Graham Ovenden Not Guilty of Indecency Involving Witness JB

Most people (other than those who read this blog closely) falsely believe that Graham Ovenden has been found guilty of a "string of sex offences against children" that supposedly included dressing up his models in Victorian nighties, then blindfolding, disrobing and subjecting them to fellatio. None of that ever happened and Mr. Ovenden wasn't convicted on those charges or anything even remotely similar. Absurdly, he was convicted of five counts under the Indecency with Children Act 1960 for the "indecent act" of taking photographs -- not taking "indecent photographs." The two should not be confused, because in Mr. Ovenden's case, the supposed results of the "indecent acts" -- i.e., photographs -- were never shown to the jury. Indeed, in the case of Model X, the photographs that were alleged to have been taken "indecently" didn't even exist.

To be sure, in the case of both Model X and Maud Hewes (the only two former models involved in the indecent photographing counts), there existed photographs that, although not shown to the jury, could have been found to be "indecent" were the jurors to apply the lowest common denominator of current opinion regarding photographs of nude minors. However, convicting Mr. Ovenden for "indecent photographs" was not the objective of the prosecution: that is, the Crown Prosecution Service did not want to open the door to criticism from artists, photographers and indeed, the entire art establishment for condemning works of art. So instead the CPS based its case on phony sex charges (prompted for the most part by the police), and the novel theory that merely photographing nude minors could, in and of itself, and without any visual evidence, be an act of child molestation. Think about it: Model X testified that she "remembered" being photographed while nude and blindfolded, and on another occasion, while lying back, splayed out on some rocks. The fact that those photographs never existed (because the incidents never occurred) was irrelevant to the charge. The mere allegation that photographs were taken was sufficient to secure a conviction. Photographers should be very frightened by this expansion of the Indecency with Children Act 1960 and the mischief it is sure to bring to others besides Mr. Ovenden.

That brings us to the two remaining charges involving a third model, JB. At the outset, JB alleged three incidents. First, she claimed that when she was six she had a bath with Mr. Ovenden and another girl. Allegedly, Mr. Ovenden asked her to wash his "John Thomas." (The alleged incident involved no touching, just an invitation.) Second, JB claimed that when she was 7, Mr. Ovenden blindfolded her and played a "tasting game," culminating in his putting his penis in her mouth. Third, JB claimed that when she was ten Mr. Ovenden came up behind her, grabbed her breasts through her clothing and said "come on, let's have a feel."

Allegation number two, the tasting game, was disbelieved by the jury, while Mr. Ovenden was convicted on the first and third allegations. The discussion of these charges should be prefaced by a few facts that were not fully explored at trial, but which are salient nonetheless. Within a year of the alleged "let's have a feel" incident, JB asked Mr. Ovenden to photograph her naked, which he did. She was very proud of her breasts and a photo of her naked from head to toe appears in Graham Ovenden's monograph States of Grace. When she was asked about the photography session at trial, JB said she didn't remember it, and the photograph was never introduced because Mr. Ovenden's legal team were determined to keep States of Grace out of view of the jury. But her insouciant facial expression and open pose are not those of a girl who had to fight off an attack by the photographer not long before the photo session.(One can argue that it was a mistake not to introduce the book into evidence, but hindsight is always golden.) There is also evidence of a motive by JB to give false testimony. Long before the trial, JB and her mother took sides with Mr. Ovenden's ex-wife, Annie, in a bitter dispute over the Ovendens' collapsing marriage, Edmund Ovenden's misappropriation of equity in Barley Splatt and the removal of valuable photographs and other documents from Mr. Ovenden's possession. In fact, JB worked for Annie Ovenden: in 2010, she registered the domain for Annie Ovenden's website and thereafter remained the registrant and technical contact. (This fact was discovered after trial.) A friend of the Ovendens also witnessed a conversation between Annie and JB's mother regarding how they would "get" Graham. Mr. Ovenden's legal counsel must have felt strongly enough about how fraught the charges were that they didn't wish to air this dirty laundry.

