Saturday, June 8, 2013

Graham Ovenden’s States of Grace and Judge Cottle’s Lies

sog page45The event that precipitated the desire of the Metropolitan Police to “get” Graham Ovenden was almost surely the publication of Mr. Ovenden’s photographic study, States of Grace. That was also when the Metropolitan Police began targetting Maud Hewes, for it was her appearance at a hearing in New York, in May 1992, that was largely responsible for the decision by the United States Department of Justice to withdraw its opposition to the book and permit publication to go forward.

Although none of the images in States of Grace were in contention at Mr. Ovenden’s trial in 2013, the three (never-published) photographs in contention at the 2013 trial share at least one issue in common with the images in States of Grace: Mr. Ovenden’ intention in creating them. (As noted previously on the blog, two of the three images in contention at the 2013 trial were never printed by Mr. Ovenden but were, as the saying goes, lost on the cutting room floor, then printed – badly – by the police to emphasise the genitalia.)

Addressing Mr. Ovenden at his sentencing, Judge Graham Cottle claimed, without any actual evidence, that the “true purpose behind what you were doing… was undoubtedly sexual...There can be no doubt that at the time you had a sexual interest in children. You maintained that it was an artistic interest in the female form.” This bold-faced lie about Mr. Ovenden’s work is contradicted by the content of Mr. Ovenden’s photography in general, as well as by the unstinting support that the subjects of the 3 images gave to Mr. Ovenden’s depictions of them when they were well into adulthood. Surely in their mid-20s, the two were old enough to have discerned any supposed untoward meaning or intent in their images or in the sessions during which those images were created. Both women testified at trial that they were never abused by Mr. Ovenden. Both said they felt safe and confident to be nude in front of the camera and the images reflect that.

Judge Cottle’s inappropriate imposition of his own moral view of the photographs was to be expected, considering some of the egregious judicial errors he committed at trial. For example, solely for purposes of “dirtying up” Mr. Ovenden and providing the jury with a negative context in which to view Mr. Ovenden’s photographs, Judge Cottle permitted introduction of non-photographic collages depicting hardcore sexual conduct which had been deleted from Mr. Ovenden’s computer but about which there was nothing criminal – and nothing related to Mr. Ovenden’s photography of his young models. (They were interim images for a series entitled “As Through a Glass Darkly,” discussed previously on this blog.) In fact, when the case first went to trial, the 3 photographs weren’t specifically charged, but were the basis for “specimen” photographic charges. However, in the midst of trial, when the prosecution conceded that it had no case with respect to one witness because she denied that Mr. Ovenden ever abused her, Judge Cottle asked the prosecution to bring “substitute” charges. That was how the 3 photographs came to be the subject of criminal charges of “indecency.” With the “specimen” counts covering the same images, Mr. Ovenden was essentially convicted twice for the same “offence.”

Against Judge Cottle’s claim that Mr. Ovenden tricked his models into posing for him under the guise of Art is a long history. There are the statements, in adulthood, of the two models whose images were deemed “indecent,” as well as descriptions of Mr. Ovenden’s work by Mr. Ovenden and many others throughout the past four decades. When Mr. Ovenden angrily accused Prosecutor Ramsay Quaife of being “visually illiterate” during the trial, he was talking about Mr. Quaife’s inability or refusal to understand Mr. Ovenden’s work in artistic terms. That inability or failure also applies to Judge Graham Cottle. Statements made by the models, Mr. Ovenden and various writers and critics through the years are not some grand conspiracy to enable Mr. Ovenden to take lewd photographs or fool museums and galleries into showing child pornography. Rather, they are true statements about the work.

Because the publication of States of Grace was the genesis of the persecution of Mr. Ovenden and his models in the U.K. (This writer doubting very much that those entrusted with enforcing the 1978 Protection of Children Act cared very much about the Hetling affair1), a good place to begin the inquiry of what Mr. Ovenden’s photography means is in telling the story of the publication of States of Grace and its defense.
  • Publisher’s Note from States of Grace
  • Addendum to the Publisher’s Note
  • Proffer of Graham Ovenden (via an affidavit filed in the United States District Court, Eastern District of New York)
  • Supplementary Statements of Graham Ovenden (via letter predating preparation of the proffer)
  • Proffer of photography critic A.D. Coleman (via affidavit)
  • Proffer of Maud Hewes (via affidavit)
  • Excerpt from Amicus Curiae brief filed by the American Civil Liberties Union Arts Censorship Project and the New Your Civil Liberties Union
  • Introduction to States of Grace

Publisher’s Note from States of Grace, pp. 80-81

“The publication of States of Grace is an event that has not gone unnoticed by would-be censors in the United States. In October of 1991, a set of proofs for the book was seized by the U.S. Customs Service and held for over seven months. Despite the fact that the images contained in States of Grace are tender and sympathetic, the U.S. government asserted in February 1992 that the book contained depictions of minors engaged in "sexually explicit conduct" and was therefore illegal to import, sell or own. During a court hearing one month later, a federal prosecutor identified page 542 as containing the sole offending image in the book. As anyone can see, the image does not depict any sexual conduct at all. On May 28, 1992, a hearing was held, attended by the subject (then 18 years of age) depicted in the offending image, as well as eminent photo-historian and critic, A.D. Coleman. Both witnesses prepared statements and were ready to testify. Neither received remuneration for their efforts, although the travel costs of the subject, a British citizen, were paid.

