be classed as indecent. Images in
COPINE categories 23 might be the subject of a dispute as to whether or not they
were indecent. We have included them at level 1 of our scheme because there may be
cases where an oender has been convicted, or pleaded guilty, solely on the basis of
images of this nature. (Sentencing Advisory Panel, 2002: 6)
Category 2 on the COPINE scale refers to nudist (naked or semi-naked in legit-
imate settings/sources) and category 3 refers to erotica (surreptitious photo-
graphs showing underwear/nakedness) (Sentencing Advisory Panel, 2002: 6).
These are both contained in the lowest level Level 1 for sentencing purposes,
which is described as images depicting erotic posing with no sexual activity
(Sentencing Guidelines Council, 2007: 109).
What is not so readily explained is the dierence between a sexualized photo-
graph and a non-sexualized one. While the guidelines are composed as if this will
be apparent from the nature of the photograph, the acknowledgement that disputes
will occur as to some photographs suggests this will not always be the case. Indeed,
the Henson case itself indicates the manner in which the boundaries of sexualiza-
tion are not clearly dened. The problem is possibly that it is not the photograph
that is sexualized as much as the interpretation brought to it by the viewer. The
fact that there may be broad cultural agreement about the sexual content of certain
images does not suggest sexualization is always self-evident it actually makes it
Simpson 293
more dicult to see the interpretive process in cases where such agreement is not
present.
And beyond that there is a deeper issue to address. While the image may be
sexualized or not depending on ones interpretation, there is the question of
whether in some circumstances a sexualized image is appropriate in the context.
For example, is a pamphlet that discusses alternative sexualities as they aect
young people and which utilizes images to do so, sexualizing such children? Or,
as in the case of an artist such as Henson, in asking the question through ones art
as to how we should think about sexual awakening as an important cultural issue,
does this sexualize the child appropriately? The complete denial of the possibility
of sexualizing the child in these ways sties discussion of such matters and con-
structs a particular view of the child that is potentially harmful to the proper
development of the child.
Senate inquiry into the sexualization of children in
the media
By coincidence, the Henson controversy took place at the same time as an
Australian Senate Committee was inquiring into the sexualization of children in
the media (Australian Senate, 2008). The inquiry was set up to respond to the view
expressed in a report by a policy think tank, the Australia Institute, about the
problem of the sexualization of children:
Broadly dened, sexualisation is the act of giving someone or something a sexual
character. Childhood development includes a distinct sexual dimension prior to pub-
erty, so the acknowledgment that children have a sexual dimension is not in itself of
concern. However, the sexualisation of children documented in this paper captures the
slowly developing sexuality of children and moulds it into stereotypical forms of adult
sexuality. When we use the term sexualisation, it is this capturing and moulding
process to which we refer. It is essential to ask whose interests such sexualisation
serves and at whose expense it occurs. (Australia Institute, 2006: para.1.2)
But this denition of sexualization is not as clear as it purports to be. The
Australia Institute itself acknowledged the problematic nature of terms such as
sexualization, particularly when applied to children. It explicitly accepted that
human sexual development begins during childhood (Australia Institute, 2006:
para.1.4) and that it is not easy for any society to agree on where the line should be
drawn in matters such as the sexualization of children, let alone to agree how
such a line may might be enforced (Australia Institute, 2006: para.1.4), yet the
paper nevertheless proceeded to use terms such as sexualizing content (Australia
Institute, 2006: 16), developmentally appropriate content (Australia Institute,
2006: 23), sexually suggestive behaviour (Australia Institute, 2006: 27) and pre-
mature sexualization (Australia Institute, 2006: viii) as if such terms have a clear
meaning. Such terms are clearly value laden.
The focus of the Australia Institute paper was of course the role of the media,
and how it, particularly in the marketing of products, sexualized the child. Thus
after examining the content of some media their report contains statements such
as [a]lthough overt sexualization is of greatest concern, some of the less explicit
and more ambiguous material can also be problematic (Australia Institute, 2006:
5). This was presented as if it was a scientic conclusion. But the content analysis
the Australia Institute conducted ultimately rested on subjective interpretations
and the value positions of those who conducted them. In this context this is not
even a simple matter of what might constitute sexual content, because embedded
in this discussion of the sexualization of children is the question of what is deemed
to be developmentally appropriate for children. For that reason content analysis
of the media for such content should be recognized as based on value judgements
and should not be recognized as scientic analysis. This is not to suggest that
value positions are not legitimate, but they should be clearly articulated and
explained. Cliche s such as let children be children are unhelpful and say nothing
about what types of children they are to be. The nature of childhood is not self-
evident.
