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 sentenced, avoids prison

Graham Ovenden was sentenced today at Plymouth Crown Court to twelve months, suspended for two years. For those unfamiliar with court sentencing that means Mr. Ovenden will not do any jail time unless he commits a new infraction during the next two years.

In the wake of his sentencing, the British press, with the sole exception of The Guardian,¹ continued to libel Mr. Ovenden, citing as facts contentions of the prosecution relating to charges that were either dismissed during the trial or disbelieved by the jury and resulted in Mr. Ovenden's acquittal. The BBC wrote:

[Mr. Ovenden] was described in court by prosecutor Ramsay Quaife as "a paedophile" who abused four children - now all adults - between 1972 and 1985 while they modelled for him.

The jury heard Ovenden's portraiture formed part of a ruse for abusing girls.

He made his victims dress in old fashioned clothing before removing it and committing indecent acts, the court was told.²

The Western Morning News also regurgitated claims made by prosecutor Ramsay Quaife during trial, adding that "All four of the claimants are now adult women. Their allegations go back some years, but at the time they were all girls."³

The headline at The Daily Mail, on the other hand, was a leap into pure fantasy: "soft sentence that even surprised a pervert: Judge FREES artist who sexually abused three children as young as six while they posed for his paintings."⁴

Notwithstanding the prevailing gutter press mentality, here is the truth: two of the four witnesses told the jury that Mr. Ovenden never abused them. The two other witnesses told the jury a story about being blindfolded and abused, dressed and undressed, but the jury disbelieved them and acquitted Mr. Ovenden. They convicted Mr. Ovenden of 2 minor charges related to a single witness, but those alleged incidents had nothing to do with sessions for photography or painting. The remaining charges pertained to the alleged character of 3 photographs, not the sexual abuse of minors.

Judge Cottle claimed at the sentencing hearing that those 3 photographs (two of which were printed by the police to emphasise the genitalia) were typical of Mr. Ovenden's work, but there was no evidence before Judge Cottle or the jury to support such a claim. Judge Cottle also speculated that the girls who came to be photographed by Mr. Ovenden

had no understanding at that time of the true purpose behind what you were doing, a purpose that 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. The jury disagreed...⁴

The statement was disingenuous for two reasons. First, law and jurisprudence require that the jury not take into account any intent, whether sexual or innocent, so if the jury did "disagree" with Mr. Ovenden, they acted outside the law -- and without the benefit of a full defense of the photographs within the context of Graham Ovenden's oevre, because Judge Cottle would not permit such a defense.

Second, there was simply no evidence in the case, or anywhere, that the "true purpose" of Graham Ovenden's photography was "sexual." This is simply moralist hyperbole. The two models in the 3 photographs determined by the jury to be "indecent" -- those were the same two who said they were never molested by Mr. Ovenden -- defended Mr. Ovenden's work and the practice of his photography well into their twenties. Even at trial, one of them would only say that the image of her that was part of the charges was "not me," while the other did not disavow her earlier support, but said that she now believes that children should not be photographed in such poses. It is worth pointing out that 20 years ago she told a court: "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...."

When the BBC interviewed Mr. Ovenden on the courthouse steps after the sentencing, its reporter sounded like a petulant schoolboy reading a script he'd just been handed, not a professional journalist. Here is part of the exchange:

BBC: "Isn't it just time to be honest and straight and true and say "I'm sorry"?"

Graham Ovenden: "No, isn't it about time that the media started being honest and straight and true and stopped this mindless witch hunt which is going on at the moment."

BBC: "What have we done wrong in reporting a jury's verdict against you?"

Graham Ovenden: "Well, in regards to jury verdicts, I mean, are you so naïve as to think that in a jury, that in fact, truth always lies?"

BBC: "So everybody is wrong apart from you."

Graham Ovenden: "Well, since I'm about twenty times more intelligent than most people, I think that would be a very reasonable assumption."⁵

Mr. Ovenden might have said that no, not "everybody" is wrong apart from him. He was not convicted by a unanimous jury on the two minor counts involving JB. (Those were the only counts having to do with supposed sexual contact with a minor.) And in any event, the unanimous verdict declaring 3 photographs to be "indecent" is hardly indicative of a consensus by "everybody."