“The subject's declaration is worth repeating here:
I have known Graham Ovenden as a family friend for fourteen years — since I was four years old. I have modeled for Graham on numerous occasions -- in fact, too numerous to count -- for both his photographs and paintings. I have modeled for him both clothed and fully nude, both alone and with other children.... The portrait which the United States has charged as indecent is a portrait of me as I was eight years ago. I am not acting in a sexual way in the picture and Graham never asked me to be sexual or treated me as a sexual object. The accusation that the image is obscene' is, to me, an accusation that I am 'obscene,' something to which I take offense.
“A.D. Coleman's prepared statement confirmed the fact that States of Grace simply contained no images depicting a 'lascivious exhibition of the genitals,' an act prohibited under U.S. law. Representatives of the American Civil Liberties Union were also present in the courtroom to support their brief in opposition to the government's attempt to censor States of Grace. (The ACLU Foundation Arts Censorship Project filed its brief on behalf of itself and numerous artists, museum and gallery directors, curators, critics, and booksellers.) As to the image on page 54, the ACLU brief stated: '[W]hether viewed individually or as part of the entire book, Ovenden's portrait appears plainly to be a photograph with genuine artistic, not pornographic intentions, and thus a constitutionally-protected work of art.'

sog page22“Despite the government's claim, and as the publisher's lawyer, Alan Silber, cogently argued, there is nothing lascivious or lewd about the images in States of Grace. These are beautiful images intended by the participants, in Ovenden's words, 'to make whole the transient experience of childhood.' The would-be censors also overlooked the more metaphysical side of States of Grace. As Ovenden attested in his affidavit filed with the court:
Symbolically speaking, we are dealing with feelings of the heart and the human yearning for Edenic simplicity - a state of grace, as it were, where there is neither sin nor corruption. The apple has yet to be eaten. The subject, of course, symbolizes this state in the photograph. At the same time, we see that the attainment of Eden is no easy task: the vulnerability of the child suggests, or rather confirms, the fragility of Eden, as well as its fleeting nature in the face of the concerns of the adult world and the demands of modernity.
“Ultimately no testimony was required at the May 27th hearing. In light of the subject's account of her experience, the statements proffered by Ovenden and Coleman, and the support of the ACLU and numerous individuals and organizations, the government reluctantly acknowledged defeat and returned the proofs.

“The images in States of Grace are multi-faceted and their meanings are multi-layered. They are neither immoral nor criminal. Most importantly, though, they must be seen, so that each viewer may discover for himself and herself the truths that lie within."

Addendum to the Publisher’s Note

The story told above is somewhat simplified, but essentially truthful. At the 27 May 1992 hearing, a representative for the United States Department of Justice, Child Exploitation and Obscenity Section (CEOS) stated that it made no promises about what it might do in the future with respect to States of Grace because it could not foresee every "context" in which the photographs might arise. Due to this equivocation, Mr. Silber, the publisher’s attorney informed the CEOS each time that the book or page proofs were imported into the United States. (The letters were copied to both the federal judge and the federal magistrate who oversaw the case and hearing.) One such letter, sent on June 5, 1992, advised the CEOS representative that
In order to accomplish this penultimate stage [of reviewing final proofs for States of Grace], I have instructed my client to have the final proofs sent to him from Hong Kong via Federal Express in care of my office on or about June 12, 1992. In doing so, neither I nor my client have any intent to violate any provision of federal law. The images contained in the final proofs are exactly the same images as were voluntarily returned by your office to my client on May 28, 1992. Thus, if the government has any objections to my client’s receipt of this package, please inform us by the close of business on June 10, 1992.
In each instance, the CEOS returned a letter advising the publisher and his attorney that the “United States Department of Justice does not give advisory opinions” and to proceed at their “peril” – but in each instance, the Department of Justice permitted the material to be imported. Copies of the book were imported in 1992, 1993 and 1994 without incident. In 1995, the book was held by United States Customs for two months, but the United States Attorney in charge of the case determined that the book was not contraband and admitted its importation into the United States as part of a commercial shipment.

The United States is not the only country to have officially permitted the importation of States of Grace. On 21 May 1998, States of Grace was admitted to New Zealand under the classification, “Unrestricted,” meaning suitable for all audiences.3

Proffer of Graham Ovenden (April 1992)

As the American hearing focused on a single image, Mr. Ovenden addressed it directly, but the artistic concerns are the same with all of his photographs.

