It was announced today that the Court of Appeal has agreed to hear the appeal by Graham Ovenden of his convictions under the Indecency with Children Act 1960. Although no date for a hearing has yet been set, the Court has indicated that the hearing will be held in open court, rather than "in camera," as is often the case with such convictions.
This blog has already discussed some of the issues on appeal. In the coming weeks, we will present additional issues that are likely to be considered by the high court.
This site is about British artist Graham Ovenden and his conviction on false charges of child abuse and so-called "indecent" images. It is also about his art.
Tuesday, September 17, 2013
Sunday, September 15, 2013
Graham Ovenden Not Guilty of Indecency Involving Witness JB
Most people (other than those who read this blog closely) falsely believe that Graham Ovenden has been found guilty of a "string of sex offences against children" that supposedly included dressing up his models in Victorian nighties, then blindfolding, disrobing and subjecting them to fellatio. None of that ever happened and Mr. Ovenden wasn't convicted on those charges or anything even remotely similar. Absurdly, he was convicted of five counts under the Indecency with Children Act 1960 for the "indecent act" of taking photographs -- not taking "indecent photographs." The two should not be confused, because in Mr. Ovenden's case, the supposed results of the "indecent acts" -- i.e., photographs -- were never shown to the jury. Indeed, in the case of Model X, the photographs that were alleged to have been taken "indecently" didn't even exist.
To be sure, in the case of both Model X and Maud Hewes (the only two former models involved in the indecent photographing counts), there existed photographs that, although not shown to the jury, could have been found to be "indecent" were the jurors to apply the lowest common denominator of current opinion regarding photographs of nude minors. However, convicting Mr. Ovenden for "indecent photographs" was not the objective of the prosecution: that is, the Crown Prosecution Service did not want to open the door to criticism from artists, photographers and indeed, the entire art establishment for condemning works of art. So instead the CPS based its case on phony sex charges (prompted for the most part by the police), and the novel theory that merely photographing nude minors could, in and of itself, and without any visual evidence, be an act of child molestation. Think about it: Model X testified that she "remembered" being photographed while nude and blindfolded, and on another occasion, while lying back, splayed out on some rocks. The fact that those photographs never existed (because the incidents never occurred) was irrelevant to the charge. The mere allegation that photographs were taken was sufficient to secure a conviction. Photographers should be very frightened by this expansion of the Indecency with Children Act 1960 and the mischief it is sure to bring to others besides Mr. Ovenden.
That brings us to the two remaining charges involving a third model, JB. At the outset, JB alleged three incidents. First, she claimed that when she was six she had a bath with Mr. Ovenden and another girl. Allegedly, Mr. Ovenden asked her to wash his "John Thomas." (The alleged incident involved no touching, just an invitation.) Second, JB claimed that when she was 7, Mr. Ovenden blindfolded her and played a "tasting game," culminating in his putting his penis in her mouth. Third, JB claimed that when she was ten Mr. Ovenden came up behind her, grabbed her breasts through her clothing and said "come on, let's have a feel."
Allegation number two, the tasting game, was disbelieved by the jury, while Mr. Ovenden was convicted on the first and third allegations. The discussion of these charges should be prefaced by a few facts that were not fully explored at trial, but which are salient nonetheless. Within a year of the alleged "let's have a feel" incident, JB asked Mr. Ovenden to photograph her naked, which he did. She was very proud of her breasts and a photo of her naked from head to toe appears in Graham Ovenden's monograph States of Grace. When she was asked about the photography session at trial, JB said she didn't remember it, and the photograph was never introduced because Mr. Ovenden's legal team were determined to keep States of Grace out of view of the jury. But her insouciant facial expression and open pose are not those of a girl who had to fight off an attack by the photographer not long before the photo session.(One can argue that it was a mistake not to introduce the book into evidence, but hindsight is always golden.) There is also evidence of a motive by JB to give false testimony. Long before the trial, JB and her mother took sides with Mr. Ovenden's ex-wife, Annie, in a bitter dispute over the Ovendens' collapsing marriage, Edmund Ovenden's misappropriation of equity in Barley Splatt and the removal of valuable photographs and other documents from Mr. Ovenden's possession. In fact, JB worked for Annie Ovenden: in 2010, she registered the domain for Annie Ovenden's website and thereafter remained the registrant and technical contact. (This fact was discovered after trial.) A friend of the Ovendens also witnessed a conversation between Annie and JB's mother regarding how they would "get" Graham. Mr. Ovenden's legal counsel must have felt strongly enough about how fraught the charges were that they didn't wish to air this dirty laundry.
In any event, there are ample grounds on which to appeal the convictions on these charges. Let's begin with the bath allegation, which JB said happened when she was six years old. There are three possibilities: 1) JB was willfully lying, 2) JB had a memory of an event that never occurred, or 3) JB remembered a real event. Facts already mentioned above suggest that JB was lying, but assuming, for sake of argument, that she actually had a memory of such an event, the task is then to determine whether the memory is true or false. This is not simply a matter of listening to JB's testimony and deciding whether her story is convincing. As memory expert Daniel L. Schacter has observed, "[p]eople incorrectly claim -- often with great confidence -- having experienced events that have not happened." (See, The Seven Sins of Memory: How the Mind Forgets and Remembers, Houghton Mifflin, 2001.) This is especially the case when witnesses rehearse their testimony with police officers, prosecutors and others (e.g., their mothers) and become "extremely confident about what they say -- even when they are incorrect." (Schacter, Searching for Memory: the Brain, the Mind and the Past, Basic Books 1996). A great deal has been learned since the early 1990s about how memory works and much of this knowledge flies in the face of the common understanding of the man on the Clapham omnibus that a memory is like a tape recording of what happened. For this reason, the British Psychological Society (BPS) produced its Guidelines on Memory and the Law: A Report from the Research Board of the British Psychological Society, written expressly for consideration by the CPS, police and defence solicitors. The following principles, designated as "Key points" in the Report, rather speak for themselves:
There was no independent corroborating evidence in JB's case. The "fact" of JB and her mother agreeing that JB disclosed the alleged incident when she was fifteen or sixteen (assuming, for the sake of argument, that this is true), does no more than corroborate the existence of a memory, not whether the memory is true. Independent corroborating evidence means evidence that is adduced or discovered contemporaneously with the alleged event and that directly supports one or more aspects of it. It does not mean a supposed conversation ten years later. Simply put, the CPS should never have prosecuted Mr. Ovenden on this charge.