Mr. Ovenden's appeals continue.


Endnotes
¹Morris, Steven, "Graham Ovenden gets suspended sentence for child sexual offenses. The Guardian, 4 June 2013; http://www.guardian.co.uk/uk/2013/jun/04/graham-ovenden-suspended-sentence-sexual-offences

Although generally truthful about the charges for which Graham Ovenden was convicted, The Guardian's reporting was hardly a model of objective journalism.

²"Graham Ovenden sex crimes: Artist gets suspended sentence." BBC News, 4 June 2013; http://www.bbc.co.uk/news/uk-england-cornwall-22763701

³"Disgraced artist Graham Ovenden given suspended sentence for child sex offences." Western Morning News, This is Cornwall, June 04, 2013; http://www.cornishguardian.co.uk/Disgraced-artist-Graham-Ovenden-given-suspended/story-19181467-detail/story.html

⁴Cooper, Rob, "The soft sentence that even surprised a pervert: Judge FREES artist who sexually abused three children as young as six while they posed for his paintings." Mail Online, 04 June 2013. http://www.dailymail.co.uk/news/article-2335744/Internationally-renowned-artist-sexually-abused-children-young-posed-paintings-walks-free-court.html

⁵Artist says case is 'witch hunt.' BBC, 4 June 2013. http://www.bbc.co.uk/news/uk-england-22768106

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.

Trial Fails to Rewrite History of Graham Ovenden's Art

[Readers who haven't read the previous posts should do so before reading this lengthy one.]

Although prosecutor Ramsay Quaife attempted to connect Graham Ovenden’s art with sexual abuse charges, he was unable to do so at trial. The “taste test,” where Mr. Ovenden was said to have blindfolded two of his models in order trick them into performing fellatio, was disbelieved by the jury for good reason: the stories were directly contradicted by circumstantial evidence and lacked the ring of truth. Mr. Quaife’s other claim – that Mr. Ovenden blindfolded his models in order to get them to pose with their legs open – was never proven because there were never any photographs to support it.

The two prosecution witnesses whose photographs by Mr. Ovenden were charged as “indecent” must have been under considerable pressure to make accusations against Mr. Ovenden. The police concocted negative statements, but when called to testify, they failed to follow the scripts that the police and prosecution had prepared for them.

One of the witnesses, the subject of a single photograph alleged to be indecent, unequivocally stated behind the witness screen that Mr. Ovenden never abused her and gave mixed reviews to her photographs. One image shown to her on cross-examination she found beautiful. As to the allegedly indecent photograph presented by the prosecution, she simply stated that it was “not me.” Presumably she meant that she didn’t feel it was a proper portrayal. That photograph, which had never been published or exhibited, was part of a group of images taken from a bound album that was seized from Mr. Ovenden’s studio and torn apart by the police in preparation for trial. Mr. Ovenden later testified in his defence that taken together with the other images, the allegedly “indecent” one would not be viewed as indecent at all. At that point, Judge Graham Cottle inquired of the prosecution whether the police were in possession of the other photographs. They said they were not, despite the fact that they had shown them to Mr. Ovenden’s counsel legal team, comprised of QC (Queen’s Counsel) Christopher Quinlan, barrister Robert Linford and solicitor Tess O’Callahan, just prior to Mr. Ovenden stepping into the witness box. Ultimately, the other images may not have been admissible for the jury to consider, as under British law, jurors are instructed to consider images in isolation from the context in which they were created.

That peculiar phrasing of the witness, that the photograph was “not me,” was probably a contrivance of the prosecution to ensure that she didn’t give an opinion as to the ultimate question – i.e., whether the image was “indecent.” The latter is strictly for the jury to decide. If she had stated that she believed the photograph was “indecent,” a mistrial might have been declared.