“My intention in taking this photograph was multi-faceted. I have known the subject of the photograph, Maud, since she was very young and have photographed her from that time until she was well into her teens, as I have photographed other children, including my own daughter. She was the model for numerous of my paintings (including my paintings on the theme of “Alice in Wonderland”) which have hung in museums and galleries throughout Britain and her likeness appears several times in the monograph of my work [entitled Graham Ovenden] published by St. Martin’s Press.

“To be quite honest, I was rather shocked to learn that [the photograph in question] was considered lascivious and contrary to law in the United States. It hung in my show at the Olympus Gallery in 1984 and I have never considered it to be a work which concerns itself with sexuality in any untoward way or which focuses on Maud’s sexuality. My intention was to depict her as she was both physically and spiritually. I don’t differentiate the two. Both must be presented compassionately in an integrated fashion. Furthermore, to focus on only one aspect of the physical – for example, sexuality – would not only do an injustice to the subject, but would be insufficient artistically.

“Thus, this photograph is a portrait. It is a portrait of Maud during a physically and spiritually transient time of her life – just prior to pubescence – and it was my intention to make concrete and whole this transient experience. Thus, I think it would be improper to characterize the photograph as one aimed at depicting the genitals. Any sexuality that is depicted is part and parcel of the organic whole, not separate in any way.

“On another level, however, this is not a photograph of a girl at all, but a formal work of art, involving aesthetic considerations far beyond the mere depiction of nudity and involving symbolism which transcends the subject matter. On a formal level, there is the pure geometry of her pose, which was chosen by her. Though she is in an obviously relaxed and natural position, her pose gives her a distinctly cylindrical form which sets up a careful counterplay with the texture of the paper on which the image is printed. The use of natural lighting also creates an interplay between line and shadow, contrasting softness with solidity. One will find these formalistic concerns in my paintings as well.

“Symbolically-speaking, the image raises a number of issues which are of artistic and spiritual concern to me. Here we are dealing with feelings of the heart and the human yearning for Edenic simplicity – a state of grace, as it were, where there is neither sin nor corruption. The apple has yet to be eaten. Maud, of course, symbolizes this state in the photograph. At the same time, we see that the attainment of Eden is no easy task: the vulnerability of the child suggests, or rather confirms, the fragility of Eden, as well as its fleeting nature in the face of the concerns of the adult world, as well as those of modernity. I note that Mr. Coleman [see below] has also accurately assessed the photograph on a sociological level.

“The aesthetic and artistic concerns attendant to the creation of this work and its very content preclude any “lasciviousness” in this image. If Maud had been clothed, there would be no argument. She is not engaging in any behaviour which is inappropriate for her age. She is providing us with a view into her soul and psyche, not offering her body for display. Disrobing doesn’t make the pose, or this image, indecent. I approached the photographing of the image in the same way as I approach my work in general, whether it be photography or painting – that is, with an intellectual detachment and neutrality by which I am able to make conscious aesthetic decisions in order to express an emotional artistic statement.

“One must also consider that recording the image on film is still the beginning of the inquiry. The printing process which I employ with my photographs and the choices which present themselves in printing any given image involve difficult decisions and many hours of work. This particular photograph required printing the black-and-white negative onto x-ray film so that a large format contact print could be made. The print itself was created using a process known as “printing out,” in which the negative and paper are sandwiched between glass for exposure to the sun without the use of chemical developer. For this particular print, I used Ilford Gallery Matte black-and-white paper, which is no longer manufactured. The sun’s ultraviolet rays yield tones of purple, brick-red, pink and brown, which fix down into a more monochrome appearance.

“The prints of my work on this paper are not only unique in the sense that each one differs from the other depending upon the degree of exposure to the sun and the strength of the sun’s rays – but irreplaceable. The printing-out process, which I discovered and developed with respect to this particular paper, is difficult to master and requires a great deal of patience, as well as trial and error."

sog page44Supplementary Statement of Graham Ovenden (via letter predating preparation of the proffer) March 1992)

“Focusing on sexuality is not the point of my work at all. Sexuality is merely another attribute of the person. The notion that one would separate out the sexual from who the person is, is ludicrous. It would be insufficient artistically.

“If the figures in States of Grace were clothed, there would be no argument. Why then, when the clothing are removed, does it become problematic? Merely disrobing doesn't give the image or the model herself a sexual intent.

“Because of this moment of childhood which is so fleeting within the context of a lifespan, for those who are fortunate enough to be able to create imagery there is, I feel, a strong moral obligation actually to hold and make concrete such imagery. Of course you can look at such images out of context if you come at them with preconceptions. An example would be to take an innocent family snapshot and place it within the context of a porn magazine. Then put it in an arts journal. The thing itself remains neutral; the meaning one gets from the image is simply that which one lays upon it. If the image is considered obscene, that is the responsibility of the person observing it.