What else is wrong with the two JB-related convictions? They are inconsistent with the acquittal on the third allegation, the so-called "tasting game" incident. The standard on voiding a conviction due to inconsistent verdicts is an exacting one. The burden is on the defendant to prove that the verdict is "unsafe," that is, that there is both "a logical inconsistency between the verdicts" and "no explanation" for the inconsistency. Dhillon [2010] EWCA Crim 1577, par. 33. There is no universal test for determining whether a verdict is "unsafe." However, in R v. Cross [2009] EWCA Crim 1533, the court found that verdicts would be inconsistent where:
Here, one needs to view the allegations by JB in the overall context of the case. First, the counts of conviction (the bath and "let's have a feel" incidents) were completely different from any other allegation in the case. Second, the only allegation by JB that was supported by a similar allegation -- the tasting game -- was thrown out by the jury. These two facts alone make out a prima facie case for "inconsistency."
Another factor to consider is that JB's credibility was at issue, since Mr. Ovenden denied that the three alleged events ever occurred. It might be argued that the testimony of JB's mother swayed the jury as to the bath incident, but it could not possibly explain the conviction on the "let's have a feel" count. Moreover, the convictions on these two counts came only after the jury had been deadlocked for four days and Judge Cottle instructed the jurors that they could convict by a majority. Consequently, the jury's decision has the hallmarks of a "compromise" where the jurors split the difference -- acquitting Mr. Ovenden on the more serious charge (one that was potentially corroborated by a similar allegation by LD), but convicting him on the two minor ones.
The closer one looks at the case against Graham Ovenden, the more one sees its vindictive heart. The case is replete with official corruption, from the coercion and coaching of witnesses, to novel applications of law, to bringing charges that should never have been brought. It is a rich irony, indeed, that in his petition to the Court of Appeal to put Mr. Ovenden behind bars, H.M. Attorney General cites as a consequence of Mr. Ovenden's supposed "abuse," the turmoil that the police and prosecution caused Model X and Maud Hewes -- turmoil, it must be said, that these witnesses never felt either when they modeled for Mr. Ovenden or when they looked back on their experiences in their twenties.
It is now up to the Court of Appeal to see that justice is done by reversing Mr. Ovenden's convictions.
To be sure, in the case of both Model X and Maud Hewes (the only two former models involved in the indecent photographing counts), there existed photographs that, although not shown to the jury, could have been found to be "indecent" were the jurors to apply the lowest common denominator of current opinion regarding photographs of nude minors. However, convicting Mr. Ovenden for "indecent photographs" was not the objective of the prosecution: that is, the Crown Prosecution Service did not want to open the door to criticism from artists, photographers and indeed, the entire art establishment for condemning works of art. So instead the CPS based its case on phony sex charges (prompted for the most part by the police), and the novel theory that merely photographing nude minors could, in and of itself, and without any visual evidence, be an act of child molestation. Think about it: Model X testified that she "remembered" being photographed while nude and blindfolded, and on another occasion, while lying back, splayed out on some rocks. The fact that those photographs never existed (because the incidents never occurred) was irrelevant to the charge. The mere allegation that photographs were taken was sufficient to secure a conviction. Photographers should be very frightened by this expansion of the Indecency with Children Act 1960 and the mischief it is sure to bring to others besides Mr. Ovenden.
That brings us to the two remaining charges involving a third model, JB. At the outset, JB alleged three incidents. First, she claimed that when she was six she had a bath with Mr. Ovenden and another girl. Allegedly, Mr. Ovenden asked her to wash his "John Thomas." (The alleged incident involved no touching, just an invitation.) Second, JB claimed that when she was 7, Mr. Ovenden blindfolded her and played a "tasting game," culminating in his putting his penis in her mouth. Third, JB claimed that when she was ten Mr. Ovenden came up behind her, grabbed her breasts through her clothing and said "come on, let's have a feel."
Allegation number two, the tasting game, was disbelieved by the jury, while Mr. Ovenden was convicted on the first and third allegations. The discussion of these charges should be prefaced by a few facts that were not fully explored at trial, but which are salient nonetheless. Within a year of the alleged "let's have a feel" incident, JB asked Mr. Ovenden to photograph her naked, which he did. She was very proud of her breasts and a photo of her naked from head to toe appears in Graham Ovenden's monograph States of Grace. When she was asked about the photography session at trial, JB said she didn't remember it, and the photograph was never introduced because Mr. Ovenden's legal team were determined to keep States of Grace out of view of the jury. But her insouciant facial expression and open pose are not those of a girl who had to fight off an attack by the photographer not long before the photo session.(One can argue that it was a mistake not to introduce the book into evidence, but hindsight is always golden.) There is also evidence of a motive by JB to give false testimony. Long before the trial, JB and her mother took sides with Mr. Ovenden's ex-wife, Annie, in a bitter dispute over the Ovendens' collapsing marriage, Edmund Ovenden's misappropriation of equity in Barley Splatt and the removal of valuable photographs and other documents from Mr. Ovenden's possession. In fact, JB worked for Annie Ovenden: in 2010, she registered the domain for Annie Ovenden's website and thereafter remained the registrant and technical contact. (This fact was discovered after trial.) A friend of the Ovendens also witnessed a conversation between Annie and JB's mother regarding how they would "get" Graham. Mr. Ovenden's legal counsel must have felt strongly enough about how fraught the charges were that they didn't wish to air this dirty laundry.
