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:

• 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’).

These points are particularly salient with respect to adult memories of early childhood, which is why the Report warns: "Detailed and well-organized memories dating to events that occurred between seven to five years of age should be viewed with caution." JB's alleged memories of the (non-existent) event were nothing if not detailed and well-organized. Her memory was sequential and complete, told from beginning to end. It included where she sat in the bathtub, how Mr. Ovenden got in with an erect penis, how the other girl was asking to wash Mr. Ovenden's beard, how Mr. Ovenden repeatedly said to them "No, no, wash John Thomas. Go on, Go on," how she felt "uncomfortable," how the other girl washed said John Thomas a couple of times, how Mr. Ovenden then got out of the bath and came back with a camera, and how he took photographs of JB and the other girl in a green towel. (If you thought perhaps that there were photos of JB and other girl in a green towel, you would be wrong.) If the highly detailed nature of JB's "memory" didn't give the CPS pause about proceeding with that charge, then the age at which the event was alleged to have occurred should have. As the Report plainly states:

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.

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.

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.

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

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

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

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

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

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

Because the publication of States of Grace was the genesis of the persecution of Mr. Ovenden and his models in the U.K. (This writer doubting very much that those entrusted with enforcing the 1978 Protection of Children Act cared very much about the Hetling affair¹), a good place to begin the inquiry of what Mr. Ovenden’s photography means is in telling the story of the publication of States of Grace and its defense.

• Publisher’s Note from States of Grace
• Addendum to the Publisher’s Note
• Proffer of Graham Ovenden (via an affidavit filed in the United States District Court, Eastern District of New York)
• Supplementary Statements of Graham Ovenden (via letter predating preparation of the proffer)
• Proffer of photography critic A.D. Coleman (via affidavit)
• Proffer of Maud Hewes (via affidavit)
• Excerpt from Amicus Curiae brief filed by the American Civil Liberties Union Arts Censorship Project and the New Your Civil Liberties Union
• Introduction to States of Grace

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

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

“The subject's declaration is worth repeating here:

I have known Graham Ovenden as a family friend for fourteen years — since I was four years old. I have modeled for Graham on numerous occasions -- in fact, too numerous to count -- for both his photographs and paintings. I have modeled for him both clothed and fully nude, both alone and with other children.... The portrait which the United States has charged as indecent is a portrait of me as I was eight years ago. I am not acting in a sexual way in the picture and Graham never asked me to be sexual or treated me as a sexual object. The accusation that the image is obscene' is, to me, an accusation that I am 'obscene,' something to which I take offense.

“A.D. Coleman's prepared statement confirmed the fact that States of Grace simply contained no images depicting a 'lascivious exhibition of the genitals,' an act prohibited under U.S. law. Representatives of the American Civil Liberties Union were also present in the courtroom to support their brief in opposition to the government's attempt to censor States of Grace. (The ACLU Foundation Arts Censorship Project filed its brief on behalf of itself and numerous artists, museum and gallery directors, curators, critics, and booksellers.) As to the image on page 54, the ACLU brief stated: '[W]hether viewed individually or as part of the entire book, Ovenden's portrait appears plainly to be a photograph with genuine artistic, not pornographic intentions, and thus a constitutionally-protected work of art.'

“Despite the government's claim, and as the publisher's lawyer, Alan Silber, cogently argued, there is nothing lascivious or lewd about the images in States of Grace. These are beautiful images intended by the participants, in Ovenden's words, 'to make whole the transient experience of childhood.' The would-be censors also overlooked the more metaphysical side of States of Grace. As Ovenden attested in his affidavit filed with the court:

Symbolically speaking, we are dealing with feelings of the heart and the human yearning for Edenic simplicity - a state of grace, as it were, where there is neither sin nor corruption. The apple has yet to be eaten. The subject, of course, symbolizes this state in the photograph. At the same time, we see that the attainment of Eden is no easy task: the vulnerability of the child suggests, or rather confirms, the fragility of Eden, as well as its fleeting nature in the face of the concerns of the adult world and the demands of modernity.

“Ultimately no testimony was required at the May 27th hearing. In light of the subject's account of her experience, the statements proffered by Ovenden and Coleman, and the support of the ACLU and numerous individuals and organizations, the government reluctantly acknowledged defeat and returned the proofs.

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


Addendum to the Publisher’s Note

The story told above is somewhat simplified, but essentially truthful. At the 27 May 1992 hearing, a representative for the United States Department of Justice, Child Exploitation and Obscenity Section (CEOS) stated that it made no promises about what it might do in the future with respect to States of Grace because it could not foresee every "context" in which the photographs might arise. Due to this equivocation, Mr. Silber, the publisher’s attorney informed the CEOS each time that the book or page proofs were imported into the United States. (The letters were copied to both the federal judge and the federal magistrate who oversaw the case and hearing.) One such letter, sent on June 5, 1992, advised the CEOS representative that

In order to accomplish this penultimate stage [of reviewing final proofs for States of Grace], I have instructed my client to have the final proofs sent to him from Hong Kong via Federal Express in care of my office on or about June 12, 1992. In doing so, neither I nor my client have any intent to violate any provision of federal law. The images contained in the final proofs are exactly the same images as were voluntarily returned by your office to my client on May 28, 1992. Thus, if the government has any objections to my client’s receipt of this package, please inform us by the close of business on June 10, 1992.