“The feelings I had personally in creating these images were neutral feelings, not erotic ones. The creation of my work is an intensely intellectual process which precludes focusing on such things as an intention to arouse sexually. The creative process, which involves thinking about the meaning of what I'm doing from taking the photograph itself to rendering it on paper, precludes any lascivious intent. My work utterly fails as pornography.

“Anyone looking at this work and seeing a work of pornography misses the fact that the child is not the art. This is not just a photograph of a girl, but a process. The model's posing is a miniscule part of that process. One needs to look at the entire alchemy of the work.

“My work also does not overlook the fact of sexual vulnerability, which is very real. Some of the darker images allude to this vulnerability which should not be read as sexual invitation. Does my work show sexuality? I wouldn't choose that word, and I want to take away the tendency to compartmentalize in this way. "Sexuality" is part and parcel of the organic and spiritual self, and inseparable from it."

Proffer of photography critic A.D. Coleman (May 1992)

“As a start, one might ask: What is the photographer’s attitude toward his subject? How is the photographer describing this girl? The answers to these questions like in an analysis of the actual physical space that the girl is occupying. Could she have gotten into the position she is in without the photographer’s assistance? Is there any visual evidence that she has been placed there by the photographer or some other person?

“There is no visual cue in the photograph to suggest that the subject is not familiar with the space within which she is depicted. The scene appears to be very natural, as if she had rested on just that spot on other occasions. There is no indication in the photograph that the girl is not at ease in this space. Within the space of the photograph, the girl has made herself as comfortable as possible. The proper assumption would be that she adopted the pose herself – hence her appearance of being physically relaxed and emotionally at ease.

“The photographer’s attitude may also be inquired of by analyzing the focal point of the photograph, which should be analyzed in a variety of aspects, no one of them necessarily more important than the other… In the photograph at issue, the brightest area would be the illumination coming from the window – the only lighting in the photograph is this natural light – and we should look next to the face, which makes reference to the window in being illuminated by it. The entire image is in uniform focus – the girl is in focus from head to toe, as is the wallpaper behind her. There is nothing in particular which is proximate to the edge of the picture frame. Initially, what we see is this girl, the light coming from the window, and her body in relation to the window. The girl’s genitals are definitely not a focal point in the photograph.

“If one studies the photograph further, we see what Ovenden is conveying symbolically. We see a girl depicted in a protected space where she is warm enough and comfortable enough to be nude. The relaxation of her body posture denotes this space as warm, dark and inviting. The photographer is not in very close proximity to the model, so that she would not have to be immediately aware of his presence. As the viewer, we’re given the impression of having the privilege of observing this girl, unbeknownst to her, in a very private moment. This is the theater of the image. But there is also the photographer and the collaboration of the girl with the photographer. She clearly feels comfortable with him and trusts him. While she would not have known how the image would look, one can see that she knew who she was there with and what that space was. If that had caused her any discomfort or fear, that could be read from her body language or facial expression.

“It would be exceedingly difficult to ascribe an intention on the part of the photographer to elicit a sexual response in the viewer or to titillate. What clues validate that conclusion? The image is unquestionably at the girl’s sexuality. All nudes necessarily address the subject of sexuality in some way. This depiction seems to be about this girl in a safe, indoor, home environment. The window serves as the hint of a world outside and she appears to be reading that outside world with a bit of ambivalence. Maybe it’s not all safe out there. The girls senses her own femaleness, her nascent emergence into adolescence, but at the same time wants the comparative safety of childhood which that space offers.

sog page70“In relation to the other photographs in the book, the lack of intent to arouse any sexual desire becomes even more apparent… With respect to the images of States of Grace, there aren’t many in the project in which genitalia are visible, in which they’re optically highlighted in any way. That occurs in only a minority of images. This would suggest that the genitalia are not the central issue in the work, including in this photograph. The photographer has in two instances eliminated the genitals by spotting out or etching out, which clearly indicates that Ovenden is operating on an aesthetic basis in depicting his subject matter. The fact that he has removed them in some and not in others suggests that this wasn’t the focus of his work. Moreover, were the genitals of particular importance, he might have used a myriad of techniques to highlight the genitals. There were many photographic options. For example, by changing lenses or position or moving in closer he could have called attention to the girl’s genitals. Instead, he shows her as a full individual with a face, attached to a body."

Mr. Coleman wrote that essay in 1992, but it is relevant to Mr. Ovenden’s 2013 trial, where one of the charges of conviction, 2 images depicting Maud Hewes, were printed (badly) by the police in order to emphasise the genitalia; and where those two images and a single image of another model were found “indecent” wholly outside the context of Mr. Ovenden’s other work of those models and outside the context of his photographic work in general.

Proffer of Maud Hewes (May 1992)

“I have known Graham Ovenden as a family friend for fourteen years – since I was four years old. I have modeled for Graham on numerous occasions – in fact, too numerous to count – for both his photographs and paintings. I have modeled for him both clothed and fully nude, both alone and with other children. When I modeled for Graham, I would make up the poses and he would shoot them. Sometimes he made minor suggestions regarding how or where I would be looking – for example, he might ask me to have a contemplative expression – but the poses were of my choosing.