In any event, there are ample grounds on which to appeal the convictions on these charges. Let's begin with the bath allegation, which JB said happened when she was six years old. There are three possibilities: 1) JB was willfully lying, 2) JB had a memory of an event that never occurred, or 3) JB remembered a real event. Facts already mentioned above suggest that JB was lying, but assuming, for sake of argument, that she actually had a memory of such an event, the task is then to determine whether the memory is true or false. This is not simply a matter of listening to JB's testimony and deciding whether her story is convincing. As memory expert Daniel L. Schacter has observed, "[p]eople incorrectly claim -- often with great confidence -- having experienced events that have not happened." (See, The Seven Sins of Memory: How the Mind Forgets and Remembers, Houghton Mifflin, 2001.) This is especially the case when witnesses rehearse their testimony with police officers, prosecutors and others (e.g., their mothers) and become "extremely confident about what they say -- even when they are incorrect." (Schacter, Searching for Memory: the Brain, the Mind and the Past, Basic Books 1996). A great deal has been learned since the early 1990s about how memory works and much of this knowledge flies in the face of the common understanding of the man on the Clapham omnibus that a memory is like a tape recording of what happened. For this reason, the British Psychological Society (BPS) produced its Guidelines on Memory and the Law: A Report from the Research Board of the British Psychological Society, written expressly for consideration by the CPS, police and defence solicitors. The following principles, designated as "Key points" in the Report, rather speak for themselves:

• Remembering is a constructive process. Memories are mental constructions that bring together different types of knowledge in an act of remembering. As a consequence, memory is prone to error and is easily influenced by the recall environment, including police interviews and cross-examination in court.
• Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish the truth of a memory is with independent corroborating evidence.
• People can remember events that they have not in reality experienced. This does not necessarily entail deliberate deception. For example, an event that was imagined, was a blend of a number of different events, or that makes personal sense for some other reason, can come to be genuinely experienced as a memory, (these are often referred to as ‘confabulations’).

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

In general the accuracy of memories dating to below the age of about seven years cannot be established in the absence of independent corroborating evidence.

There was no independent corroborating evidence in JB's case. The "fact" of JB and her mother agreeing that JB disclosed the alleged incident when she was fifteen or sixteen (assuming, for the sake of argument, that this is true), does no more than corroborate the existence of a memory, not whether the memory is true. Independent corroborating evidence means evidence that is adduced or discovered contemporaneously with the alleged event and that directly supports one or more aspects of it. It does not mean a supposed conversation ten years later. Simply put, the CPS should never have prosecuted Mr. Ovenden on this charge.

What else is wrong with the two JB-related convictions? They are inconsistent with the acquittal on the third allegation, the so-called "tasting game" incident. The standard on voiding a conviction due to inconsistent verdicts is an exacting one. The burden is on the defendant to prove that the verdict is "unsafe," that is, that there is both "a logical inconsistency between the verdicts" and "no explanation" for the inconsistency. Dhillon [2010] EWCA Crim 1577, par. 33. There is no universal test for determining whether a verdict is "unsafe." However, in R v. Cross [2009] EWCA Crim 1533, the court found that verdicts would be inconsistent where:

They cannot possibly be explained by any line of reasoning which the jury could have adopted looking at the evidence as fair-minded ordinary people. The appellate court has to apply this test in the context of the issues which were presented to the jury, but that does not of course mean that a jury had to view the evidence bearing on those issues in the way that was argued for either by the prosecution or the defence.

Here, one needs to view the allegations by JB in the overall context of the case. First, the counts of conviction (the bath and "let's have a feel" incidents) were completely different from any other allegation in the case. Second, the only allegation by JB that was supported by a similar allegation -- the tasting game -- was thrown out by the jury. These two facts alone make out a prima facie case for "inconsistency."

Another factor to consider is that JB's credibility was at issue, since Mr. Ovenden denied that the three alleged events ever occurred. It might be argued that the testimony of JB's mother swayed the jury as to the bath incident, but it could not possibly explain the conviction on the "let's have a feel" count. Moreover, the convictions on these two counts came only after the jury had been deadlocked for four days and Judge Cottle instructed the jurors that they could convict by a majority. Consequently, the jury's decision has the hallmarks of a "compromise" where the jurors split the difference -- acquitting Mr. Ovenden on the more serious charge (one that was potentially corroborated by a similar allegation by LD), but convicting him on the two minor ones.

The closer one looks at the case against Graham Ovenden, the more one sees its vindictive heart. The case is replete with official corruption, from the coercion and coaching of witnesses, to novel applications of law, to bringing charges that should never have been brought. It is a rich irony, indeed, that in his petition to the Court of Appeal to put Mr. Ovenden behind bars, H.M. Attorney General cites as a consequence of Mr. Ovenden's supposed "abuse," the turmoil that the police and prosecution caused Model X and Maud Hewes -- turmoil, it must be said, that these witnesses never felt either when they modeled for Mr. Ovenden or when they looked back on their experiences in their twenties.