In each instance, the CEOS returned a letter advising the publisher and his attorney that the “United States Department of Justice does not give advisory opinions” and to proceed at their “peril” – but in each instance, the Department of Justice permitted the material to be imported. Copies of the book were imported in 1992, 1993 and 1994 without incident. In 1995, the book was held by United States Customs for two months, but the United States Attorney in charge of the case determined that the book was not contraband and admitted its importation into the United States as part of a commercial shipment.

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


Proffer of Graham Ovenden (April 1992)

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


Proffer of Maud Hewes (May 1992)

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

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

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


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

A “friend-of-the-court” (amicus curiae) brief supporting the publication of States of Grace was filed by the American Civil Liberties Union Foundation Arts Censorship Project on behalf of itself and an “A-List” of arts organizations and individuals in America:

• National Association of Artist’s Organizations (a national organization of 511 individual artists and arts organizations)
• Eric Fischl (painter)
• Allen Ginsberg (the late poet)
• Dennis Barrie (then-Director of the Cincinnati Contemporary Arts Center, who successfully defended himself in an Ohio state court against child pornography charges related to two images of minors taken by Robert Mapplethorpe)
• David A. Ross (then-Director of the Whitney Museum of American Art and a founding member of the Federal Advisory Committee on International Exhibitions which guides the National Endowment for the Arts and the United States Information Agency)
• Carlos Gutierrez-Solana (former Director of the Visual Arts Program of the New York State Council on the Arts, and former Executive Director of Artists Space, the New York organization devoted to emerging artists and emerging ideas in contemporary art)
• Martha Wilson (Founding Director of the Franklin Furnace (“On A mission To Make The World Safe For Avant-Garde Art”)
• Barry Blinderman (former director of New York’s Semaphore Gallery, Director of Illinois State University Galleries and part-time professor of Art History at the College of Find Arts, Illinois State University)
• Philip Yenawine (then-Director of Education at The Museum of Modern Art and consulting curator at the Institute for Contemporary Art (ICA), Boston, Massachusetts.)
• Robert Atkins (art critic and author, historian and curator)
• Lawrence Rinder (curator and art critic)
• Galerie St. Etienne (a New York City gallery specializing in the work of 20th century German and Austrian expressionists, among them Egon Schiele, Gustav Klimt and Oscar Kokoschka)
• A Photographer’s Place Bookstore, New York City
• Camera Obscura Gallery, Denver Colorado (which has shown the work of Jock Sturges, Walter Chappelle, David Hamilton, Joel Meyerowitz and George Platt Lynes)

The inclusion of these organizations and individuals on the brief did not necessarily signify that they endorsed Mr. Ovenden’s work, but it did mean that they took it seriously as a bona fide work of art, not indecency. The argument was primarily a legal one, addressed to the criteria of American law, while drawing from the statements of Ms. Hewes, Mr. Ovenden and Mr. Coleman.

The excerpt from the brief:

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

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

“The lesson of Ferber is that where a child has not been sexually abused or exploited, there can be no basis for criminalizing a visual depiction of the child. Accordingly, a law that is not limited to depiction of actual sexual conduct, and that attempts to criminalize mere child nudity, would be unconstitutionally overbroad. Osborne v. Ohio, 110 S.Ct. 1691, 1698 (1990). Indeed, such a law would sweep within its scope many significant works of Western art, where nudes, including child nudes, are plentiful. {9} The 16 photographs submitted by the Defendant, including the famous Edward Weston portrait of his son Neil, illustrate the variety of child nudes represented in legitimate art photography. {10}

{9} Art scholar Kenneth Clark has written that the nude is, 'after all, the most serious of all subjects in art; … it was not an advocate of paganism who wrote, ''The Word was made flesh, and dwelt among us … full of grace and truth.'' K. Clark, The Nude: A Study in Ideal Form 29 (1956).
{10} Two of the other artists represented, both major figures in American photography, are Robert Mapplethorpe and Jock Sturges. Both have been the subjects of unsuccessful censorship efforts by state or federal authorities. Mapplethorpe’s photographs were the subject of the celebrated obscenity - child pornography prosecution of Cincinnati Contemporary Arts Center Director Dennis Barrie in 1990. Barrie was acquitted.

“Sturges was the subject of a search in April 1990 in which federal agents seized thousands of photographs, including many nonpornographic nudes of children individually or in family groups. Despite a massive, 1 1/2-year investigation, a San Francisco grand jury ultimately refused to indict Sturges. See American Library Assn v. Thornburgh, 1992 U.S. App. LEXIS 1994, p. 31 n.6 (D.C. Cir. Feb. 19, 1992)