“The portrait which the United States has charged as indecent is a portrait of me as I was eight years ago. I am not acting in a sexual way in the picture and Graham never asked me to be sexual or treated me as a sexual object. The accusation that the image is “obscene” is, to me, an accusation that I am “obscene,” something to which I take offense.

“I can only ask the court to leave my image unmolested and to cease interfering with the publication and distribution of this book, which contains five images of me in total."

sog page58Excerpt from Amicus Curiae brief filed by the American Civil Liberties Union Arts Censorship Project and the New York Civil Liberties Union (May 1992)

A “friend-of-the-court” (amicus curiae) brief supporting the publication of States of Grace was filed by the American Civil Liberties Union Foundation Arts Censorship Project on behalf of itself and an “A-List” of arts organizations and individuals in America:
  • National Association of Artist’s Organizations (a national organization of 511 individual artists and arts organizations)
  • Eric Fischl (painter)
  • Allen Ginsberg (the late poet)
  • Dennis Barrie (then-Director of the Cincinnati Contemporary Arts Center, who successfully defended himself in an Ohio state court against child pornography charges related to two images of minors taken by Robert Mapplethorpe)
  • David A. Ross (then-Director of the Whitney Museum of American Art and a founding member of the Federal Advisory Committee on International Exhibitions which guides the National Endowment for the Arts and the United States Information Agency)
  • Carlos Gutierrez-Solana (former Director of the Visual Arts Program of the New York State Council on the Arts, and former Executive Director of Artists Space, the New York organization devoted to emerging artists and emerging ideas in contemporary art)
  • Martha Wilson (Founding Director of the Franklin Furnace (“On A mission To Make The World Safe For Avant-Garde Art”)
  • Barry Blinderman (former director of New York’s Semaphore Gallery, Director of Illinois State University Galleries and part-time professor of Art History at the College of Find Arts, Illinois State University)
  • Philip Yenawine (then-Director of Education at The Museum of Modern Art and consulting curator at the Institute for Contemporary Art (ICA), Boston, Massachusetts.)
  • Robert Atkins (art critic and author, historian and curator)
  • Lawrence Rinder (curator and art critic)
  • Galerie St. Etienne (a New York City gallery specializing in the work of 20th century German and Austrian expressionists, among them Egon Schiele, Gustav Klimt and Oscar Kokoschka)
  • A Photographer’s Place Bookstore, New York City
  • Camera Obscura Gallery, Denver Colorado (which has shown the work of Jock Sturges, Walter Chappelle, David Hamilton, Joel Meyerowitz and George Platt Lynes)
The inclusion of these organizations and individuals on the brief did not necessarily signify that they endorsed Mr. Ovenden’s work, but it did mean that they took it seriously as a bona fide work of art, not indecency. The argument was primarily a legal one, addressed to the criteria of American law, while drawing from the statements of Ms. Hewes, Mr. Ovenden and Mr. Coleman.

The excerpt from the brief:

“The Supreme Court in New York v. Ferber, 458 U.S. 747 {1982), ruled that child pornography is not protected by the First Amendment because of the compelling government interest in preventing the 'sexual exploitation and abuse of children.' Id. at 757. 'Where a definable class of materials bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.' Id. at 764.

“The need to protect children from sexual exploitation and abuse is thus at the core of legitimate governmental regulation in this area. The Court in Ferber recognized the dangers of censorship where definitions of child pornography are not strictly limited to visual depictions of children engaged in actual sexual conduct. See 458 U.S. at 764. Thus, although material need not meet the Miller v. California obscenity standard to qualify as child pornography, it must visually depict children engaged in sexual conduct, i.e., 'performing sexual acts or lewdly exhibiting their genitals.' Id. at 763.

“The lesson of Ferber is that where a child has not been sexually abused or exploited, there can be no basis for criminalizing a visual depiction of the child. Accordingly, a law that is not limited to depiction of actual sexual conduct, and that attempts to criminalize mere child nudity, would be unconstitutionally overbroad. Osborne v. Ohio, 110 S.Ct. 1691, 1698 (1990). Indeed, such a law would sweep within its scope many significant works of Western art, where nudes, including child nudes, are plentiful. {9} The 16 photographs submitted by the Defendant, including the famous Edward Weston portrait of his son Neil, illustrate the variety of child nudes represented in legitimate art photography. {10}
{9} Art scholar Kenneth Clark has written that the nude is, 'after all, the most serious of all subjects in art; … it was not an advocate of paganism who wrote, ''The Word was made flesh, and dwelt among us … full of grace and truth.'' K. Clark, The Nude: A Study in Ideal Form 29 (1956).
{10} Two of the other artists represented, both major figures in American photography, are Robert Mapplethorpe and Jock Sturges. Both have been the subjects of unsuccessful censorship efforts by state or federal authorities. Mapplethorpe’s photographs were the subject of the celebrated obscenity - child pornography prosecution of Cincinnati Contemporary Arts Center Director Dennis Barrie in 1990. Barrie was acquitted.
“Sturges was the subject of a search in April 1990 in which federal agents seized thousands of photographs, including many nonpornographic nudes of children individually or in family groups. Despite a massive, 1 1/2-year investigation, a San Francisco grand jury ultimately refused to indict Sturges. See American Library Assn v. Thornburgh, 1992 U.S. App. LEXIS 1994, p. 31 n.6 (D.C. Cir. Feb. 19, 1992)