It is now up to the Court of Appeal to see that justice is done by reversing Mr. Ovenden's convictions.

What Her Majesty's Attorney General Doesn't Want You to Know (Part 2)

When Graham Ovenden was convicted in April 2013 on two counts of “indecency with a child” with respect to photographing the witness identified here as “Model X,” the charges, which the police filed on her behalf, did not relate to any existing photographs. Rather, they related to imaginary photographs that exist only in Model X’s false memories – false memories that were created by the police during their interviews with her. This is no mere speculation.

Model X did not come forward years later when she figured out what had happened to her. This was a lie that the prosecution fed the press and which the press dutifully reported. In reality, the police paid Model X an unsolicited visit in 2009 and attempted to get her to say she was blindfolded and molested. (The source for these allegations was Minty Challis, a/k/a Donna Berry.) Although the police never got Model X to allege molestation of any kind, they preyed on the inaccuracies of her memory and the clinical depression she developed in later adulthood to convince her that Mr. Ovenden had done something wrong. So how did the police find Model X in the first place? Mr. Ovenden gave them her address. He was obviously naïve to think that the police wouldn’t have their way with her.

The contrast between Model X’s written statement for the introduction to States of Grace at age 27 and her statement in 2009, at age 46, testifies to the power and will of the police to invent crimes where none exist. Here is what Model X wrote in her own hand in 1990, when she knew that several of her images would be reproduced in Graham Ovenden’s States of Grace:

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

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

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

Now compare this resolute declaration with paragraphs 36 and 37 of the prosecution’s opening statement about what Model X would say when called to the witness box. (These paragraphs were simply regurgitated, complete with typographical error, by the Attorney General in his “Reference Under Section 36 of the Criminal Justice Act 1988,” recently submitted to the Court of Appeal, Criminal Division. Evidently the Attorney General couldn’t be bothered to find out what Model X actually said at trial.) The reader should keep in mind that these paragraphs are supposed to make out two separate “offences” of “indecency with a child:”

"[Model X] was about 10 years old when the defendant took photographs of her at a time he was still living in London. This took place in a studio in an empty bedroom of the house. [Model X] remembers the defendant telling her that he wanted to recreate a ‘Little Blind Girl’ and he told her a story about a blind girl. Susannah was sitting on the floor. She was naked. The defendant put white sticky tape on her eyes. She couldn’t see. The defendant pushed the tape down. [Model X] didn’t know what the defendant was doing through she could hear him breathing as if he was holding his breath and then exhaling.

"When the defendant moved to Cornwall, [Model X] would visit the Offender’s home address with her family. The defendant photographed her outdoors. [Model X] remembered there being rocks up the hill from the house where the defendant photographed her naked. She remembers the rocks digging into her back as she lay across them. She can recall be [sic] stretched out in certain poses and feeling vulnerable."

As mentioned above in this posting and elsewhere on this blog, the prosecution did not introduce into evidence any photographs showing Model X fully naked with tape over her eyes or lying down on rocks. The authorities had dozens of photographs of Model X, but none of them fit the descriptions of these two alleged events. However, they did have photographs by Mr. Ovenden which plainly demonstrated that Model X’s memories were confabulated – that is, her recollections were based on true events, but contained crucial details that never occurred.

Model X testified that her eyes were taped, that she was totally naked, and that she was blindfolded only when she was alone with Mr. Ovenden. However, photographs in the possession of the authorities, reveal those details as false. Reproduced here are three photographs of Model X posing with another model on the day the “blindfold” photographs were taken. The blindfold is cloth, not tape, and Model X is wearing a white dress, open at the top. (One of the photographs served as the source image for a drawing about blind Justice that Mr. Ovenden made for a patron.*)

And if Mr. Ovenden told Model X a story about a blind girl, it would hardly be sinister: blind and blindfolded figures are not uncommon in the history of art. (See paintings above.) Still other photographs in the possession of the police show Model X seated, never lying, on rocks at Barley Splatt. When one of those images (shown above right) was introduced by the defense, Model X commented under oath that it was “lovely.” The implication that someone stretched Model X out over rocks is pure invention.

This is not to call Model X a liar. She undoubtedly believed that what she testified to was the truth. (The defense failed to confront her with her statement in States of Grace for reasons unknown to this writer.) But her memories – so graphically in conflict with both her recollections at age 27 and the photographs that Graham Ovenden actually took of her – are clearly false.