There was more than mere contrivance in the signed statement prepared for this witness by the police. Although the prosecution represented that it accurately summarized her extensive pre-trial interview, Mr. Ovenden’s QC compared the two and discovered that the statement mischaracterized what she had said and omitted crucial testimony which tended in Mr. Ovenden’s favour. Furthermore, she was not a witness who, as the prosecution claimed, “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.”¹ Not long before his arrest in 2006, Mr. Ovenden received a visit from the witness’s mother, who asked Mr. Ovenden for copies of photographs that he had taken of her two daughters and told Mr. Ovenden that her daughter (the witness in question) sent him her fondest wishes. What happened to this former model was not some realisation, but a visit from the police, who contacted her after Mr. Ovenden naively gave them a list of his former models in 2008.

It should not be surprising that in her interview with the police she had positive things to say about her experience of being photographed by Mr. Ovenden. In 1990, when she was 27, she made a statement about that experience and it was published as part of the introduction to Mr. Ovenden’s monograph, States of Grace. Here is what she said:

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.²

With the second prosecution witness and her allegedly “indecent” photographs, things get, as Alice once said, curiouser and curiouser.  The police laid three charges of sexual abuse against Mr. Ovenden on her behalf, but when she got to the witness box, behind a screen and out of view of Mr. Ovenden and any spectators, she steadfastly maintained that Mr. Ovenden had never abused her. Prosecutor Quaife, who must have felt betrayed, turned nasty in his questioning of her. He made her cry, but couldn’t shake her resolve. On the following Monday, when the trial was reconvened, the prosecution made an application to the court to dismiss the three unproven counts.

Judge Cottle was extremely unhappy with that decision. Although he ordered the three charges dismissed,³ as he was required to, he invited the prosecution to bring new charges in their place. Subsequently, Mr. Ovenden was separately charged with making two indecent photographs of the witness in question. These were laid in addition to two “specimen” charges that related, in part, to the same photographs. While bringing new charges in mid-trial seems unfair in terms of compromising a defendant’s ability to prepare a defence, specimen charges are manifestly unjust where, as here, the line between legality and criminality can only be drawn by looking at the images.

The two photographs in question, taken on the same day and appearing on the same strip of negatives, were not printed by Graham Ovenden. They were printed by the police, who manipulated them in such a way so as to accentuate the genitalia. Interestingly, these photographs had already been in the possession of the police once, in 1993, when Mr. Ovenden was raided by Sergeant Michael Platt of the Metropolitan Police, Obscene Publications Squad. Mr. Platt, now retired, appeared at Mr. Ovenden’s 2013 trial. Outside the courtroom, he represented to QC Quinlan, who was standing with the rest of Mr. Ovenden’s legal team, that the two images in question were familiar to him and confirmed that they had been returned to Mr. Ovenden. Immediately thereafter, however, Mr. Platt was led away by the prosecution, only to return and say that he had been mistaken.

These two photographs, in addition to being the basis of two charges in their own right, were the basis for the specimen counts, which were grouped into different years. (If the reader finds it strange that two photographs taken on the same day could represent groupings of photographs spanning different years, so does this writer.) Where a specimen, as in Mr. Ovenden’s case, is a separately identifiable offence, the jury is instructed as follows:

Count [X] is a specimen Count. The prosecution allege that D[efendant] also committed numerous other offences of the same kind. Instead of loading up the Indictment with Counts charging many offences, they have selected one as an example, as they are entitled to do. However, you may convict D[efendant] only if you are satisfied beyond reasonable doubt that he committed the particular offence charged in the Count [X], whether or not you are satisfied beyond reasonable doubt that he also committed other such offences.

Crown Court Bench Book and Specimen Directions, Third Ed., 2010 (emphasis added).