In any event, there are ample grounds on which to appeal the convictions on these charges. Let's begin with the bath allegation, which JB said happened when she was six years old. There are three possibilities: 1) JB was willfully lying, 2) JB had a memory of an event that never occurred, or 3) JB remembered a real event. Facts already mentioned above suggest that JB was lying, but assuming, for sake of argument, that she actually had a memory of such an event, the task is then to determine whether the memory is true or false. This is not simply a matter of listening to JB's testimony and deciding whether her story is convincing. As memory expert Daniel L. Schacter has observed, "[p]eople incorrectly claim -- often with great confidence -- having experienced events that have not happened." (See, The Seven Sins of Memory: How the Mind Forgets and Remembers, Houghton Mifflin, 2001.) This is especially the case when witnesses rehearse their testimony with police officers, prosecutors and others (e.g., their mothers) and become "extremely confident about what they say -- even when they are incorrect." (Schacter, Searching for Memory: the Brain, the Mind and the Past, Basic Books 1996). A great deal has been learned since the early 1990s about how memory works and much of this knowledge flies in the face of the common understanding of the man on the Clapham omnibus that a memory is like a tape recording of what happened. For this reason, the British Psychological Society (BPS) produced its Guidelines on Memory and the Law: A Report from the Research Board of the British Psychological Society, written expressly for consideration by the CPS, police and defence solicitors. The following principles, designated as "Key points" in the Report, rather speak for themselves:
- Remembering is a constructive process. Memories are mental constructions that bring together different types of knowledge in an act of remembering. As a consequence, memory is prone to error and is easily influenced by the recall environment, including police interviews and cross-examination in court.
- Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish the truth of a memory is with independent corroborating evidence.
- People can remember events that they have not in reality experienced. This does not necessarily entail deliberate deception. For example, an event that was imagined, was a blend of a number of different events, or that makes personal sense for some other reason, can come to be genuinely experienced as a memory, (these are often referred to as ‘confabulations’).
In general the accuracy of memories dating to below the age of about seven years cannot be established in the absence of independent corroborating evidence.
There was no independent corroborating evidence in JB's case. The "fact" of JB and her mother agreeing that JB disclosed the alleged incident when she was fifteen or sixteen (assuming, for the sake of argument, that this is true), does no more than corroborate the existence of a memory, not whether the memory is true. Independent corroborating evidence means evidence that is adduced or discovered contemporaneously with the alleged event and that directly supports one or more aspects of it. It does not mean a supposed conversation ten years later. Simply put, the CPS should never have prosecuted Mr. Ovenden on this charge.
What else is wrong with the two JB-related convictions? They are inconsistent with the acquittal on the third allegation, the so-called "tasting game" incident. The standard on voiding a conviction due to inconsistent verdicts is an exacting one. The burden is on the defendant to prove that the verdict is "unsafe," that is, that there is both "a logical inconsistency between the verdicts" and "no explanation" for the inconsistency. Dhillon [2010] EWCA Crim 1577, par. 33. There is no universal test for determining whether a verdict is "unsafe." However, in R v. Cross [2009] EWCA Crim 1533, the court found that verdicts would be inconsistent where:
They cannot possibly be explained by any line of reasoning which the jury could have adopted looking at the evidence as fair-minded ordinary people. The appellate court has to apply this test in the context of the issues which were presented to the jury, but that does not of course mean that a jury had to view the evidence bearing on those issues in the way that was argued for either by the prosecution or the defence.
Here, one needs to view the allegations by JB in the overall context of the case. First, the counts of conviction (the bath and "let's have a feel" incidents) were completely different from any other allegation in the case. Second, the only allegation by JB that was supported by a similar allegation -- the tasting game -- was thrown out by the jury. These two facts alone make out a prima facie case for "inconsistency."
Another factor to consider is that JB's credibility was at issue, since Mr. Ovenden denied that the three alleged events ever occurred. It might be argued that the testimony of JB's mother swayed the jury as to the bath incident, but it could not possibly explain the conviction on the "let's have a feel" count. Moreover, the convictions on these two counts came only after the jury had been deadlocked for four days and Judge Cottle instructed the jurors that they could convict by a majority. Consequently, the jury's decision has the hallmarks of a "compromise" where the jurors split the difference -- acquitting Mr. Ovenden on the more serious charge (one that was potentially corroborated by a similar allegation by LD), but convicting him on the two minor ones.
The closer one looks at the case against Graham Ovenden, the more one sees its vindictive heart. The case is replete with official corruption, from the coercion and coaching of witnesses, to novel applications of law, to bringing charges that should never have been brought. It is a rich irony, indeed, that in his petition to the Court of Appeal to put Mr. Ovenden behind bars, H.M. Attorney General cites as a consequence of Mr. Ovenden's supposed "abuse," the turmoil that the police and prosecution caused Model X and Maud Hewes -- turmoil, it must be said, that these witnesses never felt either when they modeled for Mr. Ovenden or when they looked back on their experiences in their twenties.
It is now up to the Court of Appeal to see that justice is done by reversing Mr. Ovenden's convictions.