“The most problematic part of the Ferber standard, of course, is the inclusion of 'lewd' or 'lascivious' 'exhibition of the genitals' within the definition of child pornography.4 See 458 U.S. at 765; 18 U.S.C. §2256(2). The courts have struggled to identify the factors that distinguish 'lewd' or 'lascivious' exhibitions from constitutionally-protected depictions of nudity which, by definition, include the genital area of the human body. Many courts have adopted the six-factor test of United States v. Dost, 636 F.Supp. 828, 832 (S.D. Cal. 1986) {11}; see, e.g., United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989); United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989); United States v. Nolan, 818 F.2d 1015, 1019 n.5 (1st Cir. 1987), although the Ninth Circuit, in reviewing the Dost decision, found the standard 'over-generous to the defendant.' United States v. Wiegand, 812 F.2d 1239, 1244, cert. denied, 484 U.S. 856 (1987). The critical point to keep in mind, however, whatever factors are considered relevant, is that the purpose of child pornography laws is to protect children from sexual exploitation. Ferber, supra; Wiegand, 812 F.2d at 1245 ('[t]he crime is the offense against the child'). If the child model is not being sexually exploited, then the image cannot legally constitute pornography. In the present case, based on the evidence submitted thus far {12}, amici believe it is unlikely in the extreme that the court could find that Ovenden photograph sexually exploits the child model. Five of the six Dost factors are probably not present at all, and the one that undoubtedly is present ('whether the child is fully or partially clothed, or nude') cannot by itself lead to a finding of child pornography. Osborne v. Ohio, supra. Nor does the government fare better under the Wiegand standard: it does not appear that the photographer organized the image 'to suit his particular lust,' see 812 F.2d at 1244, and the child is not 'photographed as a sexual object.' Id. Cf. Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341, 1343 n.4, 1355 n.44 (N.D.Tex. 1985) (child nudes with more explicit views of genitalia than in Ovenden's work do not constitute child pornography).
{11} The six factors are set out at pp. 9-10 of the defendant's brief.
{12} This evidence includes the photograph itself, the statements of Ovenden, Maud Hewes and A.D. Coleman, the comparative photographs, and the other photographs in the Hong Kong package which are to be part of one work entitled States of Grace.
“Evidence submitted thus far reinforces the likely conclusion that the work is not exploitative. Ovenden states that the model, Maud Hewes, is the daughter of his friend and fellow painter, Joseph Hewes, and that his photographs of her have appeared in numerous galleries and museums. Def.Br. & App. at 18. {13} The particular work hung in his 1984 show at the Olympus Gallery. Id. It is a portrait, intended to 'depict her as she was, both physically and spiritually,' at a 'transient time in her life ... and it was my intention to make concrete and whole this transient experience.' Id. at 18-19. Ovenden also describes his formal concerns: the 'pure geometry of her pose,' her 'relaxed and natural position,' and the 'interplay between line and shadow' created by his use of natural light. Id. at 19. Finally, the artist explains the symbolic issues raised by the image:
Here we are dealing with feelings of the heart and the human yearning for edenic simplicity -- a state of grace, as it were, where there is neither sin nor corruption. The apple has yet to be eaten. Maud, of course, symbolizes this state in the photograph.
Id. at 19.
{13} Maud Hewes' own statement, id. at 45, corroborates Ovenden's. She modeled for Ovenden on numerous occasions throughout her childhood. In the photograph in question, she says, 'I am not acting in a sexual way … and Graham never asked me to be sexual.' She emphasizes that she, not he, made up the poses.
“Similarly, art critic A.D. Coleman views the model's pose as comfortable and 'physically relaxed.' Id. at 28. The focal point is not the girl's genital area but her entire form as illuminated by the light coming in from the window. Id. at 28-19. The girl is in a safe, protective space. If her pose had 'caused her any discomfort or fear, that could be read from her body language or facial expression.' Id. at 29. {14} In sum, whether viewed individually or as part of the entire book, States of Grace, Ovenden's portrait of Maud Hewes appears plainly to be a photograph with genuine artistic, not pornographic, intentions, and thus a constitutionally-protected work of art.
{14} That the image, on a symbolic level, is in part 'about the girl's sexuality,' because '[a]ll nudes necessarily address the subject of sexuality in some way,' id. at 29, does not mean that it is pornographic or exploits the child model. Cf. Roth v. United States, 354 U.S. 476, 487 (1957).
“For the foregoing reasons, the defendant's motion to suppress or for return of the Ovenden photographs should be granted."