The Senate Committee received evidence from parents and experts but its report
contains no evidence from children themselves. Many parents stressed that child-
hood should be a time of innocence (Australian Senate, 2008: paras 3.3133.42),
while expert evidence mentioned the possible harmful eects of the media on body
image and self-esteem as a result of being exposed to sexual imagery (Australian
Senate, 2008: paras 3.35, 3.36). It also received evidence that the media also per-
mitted children to explore fantasies, particularly as many young people now gen-
erated their own media (Australian Senate, 2008: paras 3.44). But this committee
did not engage with the children themselves and their use of technology. Instead,
although it acknowledged that the evidence on harm to children was uncertain,
it agreed with one expert that a precautionary approach was justied (Australian
Senate, 2008: para. 3.50).
4
Thus the committee concluded that inappropriate
sexualization of children in Australia is of increasing concern and that while
noting the complexity of dening clear boundaries nevertheless preventing the
premature sexualization of children is a signicant cultural challenge (Australian
Senate, 2008: 5).
The properly sexualized child?
Although the Senate Committee did not discuss the Henson images it is plain to see
how it created a climate within which the critics of Henson would seem justied in
their actions. The inappropriate sexualization of children had been recognized as
an area of concern and action was needed to address it. How could the Henson
photographs now not be seen to be part of the problem? There is however an
alternative body of literature that the Senate Committee ignored in its report.
5
This literature seeks to explore the extent to which it is possible to unravel some
of the problems contained within the notion of sexualization in relation to children
Simpson 295
and critique some of the claims made by those who express concern about the
sexualization of childhood.
An important advocate of the thesis that children have become increasingly
sexualized during the last decade is Juliet Schor who asserts that [t]he typical
American child is now immersed in the consumer marketplace to a degree that
dwarfs all historical experience (Schor, 2004: 19). Schors work has been well
received by those who want to believe that children are being easily manipulated
by advertising and the media. But her work has also been criticized as being more
advocacy than analysis, and based on anecdote rather than scientic evidence. In
particular her work has resonated with Christian groups in the USA concerned
with the demise of family values and the sexualization of children. Her writing is
strident in its proclamation of a crisis surrounding sex in the media. In her book
Born to Buy in a section headed Sexy Girls and the Commercial Culture she claims
research backs her claims that sex in the media leads to children having sex earlier
(Schor, 2004: 214). She also mentions that [m]edia reports of widespread casual
sex among teens have focused adult attention on these programming trends
(Schor, 2004: 215).
Schor then proceeds to claim that such sexualization has permeated marketing
in stores. She writes:
For example, theres the inux of sexually provocative clothing into the girls 6x12
department. As the clothes get skimpier, the mothers get angrier. But as more and
more girls appear in revealing attire, its harder for adults to hold the line. Ive heard
from two entrepreneurs who have started companies to provide wholesome, non-
sexual clothing for girls in this age range. Theyre up against the biases of department
store buyers, who now say that unless the styles are downscaled versions of the adult
trends, they wont take them. . . One conservative Christian group did highlight
jeans maker Guess? for store displays with an unclothed Paris Hilton. Guesss CEO
Paul Marciano responded curtly by suggesting that they just stay home. (Schor,
2004: 215)
In its own terms this relies on what she has heard and the actions of a Christian
group which might suggest that they are bringing to bear on the issue a particular
value position. Another target, which no doubt resonates well with conservative
Christian groups, is her description of sexually explicit popular culture. She
claims:
Another trend is the spread of sexually explicit music and dancing to very young kids,
even preschoolers, who bump and grind and mouth pop lyrics they cannot under-
stand. When they do start to learn what those words and images mean, parents worry
even more. Toys have also become far more sexually explicit. Barbie has taken her
share of criticism for being a swinger with an unrealistic body type. But for years, her
sexuality has been out of date, with the result that it is less accessible for children,
because its not culturally resonant with them. Barbie is being replaced by Bratz
dolls, which ooze contemporary heat, with barely there clothes and explicit date
themes . . . Bratz dolls are just one of the products that have been targeted by child
development experts and parents groups for being age inappropriate. The activist
group Dads and Daughters has been busy ferreting out other damaging products
marketed to girls. (Schor, 2004: 215)
But all this also supports the view that a concern with the premature sexualization
of children is not something new. As Schor herself acknowledges Barbie dolls
(launched in 1959) were in their day regarded as sexual. Evans notes that in the
1950s Wertham in his book Seduction of the Innocent had written of the sexual
fetishism in comic books (Evans, 1994: 17). Indeed, even the broader concern with
the commercialization of childhood is far from a recent invention as Evans
comments:
Prior to the consumerist era, Wertham deplored the commercialisation of childhood:
Advertisements in comic books have caused decent boys and girls many tears and
hypochondriasis (Evans, 1994: 17 citing Wertham: 1954) through their stress on the
buying of solvents for various physical, physiological, psychological and sexual prob-
lems related to height, weight, muscular strength, complexion, hair etc. (Evans, 1994:
1718)
Evans analysis goes further and seems to suggest that the current acceptance by
parents of cosmetic surgery for their children (Evans, 1994: 18), together with other
marketing such as clothes directed to children and which Schor may describe as
sexual or too adult, may represent expressions of parental love, but which at the
same time tread a ne line between appropriate representations of sexuality and
inappropriate. As he writes:
Children, despite being drawn so comprehensively into the wider implications of the
health and body discourses of bio-power (citing Foucault, 1981), are still not meant
to be sexual in the narrower sense. They should be health-, appearance- and clothes-
conscious and to vicariously buy lifestyle and leisure commodities as indirect expres-
sions of sexuality through their parents, but sexual precocity is still frowned upon.