“The most problematic part of the Ferber standard, of course, is the inclusion of 'lewd' or 'lascivious' 'exhibition of the genitals' within the definition of child pornography.⁴ See 458 U.S. at 765; 18 U.S.C. §2256(2). The courts have struggled to identify the factors that distinguish 'lewd' or 'lascivious' exhibitions from constitutionally-protected depictions of nudity which, by definition, include the genital area of the human body. Many courts have adopted the six-factor test of United States v. Dost, 636 F.Supp. 828, 832 (S.D. Cal. 1986) {11}; see, e.g., United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989); United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989); United States v. Nolan, 818 F.2d 1015, 1019 n.5 (1st Cir. 1987), although the Ninth Circuit, in reviewing the Dost decision, found the standard 'over-generous to the defendant.' United States v. Wiegand, 812 F.2d 1239, 1244, cert. denied, 484 U.S. 856 (1987). The critical point to keep in mind, however, whatever factors are considered relevant, is that the purpose of child pornography laws is to protect children from sexual exploitation. Ferber, supra; Wiegand, 812 F.2d at 1245 ('[t]he crime is the offense against the child'). If the child model is not being sexually exploited, then the image cannot legally constitute pornography. In the present case, based on the evidence submitted thus far {12}, amici believe it is unlikely in the extreme that the court could find that Ovenden photograph sexually exploits the child model. Five of the six Dost factors are probably not present at all, and the one that undoubtedly is present ('whether the child is fully or partially clothed, or nude') cannot by itself lead to a finding of child pornography. Osborne v. Ohio, supra. Nor does the government fare better under the Wiegand standard: it does not appear that the photographer organized the image 'to suit his particular lust,' see 812 F.2d at 1244, and the child is not 'photographed as a sexual object.' Id. Cf. Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341, 1343 n.4, 1355 n.44 (N.D.Tex. 1985) (child nudes with more explicit views of genitalia than in Ovenden's work do not constitute child pornography).

{11} The six factors are set out at pp. 9-10 of the defendant's brief.
{12} This evidence includes the photograph itself, the statements of Ovenden, Maud Hewes and A.D. Coleman, the comparative photographs, and the other photographs in the Hong Kong package which are to be part of one work entitled States of Grace.

“Evidence submitted thus far reinforces the likely conclusion that the work is not exploitative. Ovenden states that the model, Maud Hewes, is the daughter of his friend and fellow painter, Joseph Hewes, and that his photographs of her have appeared in numerous galleries and museums. Def.Br. & App. at 18. {13} The particular work hung in his 1984 show at the Olympus Gallery. Id. It is a portrait, intended to 'depict her as she was, both physically and spiritually,' at a 'transient time in her life ... and it was my intention to make concrete and whole this transient experience.' Id. at 18-19. Ovenden also describes his formal concerns: the 'pure geometry of her pose,' her 'relaxed and natural position,' and the 'interplay between line and shadow' created by his use of natural light. Id. at 19. Finally, the artist explains the symbolic issues raised by the image:

Here we are dealing with feelings of the heart and the human yearning for edenic simplicity -- a state of grace, as it were, where there is neither sin nor corruption. The apple has yet to be eaten. Maud, of course, symbolizes this state in the photograph.

Id. at 19.

{13} Maud Hewes' own statement, id. at 45, corroborates Ovenden's. She modeled for Ovenden on numerous occasions throughout her childhood. In the photograph in question, she says, 'I am not acting in a sexual way … and Graham never asked me to be sexual.' She emphasizes that she, not he, made up the poses.

“Similarly, art critic A.D. Coleman views the model's pose as comfortable and 'physically relaxed.' Id. at 28. The focal point is not the girl's genital area but her entire form as illuminated by the light coming in from the window. Id. at 28-19. The girl is in a safe, protective space. If her pose had 'caused her any discomfort or fear, that could be read from her body language or facial expression.' Id. at 29. {14} In sum, whether viewed individually or as part of the entire book, States of Grace, Ovenden's portrait of Maud Hewes appears plainly to be a photograph with genuine artistic, not pornographic, intentions, and thus a constitutionally-protected work of art.

{14} That the image, on a symbolic level, is in part 'about the girl's sexuality,' because '[a]ll nudes necessarily address the subject of sexuality in some way,' id. at 29, does not mean that it is pornographic or exploits the child model. Cf. Roth v. United States, 354 U.S. 476, 487 (1957).

“For the foregoing reasons, the defendant's motion to suppress or for return of the Ovenden photographs should be granted."


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

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

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

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

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

“The deep regard with which Ovenden has treated his subjects in this process is indisputable. Thus, if the girls in Ovenden's photographs appear serious, reflective, or even wistful, it is due to the fact Ovenden takes his responsibility to his subjects very seriously and his subjects, in turn, recognize their own responsibility in the process. One former Ovenden subject, whose likeness appears in this volume, says of her experience as a child:

There was a freedom about it -- not just being myself, but it showed other possibilities, different from everyday situations. It was nice to be accepted on the level that I was myself and he didn't used to say 'this is so-and-so and she is 10 years old.' In this sense, it was very adult....

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

One of the things that's very important, I feel, is that the work is very honest. However, erotic the pictures are, however they are provocative, they are honest pictures. We were there. We did those things. It's not like someone's faked it. I know that Graham's an artist, and not to take anything away from him, of course, but the thing is, the people are there. So, it exists and you can't pretend it doesn't exist and that sexuality doesn't exist. So the honesty, I think, is really important and I think people are just stuffy and have a lot of fears about what's okay and get confused about what's okay.... It was a very safe environment.

“Ovenden represents his young subjects outside the protected, insular world of childhood which most adults perceive as the child's realm of being, freed, if only for a brief moment, from adult demands and expectations. In doing so, Ovenden has revealed to us the richly inhabited inner world of his subjects, a realm of uncertainty, a time of testing and experimenting with power, with vulnerability, with sexuality, and with innocence, a world in which adult proscriptions on sexuality and desire have not been fully internalized and where romantic love has not mediated desire so as to dictate artificial modes of being -- in short, a state of grace. And what of the artist? He is renewed in the partaking of, and in bearing witness to, the process of discovery, the revelation of self mutually-experienced. Through his art, he is able to reflect upon that process, celebrate it with his subjects and, finally, share it with us. It is that process which is captured in the photographs contained in this volume."