In other words, even if the jury is uncertain about the photographs they haven’t been shown, if they find the examples (i.e., the two photographs) “indecent,” then they must convict on the specimen charge. The Bench Book gives as an example of a specimen charge “a Count of indecent assault on a child who claims to have been abused in the same way on many occasions, but cannot say precisely when or how often.” This isn’t even remotely analogous to the situation here. Photographs are physical artifacts. What someone might remember about a photograph is proven or disproven by the thing itself. These counts essentially tell the jury that if it finds one image “indecent,” then it should imagine that others are also “indecent,” regardless of what the photographs actually show. Compounding the disparity is the fact that although the witness was photographed by Mr. Ovenden on many occasions, she did not testify that she was photographed in the same pose on numerous occasions.

The witness was not called back for additional testimony regarding the new charges, but she had already expressed her opinion. As to the two photographs printed by the police, she stated, like the first witness, that they were “not me.” She also said that, at 39 years of age, looking at her photographs, she was of the opinion that no young girl should ever be photographed in such a way and that she would do anything she could do to make sure that it didn’t happen to anyone else.

This was a strong condemnation given that she did not testify to having suffered any particular damage or consequence as a result of her experiences. It is also a strange statement – a complete revision of the eloquent declarations she made during the 1990s in defence of Mr. Ovenden’s photographs of her.

Maud Hewes was photographed by Graham Ovenden twenty to twenty-five times from the time she was six until she was about fifteen. (He also once photographed her nude as an adult.) Seven of her images from 1984 through 1988, when she was between the ages of nine and fourteen, appear in Mr. Ovenden’s monograph, States of Grace. In five of them she poses by herself; in two, she is posing with another model. Ms. Hewes’ name, unlike those of the other witnesses against Mr. Ovenden, is mentioned here because she spoke publicly about Mr. Ovenden’s photographs on a number of occasions as a young woman.

When page proofs of States of Grace arrived in New York from the printer in Hong Kong in October 1991, United States Customs seized them. At a court hearing in February 1992, the United States government announced, without filing charges, that the book contained depictions of minors engaged in “sexually explicit conduct” under United States law, which prohibits the portrayal of a “lascivious exhibition of the genitals.” One month later, at a second hearing on the matter, the head of the Child Exploitation and Obscenity Section (CEOS) of the United States Justice Department’s Criminal Division, Robert Flores, identified the image of Ms. Hewes on page 54 of the book as the only potentially pornographic image in the book. (Actually, he equivocated, claiming there might be other pornographic images, although he was at a loss to explain which ones or why.) A month later, as the defence of the book was taking shape in New York, Robert Atkins, then a reporter for the Village Voice, interviewed Ms. Hewes, then 18, by telephone. She told him:

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…he’s been a family friend since I was four years old.⁴

The following month, Ms. Hewes flew to New York, where she made a sworn declaration that was submitted to the United States District Court, Eastern District of New York. In pertinent part, it stated as follows:

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.⁵

Ms. Hewes also spoke about her photographs in the U.K., the first time on April 21, 1993, when she was interviewed by agents of both the Metropolitan Police, Obscene Publications Squad (OPS), and the Kirkwall police, after Mr. Ovenden was arrested by the OPS on suspicion of being part of a pornography “ring,” one of the obsessions of the police at the time. Her statement both affirms and adds to what she had previously said:

I have been shown a booklet of photographs 'MP 20' which contains images of myself. The photographs appear to pinpoint a certain age, although I have been widely photographed since I was about 4 until I was maybe 15 years old. All the people that I have worked with I have known very well, and have felt perfectly comfortable with them. I have never been indecently assaulted by any of them or forced to do anything against my wishes. I have now been through the "MP 20" booklet and initialed all the photos that I recognize of myself. I have also put the initials of the photographer when positively identified. All the photographs that I have identified as being Graham Ovenden's were taken at Barley Splatt....