So when media representations cross this very nely drawn Rubicon, they are dealt
with swiftly, especially when televised into the home. Minipops was one such exam-
ple. Appearing in 1983 on Channel 4, it showed children as young as 4, miming to
adult pop stars and mimicking their dress, behaviour and actions (here were all the
attributes paedophiles . . . often look for in children crisp white shorts, bare knees,
skimpy skirts, tight trousers (citing R. Moody Minor Problems [1983] 1:4.). In May
1993, Vogue was accused of publishing child pornography with its fashion spread of
19-year-old model Kate Moss, presented as a pre-pubescent girl in skimpy underwear.
In one photograph she plays on a bed in a white t-shirt, lace briefs and tights. The
caption reads: Hold me tights, dont let me go (citing the Independent, 22 May 1993).
(Evans, 1994: 1819)
Simpson 297
Evans continues this point about the manner in which children and sexuality inter-
act being across a ne line:
A major part of childhood innocence has now become the pursuit of happiness real-
ized through parental provision of consumer artefacts commensurate with their sta-
tus and lifestyle (citing Ennew, 1986), artefacts marketed as crucial armations of
parental love and childhood happiness, and in the displaying of them the children
themselves take on commodied and proto-sexual forms, innocent embodiments of
parental love and expenditure. (Evans, 1994: 19)
The presentation of the issue as the sexualization of children per se is thus
unhelpful as it both disguises the complexity of the issues as well as the often
gendered nature of the discussion. Although the discussion frequently refers to
children, as Schors advocacy and the Henson controversy both suggest, the
panic is often principally about how girls are sexualized. This can be seen in
Schors work when she connects sexual imagery in the media and teenage preg-
nancy. Evans, on the other hand, argues that the English approach to sexual
knowledge is about protecting innocence through ignorance, while the Dutch
approach, by contrast, is to lower the age of consent (to 12) on the view that
hard knowledge empowers children girls to make more informed choices
(Evans, 1994: 89).
As Cassell and Cramer write in relation to recent concern about girls use of
social networking sites and the alleged sexual dangers they may encounter there,
similar concerns were expressed in the past about womens use of the telephone:
when a new communication technology is introduced, upper middle-class Americans
become afraid for their children especially afraid about the noxious eects on girls.
This is particularly the case when those technologies permit a kind of metaphoric
mobility on the part of girls movement outside the sphere of adult control. And
in each case, whereas initially the anxiety is levelled at bad and transgressive preda-
tors, it quickly becomes displaced to the girls themselves who use the technology.
The girls own behaviour comes to appear counter to the image of a good girl, a
non-sexual and non-erotic girl. (Cassell and Cramer, 2008: 17)
There is a range of other literature which makes similar points about panics over
girls sexuality. Aitken provides the example of young Latina women who outed
the school dress code by dressing in clothes that revealed their bodies. Such women
were regarded by teachers as doomed to academic failure and teen pregnancy
(Aitken, 2001: 7879).
Much of the concern about sexualizing the child is based on a fear of the harm
that can be caused to children when this occurs. But too often this concern fails
to expand on its discussion of harm. The real risk to children may well be in
perpetuating the idea of childhood innocence that many, concerned about the
sexualization of children, appear to want to cling to. As Kincaid writes:
Faced with the growing ease of access and frequency of sexual activity among young
people and the manifest failure of traditional teaching, we may well have shifted
innocence more decisively backward, onto younger and yet younger people. Along
with innocence, we have loaded them with all its sexual allure . . . That was not the
denition of the child at rst; but as time went on, the idea of innocence and the idea
of the child became dominated by sexuality, of course, but sexuality all the same.
Innocence was led down to mean little more than virginity coupled with ignorance;
the child was, therefore, that which was innocent: the species incapable of practicing
or inciting sex. The irony is not hard to miss: dening something entirely as a negation
brings irresistibly before us that which were trying to banish. (Kincaid, 1998: 5455)
We need to ask whether by protecting childhood innocence we place children at
greater risk of being sexualized inappropriately. These are confronting questions
for many adults. As Jenny Kitzinger says:
The twin concepts of innocence and ignorance are vehicles for adult double standards.