The phenomenon of the confabulation of memory is well known, as attested to in the following précis by Dr. Ian Anderson, a Chartered Psychologist. Although Dr. Anderson did not consult in the Ovenden case, he clearly should have, as his observations would have helped the jury to understand how someone could have one set of memories of certain childhood experiences at age 27 but a drastically different set at age 46:

A lay view of memory function might well be characterized as a belief that memories are recorded and stored rather like an archive of video recordings to be retrieved and replayed at will. Research over decades has demonstrated that this is not accurate. The general view that psychologists hold of memory is that memories are stored not as whole narratives, but as fragments. Fragments of memory are reconstituted into narratives at the time of their retrieval. I would note that functions of memory are clearly much more complex than the description I have just given; but I believe my description represents a simple overview that accurately contrasts with the lay version of memory noted above.

Whatever the mechanisms of memory, most of us believe that our memories are more or less accurate. We also believe that we are better at remembering important events than trivial events. Research has consistently shown, however, that our memories are probably far less accurate than we believe them to be. Our memories are sufficient for most practical purposes as demonstrated by the fact that we can function in our day-to-day lives. But there are occasions when normal people in normal situations ‘remember’ things that have not occurred.

This ‘remembering’ of events that have not occurred is known in psychology as confabulation. Confabulation is also referred to in more general contexts as ‘False Memory Syndrome’ and sometimes ‘Recovered Memory Syndrome’. Confabulation of memory is one example of our brains/minds filling in the gaps of missing information in order to make sense of the world. Both our visual system and our auditory system also routinely perform this task, and indeed sometimes get it wrong.

I want to be clear that confabulation is a normal artifact of memory that happens to the healthily functioning brains/minds of most people at some time or another.

Some people are more prone to confabulation than others…. [T]here is a plethora of publications devoted to this phenomenon. I would draw attention to an article published as recently as 5 August 2010 (Mazzoni et al., 2010). In this study as many as one in five of the 1,600 participants reported clear recollections of incidents that they knew had never taken place. Most of the false memories reported by the now-adults in the study related to events between the ages of four and eight years old.

If a memory is confabulated a person who experiences that memory has in a sense invented the memory, although that person will not in any way be aware that it is an invention. In other words, confabulated memories are experienced as if they are the truth. Indeed, one of the ways that researchers are able on some occasions to identify clearly confabulated memories is by the certainty with which those who report those memories maintain them in the face of irrefutable evidence to the contrary.

Once a memory has been confabulated it is impossible to separate it from a real memory. Therefore, if a person can create a confabulated memory he or she can certainly maintain it consistently even though in a sense the memory is fabricated. Not only can the individual who experiences the memory not distinguish between a real memory and a confabulated memory, but research has also demonstrated that without external reference psychologists are no better at distinguishing confabulated memories from real memories than are others. However, there are some contextual factors and features that properly raise doubts in relation to the veracity of a memory when it is considered.

The research above also demonstrates that there are specific circumstances that are likely to increase the possibility of the creation of confabulated memories. “One set of circumstances that has been associated with the creation of confabulated memories is when a person has been the subject of certain types of psychological counselling or other interventions of psychological therapy.

There are many types of psychological interventions, sometimes known as ‘talking therapies’. It is by no means inevitable that a competently delivered form of psychological therapy will necessarily create confabulated memories. However, in order to comment as to whether a particular therapeutic intervention has the potential to create confabulated memories, it is necessary to consider both the style of therapy and the details of the ways in which the individual therapist delivered that therapy. “As I imply above in relation to potential for any therapeutic intervention to create a confabulated memory, the devil is in the details.

For completeness, I will add that the potential for confabulation as a result of therapeutic intervention probably arises for no better reason than the fact that talking therapy typically involves an intense interpersonal relationship between therapist and client focused upon specific problems in the client’s life and sometimes the reasons for those problems. In other words, although therapeutic interventions have a high potential to create confabulated memories, the fact of the matter is that any such conversation, interview, or discussion has this potential, and ‘talking therapy’ is merely a special case of this type of interaction.

Another set of circumstances that has been associated with the creation of confabulated memories is the investigating process itself, particularly the methods of interviewing used by, for example, the police. Such issues as interviewer expectations, specific types of questions (particularly leading questions), summaries that confirm interviewer expectations and omit or deny contrary information provided by witnesses, etc. are all things that have the potential to pollute memory.