Saturday, July 27, 2013
What Her Majesty's Attorney General Doesn't Want You to Know (Part 2)
When Graham Ovenden was convicted in April 2013 on two counts of “indecency with a child” with respect to photographing the witness identified here as “Model X,” the charges, which the police filed on her behalf, did not relate to any existing photographs. Rather, they related to imaginary photographs that exist only in Model X’s false memories – false memories that were created by the police during their interviews with her. This is no mere speculation.Model X did not come forward years later when she figured out what had happened to her. This was a lie that the prosecution fed the press and which the press dutifully reported. In reality, the police paid Model X an unsolicited visit in 2009 and attempted to get her to say she was blindfolded and molested. (The source for these allegations was Minty Challis, a/k/a Donna Berry.) Although the police never got Model X to allege molestation of any kind, they preyed on the inaccuracies of her memory and the clinical depression she developed in later adulthood to convince her that Mr. Ovenden had done something wrong. So how did the police find Model X in the first place? Mr. Ovenden gave them her address. He was obviously naïve to think that the police wouldn’t have their way with her.
The contrast between Model X’s written statement for the introduction to States of Grace at age 27 and her statement in 2009, at age 46, testifies to the power and will of the police to invent crimes where none exist. Here is what Model X wrote in her own hand in 1990, when she knew that several of her images would be reproduced in Graham Ovenden’s States of Grace:
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.
Now compare this resolute declaration with paragraphs 36 and 37 of the prosecution’s opening statement about what Model X would say when called to the witness box. (These paragraphs were simply regurgitated, complete with typographical error, by the Attorney General in his “Reference Under Section 36 of the Criminal Justice Act 1988,” recently submitted to the Court of Appeal, Criminal Division. Evidently the Attorney General couldn’t be bothered to find out what Model X actually said at trial.) The reader should keep in mind that these paragraphs are supposed to make out two separate “offences” of “indecency with a child:”"[Model X] was about 10 years old when the defendant took photographs of her at a time he was still living in London. This took place in a studio in an empty bedroom of the house. [Model X] remembers the defendant telling her that he wanted to recreate a ‘Little Blind Girl’ and he told her a story about a blind girl. Susannah was sitting on the floor. She was naked. The defendant put white sticky tape on her eyes. She couldn’t see. The defendant pushed the tape down. [Model X] didn’t know what the defendant was doing through she could hear him breathing as if he was holding his breath and then exhaling.
"When the defendant moved to Cornwall, [Model X] would visit the Offender’s home address with her family. The defendant photographed her outdoors. [Model X] remembered there being rocks up the hill from the house where the defendant photographed her naked. She remembers the rocks digging into her back as she lay across them. She can recall be [sic] stretched out in certain poses and feeling vulnerable."
As mentioned above in this posting and elsewhere on this blog, the prosecution did not introduce into evidence any photographs showing Model X fully naked with tape over her eyes or lying down on rocks. The authorities had dozens of photographs of Model X, but none of them fit the descriptions of these two alleged events. However, they did have photographs by Mr. Ovenden which plainly demonstrated that Model X’s memories were confabulated – that is, her recollections were based on true events, but contained crucial details that never occurred.
Model X testified that her eyes were taped, that she was totally naked, and that she was blindfolded only when she was alone with Mr. Ovenden. However, photographs in the possession of the authorities, reveal those details as false. Reproduced here are three photographs of Model X posing with another model on the day the “blindfold” photographs were taken. The blindfold is cloth, not tape, and Model X is wearing a white dress, open at the top. (One of the photographs served as the source image for a drawing about blind Justice that Mr. Ovenden made for a patron.*)
And if Mr. Ovenden told Model X a story about a blind girl, it would hardly be sinister: blind and blindfolded figures are not uncommon in the history of art. (See paintings above.) Still other photographs in the possession of the police show Model X seated, never lying, on rocks at Barley Splatt. When one of those images (shown above right) was introduced by the defense, Model X commented under oath that it was “lovely.” The implication that someone stretched Model X out over rocks is pure invention.
This is not to call Model X a liar. She undoubtedly believed that what she testified to was the truth. (The defense failed to confront her with her statement in States of Grace for reasons unknown to this writer.) But her memories – so graphically in conflict with both her recollections at age 27 and the photographs that Graham Ovenden actually took of her – are clearly false.The phenomenon of the confabulation of memory is well known, as attested to in the following précis by Dr. Ian Anderson, a Chartered Psychologist. Although Dr. Anderson did not consult in the Ovenden case, he clearly should have, as his observations would have helped the jury to understand how someone could have one set of memories of certain childhood experiences at age 27 but a drastically different set at age 46:
A lay view of memory function might well be characterized as a belief that memories are recorded and stored rather like an archive of video recordings to be retrieved and replayed at will. Research over decades has demonstrated that this is not accurate. The general view that psychologists hold of memory is that memories are stored not as whole narratives, but as fragments. Fragments of memory are reconstituted into narratives at the time of their retrieval. I would note that functions of memory are clearly much more complex than the description I have just given; but I believe my description represents a simple overview that accurately contrasts with the lay version of memory noted above.
Whatever the mechanisms of memory, most of us believe that our memories are more or less accurate. We also believe that we are better at remembering important events than trivial events. Research has consistently shown, however, that our memories are probably far less accurate than we believe them to be. Our memories are sufficient for most practical purposes as demonstrated by the fact that we can function in our day-to-day lives. But there are occasions when normal people in normal situations ‘remember’ things that have not occurred.
This ‘remembering’ of events that have not occurred is known in psychology as confabulation. Confabulation is also referred to in more general contexts as ‘False Memory Syndrome’ and sometimes ‘Recovered Memory Syndrome’. Confabulation of memory is one example of our brains/minds filling in the gaps of missing information in order to make sense of the world. Both our visual system and our auditory system also routinely perform this task, and indeed sometimes get it wrong.
I want to be clear that confabulation is a normal artifact of memory that happens to the healthily functioning brains/minds of most people at some time or another.
Some people are more prone to confabulation than others…. [T]here is a plethora of publications devoted to this phenomenon. I would draw attention to an article published as recently as 5 August 2010 (Mazzoni et al., 2010). In this study as many as one in five of the 1,600 participants reported clear recollections of incidents that they knew had never taken place. Most of the false memories reported by the now-adults in the study related to events between the ages of four and eight years old.