Introduction to States of Grace (© 1990, reprinted with permission)

sog page24“Since the invention of photography, nude representations have been largely confined, on the one hand, to abstractions of form and light, and on the other hand, to images, the specific purpose of which is to arouse sexually or to suggest sexual desires and acts. With respect to the former, much nude photography has seemed but as excuse for public displays and enjoyment of (mostly) female nudity. There, the erotic power and beauty of the naked body is treated as if it were not a suitable subject for polite society and so formalism is substituted for clothing. With respect to the latter, there is often an idealization and objectification of participants -- as if sexuality were experienced and practiced, not by real people, but by mere symbols of desire. Nudity (or the subject herself) is thus manipulated to fulfill the irrational demands of fantasy. (Where the nudity being manipulated was that of children, legal restrictions were understandably instituted.) At the same time, photographs in this genre often have the effect of reinforcing cultural standards of beauty. Rarely have nude photographs embodied an intentional discourse between photographer and subject. Rarer still have they spoken directly to the social meanings of nudity and the nature of sexuality as it is constituted in Western culture.

“The photographic work of Graham Ovenden stands in opposition to both the traditions of abstraction and objectification. Although Ovenden does speak to formal aesthetic concerns -- he is, after all, an artist, a master of form and light, geometry and juxtaposition -- abstraction and objectification have no place in his work. Rather, his work is a process of discovery of personhood in a very fundamental sense. Those formal elements found in Ovenden's photographs are not ends in themselves, but are there to communicate and accentuate the sense of wonder and mystery with which that process is imbued. All of this must be done with a great deal of care and solicitousness on the part of the artist and it can be said unqualifiedly of Ovenden that he is a trusted friend and teacher to his young subjects.

“The sexuality and physical bodies of the young are not, to be sure, improper subjects for artistic study. In fact, many photographers of the past and today -- among them Robert Demachy, Frank Meadow Sutcliffe, Wilhelm von Gloeden, George Platt Lynes, Edward Weston, Wynn Bullock, Christian Vogt, Starr Ockenga, Joel Meyerowitz, Jan Saudek, Cynthia Macadams, Irina Ionesco, Bernard Faucon, Sheila Metzner, Will McBride, Jock Sturges, and Sally Mann, to name a few -- have produced work which has addressed these subjects to varying degrees. Many of the themes touched upon by these and other photographers speak to larger social questions concerning children and sexuality and are unique to the "child nude". (It should come as no surprise that stripping one's subject of clothing at the same time strips her of certain interpretive contexts while posing others.) Among these themes are innocence and vulnerability, sometimes more poignant in the naked state; the affirmation and celebration of the often sombre beauty of child sexuality; the emergence of the child into adulthood; the interpersonal dialogue between parents and children through which the child learns about love, self and sensuality; the social construction of sexuality; and the development of gender identity in patriarchal culture. Like Balthus, Ovenden has chosen young girls (and landscapes as well) as vehicles by which to communicate a wide range of artistic concerns and feelings, from the physical to the spiritual. If we focus here upon the relationship between artist and subject and the process of mutual self-discovery, it is only because these raise the most urgent questions and are paramount to understanding Ovenden's work. Like Robert Mapplethorpe, whose homoerotic and sadomasochistic-tinged work shocked some conservative audiences and caused a furor among American arts administrators, Ovenden is willing to look unflinchingly and passionately at themes which have created great consternation and feelings of uncertainty in both contemporary art and politics. But unlike Mapplethorpe, whose work was, in the words of one critic, "predicated on trespassing the boundaries of conventional mores," Ovenden's work is predicated on revealing a private world -- that of girlhood and his place in it as a privileged observer -- which undercuts conventional morality and renders it superfluous. Ovenden is not to shock, but to show what is.

“Absent from Ovenden's work are the clichés too often seen in the work of sentimentalists: the stuffed animals and other accoutrements of girlhood, the facial expressions and poses which feign adulthood, the soft focus techniques which sentimentalize beauty and hide imperfections. Also absent are strident political statements or confrontations. All of these would be incongruous with Ovenden's artistic vision and would violate his sensibility. His subjects are neither idealized nor ideal. They are real girls, with all the faults, shortcomings, virtues and strengths of real people. Moreover, if they are beautiful in the conventional sense, they are so in spite of convention. "I have never seen a little girl that wasn't beautiful in her own way," Ovenden emphasizes. “By this, Ovenden does not mean that he is enthralled with every little girl he sees, but that he accepts the subjects of his work in all their humanity. Thus Ovenden is unwilling to sacrifice the integrity of his subjects in order to make an artistic, let alone a political, statement. His subjects are not adults, but neither are they to be treated as less than equals of the artist. Most importantly, they must be represented as who they are, who they may become, and what their relationship is to the world and to this artist whom they have permitted entry into their lives.