A child is ignorant if she doesnt know what adults want her to know, but innocent if
she doesnt know what adults dont want her to know. (Kitzinger, cited in Levine,
2002: 3)
David Archard makes a similar point. As he says:
our justied abhorrence of sexual abuse should not blind us either to the possibility
that children can engage in sexually non-abusive activities, or to the realities of any
childs actual sexuality. Indeed, talk of the childs essential innocence is in danger both
of being mythic and, ironically, of being sexualised. The child, like a virginal woman,
can be the object of male sexual desire to corrupt what is as yet uncorrupted.
(Archard, 2004: 105)
Were then those who wished to classify Hensons photography as child pornog-
raphy in fact attempting to claim an innocence for children that would render those
particular images of that child even more sexually desirable to the very people they
feared?
This approach to understanding the manner in which children are sexualized of
course has a long history (e.g. Higonnet, 1998; Rousseau, 2007; Stainton Rogers
and Stainton Rogers, 1992: 162.). Lindsay Smith makes the point that as pho-
tography evolved in the 19th century, the photographed body of the child repre-
sented not only a representation of the child in the present, but from the perspective
of the viewer can also be read as that which is yet to come (Smith, 2007: 251).
Thus the photographed child, apparently innocent, may still suggest the (sexual)
adult to come. Yet, as Anne Higgonet cautions, one must be cautious about relying
on those historical examples in an age of mass consumer consumption where
the belief has become widespread that we live in a contemporary media culture
whose images sexualize children, and put children at real and unacceptable risk
Simpson 299
(Higonnet, 1998: 133). Yet her work appears to be premised on the view that
images of children in that contemporary world are there to challenge romantic
notions of childhood innocence and recast childhood (Higonnet, 1998: 193.).
Steven Angelides tracks the manner in which notions of child sexuality moved
away from some acceptance of the agency of the child in the 1970s and 1980s
towards the contemporary focus on the lack of childrens capacity to consent
arising from a feminist discourse on child sexual abuse which focuses on the pow-
erlessness of the child and the incapacity of children to give informed consent
(Angelides, 2004: 148). But as Angelides claims, such notions of child powerless-
ness and child sexual ignorance stand as unsubstantiated assumptions, begging the
question of their political and performative function (Angelides, 2004: 152).
One might thus ask the following questions: Are children at greater risk through
the disempowering eects of being cast as innocent and by implication lacking in
capacity? Or is the cultural impact of art that challenges the innocent construction
of the child more likely to lead to ascribing to children the capacity to attain
self-determination and make their own decisions about their bodies?
Art or pornography?
As Kincaid suggests, the irony is that those who claim to be protecting the inno-
cence of childhood must eroticize the naked child in order to banish the images
from the public domain. This is reinforced in the terms of section 91 G of the
New South Wales Act that required a sexual context for the images to be regarded
as child pornography. The other oence that Henson was said to have possibly
breached was that in section 91 H of the Crimes Act 1900 (NSW) which provides
that the production, dissemination or possession of child pornography is an
oence. Section 91 H(4) provides a defence to such a charge provided:
a. that the defendant did not know, and could not reasonably be expected to have
known, that he or she produced, disseminated or possessed (as the case
requires) child pornography, or
b. that the material concerned was classied (whether before or after the commis-
sion of the alleged oence) under the Classication (Publications, Films and
Computer Games) Act 1995 of the Commonwealth, other than as refused clas-
sication (RC), or
c. 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
child protection, scientic, medical, legal, artistic or other public benet pur-
pose and the defendants conduct was reasonable for that purpose.
This section raises two issues. The rst is the matter of artistic merit the
defence contained in paragraph (c). For many in the artistic community this
became the issue artistic freedom. A few months after the Henson saga ended
Art Monthly Australia produced an issue with a photograph of a naked 6-year-old
child taken by Melbourne photographer Polixeni Papapetrou which had already
been widely exhibited and distributed in various forms including as a greeting card
issued by a major bank (Marr, 2008: 138). Defended as art and not abuse of the
child, the police took no action but the Classication Board gave it an M rating,
not recommended for children under 15 (Marr, 2008: 141).
The second issue raised by the section skirts around much of this more elevated
debate about the merits of art and falls to a more technical application of the law.
Paragraph (b) simply provides a defence where the Commonwealth classiers have
classied the material as other than refused classication.
6
The refused classi-
cation (RC) category applies to publications that:
a. describe, depict, express or otherwise deal with matters of sex, drug misuse or
addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such
a way that they oend against the standards of morality, decency and propriety
generally accepted by reasonable adults to the extent that they should not be
classied; or
b. describe or depict in a way that is likely to cause oence to a reasonable adult, a
person who is, or appears to be, a child under 18 (whether the person is engaged
in sexual activity or not); or
c. promote, incite or instruct in matters of crime or violence. (National
Classication Code, 2005: cl.2)
The guidelines made under the Classication (Publications, Films and Computer
Games) Act 1995 (Cth) further explain what might fall within the refused classi-
cation category. They mention that:
Publications that appear to purposefully debase or abuse for the enjoyment of read-
ers/viewers, and which lack moral, artistic or other values to the extent that they
oend against generally accepted standards of morality, decency and propriety will
be classied RC. (Guidelines for the Classication of Publications 2005 (Cth): 14)
They also state that publications will be classied RC if they promote or provide
instruction in paedophile activity or contain descriptions or depictions of child
sexual abuse or any other exploitative or oensive descriptions or depictions
involving a person who is, or appears to be, a child under 18 (Guidelines for the
Classication of Publications 2005 [Cth]: 14; see also Guidelines for the Classication
of Films and Computer Games [Cth]: 13).