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 co-ercion. Photographic or life drawing 'sessions' were never a prearranged appointment. I was at Graham Ovendens a lot of the time and the Ovendens were, are like a second family to me. Quite a lot of the time Emily and I would ask to be photographed. The only time a session was arranged was for the 'Alice Project' between Graham, Brian P and myself. Because it was a project sometimes we would decide that we ought to do some more for the project. The images in the 'MP 20" which I have marked G.O. refer to Graham Ovenden. Graham Ovenden is one of my best friends and also like a father figure. Signature: [M.] Hewes.⁶

At the time Ms. Hewes made that statement she was living in the Orkneys, very far from Cornwall, with her father and stepmother, both of whom were present on the day Ms. Hewes was questioned. Ms. Hewes’ stepmother, a friend of the Ovendens, posted a letter to Mr. Ovenden five days after Ms. Hewes made her statement. The letter is reproduced here in large part:

Nethermill, Rousay, Orkney                                                         Monday 26th April 1993

Dear Graham:

I’m typing this because my writing is becoming so unreadable these days. I enclose a photocopy of a bad photocopy of [Maud's] statement which you may wish to show to your solicitor. I insisted on getting it done at the fish factory in the last couple of minutes before Platt and Hills got on the 3.25 ferry. In my frantic hurry I didn’t line the first page up properly and so two lines are missing. I’ve typed up the statement so you can read it easily but you can make out [Maud’s] initialed alterations on the photocopy.

Michael Platt (the Met), Philip Hills (New Scotland Yard) and Morag Scrimgeur (Kirkwall Police) arrived at 11:15. Joseph and [Maud] were interviewed separately and privately, though the policewoman was present during [Maud’s] interview. I was not allowed to stay while Joseph was questioned. I did try to insist on it but was told they would have to take him somewhere else. Wish I’d been sure of the legal position. Have they a right to take someone who is not under arrest, only a witness? I was made to feel it would be very unreasonable if I kept on.

The mode of questioning was more like interrogation than anything else – very manipulative, full of leading questions and in Joseph’s case they used both veiled and open threats. After 20-30 minutes Platt had reduced [Maud] to tears. At this stage I was allowed in. She said he became much less heavy and manipulative after this. Eventually she agreed to write a statement. Platt tried to steer it but she resisted quite well. In fact she showed an admirable defiant independence. Platt read it and said later to Joseph that she had been schooled by Graham Ovenden. He forgets of course that she is nineteen, intelligent and articulate, and that she’s been out to the States to testify in a similar case.

Joseph was interviewed twice – long and hard. He was shown three or four photos which he recognized as G.O.’s because of the wallpaper! And two others which he could not identify. [Maud] was also unable to these. Platt was clearly very frustrated. Rather bad photos – I’m not surprised no one can remember them….

They were very anxious to extract evidence of a network for taking and distributing photos. They are convinced of this. … Joseph was asked if he had ever been to Germany with Graham Ovenden. Hills asked Joseph in my presence what he knows about the ‘Alice fantasy’! Upon my very spontaneous burst of laughter, he added “Don’t forget we’ve seen the correspondence. They seem to be looking for the ideal child to play Alice.” Later I heard Platt ask [Maud] how she felt now she was too old to be Alice. Similar mockery from [Maud]! Hills stated categorically in front of me that the Lewis Carroll Society was a cover for paedophiles to exchange photos of young girls! And Platt told Joseph during his second interview that all this is an attempt to use art to cover up paedophile practice. At this time Platt also accused Joseph of only just being able to keep the lid on it all – he was protecting others. [Maud] too was just managing to do the same – any minute now she would crack and spill out everything about everyone. They offered Joseph a deal – making a not so implicit promise to make things easier for him if he revealed all about everybody. They finished “We’ll be back in three months and this time you won’t know when we’re coming.”

Platt claimed that they had two disclosures of indecent assault already.* In the car on the way to the pier, appealing to my concern for [Maud], he said it had taken a month to get one girl to talk. (I don’t know what age this girl is now or if indeed she is part of this case – I was too intent on getting a photocopy – but the poor girl, he’d obviously kept on and on until he heard what he wanted to hear.)

Curiously, there was a programme on T.V. last night called “Street Legal” presented by Paul Foot. It dealt with misbehavior by the Metropolitan Police. Apparently a large increase of money has been set aside by them for the next three years to cover expected increases in compensation!

I’m sorry this letter is so long. You can tell how angry/agitated I am. I just hope that some of this is useful. I hope it arrives safely. Could you give me a quick ring to let me know? Love to you all from us both.