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

Endnotes

¹For the Hetling affair, see, Steinbauer, Mary, “The Puzzling Case of the Faked Photographs,” Life Magazine, July 1981, pp. 10-14; and “Francis Hetling’s Victorian Waifs,” The Museum of Hoaxes, http://www.museumofhoaxes.com/hoax/photo_database/image/francis_hetlings_victorian_waifs/

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

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

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

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

Graham Ovenden's Photographs vs. The Vile Mindset

"For the Sake of the Children" was a documentary film that aired on British Television Channel Four on August 28, 1997. Written and presented by Nicky Akehurst, it covered a series of persecutions and prosecutions of various personages and photographers by the Metropolitan Police and New Scotland Yard squad during the mid-1990s, and raised the question of exactly whom the authorities were trying to protect when they seized photographs and books depicting nude minors.

In the 2010's, it is almost difficult to imagine any mainstream media defending such images, at least without fretting over whether the images might perhaps emanate from or provoke an erotic thought. As sociologist Dr. Tiffany Jenkins stated in an article on scotsman.com, entitled "Vile mindset pollutes depictions of innocence," in which she criticises the Tate Gallery's decision to remove Mr. Ovenden's artworks from its website and from public access, people now perceive all images of nude minors "through abuser-tinted glasses.... No picture of a young child is untainted by this mindset."¹

As it happens, and we will return to this theme is future posts, Graham Ovenden's art is not some kind of celebration of erotic attraction to young girls. Nor is it, as prosecutor Ramsay Quaife maintained, "a ruse" for abusing girls.² (This particular libel was disproved by the dismissals and acquittals on all the manufactured charges that Mr. Ovenden blindfolded and dressed up his models in order to molest and photograph them.) Mr. Ovenden's art depicting young girls is multifaceted. The paintings, drawings and graphic works of fictional subjects may engage the viewer on the themes of innocence and purity, sentimentality, corruption, defilement and danger, may play on archetypes like the angel-demon or the "seductress," or may represent the subjects as phenomena of other realms, supernatural or supra-natural phenomena existing outside of mere human corporeal existence. With respect to his photographs of young girls, however, the elements of danger and defilement are completely absent. This is because, first and foremost, Mr. Ovenden's photographs are a faithful dialogue with his subjects. For evidence of that fact, one should look no further than the clear-eyed statements made by Mr. Ovenden's subjects when they were young adults, not terribly far removed from their experiences of being photographed.

Previous posts have contained some of those statements, but nothing so public as the interview of Emily Ovenden and Maud Hewes from the documentary, "For the Sake of the Children." The interview is extraordinary for a number of reasons, not the least of which is that Ms. Hewes, age 23 at the time of the interview, no longer views the photographs as an expression of self and a source of pride. (The film also displayed numerous photographs by Mr. Ovenden depicting nude children, including those of his daughter and Ms. Hewes.) Going by her trial testimony, it is difficult to know precisely how Ms. Hewes now views the photographs. However, it is apparent that she wishes they never happened. This emotional revisionism could stem from any number of causes, but one may speculate that it was largely made possible by the "vile mindset."

from For the Sake of the Children.
Produced by Annie Dodds.
Directed by Bob Bentley.
Written and presented by Nicky Akehurst.
UK: October Films and Channel Four, 1997.
(Asterisks represent material intercut during the interview.)


Emily Ovenden: We've known each other since the beginning; we had a brilliant time!
Maud Hewes: Yeah! Me too.
Emily: It's like the Garden of Eden down there [at Barley Splatt]. It's beautiful!
Maud: Yeah, there's everything -- it's freedom -- there's woods and rivers…
Emily: We were swimming in the river all the time, we were camping, we made camps and rope things…
Maud: …And quite often we would ask...
Emily: …we WANTED to be photographed.
Maud: …to be photographed.
Emily: It would be like, Dad! Dad! Look at the outfits we've got…
Maud: …Look what we've done!
Emily: …Will you take pictures of us?
Maud: …We can do this story for you!
Emily: And really, it wasn't so much prompted from him, but rather from us.
***

Emily: I think the photographs Dad has taken are so far from pornography, they're just so far from it, that it never would have crossed our minds that that would have been taken like that, you know?
Maud: I'm not saying we ran about naked all the time or anything, but we weren't ashamed, we weren't taught to be ashamed about [it]…
Emily: No.
***

Emily: I think it's very dangerous for people to ignore the fact that young girls do have a sexuality. I think it's a very important part of growing up and being a woman. And to hide your body when you're a child, and to make it out that it's something dirty is, I think, very dangerous.
Maud: And wrong.
Emily: Yeah!
Maud: I'm not ashamed of any of my photographs: I'm proud. Many of my photographs are published -- they hang in collections -- they're nothing to be ashamed of at all.
***

Maud: When [the police] interviewed me and they looked at my photographs and they were sort of pointing at them and they were condemning -- they were "condemned," they were, like, "pornographic," and "Didn't I realise that these people had used me," and "I was just a child," and "I didn't know," and "how could I possibly know that's how it happened?" Basically [they said] I had been brainwashed, you know? But he was actually looking at images of myself when he was saying that: "Do you not think this is pornography? Look at this and this and this: is it not pornography?" And it's a picture of ME!
***

Maud: The other thing that they did was they took the photographs and they chopped them up -- they highlighted bits of them, or they showed a little bit of the photograph. It was completely out of context. And they'd be sort of going, "Oh… yeah…" And it WAS pornographic like that, in a sense.