“The deep regard with which Ovenden has treated his subjects in this process is indisputable. Thus, if the girls in Ovenden's photographs appear serious, reflective, or even wistful, it is due to the fact Ovenden takes his responsibility to his subjects very seriously and his subjects, in turn, recognize their own responsibility in the process. One former Ovenden subject, whose likeness appears in this volume, says of her experience as a child:
There was a freedom about it -- not just being myself, but it showed other possibilities, different from everyday situations. It was nice to be accepted on the level that I was myself and he didn't used to say 'this is so-and-so and she is 10 years old.' In this sense, it was very adult....

Graham didn't pose me that much. He used to just let me do things and he used to say "that's OK". It was quite spontaneous. Sometimes he might have said "pick up your chin" or he might have said something emotive, like "look far away" or things like that. I never felt that he took away "me" as a person.

One of the things that's very important, I feel, is that the work is very honest. However, erotic the pictures are, however they are provocative, they are honest pictures. We were there. We did those things. It's not like someone's faked it. I know that Graham's an artist, and not to take anything away from him, of course, but the thing is, the people are there. So, it exists and you can't pretend it doesn't exist and that sexuality doesn't exist. So the honesty, I think, is really important and I think people are just stuffy and have a lot of fears about what's okay and get confused about what's okay.... It was a very safe environment.
“Ovenden represents his young subjects outside the protected, insular world of childhood which most adults perceive as the child's realm of being, freed, if only for a brief moment, from adult demands and expectations. In doing so, Ovenden has revealed to us the richly inhabited inner world of his subjects, a realm of uncertainty, a time of testing and experimenting with power, with vulnerability, with sexuality, and with innocence, a world in which adult proscriptions on sexuality and desire have not been fully internalized and where romantic love has not mediated desire so as to dictate artificial modes of being -- in short, a state of grace. And what of the artist? He is renewed in the partaking of, and in bearing witness to, the process of discovery, the revelation of self mutually-experienced. Through his art, he is able to reflect upon that process, celebrate it with his subjects and, finally, share it with us. It is that process which is captured in the photographs contained in this volume."

In subsequent posts, artist-on-trial will publish statements from writers and critics who have addressed Mr. Ovenden’s work, both photographic and non-photographic, and answer the question of what motivates someone, and Mr. Ovenden in particular, to devote a substantial part of their artistic oeuvre to the depiction of young girls. In the face of the presumptions, projections, anxieties and fears that surround this subject matter, addressing these issues has become essential.


1For the Hetling affair, see, Steinbauer, Mary, “The Puzzling Case of the Faked Photographs,” Life Magazine, July 1981, pp. 10-14; and “Francis Hetling’s Victorian Waifs,” The Museum of Hoaxes,

2Page 54 of States of Grace is the image of Maud Hewes reproduced in grayscale on the Australian website, Novel Activist. The original is a “sun print,” examples of which are reproduced above. The sun prints do not reproduce well via scanning, which loses the richness and almost ethereal glow of the originals. This image of Ms. Hewes was NOT in contention or even in evidence at Mr. Ovenden’s 2013 trial.

The photographs from States of Grace shown here were chosen to highlight the beauty of Mr. Ovenden’s work without running afoul of potential censorship by the provider. I use “censorship” in its formal legal sense, because even though the provider is a business, not a government entity, it is in some ways at least as powerful as many governments in controlling content. (Moreover, unlike government entities, short of High Courts, that is, its decisions are non-appealable and final.) On the other hand, these images are representative of the content of at least a third of 64 images in States of Grace. There are 13 images in which the genitalia or pubic area of a model are visible or partially visible; 32 images in which one or more aureoles are visible (like one of the images shown here); a number of images in which the buttocks are visible in profile in addition to a breast being visible; and 3 images with a three-quarter or direct view of the buttocks.

3During the same month, New Zealand Customs also admitted as “Unrestricted” Evolution of Grace (Jock Sturges), Innocence in the Mirror (Angelo Cozzi), the books Hamilton’s Movie Bilitis and Dreams of a Young Girl (David Hamilton), and Chrysalides: Photodreams (Mauro Bertoncello). David Hamilton’s Private Collection and Twenty-Five Years of an Artist were classified as “Banned,” even though those books enjoyed wide distribution throughout Canada, the United States, Britain and Europe, and Twenty-Five Years of an Artist was published in Britain in 1993 by Aurum Press. Such decisions by governing authorities only underscore the fact that what is at play is not a genuine concern with protecting minors but, as one of Mr. Ovenden’s models noted about some people’s perceptions of this subject matter, “moral confusion.” “Classified Books from 1963 to 31 July 2009,” which was available in the form of an Excel spreadsheet, downloadable from the New Zealand Office of Film & Literature Classification. (The author retained a copy.)

4United States federal law does not criminalize depictions in which breasts or buttocks of minors are visible.

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