Chrissie

*[Those charges, if they existed, had nothing to do with Mr. Ovenden or anyone connected to him.]

Ms. Hewes was interviewed again in 1996, at the age of 22, for a documentary entitled “For the Sake of the Children,” which was part of the series Films of Fire and shown on Channel 4 in 1997.⁷ She not only affirmed her earlier statements about her photographs, but pointed out that images shown to her by the Metropolitan Police had been manipulated by them and did not reflect the original work, or intent, of Mr. Ovenden.

Intent, however, is not an issue when it comes to determining whether an image is “indecent.” This topic will be covered in greater detail later, but the standard of what is “indecent” under British law ostensibly precludes a consideration of either the intent of the maker or the context in which the image was made. Motivation and context are only relevant, if at all, to show that the images were made intentionally rather than by accident. As the Court of Appeal stated in Regina v. Graham-Kerr [1988] 1WLR 1098,

The question, as it seems to us, is whether the photograph itself is indecent. Photographs, after all, may last a large number of years, pass from hand to hand and so on. In our view it is not possible to relate the question of whether or not a photograph is indecent with the original motivation of the person who took it. It may be that the original motivation was perfectly innocent subjectively regarded; but if the photograph is one which right-thinking people would regard as indecent, the motivation of the original taker, in our view, cannot be a relevant matter.

The court in Graham-Kerr also approved of the lower court’s instruction to the jury to “apply the standard of decency which ordinary right-thinking members of the public would set.” This standard, the Court of Appeal found, was no different from the alternative formulation, that the jury should apply “recognised standards of propriety.”

Judge Cottle’s instruction to the jury in Mr. Ovenden’s case regarding the three photographs was much the same: “The question is – would right-minded people regard such photographs as ‘indecent’?”⁸ Technically, that instruction was correct. But how is it possible that the jury could have ignored the plainly prejudicial conjectures of prosecutor Quaife that Mr. Ovenden was “a paedophile,”⁹ one who “abused children in Cornwall and London, sometimes while taking photographs,”¹⁰ and is “besotted with little girls.”¹¹ Although these claims were unsupported by any evidence, they were clearly aimed at dirtying up Mr. Ovenden so as to predispose the jury to convict him.

Moreover, what was the jury to make of images, which were not the subject of any charge and did not depict actual children, shown and described by the prosecution near the end of the trial during Mr. Ovenden’s cross-examination? These were composite works – collages – made up from original drawings and paintings by Mr. Ovenden not depicting any real people, together with pictures from adult (not child) pornographic magazines. The collages, which suggested that the child figures in the drawings were engaging in hard core sexual acts, were actually an interim step for a series that came to be titled, “As Through A Glass Darkly.”¹²(To say that the collages depicted children engaged in sexual acts would be inaccurate, both for the fact that no actual child was portrayed and that the images were plainly collages and not intended to look real.)

The police and prosecution were well aware that the composite works were an interim step because those images had been securely deleted by Mr. Ovenden from his hard drive once the final work was completed. Using special forensic software, the police recovered the explicit composite images, which were in a deleted folder titled “DESTROY IT.” But the police would have first viewed the final works on a data DVD seized from Mr. Ovenden’s studio. There were two copies, both of which were put into separate evidence bags. (“Copy 2,” shown here, was left behind.)

To create the final works of the series, Mr. Ovenden took the explicit images he had created and overlaid them with visual “noise” from severely deteriorated Victorian glass negatives, giving the work a sense of “random acts of destruction of time.” The explicit content was thus only alluded to but not shown, creating a discomforting visual tension to the work. (Three of the final works are shown here.)

