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.
Showing posts with label Indecency with Children Act 1960. Show all posts
Showing posts with label Indecency with Children Act 1960. Show all posts
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.
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.
Wednesday, June 12, 2013
A correction, and a note about Graham Ovenden's "lenient" sentence
This blog previously misreported that one of the two "indecency" charges for which Graham Ovenden was convicted consisted of JB (sometime prior to age 6) washing his "John Thomas." In fact, whether she did (assuming it happened at all) was never established. As Judge Cottle pointed out at sentencing, the "crime" was in the asking. Judge Cottle went on to state that "asking a girl to touch him while they were in a bath together – could today be treated as inciting a child to engage in a sexual act, carrying a maximum jail sentence of 14 years."1
Judge Cottle intended this disingenuous little lie to express the extent of his contempt for the defendant, but it was soon turned against the judge himself by victim "advocates" and conspiracy theorists. If the offence would earn 14 years, they cried, why a suspended sentence?
First, Judge Cottle was well aware that the 14-year sentencing maximum is only effective for offences committed on or after 14th May 2007. Second, that maximum would only apply where the sexual activity alleged is penetrative:
Finally, retroactive application of sentencing guidelines is prohibited by paragraph 1 of Article 7 of the European Convention on Human Rights, to which the U.K. is a signatory:
Under these circumstances -- including the law in force at the time, the nature and gravity of the offence, the character of the defendant and the likelihood of re-offending -- it is obvious that no custodial sentence is mandated in this case.
So what is the talk about the Attorney General reviewing the sentence? Just talk. According to the CPS guidelines regarding sentence review,
Endnotes
1Morris, Steven, "Graham Ovenden walks free after judged no longer a sexual threat." The Guardian, 4 June 2013. http://www.guardian.co.uk/uk/2013/jun/04/graham-ovenden-judged-no-threat
2Rape & Sexual Offences, Section 2, Chapter 10: Causing or inciting a child to engage in sexual activity. http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/soa_2003_and_soa_1956/index.html#a23
3CPS Sentencing Manual, S8. Causing or Inciting a child under 13 to engage in sexual activity (discussing aggravating factors). http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/s8_causing_or_inciting_a_child_under_13_to_engage_in_sexual_activity/
4Article 7 of the European Convention on Human Rights. http://en.wikipedia.org/wiki/Article_7_of_the_European_Convention_on_Human_Rights
5Indecency with Children Act 1960, Timeline, Indecent Conduct Towards Child, paragraph 1. http://www.legislation.gov.uk/ukpga/Eliz2/8-9/33/section/1/1991-02-01?timeline=true
6CPS Sentencing Manual, Referral of Unduly Lenient Sentences. http://www.cps.gov.uk/legal/s_to_u/sentencing_-_general_principles/#a20
Judge Cottle intended this disingenuous little lie to express the extent of his contempt for the defendant, but it was soon turned against the judge himself by victim "advocates" and conspiracy theorists. If the offence would earn 14 years, they cried, why a suspended sentence?
First, Judge Cottle was well aware that the 14-year sentencing maximum is only effective for offences committed on or after 14th May 2007. Second, that maximum would only apply where the sexual activity alleged is penetrative:
Section 10: Causing or inciting a child to engage in sexual activity
The elements of the offence are:
- (A) aged 18 or over intentionally causes or incites another person (B) to engage in an activity
- the activity is sexual, and
- either (B) is under 16 and (A) does not reasonably believe that B is 16 or over, or
- (B) is under 13.
The offences in sections 9 and 10 are indictable only with a maximum sentence of 14 years where penetration occurs within subsection (2) of those sections. [Emphasis added.]Third, the 14-year maximum could only be reached in the event of aggravating factors, none of which were even alleged in Mr. Ovenden's case. (The factors include whether the offender ejaculated or caused victim to ejaculate; whether there was a history of intimidation or coercion; whether the offence involved use of drugs, alcohol or other substance to facilitate the offence; whether the offender made threats to prevent victim reporting the incident; abduction or detention; and whether the offender was suffering from a sexually transmitted infection and was aware of it.)3
Finally, retroactive application of sentencing guidelines is prohibited by paragraph 1 of Article 7 of the European Convention on Human Rights, to which the U.K. is a signatory:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.4 [Emphasis added.]At the time the criminal offence in Mr. Ovenden's case was allegedly committed, the governing law was the Indecency with Children Act 1960, which carried a maximum term of two years for imprisonment on an indictment. (A summary offence earned a maximum term of up to 6 months or a fine of up to £400 or both.)5
Under these circumstances -- including the law in force at the time, the nature and gravity of the offence, the character of the defendant and the likelihood of re-offending -- it is obvious that no custodial sentence is mandated in this case.
So what is the talk about the Attorney General reviewing the sentence? Just talk. According to the CPS guidelines regarding sentence review,
"The Attorney General has a power to refer to the Court of Appeal any sentence which appears to be so lenient that it damages public confidence because it falls outside the range of sentences that the judge could reasonably have considered appropriate. ... The Court does not engage in "tinkering" with sentences, merely because they are marginally lower than might be expected, having regard to the sentencing guidelines or case law.6 [Emphasis added.]
Endnotes
1Morris, Steven, "Graham Ovenden walks free after judged no longer a sexual threat." The Guardian, 4 June 2013. http://www.guardian.co.uk/uk/2013/jun/04/graham-ovenden-judged-no-threat
2Rape & Sexual Offences, Section 2, Chapter 10: Causing or inciting a child to engage in sexual activity. http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/soa_2003_and_soa_1956/index.html#a23
3CPS Sentencing Manual, S8. Causing or Inciting a child under 13 to engage in sexual activity (discussing aggravating factors). http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/s8_causing_or_inciting_a_child_under_13_to_engage_in_sexual_activity/
4Article 7 of the European Convention on Human Rights. http://en.wikipedia.org/wiki/Article_7_of_the_European_Convention_on_Human_Rights
5Indecency with Children Act 1960, Timeline, Indecent Conduct Towards Child, paragraph 1. http://www.legislation.gov.uk/ukpga/Eliz2/8-9/33/section/1/1991-02-01?timeline=true
6CPS Sentencing Manual, Referral of Unduly Lenient Sentences. http://www.cps.gov.uk/legal/s_to_u/sentencing_-_general_principles/#a20
Subscribe to:
Posts (Atom)