Endnotes

¹Jenkins, Tiffany, "Vile mindset pollutes depictions of innocence." scotsman.com, 09 April 2013; http://www.scotsman.com/news/arts/comment-vile-mindset-pollutes-depictions-of-innocence-1-2883797

²"Artist Graham Ovenden's indecency case jury retires," BBC News, 26 March 2013; http://www.bbc.co.uk/news/uk-england-cornwall-21943329

Graham Ovenden will be sentenced on 04 June 2013.

The Fabrication of Charges Against Graham Ovenden

Graham Ovenden was acquitted by the jury of blindfolding his models and subjecting them to a “taste test” during which he was alleged to have indecently assaulted them. These accusations were laid on behalf of all four witnesses, but only two, JB and LD, chose to repeat the lie at trial. Their stories were disbelieved by the jury, most likely because they were contradicted by circumstantial evidence and mirrored each other so closely, that they smacked of collusion. One of these witnesses, JB, also accused Mr. Ovenden of two other isolated acts, for which the jury convicted Mr. Ovenden by a vote of 10-2. These “assaults” were completely unconnected with modelling, photo sessions or blindfolding and nowhere near the gravity of what one imagines when one hears the term “indecent assault.” These single incidents are worth repeating, even though they were also lies: First, that Mr. Ovenden allegedly got into a bathtub with her (when she was under the age of 6) and another girl, and asked her to wash his “John Thomas” with a washcloth. (The crime was in the asking; whether she actually did was not established.) Second, that Mr. Ovenden came up behind her (age 10) while she was clothed, reached around her and put his hands on her chest, saying “let me feel your tits.”

As to the two witnesses who refused to tell the “taste test” story and firmly stated, even under withering questioning by prosecutor Quaife, that they were never assaulted or abused by Mr. Ovenden in any way. Mr. Ovenden was also convicted of taking “indecent” photographs. The jury found 3 photographs to be indecent and convicted Mr. Ovenden on two “specimen” counts, each related to the act of taking the 3 photographs, as well as other photographs that the jury never saw. That these acts of photography were not “assaults” in any honest sense of the word can be readily understood from the fact that both of these witnesses, now age 50 and 39, respectively, supported Mr. Ovenden’s photographs of them when they were still in their 20s. This alone would seem newsworthy, but it was not reported anywhere in the British media.

Instead, when reporting Mr. Ovenden’s conviction on April 2, 2013, major newspapers (with the sole exception of The Telegraph), described as the counts of conviction precisely those charges of which Mr. Ovenden was acquitted:

The Times: “[Mr. Ovenden] abused children while they modeled for him.”¹

The Daily Mail: “Witnesses described how the artist would take his victims into his studio and make them wear Victorian-style clothing, before it was removed. He would also cover their eyes before abusing them, they told the court.”²

The Guardian: “They told how he would blindfold them and force them to take part in a "tasting game" that ended up in tricking them into taking part in oral abuse. ... [T]he jury clearly believed the testimony of some of the women who described abuse at Barley Splatt.”³

The Independent: “Witnesses described how Ovenden would take his victims into his studio and make them wear Victorian-style clothing, before it was removed. He would also cover their eyes before abusing them, they told the court.”⁴

Although The Telegraph did not report these particular lies about Mr. Ovenden’s conviction, it did repeat another lie that had been perpetrated by the prosecution and reported almost universally in the press: “The charges relate to four claimants, who contacted police long after the abuse is alleged to have taken place, and only when they realised exactly what had happened to them as girls, the court heard.”⁵ (This exact statement was also reported in The Times (the same article cited above), The Mirror⁶, The Guardian⁷, Western Morning News⁸ and BBC News⁹, among other places.

In fact, none of the witnesses at Graham Ovenden’s trial contacted the police “when they realised exactly what had happened to them as girls.”

The two witnesses whose photographs were ruled as “indecent” didn’t suddenly wake up one day to realise that Mr. Ovenden had taken “indecent” photographs of them. As already stated in greater detail in the previous post, one of them, in 1990 when she was 27, wrote in a statement for the introduction of Mr. Ovenden’s monograph, States of Grace, that “I never felt that [Graham] took away ‘me’ as a person… One of the things that’s very important, I feel, is that the work is very honest…” Yet, at trial, she testified that the single photograph of her introduced into evidence was “not me,” which is to say that she changed her mind, at least about that particular image. The other witness, Maud Hewes, did a near about-face to the statements she made in the 1990s, declaring that young girls should not be photographed as she once was by Mr. Ovenden. Obviously, when these former models, as younger adults, were supporting Mr. Ovenden’s photographs of them, they were well aware that they had been photographed, what those photographs depicted and what their experiences were.

Maud Hewes' 1993 Inscription to Graham Ovenden in his copy of States of Grace

So how did they end up as witnesses in the case?

