Tuesday, July 2, 2013

Ovenden Sentence to Be Reviewed, But a Sentence for What?

The Attorney General announced today that his office would be reviewing Graham Ovenden's sentence, which some have complained is "unduly lenient." As previously discussed here, "leniency" is not in itself a reason to revise a sentence. Rather, as the CPS guidelines regarding sentence review state, a sentence may be revised upward only if "it falls outside the range of sentences that the judge could reasonably have considered appropriate."

Those who complain about leniency do so either out of sheer ignorance as to the counts for which Mr. Ovenden was convicted or as a matter of political advocacy that has the unfortunate effect of moving the U.K. ever-closer to the vindictive mentality that prevails in the United States with regard to sex offenses - a vindictiveness that is, one should not hasten to note, not embraced by any other member of the European Community.

Previous discussions of the counts of conviction on this blog were somewhat in error and will be corrected shortly. They were nothing, however, like the errors committed by the mainstream press, which has consistently claimed that Mr. Ovenden dressed up his models and undressed, then molested them while he painted or photographed them. These were lies advanced by the prosecution, but they did not prevail at trial.

Five of the seven counts were in relation to Graham Ovenden photographing two models, Maud Hewes (Counts 10, 11 and 12) and the model who will be referred to as Model X (Counts 1 and 2). Model X is the one who was photographed with a blindfold on for drawings that Mr. Ovenden was preparing. (The photograph is reproduced as Ref05 here.) She is also the model whose written statement was reproduced in the introduction to States of Grace (reproduced here)

What happened during these photography sessions? According to the evidence, and the judge's instructions, NOTHING HAPPENED other than the taking of photos. There was no molestation, no allegations of touching, no manipulation of the models into particular poses, no inappropriate comments.

The Photography Counts

Count One (Indecency with a child, section 1(1) Indecency with Children Act 1960 ("1960 Act"))

Judge Cottle's instructions: "Count 1 relates to a particular occasion [Model X] recalls when Defendant stuck tape over her eyes and photographed her naked. To convict Defendant of the allegation in this count, you will have to be sure that such an event occurred and secondly, that the act of taking a nude photograph of her in those circumstances was an act that right minded people would regard as an obviously indecent act towards her. Defendant says that he never stuck tape over her eyes, although he may on one occasion have blindfolded her and taken a photograph of her clothed and blindfolded in the process of pursuing an artistic project. ... Therefore you have a question of fact to decide. If you are not sure that the event described by [Model X] occurred you will find D not guilty. If you are sure it did occur, are you sure that Defendant committed an act towards [Model X] that right minded people would regard as obviously indecent. If you are sure of that you will find Defendant guilty."

Verdict: Guilty (unanimous).

Supporting evidence: The model's testimony regarding a photographic session that allegedly occurred between 22 August 1972 and 21 August 1973 was the sole evidence on the count. There were no photographs evidencing this alleged act. As to the photograph of Model X with a blindfold (and in which she is not naked) , the judge instructed the jury that: "You will recall that when being cross examined a photograph was produced and shown to [Model X]. This is not a photograph upon which this count is based; this photograph is not a photograph of the event that [Model X] was describing."

Count Two (Indecency with a child, 1960 Act)

Judge Cottle's instructions: "In relation to Count 2 there is no dispute that Defendant took a photo of [Model X]as a young child lying on her back across the rocks, naked. Defendant says that this was not indecent. The question that you must ask is whether or not you are sure that right minded people would regard the taking of a photograph in those circumstances as something that was obviously indecent towards her. If you are sure of that you will find Defendant guilty; if you are not sure you will find him not guilty."

Verdict: Guilty (by majority, 10-2).

Supporting evidence: As with Count 1, this conduct was alleged to have taken place between 22 August 1972 and 21 August 1973. There were no photographs introduced that supported the theory that the model was photographed lying on the rocks. In fact, Model X was photographed sitting, not lying, on the rocks. Two of those images (one published in States of Grace), neither of which showed her genitalia, were submitted to her during trial and she described one of them as "lovely."

Counts Ten, Eleven and Twelve (Indecency with a child, 1960 Act)

Judge Cottle's instructions: "There is no dispute that over a number of years when [Maud Hewes] was aged between 8 and 14, Defendant took photographs of [her]; they included naked photographs and her genitalia were exposed. You have been provided with two examples of such photographs.; [Hewes] says that she was between 8 and ten when these particular photographs were taken. Count 10 relates to the period when [Hewes] was aged between 6 and 8, Count 11 to the period between the ages of 9 and 11 and Count 12 to the period between the ages of 11 and 14; to convict Defendant of the offence alleged you have to be sure that on at least one occasion during the period particularised Defendant committed the offence. The issue on each one of these three counts is the same as in relation to Counts 1 and 2, namely, are you sure that taking a photograph of a young child naked with her genitalia exposed was an act that right minded people would consider to be obviously indecent towards the child. If you are sure it was you will find Defendant guilty, if you are not sure it was you will find him not guilty."