If a memory is confabulated a person who experiences that memory has in a sense invented the memory, although that person will not in any way be aware that it is an invention. In other words, confabulated memories are experienced as if they are the truth. Indeed, one of the ways that researchers are able on some occasions to identify clearly confabulated memories is by the certainty with which those who report those memories maintain them in the face of irrefutable evidence to the contrary.
Once a memory has been confabulated it is impossible to separate it from a real memory. Therefore, if a person can create a confabulated memory he or she can certainly maintain it consistently even though in a sense the memory is fabricated. Not only can the individual who experiences the memory not distinguish between a real memory and a confabulated memory, but research has also demonstrated that without external reference psychologists are no better at distinguishing confabulated memories from real memories than are others. However, there are some contextual factors and features that properly raise doubts in relation to the veracity of a memory when it is considered.
The research above also demonstrates that there are specific circumstances that are likely to increase the possibility of the creation of confabulated memories. “One set of circumstances that has been associated with the creation of confabulated memories is when a person has been the subject of certain types of psychological counselling or other interventions of psychological therapy.
There are many types of psychological interventions, sometimes known as ‘talking therapies’. It is by no means inevitable that a competently delivered form of psychological therapy will necessarily create confabulated memories. However, in order to comment as to whether a particular therapeutic intervention has the potential to create confabulated memories, it is necessary to consider both the style of therapy and the details of the ways in which the individual therapist delivered that therapy. “As I imply above in relation to potential for any therapeutic intervention to create a confabulated memory, the devil is in the details.
For completeness, I will add that the potential for confabulation as a result of therapeutic intervention probably arises for no better reason than the fact that talking therapy typically involves an intense interpersonal relationship between therapist and client focused upon specific problems in the client’s life and sometimes the reasons for those problems. In other words, although therapeutic interventions have a high potential to create confabulated memories, the fact of the matter is that any such conversation, interview, or discussion has this potential, and ‘talking therapy’ is merely a special case of this type of interaction.
Another set of circumstances that has been associated with the creation of confabulated memories is the investigating process itself, particularly the methods of interviewing used by, for example, the police. Such issues as interviewer expectations, specific types of questions (particularly leading questions), summaries that confirm interviewer expectations and omit or deny contrary information provided by witnesses, etc. are all things that have the potential to pollute memory.
I am not suggesting by the above that interviewers would necessarily intend to distort accurate recall; in fact, it may be the very intention to elicit accurate recall that sometimes creates the circumstances for confabulation. A lay person considering such interviews would not necessarily be able to point to specific interactions that have the potential to create confabulation: this requires an expert analysis.
In light of the fact that Model X has suffered from depression in adulthood and given the interventions by the police, who swooped down on Model X with a fury to “get” Graham Ovenden, it is clear that Model X’s testimony consisted not of accurate memories, but confabulations.
One can also sense just how deeply Model X was manipulated by the police. The Attorney General notes that in her victim impact statement, taken in 2013, Model X said that “giving evidence had been the worst experience of her life” and that “she had struggled with vague feeling [sic] throughout her life that she had been taken advantage of; throughout her life she had felt loneliness and isolation and felt very alone in her relationships.” These claims (quoted here from the Attorney General’s brief, not the victim impact statement), were, like Model X’s testimony, embroidered by the police. Applied to real child abuse, they might be believable, but here they are just tropes.
It’s no wonder that giving evidence was the worst experience of Model X’s life. She had her memory irreparably damaged and then discovered on cross-examination, when she was confronted with the photographic evidence, that something was truly amiss. This is something for which the police should be punished, not something for which Graham Ovenden should be held responsible.
*The title of the drawing is “Justice conducts the choir of innocents in her new anthem” and is reproduced here.
Monday, July 15, 2013
What Her Majesty's Attorney General Doesn't Want You To Know (Part 1)
In April of this year, Graham Ovenden was convicted on three counts of “indecency with a child” for taking unspecified photographs of Maud Hewes, who vigorously defended Mr. Ovenden's images of her -- and her experience of being photographed -- well into her twenties. (See, Trial Fails to Rewrite History of Graham Ovenden's Art for complete statements by Ms. Hewes, which are only summarized in this post.)
In March 1992, at age 18, Maud Hewes told Robert Atkins, then a reporter for the Village Voice, "When I modeled for Graham, I’d make up the poses and he’d shoot them. He never asked me to be sexy and I never tried to." Two months later she filed a sworn affidavit in the United States District Court in New York, stating that her image alleged to be child pornography "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." (The US government promptly dropped the charge on the day she would have testified in favor of her photo.)
When Mr. Ovenden was being persecuted by the Metropolitan Police in 1993, Ms. Hewes made the following declaration to police in one of her two sworn statements: "I decline the idea that any of the images of myself are indecent and emphatically state that I was never abused, or photographed/drawn by coercion."
Her interview together with Emily Ovenden in the documentary "For the Sake of the Children," showed throughout the U.K., confirms her earlier statements. Only in 2009, after the police came knocking yet again, did Mr. Hewes change her mind and decide that she shouldn’t have been photographed. No one pressured Maud Hewes to defend Graham Ovenden in the 1990s. To the contrary, she was under pressure to denounce Mr. Ovenden for 20 years.
At Mr. Ovenden's trial, police testified that they "lost" Ms. Hewes's two sworn statements to the police in 1993 that would have put the lie to at least three of the charges and undermined two other charges related to another model. Conveniently, the police and Ms. Hewes testified that although they knew she had been supportive of Mr. Ovenden, they didn't remember the specifics of what she said, and thus her statements that are reprinted here from secondary sources were inadmissible as evidence. Judge Cottle ruled that there was no harm and no foul.