Thus for a successful prosecution under New South Wales law the material must
be passed to the Commonwealth body to determine if the material would be
refused classication. As the images were also on the internet (as the original
publicity for the exhibition was on the gallerys website) the material was also
subject to the Federal classication laws as the Classication Board also classies
material on behalf of the Federal Body which regulates online content, the
Australian Communications and Media Authority. That classication is done
Simpson 301
pursuant to the classication regime that applies to lms which provides the Board
with a rating system. The material was thus referred to the Classications Board
and its decision was that the images would be classied as G (general) or PG
(parental guidance) under that rating system. The criteria for each of these classi-
cations does not require an absence of sexual context, but rather that in the case
of the G classication sexual activity should be very mild and very discreetly
implied, and be justied by context and that nudity should be justied by context
(Guidelines for the Classication of Films and Computer Games [Cth]: 7). For the
PG classication sexual activity should be mild and discreetly implied, and be
justied by context (Guidelines for the Classication of Films and Computer Games
[Cth]: 7) and nudity should be justied by context (Guidelines for the Classication
of Films and Computer Games [Cth]: 8).
The Board does not provide detailed explanations of its decisions but in press
reports explained that the images were not sexualized to any degree and the
image of breast nudity . . . creates a viewing impact that is mild and justied by
context (Emerson, 2008). The original complainant, Hetty Johnston described the
decision as incomprehensible and said that [t]his is a picture of a naked 13-year-
old child. We are just handing our children on a bloody plate to paedophiles
(Henson in clear: prosecution scrapped Sydney Morning Herald, June 6, 2008).
The then Prime Minister, Kevin Rudd, stood by his view that the pictures were
absolutely revolting seeking to distinguish his role as a parent from that of Prime
Minister:
I . . . said what my views are as a parent, I dont budge from that. But Im not about to
go around and start dictating to the legal authorities what they should or should not
do . . . Organisations like that are at arms length from politicians. Its a matter for
those bodies independently, including the legal authorities, to evaluate these matters
and reach their own determination. (Emerson, 2008)
Of course, some then called for the classication criteria to be changed, but no
action has been taken to date in that regard. However, early in 2010 the New South
Wales Parliament legislated to remove artistic merit as a defence to the production,
dissemination or possession of what is now dened as child abuse material rather
than child pornography under section 91 H(4) of the Crimes Act 1900 (NSW).
However, although artistic merit has been removed as a defence to such a
charge, the denition of what constitutes child abuse material under section
91FB of the Act requires the material to be material that depicts or describes, in
a way that reasonable persons would regard as being, in all the circumstances,
oensive (section 91FB[1], Crimes Act 1900 [NSW]). In determining whether the
material is oensive regard is to be had to the literary, artistic or educational
merit (if any) of the material (section 91FB[2][b], Crimes Act 1900 [NSW]).
Criticism of this provision has centred on the removal of any defence once the
court has determined that the material may be child abuse material in spite of
claims of artistic merit (Brown, 2010).
However, another amendment made at this time has not received the same level
of attention. This change makes an addition to the denition of what in eect
constitutes child pornography (though now called child abuse material) in New
South Wales to include material that depicts in a way oensive to reasonable
persons the private parts of a person who is, appears to be or is implied to be,
a child (section 91FB[1][d], Crimes Act 1900 [NSW]). Private parts are dened
to be a persons genital area or anal area, or the breasts of a female person
(section 91FB[4], Crimes Act 1900 [NSW]). In this manner the law has in eect
achieved what the campaigners against Henson sought to achieve the legislative
imprimatur to the position that a childs naked image is, by denition, porno-
graphic. Yet in doing so, it may be asked whether they also have achieved what
the critics of their stance argue that in doing so they also eectively sexualize the
childs body.
Consent and the law of childhood innocence
Although of no legal relevance for the oences under the New South Wales Crime
Act many who debated this issue raised the matter of consent. On the one hand
there was the issue of the consent of the child, often reduced to a simple assertion
that a 12-year-old child simply cannot consent to having nude photographs taken.
The related issue of the ability of the parents to consent on behalf of the child was
also raised.