I am not suggesting by the above that interviewers would necessarily intend to distort accurate recall; in fact, it may be the very intention to elicit accurate recall that sometimes creates the circumstances for confabulation. A lay person considering such interviews would not necessarily be able to point to specific interactions that have the potential to create confabulation: this requires an expert analysis.

In light of the fact that Model X has suffered from depression in adulthood and given the interventions by the police, who swooped down on Model X with a fury to “get” Graham Ovenden, it is clear that Model X’s testimony consisted not of accurate memories, but confabulations.

One can also sense just how deeply Model X was manipulated by the police. The Attorney General notes that in her victim impact statement, taken in 2013, Model X said that “giving evidence had been the worst experience of her life” and that “she had struggled with vague feeling [sic] throughout her life that she had been taken advantage of; throughout her life she had felt loneliness and isolation and felt very alone in her relationships.” These claims (quoted here from the Attorney General’s brief, not the victim impact statement), were, like Model X’s testimony, embroidered by the police. Applied to real child abuse, they might be believable, but here they are just tropes.

It’s no wonder that giving evidence was the worst experience of Model X’s life. She had her memory irreparably damaged and then discovered on cross-examination, when she was confronted with the photographic evidence, that something was truly amiss. This is something for which the police should be punished, not something for which Graham Ovenden should be held responsible.


*The title of the drawing is “Justice conducts the choir of innocents in her new anthem” and is reproduced here.

Laurie Lee on Graham Ovenden's Art and Photography

Laurie Lee was a novelist and poet who is best known for having written Cider with Rosie, one of Britain's most popular books. A film version was produced by the BBC in 1971 and has shown on television on numerous occasions. It was Laurie Lee who gave the Brotherhood of Ruralists (of which Mr. Ovenden is a part) their name. Mr. Lee was an enthusiastic supporter of Graham Ovenden's work from the early 1970s until his death in 1987. Mr. Lee wrote the Forward to Graham Ovenden's eponymous monograph (Academy Editions/St. Martin's Press, 1987). It is reproduced below, along with the text of a brief introduction to an unpublished photographic monograph which was superseded by States of Grace.

Laurie Lee
Foreword to Graham Ovenden (London: Academy Editions/St. Martin's Press, 1987).

Graham Ovenden is a natural-born artist of acute originality and grace who has captured regions and perceptions unmistakably his own. Nor are his intense appreciations of the world restricted to a single medium: best known as painter and draughtsman, he is also freely involved in the practice of music, poetry, photography, design and the precise discipline of architecture.

Ovenden was an instinctive and self-directed artist from his beginnings; whilst still a child he was filling sketchbooks with both imaginary and direct drawings from nature. Amazingly, by the age of twelve -- having heard Wanda Landowska on the wireless -- he had built for himself a full scale harpsichord in good order and decorated it lavishly in the Claudian manner. This could, perhaps, be one of the earliest examples of his particular obsession: a love of harmony, yes, and of light and form which he has steadily perfected throughout the years. He is a man who not only reflects a world he wishes to see, but has also created from it keen and personal perspectives. It was some fifteen years ago when I first came to know Graham Ovenden's work, at a one-man show at the Piccadilly Gallery. I had wandered in by chance and was immediately entranced, not only by the brilliance of his landscapes, but also by his audacious explorations into almost forbidden territories -- among them a series of paintings of young girls, some nude or semi-nude, veiled by bands of shadow and light, whose faces, neither blossom-pretty nor waif-like wistful, showed that they were wiser in their brooding provocation and contained sexuality than any of their adult observers.

The reproductions in this book show some of these, together with the whole sweep of Ovenden's other skills and affections. We see here the full range of his landscapes, unexpected, unsentimental, but arresting for their luminous passion; studies of trees, the form of their roots and branches surrounded by a radiance of leaves and light. These landscapes belong to no other painter. Most of them are of the far West Country, many of them idyllic, others bearing the mysterious imprint of early man's presence on this land and the former life of the rocks.

Ovenden persuades us that these landscapes are also portraits -- there is mood and character in them. But it is the changing flow of light, set against the steadfastness of tree and stone, that seems happily to engage the artist, so that we see expanding cloudscapes, sweeps of water and waves, and often that brightest rural goddess of all -- the fertile and inconstant moon.