That Graham Ovenden’s conviction on these charges is unjust, unfounded and a product of police mischief is patently obvious. Oh, and that "indecency"? It was merely for taking photographs when Ms. Hewes was naked. There wasn't any other "indecent" act on the record. The judge made that perfectly clear in his instructions to the jury.
An small (but highly relevant) excerpt from "For the Sake of the Children," which was part of the Channel 4 series Films of Fire, can be downloaded here, courtesy of Pigtails in Paint. The film was made in late 1996 (when Maud Hewes was 22) and shown on British television in 1997.
(Youtube took the clip down within 24 hours of being posted, probably due to the image of Emily Ovenden and Maud Hewes (nude in profile) or Ms. Hewes alone (from the waist up). Never mind that the the photographs are plainly legal in the United States (no genitalia displayed) and the film showed on broadcast television throughout the U.K. Mrs. Grundy is alive and well and working for Youtube...)
Graham Ovenden's suspended sentence was set to be reviewed by the Court of Appeal on Friday, July 26, 2013, but the Court of Appeal has now determined that it will reconsider the sentence only when it decides whether to accept the appeal of Mr. Ovenden's conviction. Of course, anything other than a reversal of the conviction will be a failure of justice.
In March 1992, at age 18, Maud Hewes told Robert Atkins, then a reporter for the Village Voice, "When I modeled for Graham, I’d make up the poses and he’d shoot them. He never asked me to be sexy and I never tried to." Two months later she filed a sworn affidavit in the United States District Court in New York, stating that her image alleged to be child pornography "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." (The US government promptly dropped the charge on the day she would have testified in favor of her photo.)
When Mr. Ovenden was being persecuted by the Metropolitan Police in 1993, Ms. Hewes made the following declaration to police in one of her two sworn statements: "I decline the idea that any of the images of myself are indecent and emphatically state that I was never abused, or photographed/drawn by coercion."
Her interview together with Emily Ovenden in the documentary "For the Sake of the Children," showed throughout the U.K., confirms her earlier statements. Only in 2009, after the police came knocking yet again, did Mr. Hewes change her mind and decide that she shouldn’t have been photographed. No one pressured Maud Hewes to defend Graham Ovenden in the 1990s. To the contrary, she was under pressure to denounce Mr. Ovenden for 20 years.
At Mr. Ovenden's trial, police testified that they "lost" Ms. Hewes's two sworn statements to the police in 1993 that would have put the lie to at least three of the charges and undermined two other charges related to another model. Conveniently, the police and Ms. Hewes testified that although they knew she had been supportive of Mr. Ovenden, they didn't remember the specifics of what she said, and thus her statements that are reprinted here from secondary sources were inadmissible as evidence. Judge Cottle ruled that there was no harm and no foul.
That Graham Ovenden’s conviction on these charges is unjust, unfounded and a product of police mischief is patently obvious. Oh, and that "indecency"? It was merely for taking photographs when Ms. Hewes was naked. There wasn't any other "indecent" act on the record. The judge made that perfectly clear in his instructions to the jury.
An small (but highly relevant) excerpt from "For the Sake of the Children," which was part of the Channel 4 series Films of Fire, can be downloaded here, courtesy of Pigtails in Paint. The film was made in late 1996 (when Maud Hewes was 22) and shown on British television in 1997.
(Youtube took the clip down within 24 hours of being posted, probably due to the image of Emily Ovenden and Maud Hewes (nude in profile) or Ms. Hewes alone (from the waist up). Never mind that the the photographs are plainly legal in the United States (no genitalia displayed) and the film showed on broadcast television throughout the U.K. Mrs. Grundy is alive and well and working for Youtube...)
Graham Ovenden's suspended sentence was set to be reviewed by the Court of Appeal on Friday, July 26, 2013, but the Court of Appeal has now determined that it will reconsider the sentence only when it decides whether to accept the appeal of Mr. Ovenden's conviction. Of course, anything other than a reversal of the conviction will be a failure of justice.
Sunday, July 7, 2013
Laurie Lee on Graham Ovenden's Art and Photography
Laurie Lee was a novelist and poet who is best known for having written Cider with Rosie, one of Britain's most popular books. A film version was produced by the BBC in 1971 and has shown on television on numerous occasions. It was Laurie Lee who gave the Brotherhood of Ruralists (of which Mr. Ovenden is a part) their name. Mr. Lee was an enthusiastic supporter of Graham Ovenden's work from the early 1970s until his death in 1987. Mr. Lee wrote the Forward to Graham Ovenden's eponymous monograph (Academy Editions/St. Martin's Press, 1987). It is reproduced below, along with the text of a brief introduction to an unpublished photographic monograph which was superseded by States of Grace.Laurie Lee
Foreword to Graham Ovenden (London: Academy Editions/St. Martin's Press, 1987).Graham Ovenden is a natural-born artist of acute originality and grace who has captured regions and perceptions unmistakably his own. Nor are his intense appreciations of the world restricted to a single medium: best known as painter and draughtsman, he is also freely involved in the practice of music, poetry, photography, design and the precise discipline of architecture.
Ovenden was an instinctive and self-directed artist from his beginnings; whilst still a child he was filling sketchbooks with both imaginary and direct drawings from nature. Amazingly, by the age of twelve -- having heard Wanda Landowska on the wireless -- he had built for himself a full scale harpsichord in good order and decorated it lavishly in the Claudian manner. This could, perhaps, be one of the earliest examples of his particular obsession: a love of harmony, yes, and of light and form which he has steadily perfected throughout the years. He is a man who not only reflects a world he wishes to see, but has also created from it keen and personal perspectives. It was some fifteen years ago when I first came to know Graham Ovenden's work, at a one-man show at the Piccadilly Gallery. I had wandered in by chance and was immediately entranced, not only by the brilliance of his landscapes, but also by his audacious explorations into almost forbidden territories -- among them a series of paintings of young girls, some nude or semi-nude, veiled by bands of shadow and light, whose faces, neither blossom-pretty nor waif-like wistful, showed that they were wiser in their brooding provocation and contained sexuality than any of their adult observers.