The prosecution showed the jury two of the sexually explicit interim works and described the rest of them in graphic detail as evidence of the alleged motivation behind all of Mr. Ovenden’s artwork. That this evidence was far more prejudicial than probative of any aspect of the offences with which Mr. Ovenden was charged cannot be doubted. They do not make it more or less likely that he committed the offences of child abuse for which he was charged; nor do they make it more likely that he created “indecent” images of his models. They did, however, instill in the minds of the jurors concrete images to remember while they considered the specimen charges, that is, the photographs of Maud Hewes that they were never shown. Given that they saw only about half a dozen photographs by Mr. Ovenden during the entire trial (only three of which were charged as “indecent”), it was inevitable that the interim images and their descriptions would loom large in the jurors’ minds. In the interest of basic fairness, the judge should have excluded the composite images from the trial, but basic fairness was hardly the order of the day.

Something or someone made Maud Hewes change her mind about the images Mr. Ovenden took of her, but she was not forthcoming about it. When she was questioned by Mr. Ovenden’s QC, she claimed not to have remembered her statement to the Metropolitan Police twenty years ago, which seems quite unlikely given the fact that it was a topic of conversation at home and she spoke about it to others and discussed it in the documentary, “For the Sake of the Children.” Notwithstanding her change of mind and regardless of prosecutor Quaife’s jaundiced view of the supposed “paedophilic” intent of Mr. Ovenden’s art, history will vindicate Mr. Ovenden. As his daughter, whose image appears in States of Grace together with Ms. Hewes, told The Guardian in 1993, 

We were always an open household and as young children would often run round naked … These pictures were just never anything to do with sex.¹³

Endnotes

¹“Graham Ovenden convicted of child sex offences,” The Guardian, April 2, 2013, 12:23.BST. http://www.guardian.co.uk/uk/2013/apr/02/graham-ovenden-convicted-child-sex-offences.

²Ovenden, Graham. States of Grace. Ophelia Editions, New York & Amsterdam, 1992, p. 10.

³Cooper, Rob, “Artist Graham Ovenden found guilty of indecency against young girls after using nude children in his paintings,” Daily Mail Online, April 2, 2013, 15:21 GMT. http://www.dailymail.co.uk/news/article-2302849/Artist-Graham-Ovenden-guilty-indecency-young-girls-using-nude-children-paintings.html.

⁴Atkins, Robert, “Lolita Syndrome,” Village Voice, April 14, 1992. http://www.robertatkins.net/beta/shift/culture/censorship/kiddie.html.

⁵Id., note 2, page 80.

⁶Statement of Maud Hewes, age 19, April 21, 1993, taken by Michael Platt, Metropolitan Police (OPS), Philip Hills, New Scotland Yard, and Morag Scrimgeur, PC441, Kirkwall Police. Typographical errors in the original.

⁷http://explore.bfi.org.uk/4ce2b8096d8ff. The interview will hopefully be transcribed and posted on this blog.

⁸“Artist Graham Ovenden’s indecency case jury retires,” BBC News, March 26, 2013, 14:31 GMT. http://www.bbc.co.uk/news/uk-england-cornwall-21943329.

⁹BBC News, “Artist Graham Ovenden accused of being paedophile,” March 11, 2013, 16:48 GMT; http://www.bbc.co.uk/news/uk-england-cornwall-21745915; McDermott, Kerry, “Internationally acclaimed artist ‘sexually abused young girls in nighties after blindfolding them’,” Daily Mail Online, March 11, 2013; http://www.dailymail.co.uk/...-2291669/Graham-Ovenden-Internationally-acclaimed-artist-sexually-abused-young-girls-nighties-blindfolding-them.html?ito=feeds-newsxml.

¹⁰“Graham Ovenden child sex abuse trial: Nakedness ‘no shame’, BBC News, March 21, 2013, 16:08 GMT. http://www.bbc.co.uk/news/uk-england-cornwall-21881501.

¹¹Morris, Steven, “Artist Graham Ovenden denies abusing young models,” The Guardian, March 21, 2013. http://www.guardian.co.uk/uk/2013/mar/21/artist-graham-ovenden-young-models.

¹²Id.

¹³Morris, Steven, “Graham Ovenden lived in rambling rural idyll with a dark side,” The Guardian, April 2, 2013, 20:32 BST. http://www.guardian.co.uk/uk/2013/apr/02/graham-ovenden-idyll-dark-side.