Following the Henson controversy the main funding body for artists in
Australia, the Australia Council, issued Protocols for working with children in
art in the hope to avoid further cases such as this. Paragraph 4 of the new
Protocols states:
If you are working with anyone under the age of 15 and they are to be fully or partly
naked, this may be prohibited by State law. If it isnt prohibited, you will need to get
and send to us evidence of the permission of the parent(s) or guardian(s) stating that
you have explained the context for the work to the parent(s) or guardian(s) and the
child, and:
. they understand the nature and intended outcome of the work;
. they commit to direct supervision of the child while the child is naked; and
. they agree it is not a sexual, exploitative or abusive context. (Australia Council for
the Arts, 2008: para. 4)
In its own terms this is a curious requirement that having explained the work to the
parent and the child, it is only the parents consent that is required. This is the
recurring critique of the Henson controversy: supporters and critics of Henson
alike tended to speak of the child, but not to the child. Even when the child subject
(now an adult) said she had willingly participated in the session the critics of
Simpson 303
Henson persisted with the view that she was simply too young to consent. Marr
cites Henson as putting it dierently:
Parents have to approve but the child must decide. You just have to give them all the
information you can and of course its been given to the family as a kind of roll
around, and at the end of it, the child in a modern family decides to take responsibility
for their actions and says I think Im going to do this. Henson claims they bring to
the decision a natural defence mechanism. Kids can smell a rat, you know, and we
just dont give them credit for it. (Marr, 2008: 103)
Other protocols address distribution of images and impose similar requirements to
those involving the taking of those images with respect to parental consent or the
childs consent after they have turned 18 (Australia Council for the Arts, 2008:
para. 8). Even in its own terms there is an obvious disjuncture here where the
Protocols apparently assume that after a child turns 15 they may be able to consent
on their own behalf to having photographs of themselves taken, but in the case of
distribution the relevant age is to be 18. While this may be written so as to adhere
to certain State laws, it is of note that this dierence passes unremarked upon in the
Protocols.
For many that opposed the Henson images, the issue was not one of consent at
all. They tended to speak of a child of her age simply being unable to consent.
Of course some of this arises from a complete misunderstanding of the applicable
laws, for in cases where sexual activity with a child is criminalized it is that consent
provides no defence, not that a child is in fact incapable of consenting.
Those that persist in claims of childhood innocence and the lack of competence
on the part of the child to consent to sexual activity are in eect reinforcing the
historical concern in the law to preserve female virginity (Levine, 2002: 71). Even
though laws that prohibit sexual activity with a child now apply to males and
females, Levine suggests that most cases still involve a male adult and a female
minor. Cases involving homosexual activity follow in frequency according to her,
and this may represent a feminizing of the child victim (Levine, 2002: 71). But such
laws construct an even more troubling view of the child. When they are read as
suggesting that children cannot consent as opposed to their consent being inop-
erative in the eyes of the law they have more to do with maintaining the childs
ignorance than seeking to protect the child from harm. As Matthew Waites says,
contemporary conicts over age of consent laws are located in debates over the
appropriate form of rights for children in relation to sexuality (Waites, 2005: 218).
As Archard argues, if a child is to be competent to exercise a right of sexual self-
determination then she must know about sex (Archard, 2004: 105). He then raises
the question of the childs right to be sexually educated (Archard, 2004: 105). The
problem of course is that such a right might lead to a child claiming the right to
know about alternative sexualities. As Archard notes, a liberal state in designing
a curriculum for sex education of children must insist upon respect for the choices
of individuals and thus upon the central value of consensuality. Consistent with
consent are a number of sexual activities that ought to be tolerated (Archard,
2004: 107). One might expect that many of the adults who railed against the
Henson images would have diculty with discussion of homosexuality as an
aspect of sex education. For them, it cannot be about consent or the capacity of
the child to consent to sexual activity, for this opens the door to a sexual tolerance
that will threaten other aspects of their value system. It is about preserving a
concept of childhood that preserves an innocence that is founded on ignorance.
The notion of innocence is a recurring theme in discussions of childrens capac-
ity to make their own decisions generally, and in relation to the problem of dealing
with children and sexuality specically. David Gurnham has written of a similar
case to that of Hensons when in 2001 the Saatchi Gallery in London exhibited
photography of Tierney Gearon, which included nude and partly nude images of
her children (Gurnham, 2009). For Gurnham, such images of children invite us to
reect on the notion of innocence and its uses and abuses in cultural debates
(Gurnham, 2009: 114). He suggests two ways to read such images as indecent.
The rst is that they turn the children displayed into sexual objects for the grat-
ication of paedophiles (Gurnham, 2009: 114). This reading appears to be the
most compelling for the tabloid moralists who oppose such exhibitions. Yet, as
we have seen, there is an uncomfortable twist in so protecting the innocence of the
child as it requires us to regard childrens bodies as inherently erotic, the display
of which turns them into passive victims of sexual violence and reveals something
dark and uncomfortable about our society (Gurnham, 2009: 114). The other
way in which he considers such images might be read as indecent is the extent to
which the image itself seems to undermine accepted (patriarchal) sexual dynamics
of mainstream depictions of children as innocent, inert, passive creatures
(Gurnham, 2009: 114).