The woman who wrote a statement for the introduction to States of Grace was contacted by the police, not vice versa, after Mr. Ovenden naively handed them a list of names and addresses of about twenty of his former models whose whereabouts he still knew. There was a discussion at the trial, out of hearing of the jury, of this witness suffering from some form of clinical depression (not related to being photographed). One can well imagine how vulnerable this woman must have been to repeated visits and contact by the police, pressuring her to accuse Mr. Ovenden of abusing her and to denounce the images he had taken of her. That she was able to stand up to the pressure and testify that she had never been abused is remarkable enough. But the pressure on her to identify her image – so that Mr. Ovenden could be convicted for “assaulting” her by clicking the camera shutter – was enormous and should not be underestimated. In January 1996, Mr. Ovenden’s daughter, Emily, told The Guardian what Mr. Ovenden’s former models faced:

Emily refuses to be interviewed by the police. They have asked her on several occasions. But she doesn't see the point and, adult now, is in the position to refuse. She has heard what it would be like from her father's other models. She knows how her friend Maud was reduced to tears, not by the recall of actual events but by the questioning about sexual acts that never took place. She knows how Maud's father felt threatened and bullied. She knows how traumatised they all were by their contact with the police – so traumatised that she's certain none of them want to talk about it.¹⁰

Ms. Ovenden also told The Guardian that

All of her friends kept copies of the work that featured them. She never felt self-conscious and none of the girls ever felt shamed by their nudity. … Emily laughs about the police displaying a print of her friend, "masked to highlight the offensive areas," and asking if she was ashamed. The girl pointed out that the original hung above her bed.¹¹

Maud Hewes, more than a decade after she defended Mr. Ovenden’s work in the 1996 Channel 4 documentary, “For the Sake of the Children,” probably decided to be a witness in the case for a number of reasons, including the poisonous atmosphere surrounding photographs of nude children that now pervades Britain. But whatever her personal reasons, the catalyst for her testimony was Mr. Ovenden’s son, Edmund Dante (“Ned”) Ovenden. Ned Ovenden was in contact with Hewes, JB and LD, as well as JB’s mother, well before any charges were laid – indeed, before any of those witnesses had any charges to lay.

Taking Sides

In 2000, Graham Ovenden and his wife, Annie, granted Ned a one-third interest in their land and house at Barley Splatt. The building is a unique and important piece of architecture, a large portion of which was physically built by Mr. Ovenden over a period of thirty years. In return for his share, Ned was to complete the building to Mr. Ovenden’s specification. At the time, the indebtedness on the property was £45,000. As Mr. Ovenden would eventually discover, the grant to Ned had been a mistake. Unbeknownst to Mr. Ovenden, Ned began taking loans against the estate in order to finance a lifestyle to which he believed he was entitled, and his purchases included numerous high value cars, a half-share in a Cessna aircraft and full ownership of another. In addition, in the mid-2000s, the Ovenden family was splitting apart, undoubtedly precipitated to some degree by the 2006 police raid on Barley Splatt and a new round of police persecution. Shortly after the 2006 raid, with tensions running high between Mr. Ovenden, on the one hand, and his wife and Ned Ovenden, on the other, Mr. Ovenden moved himself and his studio first, to an out-building on Barley Splatt, called “The Studio,” and later, when Barley Splatt was sold, to another out-building called “the Garage.” About the same time, Ned and Annie secretly obtained over £500,000 in cash from a joint mortgage against Barley Splatt and used it to purchase property in Bodmin and Lostwhithiel in their own names.

By 2008 the mortgage on Barley Splatt was a staggering £840,000. Although Ned did some work on the property, the building itself was substantially the same as it had been prior to his one-third grant. When The Telegraph reported on December 24, 2008, that Barley Splatt was on offer for £925,000, Ned stated, “If someone had £100,000 to spend on it, they could make it into a fabulous house.”¹²

In June of 2008, Mr. Ovenden fell seriously ill. He was lucky in a way: a friend and student discovered him in a disoriented and fragile state and immediately called for assistance. While the friend was helping Graham into the ambulance, Ned Ovenden stood by, completely uninterested in accompanying his father. Mr. Ovenden lay in hospital for five weeks, at least part of the time in a coma.

Shortly after Mr. Ovenden was taken into hospital, Mr. Ovenden’s sister, Elizabeth, came to Barley Splatt to stay with Annie while she visited her brother. Elizabeth was on good terms with Annie, having not yet learned of the financial dealings that had occurred. After visiting Mr. Ovenden and reporting to Annie and Ned that there was a possibility that Mr. Ovenden might not recover, Annie and Ned discussed their plans to dispose of large parts of Mr. Ovenden’s rare photographic and ephemera collections, including taking the material to New York, where Ned believed he could sell it without its original ownership being obvious. Annie and Ned had a similar conversation with a friend of Mr. Ovenden and they subsequently sent some of the purloined photographs to one of Mr. Ovenden’s acquaintances in the photographic world for an assessment of their value and sale. (That acquaintance scanned or photocopied all the images and, because Ned represented that he was acting on the authority of Mr. Ovenden, sold photographs worth approximately £4,500. He subsequently furnished Mr. Ovenden with a record of which images were brought to him by Ned and invoices of what had been sold, but by that time Ned had already taken back the unsold photographs.)