Indeed the occasional presence of the full moon, basking above this rural amplitude, reminds one of the artist's acknowledged indebtedness to the oblique influences of his youth, Samuel Palmer and William Blake, and later, Graham Sutherland and Paul Nash. Even so, he is not an artist overstamped by influences. The world he offers comes from his own original vision, a romantic classicism wrapped in well-tempered truth.

The collection of works shown here, spans roughly thirty years, beginning with darkly observed photographs Ovenden made in the late 1950s reflecting the damp light of Rotherhithe and the East End, and an age of aproned street-children playing ancient games none of which will ever be seen again. We also have his figures in landscape, his superb portraits and his nudes which, as he says, are also primary portraits. Most nudes in art are little more than cyphers, bloodless clichés of complacent technique, all similar as garden gnomes. Ovenden's nudes are portraits, in that they are acutely observed studies of personality at exact points of time, each subject separate and caught in a moment of fate. They have names and faces, and the faces are often trapped in the suggestive stance of the body, as if not yet belonging to it, or not ready to acknowledge it. For the most part they are studies of young girls, at the time of questing, calculation, uncertainty and power, when the fluent prepubescence of mind and body has not yet been locked into a stiffened maturity.

This is one of Ovenden's outstanding gifts, the way in which he delineates with such tender perceptiveness the wayward witcheries of some of his younger models. Whether in pencil, paint, charcoal or conté, this lightness of touch and originality of view is visible throughout his work. In his Alice and Lolita prints, for example, a series of slumbers surprises, neither pretty nor shocking but haunting in their sombre assurance -- young visitors of night and dream; while his book illustrations, particularly those for Wuthering Heights, are of dimensions the book only hints at.

His work in pencil can be as light as gossamer, but often conceals darker shadows beneath. This poetry also has an assured lightness of touch which sometimes hides far deeper implications. Graham Ovenden is a masterly enigma. There is no one like him. He is an artist of penetrative innocence who still rules his own private island. And this book is part of its treasure.


Laurie Lee
Introduction to Graham Ovenden Photographs (unpublished)

Graham Ovenden's photographic portraits and nudes of the girl child are in all probability the finest examples in Western Art.

I remember autographing a copy of my Two Women for Graham in the mid eighties. I did so as a humble student to his masterful and utterly honest depictions of girlhood. Like his mentor, William Blake, Ovenden stands as a unique and powerful reminder of an authentic vision that has not been sullied by the neurosis and falsehoods of popular culture; nor that of the obsessive and immodest dictates of the law.

During one of the many discussions we have held together, Graham rightly pointed to the fact that within the foundations of our culture, the Humanism of Ancient Greece remains as a bedrock of sanity and rational behavior.* The total body of self is that of the Gods and what more so when depicting the wholesome beauty of our childhood. I well remember when my own Cider with Rosie was first published how some moralists picked on the natural sensuality of girlhood and tried their utmost to defame this series of essays based on my boyhood experiences. I hardly dare write this, but I now wish I had been more forthright in showing certain members of the public their puerile actions and minds, for they are the true pornographers.

God bless Graham Ovenden and his enigmatic art, it enriches us all.

- Laurie Lee, 1988

*[An example of that sanity might be seen in the words of Protagoras, a Greek philosopher and teacher who lived around the 5th century BCE: "As to gods, I have no means of knowing either that they exist or do not exist. For many are the obstacles that impede knowledge, both the obscurity of the question and the shortness of human life." -BW]


(Mr. Ovenden's nudes have not been reproduced here, as blogspot is in the habit of deleting blogs containing images of minors (even non-existent ones) under the guise of banning "child pornography," regardless of what the actual images depict. The importance of this blog lies primarily in the defence of Mr. Ovenden and his work, which is not child pornography and does not advocate or in any way support child abuse.)

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

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

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

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

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

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

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

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

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

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

“The subject's declaration is worth repeating here:

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

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

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

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

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

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


Addendum to the Publisher’s Note

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

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

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

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


Proffer of Graham Ovenden (April 1992)

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


Proffer of Maud Hewes (May 1992)

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

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

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


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

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

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

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

The excerpt from the brief:

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

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

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

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

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

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

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

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

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

Id. at 19.

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

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

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

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


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

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

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

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

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

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

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

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

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

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


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

Endnotes

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

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

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

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

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

Graham Ovenden's Photographs vs. The Vile Mindset

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

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

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

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

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


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

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

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

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

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




Endnotes

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

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

Graham Ovenden will be sentenced on 04 June 2013.