The reproductions in this book show some of these, together with the whole sweep of Ovenden's other skills and affections. We see here the full range of his landscapes, unexpected, unsentimental, but arresting for their luminous passion; studies of trees, the form of their roots and branches surrounded by a radiance of leaves and light. These landscapes belong to no other painter. Most of them are of the far West Country, many of them idyllic, others bearing the mysterious imprint of early man's presence on this land and the former life of the rocks.
Ovenden persuades us that these landscapes are also portraits -- there is mood and character in them. But it is the changing flow of light, set against the steadfastness of tree and stone, that seems happily to engage the artist, so that we see expanding cloudscapes, sweeps of water and waves, and often that brightest rural goddess of all -- the fertile and inconstant moon.Indeed the occasional presence of the full moon, basking above this rural amplitude, reminds one of the artist's acknowledged indebtedness to the oblique influences of his youth, Samuel Palmer and William Blake, and later, Graham Sutherland and Paul Nash. Even so, he is not an artist overstamped by influences. The world he offers comes from his own original vision, a romantic classicism wrapped in well-tempered truth.
The collection of works shown here, spans roughly thirty years, beginning with darkly observed photographs Ovenden made in the late 1950s reflecting the damp light of Rotherhithe and the East End, and an age of aproned street-children playing ancient games none of which will ever be seen again. We also have his figures in landscape, his superb portraits and his nudes which, as he says, are also primary portraits. Most nudes in art are little more than cyphers, bloodless clichés of complacent technique, all similar as garden gnomes. Ovenden's nudes are portraits, in that they are acutely observed studies of personality at exact points of time, each subject separate and caught in a moment of fate. They have names and faces, and the faces are often trapped in the suggestive stance of the body, as if not yet belonging to it, or not ready to acknowledge it. For the most part they are studies of young girls, at the time of questing, calculation, uncertainty and power, when the fluent prepubescence of mind and body has not yet been locked into a stiffened maturity.
This is one of Ovenden's outstanding gifts, the way in which he delineates with such tender perceptiveness the wayward witcheries of some of his younger models. Whether in pencil, paint, charcoal or conté, this lightness of touch and originality of view is visible throughout his work. In his Alice and Lolita prints, for example, a series of slumbers surprises, neither pretty nor shocking but haunting in their sombre assurance -- young visitors of night and dream; while his book illustrations, particularly those for Wuthering Heights, are of dimensions the book only hints at.His work in pencil can be as light as gossamer, but often conceals darker shadows beneath. This poetry also has an assured lightness of touch which sometimes hides far deeper implications. Graham Ovenden is a masterly enigma. There is no one like him. He is an artist of penetrative innocence who still rules his own private island. And this book is part of its treasure.
Laurie Lee
Introduction to Graham Ovenden Photographs (unpublished)
Graham Ovenden's photographic portraits and nudes of the girl child are in all probability the finest examples in Western Art.I remember autographing a copy of my Two Women for Graham in the mid eighties. I did so as a humble student to his masterful and utterly honest depictions of girlhood. Like his mentor, William Blake, Ovenden stands as a unique and powerful reminder of an authentic vision that has not been sullied by the neurosis and falsehoods of popular culture; nor that of the obsessive and immodest dictates of the law.
During one of the many discussions we have held together, Graham rightly pointed to the fact that within the foundations of our culture, the Humanism of Ancient Greece remains as a bedrock of sanity and rational behavior.* The total body of self is that of the Gods and what more so when depicting the wholesome beauty of our childhood. I well remember when my own Cider with Rosie was first published how some moralists picked on the natural sensuality of girlhood and tried their utmost to defame this series of essays based on my boyhood experiences. I hardly dare write this, but I now wish I had been more forthright in showing certain members of the public their puerile actions and minds, for they are the true pornographers.
God bless Graham Ovenden and his enigmatic art, it enriches us all.
- Laurie Lee, 1988
*[An example of that sanity might be seen in the words of Protagoras, a Greek philosopher and teacher who lived around the 5th century BCE: "As to gods, I have no means of knowing either that they exist or do not exist. For many are the obstacles that impede knowledge, both the obscurity of the question and the shortness of human life." -BW]
(Mr. Ovenden's nudes have not been reproduced here, as blogspot is in the habit of deleting blogs containing images of minors (even non-existent ones) under the guise of banning "child pornography," regardless of what the actual images depict. The importance of this blog lies primarily in the defence of Mr. Ovenden and his work, which is not child pornography and does not advocate or in any way support child abuse.)
Saturday, July 6, 2013
The Guardian's Yellow Journalism
This post is in response to a piece of hysterical vitriol by Deborah Orr, published yesterday online at The Guardian, Society's lenience belongs with Graham Ovenden's child portraits - in the past. Artist on Trial attempted to post a comment (leaving out the commentary below regarding Ms. Orr and reporter Steven Morris, and not referencing this blog), but each time the comment was deleted within a few minutes of posting, despite the fact that it in no way violated The Guardian's "community standards." One would have thought The Guardian was a serious newspaper, but in fact it has proved itself -- through opinion pieces like Orr's and reportage regarding Graham Ovenden over the past six months by Mr. Morris -- no better than the gutter press, passing off prosecutorial posturing and accusations dismissed at trial as "facts" and leaving the actual facts of the case unreported. This is the type of journalism that one can now expect from The Guardian: to be accused is to be guilty, and any defence, whether based on fact or in law, must be silenced.