In Gurnhams analysis the child is particularly disempowered, and the reading
of the images reveals more about adult anxieties and desire than it says about the
child. In discussing the sexual allure of childhood innocence he makes the point
that it is only because we have constructed the displayed image of the innocent
child as sacred as the forbidden fruit that it has become to be seen as
objectied and victimized by display (Gurnham, 2009: 123). He highlights the
dilemma this creates:
In our own society it is the sexualisation of the innocent child that incites the greatest
fear and dread. It is this dread that means that the very implication that a child might
be viewed as an object of sexual pleasure causes such huge anxiety and must be met
with erce condemnation, but also that which continues to ensure that innocence,
formerly preserved for the society maiden bride, is placed on such a high pedestal . . .
the controversy surrounding Gearons work relates to the anxiety caused by present-
ing the image of a child in such a way that might imply that they could be the object of
sexual desire the association of childhood innocence with sexual desire is what
makes people feel uncomfortable. (Gurnham, 2009: 124)
Simpson 305
However, it is the second manner in which such images might be read according
to Gurnham that presents even more confronting issues for adults. That reading
requires the viewer to interpret the images as images of violence and victimization
in which children were unknowingly made to display themselves in postures
that in their innocence they could not have known would attract the lust of
paedophiles (Gurnham, 2009: 126). But that interpretation is not inevitable
and requires the viewer to make that subjective judgement. Thus Gurnham
concludes:
the indecency of the photographs lies in the challenge they throw out to the viewers
own self-identity: rather than merely carrying the risk of being arousing to the sexually
deviant paedophile, they appear in fact to invite the normal viewer to adopt the role of
the paedophile. (Gurnham, 2009: 128)
Little wonder then that the tabloid protesters often claim that nude images of the
child are clearly pornographic. In presenting the case as unarguable they conve-
niently avoid confronting their own anxieties and desires. As Gurnham notes,
citing Kincaid (1998), the manner in which society depicts the innocent child in
the mainstream media in eect eroticizes that innocence through its interpretation
by the viewer. As he says, [f]ocusing upon the bodies and minds of children allows
adults to look with a paedophiliac gaze on those bodies, safe in the knowledge that
the real paedophiles are monstrous perverts who have nothing to do with us
(Gurnham, 2009: 128).
In this sense such photographs as in the case of Gearon or Henson challenge
not so much childhood innocence but the very relationship between adults and
children and suggest through the incapacity of the child that such readings rein-
force, the capacity of the adult viewer to sexually exploit the child:
As long as children are constructed as innocents, we will continue to worry that
images like Gearons are in fact images of sexual exploitation which either expose
children to a malignant paedophiliac gaze or else oensively accuse the ordinary
viewer of latent paedophiliac desire. Whether a child is depicted as lively or blank
does not really matter regarding the cultural anxiety about child pornography; in a
society that identies the childs body with sexuality, the image of such a body is
caught up in a discourse of sexual perversion either way through the prizing of inno-
cence. (Gurnham, 2009: 131)
The value of Gurnhams work is that it also highlights what is often lacking
from the public debate in the aftermath of such cases as Hensons the manner
in which the images at the centre of the controversy are about childhood sexuality
and how adults respond to that matter by claiming the innocence of the child
on both sides, whether in the name of art or in the name of protection. Thus the
debate tends to focus on matters of art, incapacity of the child to consent and
denitions of pornography, all of which tend to obscure rather than confront the
issues raised by the images on display with respect to the sexual place of children in
society.
Conclusion
What is perhaps most concerning in the Henson saga is that those who sought to
defend Henson spoke to the non-sexual image of the child. In their argument, if
the images were sexualized then this was done in the mind of the viewer. Of course,
this is no doubt true to an extent, as shoe catalogues and the shoe fetishist may
demonstrate. But in another sense Hensons photography at least asks the question
about the childs sexuality, its ambiguity and its place. But this is dicult terrain to
cross at the best of times. It is far simpler to rely on artistic freedom and the
history of naked children in art.
Ironically, many of those art images rotate around the perceived innocence of
childhood, perhaps a prerequisite to viewing such images without being ostensibly
titillated. The photograph of the naked child in the bath falls into this category it
cannot be pornographic it is taken for innocent purposes. This was the approach
taken by Adam, J in 2008 in the New South Wales Supreme Court in McEwen v
Simmons. Commenting on the images of a child that might be caught by the
denition of in a sexual context in section 91 H(3) of the New South Wales
Crimes Act he referred to the ministers speech introducing the legislation where
the minister had said:
A depiction or description of a child in a sexual context is a broad category that would
cover, for example, situations where a child is depicted in an indecent pose or watch-
ing another person engaged in sexual activity. The requirement that the material must,
in all the circumstances, be oensive to reasonable persons ensures that innocent
family photographs of naked children, for example, will not be captured. (McEwen
v Simmons, 2008: para. 34)
The problem in this approach is of course that there may be no inherent innocence
in a photograph of a naked child. Hetty Johnston, who, as noted earlier, com-
plained about the images taken by Henson, clearly regarded a naked child as
pornographic. While commentators such as Kincaid and Archard argue that
such statements themselves sexualize the child through attempting to maintain
the childs innocence and eroticizing their naked form at the same time, it also
underscores the central problem here. Is even an innocent pose of a child in some
way sexual under this framework? (see also Gurnham, 2009: 119).
