The Last Taboo

Introduction

Naked children are ubiquitous in the history of western art, whether as adornments – Bronzino’s amorous Cupid, cheekily kissing Venus in his Allegory of Love (1545) – or as subjects (as in Robert Mapplethorpe’s 1976 photograph, Rosie).

Yet the contemporary incarnation of this long tradition often causes hysteria in the tabloid press, even leading to threats being made by police officers against museums and galleries on the grounds that such art works are ‘paedophilic’ and that their display violates criminal indecency laws. This has created a climate in which galleries are understandably wary of exhibiting such works, leading in practice to self-censorship.

In October last year, Tate Modern decided to omit Richard Prince’s Spiritual America (1983), the artist’s ironic appropriation of a Playboy magazine image of a naked, pre-pubescent Brooke Shields from the ‘Pop Life’ exhibition. Tate’s directors had been threatened with prosecution by London police’s obscene publications unit after being alerted by The Daily Mail, and told that conviction would lead automatically to their names being included on the sex offenders register.

In 2007, a controversial Nan Goldin photograph (above) of naked little girls playing, Klara and Eddy Belly Dancing (2000), was seized from BALTIC Centre for Contemporary Art by Tyneside police after complaints from the public. The work was part of a collection of Goldin’s work loaned to BALTIC by Sir Elton John for the exhibition. Although the Crown Prosecution Service (CPS) eventually declared the work not to be ‘indecent’ and returned it, its removal and the surrounding climate of hysteria, led John to request the closure of the exhibition .

The recent exhibition of certain photographs by Sally Mann, in ‘The Family and the Land’ at the Photographers’ Gallery (June–September 2010), has brought these issues up once again. The exhibition included Mann’s series of nostalgic, 19th-century-style, black and white photographs, ‘Immediate Family’ (1984–94), taken while her three young children – Emmett, Jessie and Virginia – were growing up. The artist intimately captures her children playing, swimming and acting before the camera, in and around the family home in Lexington, Virginia; these photographs show her children naked, yet are wholly innocent and depicted without any sexual overtones. Indeed, it would seem absurd that Mann’s photographs could invite the prospect of legal censure. Yet, in today’s climate of collective, undifferentiated anxiety regarding images of child nudity, the series prompted The Photographers’ Gallery to seek my firm’s legal advice before mounting the exhibition to be sure that it could safely exhibit these photographs under UK law.

The Law

There are various laws which govern the indecent representation of children in the UK, including the Obscene Publications Act (1959), the Indecent Displays (Control) Act (1981) and the common law offence of outraging public decency. The most relevant and potentially difficult legislation, however, is the Protection of Children Act (1978), which makes it an offence to possess and display ‘indecent’ photographs or pseudo-photographs of a child under the age of 16. In practice, the risk for a member of a gallery or a museum being prosecuted under this act is very low. This is because, for most art works exhibited in galleries or museums, it would be extremely difficult to bring a successful prosecution – a fact that the Director of Public Prosecutions (DPP) must consider when deciding whether it is in ‘the public interest’ to prosecute or not.

First, the prosecution needs to establish (before a jury) that, on the balance of probabilities, the photographs of the children are ‘indecent’ – a difficult hurdle to surmount. The UK courts have made it clear that it cannot be indecent to depict naked children where there are no sexual overtones in the photograph (Commissioners of Customs and Excise v Sun and Health, 1973), a decision referred to approvingly by the Home Secretary when the bill for The Protection of Children Act was passed by Parliament. This precedent played an important role, for example, in the DPP’s decision not to prosecute the Saatchi Gallery in 2001 for exhibiting photographs taken by the artist, Tierney Gearon of her young children naked (including a controversial photograph taken of her then five-year-old boy urinating in the snow).

Second, a gallery’s or museum’s directors would usually be able to rely upon the special defence – contained in section four of the Act – that they had a ‘legitimate reason’ for holding and exhibiting such images. This defence covers artistic expression and offers considerable protection to galleries and museums, particularly for photographic images which have long circulated in the public domain (as in the case of all of the photographs discussed above). Of relevance to this defence are the reputations of the artist and exhibiting institution, the artistic merit and exhibition history of the images on display and the purpose of the exhibition (i.e. whether it is for a public interested in art or designed to appeal to voyeurs) in support of which evidence can be adduced before the court.

Third, in the unlikely event that a gallery’s directors were to be convicted under the Act, they would have recourse to appeal to the European Court of Human Rights, in that such a conviction would be likely to infringe Article 10 – the right to freedom of expression – as guaranteed under the European Convention on Human Rights. Here, similar considerations to the ‘legitimate reason’ defence would apply in defence of freedom of artistic expression, including, the prior availability of the images in the public domain.

Conclusion

Due to contemporary anxieties about paedophilia and pornography fed by the mass media, art works depicting children naked may occasionally become mistakenly the source of police interference and threats. This places galleries and museums in a difficult position and it is understandable that their staff fear the long arm of the law. Whilst it is always wise to seek legal advice before the mounting of such an exhibition, and also if police do become involved, galleries and museums should be as robust as possible in defending freedom of artistic expression and resist the tendency to self-censor.

Whilst criminal laws have been designed with good reason to prevent the making and distribution of pornographic material that exploits children and encourages paedophilia, they are not intended to apply to serious art works. This includes photographic works of naked children by artists such as Prince, Goldin, Mann and others, which are part of a long and legitimate tradition in the history of western art.

Finally, it should be remembered that, in practice, it is the DPP who decides whether a prosecution should be brought in the light of available evidence and the law. If an art work is of international repute, has been widely exhibited and is exhibited in the context of a serious artistic exhibition at a prestigious art venue, then the DPP will be very reluctant to bring a criminal prosecution against a gallery´s or museum’s staff for indecency.