The "indecency with a child" charges brought against Graham Ovenden (under the 1960 Indecency with Children Act) was a sinister ruse on the part of the Crown Prosecution Service to turn nude photographs, taken with the permission of the models and their parents, into "molestation" charges. But there was no molestation in connection with the photography. 5 of the 7 charges of which Mr. Ovenden was convicted involve ONLY taking nude photographs, with no touching, no coaching into poses, no undressing the models. And the two models whose images were the basis of those 5 charges strongly defended Mr. Ovenden during that liberal era, the 1990s, when they were in their 20s, stating plainly that they chose their own poses and Mr. Ovenden was only there to witness it.
When it came to the jury instructions on those 5 charges, the question put to the jury was whether or not they believed "that right minded people" would regard the taking of a photograph of a child while she is nude to be "something that was obviously indecent towards her." These were plainly trumped up charges, as the law requires a second limb, about which the jury was never properly instructed: "That the Defendant did the act intending to derive sexual satisfaction from the knowledge that the child was watching him." (R v Colin Francis 88 Cr App R 127, emphasis added.)
As any intelligent person will perceive from that latter language, this law was never intended to apply to mere photographing, but to indecent exposure or perhaps some act during photographing involving plain manipulation of the child -- of which there was none alleged amongst the 5 charges, as adduced at trial from the models themselves. It is a non-sequitur to ask whether a defendant who merely takes a photograph of a nude child intended to derive "sexual satisfaction from the knowledge that the child was watching him." Obviously the charges against Mr. Ovenden relating to photographs should have been brought (if at all) under the 1978 Protection of Children Act for "indecent" photos, but the CPS chose this route for two reasons. First, the photographs of one model were created prior to 1978, so the CPS would have been limited to charging Mr. Ovenden with possession of those images unless it could prove that he had printed them post-1978. Second, the CPS chose to proceed under the 1960 Act in order to brand Mr. Ovenden with the modern equivalent of "the scarlet letter" and so that moral entrepreneurs like Deborah Orr could rant hysterically about child abuse and rhetorically spit on Mr. Ovenden by calling him a "paedophile" -- thereby (so Ms. Orr believes) uttering the final word on the matter and condemnation of the artist for all time. In fact, Ms. Orr's call for an end to "leniency" is nothing more than an attack on ideas, a cry of paranoid intolerance that is characteristic of what has become an almost permanent state of panic surrounding child abuse. It has nothing to do at all with the actual protection of children.
As to the two remaining charges of conviction, Mr. Ovenden maintains that these are false. They involve a single model. One of the charges involves getting into a bath with her (at about age 6) and asking the girl to wash his "John Thomas." The other is cupping her chest from behind while she was clothed (at age 10) and saying "come on, let's have a feel." There are good reasons in the context of the trial to disbelieve these accusations -- reasons that will be elucidated during appeal, and of course discussed on this blog. In the meantime, Mr. Ovenden the artist is very much alive.
The "indecency with a child" charges brought against Graham Ovenden (under the 1960 Indecency with Children Act) was a sinister ruse on the part of the Crown Prosecution Service to turn nude photographs, taken with the permission of the models and their parents, into "molestation" charges. But there was no molestation in connection with the photography. 5 of the 7 charges of which Mr. Ovenden was convicted involve ONLY taking nude photographs, with no touching, no coaching into poses, no undressing the models. And the two models whose images were the basis of those 5 charges strongly defended Mr. Ovenden during that liberal era, the 1990s, when they were in their 20s, stating plainly that they chose their own poses and Mr. Ovenden was only there to witness it.
When it came to the jury instructions on those 5 charges, the question put to the jury was whether or not they believed "that right minded people" would regard the taking of a photograph of a child while she is nude to be "something that was obviously indecent towards her." These were plainly trumped up charges, as the law requires a second limb, about which the jury was never properly instructed: "That the Defendant did the act intending to derive sexual satisfaction from the knowledge that the child was watching him." (R v Colin Francis 88 Cr App R 127, emphasis added.)
As any intelligent person will perceive from that latter language, this law was never intended to apply to mere photographing, but to indecent exposure or perhaps some act during photographing involving plain manipulation of the child -- of which there was none alleged amongst the 5 charges, as adduced at trial from the models themselves. It is a non-sequitur to ask whether a defendant who merely takes a photograph of a nude child intended to derive "sexual satisfaction from the knowledge that the child was watching him." Obviously the charges against Mr. Ovenden relating to photographs should have been brought (if at all) under the 1978 Protection of Children Act for "indecent" photos, but the CPS chose this route for two reasons. First, the photographs of one model were created prior to 1978, so the CPS would have been limited to charging Mr. Ovenden with possession of those images unless it could prove that he had printed them post-1978. Second, the CPS chose to proceed under the 1960 Act in order to brand Mr. Ovenden with the modern equivalent of "the scarlet letter" and so that moral entrepreneurs like Deborah Orr could rant hysterically about child abuse and rhetorically spit on Mr. Ovenden by calling him a "paedophile" -- thereby (so Ms. Orr believes) uttering the final word on the matter and condemnation of the artist for all time. In fact, Ms. Orr's call for an end to "leniency" is nothing more than an attack on ideas, a cry of paranoid intolerance that is characteristic of what has become an almost permanent state of panic surrounding child abuse. It has nothing to do at all with the actual protection of children.
As to the two remaining charges of conviction, Mr. Ovenden maintains that these are false. They involve a single model. One of the charges involves getting into a bath with her (at about age 6) and asking the girl to wash his "John Thomas." The other is cupping her chest from behind while she was clothed (at age 10) and saying "come on, let's have a feel." There are good reasons in the context of the trial to disbelieve these accusations -- reasons that will be elucidated during appeal, and of course discussed on this blog. In the meantime, Mr. Ovenden the artist is very much alive.
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.
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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