But as in most discussions of childhood by adults it is more probable that this
debate reveals more about the adults than it does about the children. Hugh
Cunningham traces the manner in which the balance of power between adult
and child has shifted to a point where the child is now looked to for emotional
gratication (Cunningham, 2005: 192). He notes the shift in the practice of
Simpson 307
adoption where the child had some use for the adoptive parents to a situation in the
20th century where:
married couples, not normally childless themselves, adopted children who would be
nothing but an expense. Sometimes their motivation was to save the child, but as their
frequently stated preference for fair-haired girls indicated, they also sought to gratify
themselves. Adults needed children to satisfy their own emotional needs, and were
prepared to pay large sums in order to acquire them. (Cunningham, 2005: 192193)
He speaks of parents becoming slaves of their children (Cunningham, 2005: 193).
When aligned with such developments such as the rights of the child, he posits that
children are nearly on a par with adults (Cunningham, 2005: 193). This shift is
clearly threatening for many adults, especially given their emotional investment
in their children. As Cunningham observes, perceived threats to children which
requires them to be once again protected rather than given autonomy acts as a
counterweight to the adultication of the child (Cunningham, 2005: 193).
In their submission to the Senate inquiry into the sexualization of children in the
media, the organization headed by Hetty Johnston commented:
One of the major concerns of the sexualisation of children in the media is that it
normalises the notion of children as sexual beings and in eect gives out the message
that children are interested in and ready for sex. The obvious resulting risk is the
increased vulnerability of children and young people to sexual assault or sexualised
behaviours before they are able to understand the potential consequences.
(Bravehearts, 2008)
and
The issue of children learning about sex at a young age is not as much the issue as the
messages our sexualised culture is teaching them. Childrens perceptions about what it
means to be a boy or a girls [sic] and their gradual and appropriate developing sense
of sexuality is being dened by the representations promoted through media.
(Bravehearts, 2008)
The reference to a sexualised culture suggests that the problem is deeper than can
be solved by simple sex education. Indeed, the submission ends by calling for
education, not about sex, but about the sexualization of childhood:
There is a need for wide-spread education for children, parents and the community
which includes information on the negative impact of media images of children and
the eects of sexualizing childhood. (Bravehearts, 2008)
In all the debates about the Henson images the matter of childhood sexuality
was side-stepped by all concerned. Few suggested that children had agency in these
matters, nor did the rights of the child, including to be sexually educated, gure
much in debates. One might be forgiven for agreeing with Kincaid that it was as if
everyone wanted to maintain the childs innocence to increase the allure of the
sexual context in which the images were portrayed by some. But what may instead
unite both sides of the debate is the investment that all adults have placed in
children, and a consequent reluctance to empower children and acknowledge
their autonomy rights. This was a controversy very much controlled by adults
and articulated in accordance with their competing anxieties on both sides.
Notes
1. This is a revised version of a paper presented to the Socio-Legal Studies Association
Annual Conference held at De Montfort University, Leicester, 2009.
2. I have deliberately chosen not to include the images in this article but they are available in
Marrs book or (as always) via a Google search.
3. This is a scale that comes out of the work of the COPINE (Combating Paedophile
Information Networks in Europe) project which is based in the Department of Applied
Psychology, University College Cork, Ireland.
4. This was based on the disingenuous argument that if one waited until there was 100
per cent proof, then in the meantime immeasurable harm could be done to children
(Australian Senate, 2008: para. 3.50). But of course, there is no mention of the harm
that might be done from regulating the media in a way that blocks access to sexual
information, which could be a possible consequence of taking precautionary action.
5. Although it cannot deny having received it, as much of what follows in this section was
contained in my submission to the committee.
6. In Australia the Commonwealth classifies films, publications and computer games on
behalf of the States.
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Cases
McEwen v Simmons [2008] NSWSC 1292
Saddler v R [2009] NSWCCA 83
Brian Simpson is an Associate Professor in the School of Law, University of New
England, Australia. His principal elds of research and teaching are in children and
the law, social justice and law, and the interaction between urban planning and the
law. His work is interdisciplinary in nature and is broadly concerned with how the
law understands and denes areas of life. His work on the regulation of cyberspace
thus seeks to connect this area with his interest in child and family law. His most
recent publication (with Cheryl Simpson) From Heritage to Terrorism: Regulating
Tourism in an Age of Uncertainty (Glasshouse 2010) further explores the manner in
which the law conceptualizes social problems.
Simpson 311

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