Verdict: Guity on all 3 counts (unanimous)

Supporting evidence: The two photographs exhibited by the prosecution show Ms. Hewes sitting with her legs open. These photographs were printed by the police from Mr. Ovenden's negatives, and in such a manner as to emphasize the genitalia. Mr. Ovenden himself never printed those images. The jury did not view the image of Ms. Hewes that became famous after it was determined not to be child pornography under U.S. law. (It is reproduced here.) In the late 2000s, while the the police were busy visiting Mr. Ovenden's former models and pressuring them to testify, and while the CPS was trying to decide what charges to bring against Mr. Ovenden, that image of Ms. Hewes toured Europe as part of a show mounted by the Musée de l’Elysée in Lausanne. It was also published in the European edition of Controverses: Une histoire juridique et éthique de la photographie (2008).

In cross-examination, Ms. Hewes agreed that she consented to the taking of the photographs and was not ashamed by them. She agreed that she was supportive of Mr. Ovenden and his work for many years, including into the 1990s. She agreed she made statements supportive of Mr. Ovenden to the police in 1993 and in a television documentary in 1997, but she could not remember specifics. The defence did not introduce these statements into evidence. (The police claim they lost the file containing her statement from 1993 and the copy of that statement reproduced on this blog was not then available to the defence.)

The Alleged Molestation Counts

As previously recounted on this blog, JB alleged two incidents of "molestation." I use that in quotation marks because they are incidents that are wholly invented and arose not because she only realised many years later what had happened to her, but because Mr. Ovenden was locked in a battle with his soon-to-be-ex-wife and his son, Edmund Ovenden. JB is married to Edmund's best friend. She is the web master for Mrs. Ovenden's website.

Count Seven (Indecency with a child, 1960 Act)

The Alleged Crime: indecency with a child between 29 October 1980 and 28 October 1981, when JB was six years of age. The count alleged that the Defendant climbed naked into a bath she was occupying with another girl and that he was aroused and invited them to wash his "John Thomas."

Verdict: Guilty (10-2, by majority)

Count Nine (Indecent assault, section 14(1) of the Sexual Offences Act 1956)

The Alleged Crime: indecent assualt between 29 October 1984 and 15 September 1985, when Mr. Ovenden was alleged to have approached her from behind and cupped his hands over her breasts (although she claimed she was clothed at the time) and said "come on let's have a feel."

Verdict: Guilty (10-2, by majority)

Supporting evidence:
Although the count stated that she was six years of age, JB testified that she was actually unsure when the bath incident was supposed to have taken place. Also, she testified that she didn't realise until some years later that Mr. Ovenden was erect when he got into the bath. Even if one assumes that JB believes the incident to have occurred, this manner of "recollection" has all the hallmarks of a confabulation, which will be covered in a separate post. The British Psychological Society has also stated that recollections to alleged events below the age of 7 should not be the basis for criminal charges unless there is corroborating evidence. The fact that JB's mother testified that JB told about the bath incident (but not the breast-grabbing incident) when JB was around 15 or 16 is not corroboration that the bath incident did in fact occur.* Indeed, JB and her mother told different stories about the bath incident. The only point of certainty regarding the second incident is that within several months to a year following it, JB voluntarily posed fully nude for Graham Ovenden. We know that because the image, taken in 1986, was published in States of Grace. No allegations were brought that Mr. Ovenden committed indecency by taking photographs of her.

*(It was previously mentioned here that JB's mother testified that JB told her about both incidents, but the draft of Prosecutor Ramsay Quaife's opening argument clarified that point: "[JB] did not make any complaint at the time [of the incident]. However, [JB] says that she did tell her mother, [ ], about the bath incident when she was about 15 or 16 years old and you will hear from her mother than she recalls her daughter saying something about it to her." Thus, JB didn't claim to have told her mother about the breast-grabbing incident or the tasting game -- both indecent assaults, had they actually occurred -- and JB's mother didn't testify that her daughter mentioned them. Presumably that would have been entirely too much for the jury to swallow.

The Dismissed Charges

The allegations made by JB and another model, LD, that Mr. Ovenden tricked them into performing fellatio (via the "tasting game") were rejected by the jury. There were a handful of other charges, including child cruelty and indecent assault, but when the alleged victims were called to testify, they denied the prosecution's claims and Judge Cottle was compelled to dismiss those charges. There were six different indictments in the case, the final one being brought in mid-trial, when Judge Cottle suggested that the indecent assault charges denied by Ms. Hewes should be converted to "indecency with a child" based on the mere fact of photography. Finally, there were allegations made by a fifth alleged victim, Donna Berry. She made all kinds of wild claims, but not even the CPS believed them and so they never went to trial.

Conclusion

The charges of conviction that Judge Cottle was faced with at sentencing are the charges of conviction fully described above. Although there is much to criticise in Judge Cottle's behavior both at trial and during sentencing, the sentence he handed down was well within the appropriate range, taking into consideration the nature of the charges, sentencing levels at the time the incidents are alleged to have occurred, Mr. Ovenden's age, and the fact that he hasn't photographed any children in over two decades. Judge Cottle was correct not to consider the agenda-driven hysteria of the so-called victim advocates and the paranoid rantings of neo-Nazis like David Icke, Chris Spivey and their followers. One wonders whether the same can be said of the Attorney General.


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