Annie and Ned did, in fact, briefly visit Mr. Ovenden in the hospital, but not to wish him well. Upon their return, they announced to a friend of Mr. Ovenden that Mr. Ovenden “should be dead.” A few days later, they left for France on vacation, hoping that upon their return Mr. Ovenden would have met his demise. Friends of Mr. Ovenden have noted that there were already intimations that steps were being taken to bring Mr. Ovenden down. At an art exhibition at Southampton City Art Gallery the previous April, JB’s mother told a friend of Mr. Ovenden that “we’re going to get him.” Also around this time, Annie Ovenden told the same friend that she was going to “put [Mr. Ovenden] in the gutter.”

Mr. Ovenden returned home from hospital in fragile health and no longer on speaking terms with Annie or Ned. When Ned submitted papers to Mr. Ovenden to authorize the sale of Barley Splatt – Mr. Ovenden was not yet aware of the full extent of the indebtedness – he refused to sign them. When Mr. Ovenden responded angrily, Ned reacted violently, throwing an encaustic tile through the reinforced double-glass panel of Mr. Ovenden’s front door. (A few months later, Mr. Ovenden discovered that Barley Splatt had been put up for sale after he read about it in The Telegraph. By then, Mr. Ovenden realised that he could do nothing to save it. The debt simply could not be serviced on the modest income Mr. Ovenden earned from his art.) During this period Ned also began telling Mr. Ovenden’s friends who would come to visit that they should stay away from Mr. Ovenden lest their careers and reputations be ruined by their association with Mr. Ovenden, advice that they took as not-so-veiled threats of defamation. In the case of at least one friend, the threat was direct. But that’s not even the half of what Ned did. In 2009, Ned went to Aberdeen to visit the homes of both JB, whose husband is a lifelong friend of Ned, and Maud Hewes, whom Ned had long known, as she was a frequent visitor to Barley Splatt throughout the 1980s. It was only after Ned’s visit to Aberdeen that Ms. Hewes and JB made any statements to the police, who came to visit them at Ned’s behest. (One of the investigating officers in the case, Maddox, is a friend of Ned.) Exactly what Ned told these former models is unknown, but the connections between Hewes, JB, JB’s mother, Ned and Annie Ovenden are undeniable, as suggested by circumstantial evidence.

Although both JB and Ms. Hewes had been living in Aberdeen for over a decade, they had little or no contact with each other. JB joined Facebook sometime during 2007 and Ms. Hewes joined Facebook on December 24, 2007, yet they didn’t “friend” each other until after Ned put them together in 2009. Also after Ned’s visit, in August 2009, JB “friended” Annie Ovenden. (By contrast, JB “friended” Emily Ovenden in 2007.) Was there a bit of a quid pro quo for JB’s delivery of testimony against Mr. Ovenden? Perhaps. On September 30, 2010, JB registered the domain name for Annie Ovenden’s website and became the site’s administrative and technical contact. (She did the same for her mother’s website.)

Through another friend who happens to be married to yet another former Ovenden model (one not involved in any accusation), Ned also contacted LD who, in turn, as with JB and Ms. Hewes, was visited by the police. As mentioned above, Ms. Hewes allowed the police to lodge sexual abuse charges on her behalf but evidently thought better of perjuring herself once she got in the witness box.¹³ JB and LD, however, followed their scripts. After all, each of the four witnesses stood to earn as much as £40,000 in victim compensation if the jury bought their stories.

Between 1964 and 1989, Graham Ovenden photographed approximately 70 young girls, some of them on multiple occasions. Yet, in the twenty years that Mr. Ovenden has been publicly “under suspicion” by the police, with his cases being discussed in nearly every British newspaper and media outlet between 1993 and 1997 and again in 2009 and 2010, not a single former model came forward of her own accord to accuse Mr. Ovenden of sexually abusing her. While researching for this article, however, this writer came across another statement in Mr. Ovenden’s support, one more typical of his former models who spoke in his defense during the 1990s. As she used her real name, Mr. Ovenden was able to recall photographing her in 1973, not long after moving to Barley Splatt, when she was ten years of age:

I was one of Graham Ovendens’ ‘models’. This beautiful man, was a perfect photographer. He was kind and patient, while I sat wearing clothes that I chose. At no time did he touch me in any way. This man is a wonderful artist and human being…. I was never asked to take my clothes off, I was able to wear what I wanted and how I wanted to wear it. If I was ever naked and a photograph was taken, I knew what was happening and was free; not sexuallised in any way. I wish Graham a happy, healthy, carefree life.¹⁴

Over the years, British police had accused Mr. Ovenden of a variety of trumped up crimes, arresting him on such transparently thin charges as “suspicion of conspiracy to indecently assault children”¹⁵ or the creation of “pseudo-photographs,” but they could never find anyone to make an actual allegation of sexual abuse. By April 2010, just as the third case against Mr. Ovenden and his images was being dismissed for police abuse, the Child Investigation Team of the Metropolitan Police announced that it was “investigating” allegations of child sexual abuse and that the Crown Prosecution Service would soon decide if charges were to be laid.¹⁶ Although the police must have spent a lot of money, it didn’t bear much fruit. Ned Ovenden and the police visited other former Ovenden models, but could not prevail upon them to make an accusation. However, thanks to Mr. Ovenden’s naïve trust that the truth would prevail when he handed over a list of names and addresses of former models, and especially thanks to machinations of Ned Ovenden, Annie Ovenden and her best friend, JB’s mother, the British police finally got what they wanted.

Frank Furedi, Emeritus Professor of Sociology at the University of Kent, recently wrote about the behavior of the Metropolitan Police in their investigations of Jimmy Savile. Although Mr. Ovenden’s case is hardly comparable and involved Mr. Ovenden’s son as agent provocateur, the so-called “investigative” methods of the police were the same. Instead of “solving reported crimes” they were “searching for crimes that have not been reported.”¹⁷ The danger, Mr. Furedi explained, is that

[t]his trawling for victims and search for retrospective allegations could have a disturbing impact on the way the criminal justice system works. Instead of solving crimes, the police attempt to uncover them, in order to reinforce and strengthen evidence against the targets of their investigation. A trawling operation is not a response to an allegation of abuse voluntarily made by an individual; it is an invitation to people to reinterpret their past experiences in terms of victimisation and abuse.¹⁸

What Mr. Furedi didn’t say, but will be said here, is that such overzealous behavior on the part of the police is also an invitation to people to lay false charges for any variety of motivations, including interfamily squabbles, personal animosities and jealousies, and the prospect of victim compensation.


Endnotes 

¹Artist Graham Ovenden found guilty on sex charges, The Times, April 2 2013; http://www.thetimes.co.uk/tto/news/uk/crime/article3729068.ece.

²Cooper, Rob, Artist Graham Ovenden found guilty of indecency against young girls after usingnude children in his paintings, The Daily Mail, April 2, 2013; http://www.dailymail.co.uk/news/article-2302849/Artist-Graham-Ovenden-guilty-indecency-young-girls-using-nude-children-paintings.html.

³Morris, Steven, Graham Ovenden lived in rambling rural idyll with a dark side, The Guardian, April 2, 2013;http://www.guardian.co.uk/uk/2013/apr/02/graham-ovenden-idyll-dark-side.

⁴Minchin, Rod, Artist Graham Ovenden found guilty on four counts of indecency with a child, The Independent, 02 April 2013; http://www.independent.co.uk/arts-entertainment/art/news/artist-graham-ovenden-found-guilty-on-four-counts-of-indecency-with-a-child-8556873.html.

⁵Artist convicted of sex offences against children, The Telegraph, 02 April 2013; http://www.telegraph.co.uk/news/uknews/crime/9966939/Artist-convicted-of-sex-offences-against-children.html.

⁶Artist Graham Ovenden convicted ofsex offences against kids, The Mirror, 02 April 2013; http://www.mirror.co.uk/news/uk-news/artist-graham-ovenden-convicted-sex-1798044.

⁷Graham Ovenden convicted of child sex offences, The Guardian, 02 April 2013; http://www.guardian.co.uk/uk/2013/apr/02/graham-ovenden-convicted-child-sex-offences.

⁸Jury still out in West artist's indecency trial, Western Morning News (This is Cornwall), Thursday, March 28, 2013; http://www.thisiscornwall.co.uk/Jury-West-artist-s-indecency-trial/story-18541598-detail/story.html.

⁹Artist Graham Ovenden's indecency case jury retires, BBC News, March 29, 2013; http://www.bbc.co.uk/news/uk-england-cornwall-21943329.

¹⁰"Pictures of Innocence," David Newnham & Chris Townsend, The Guardian Weekend, January 13, 1996, pp. 12-15.

¹¹Id.

¹²Wilson, Mary. "Property in Cornwall: Drawn to an artists' work in progress," The Telegraph, 24 December 2008. http://www.telegraph.co.uk/property/westcountryproperty/3902558/Property-in-Cornwall-Drawn-to-an-artists-work-in-progress.html . The final sale price for Barley Splatt was £600,000, far below market value.

¹³It probably would have been easier for her to tell the tale of woe that had been prepared for her. She was the final witness, testified behind a screen (i.e., out of view of Mr. Ovenden) and helped along, as were the other witnesses, by a bevy of policewomen and victim advocates. When she refused to follow the script, however, prosecutor Quaife turned on her.

¹⁴Statement of GH, dated of 31 October 2009, posted at at "Graham Ovenden On Trial," the Baby Art blog of Trevor Brown, http://www.pileup.com/babyart/blog/?p=379#comments. The page also features a comment from someone posting as "got away" who complains she was abused at age 4. Investigation has revealed that "got away" is none other than "Donna El Berry" a/k/a Minty Challis, who faked the a similar post in April 2013, when The Guardian ran its poll, "Should the Tate have removed Graham Ovenden's prints?" Her comment was removed by The Guardian after the fraud was exposed. For information on Minty Challis, see http://www.dailymail.co.uk/news/article-2051282/Dale-Farm-The-truth-Minty-crucifix-waving-rebel-cause-like.html; and http://www.dailymail.co.uk/news/article-2052079/The-fantasist-Dale-Farm-Why-does-mother-gipsy-camp-activist-Minty-say-shes-deluded-self-publicist.html

¹⁵Sex case artist to face new inquiry, Western Morning News (This is Cornwall), 19 April 2010; http://www.thisiscornwall.co.uk/Sex-case-artist-face-new-inquiry/story-11465531-detail/story.html.

¹⁶Id.

¹⁷Furedi, Frank, After Savile: policing as entertainment, Spiked, 29 April 2013, http://www.spiked-online.com/site/article/13580.

¹⁸Id.