Graham Ovenden Not Guilty of Indecency Involving Witness JB

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What Her Majesty's Attorney General Doesn't Want You To Know (Part 1)

In April of this year, Graham Ovenden was convicted on three counts of “indecency with a child” for taking unspecified photographs of Maud Hewes, who vigorously defended Mr. Ovenden's images of her -- and her experience of being photographed -- well into her twenties. (See, Trial Fails to Rewrite History of Graham Ovenden's Art for complete statements by Ms. Hewes, which are only summarized in this post.)

In March 1992, at age 18, Maud Hewes told Robert Atkins, then a reporter for the Village Voice, "When I modeled for Graham, I’d make up the poses and he’d shoot them. He never asked me to be sexy and I never tried to." Two months later she filed a sworn affidavit in the United States District Court in New York, stating that her image alleged to be child pornography "is a portrait of me as I was eight years ago. I am not acting in a sexual way in the picture and Graham never asked me to be sexual or treated me as a sexual object. The accusation that the image is 'obscene' is, to me, an accusation that I am 'obscene,' something to which I take offense." (The US government promptly dropped the charge on the day she would have testified in favor of her photo.)

When Mr. Ovenden was being persecuted by the Metropolitan Police in 1993, Ms. Hewes made the following declaration to police in one of her two sworn statements: "I decline the idea that any of the images of myself are indecent and emphatically state that I was never abused, or photographed/drawn by coercion."

Her interview together with Emily Ovenden in the documentary "For the Sake of the Children," showed throughout the U.K., confirms her earlier statements. Only in 2009, after the police came knocking yet again, did Mr. Hewes change her mind and decide that she shouldn’t have been photographed. No one pressured Maud Hewes to defend Graham Ovenden in the 1990s. To the contrary, she was under pressure to denounce Mr. Ovenden for 20 years.

At Mr. Ovenden's trial, police testified that they "lost" Ms. Hewes's two sworn statements to the police in 1993 that would have put the lie to at least three of the charges and undermined two other charges related to another model. Conveniently, the police and Ms. Hewes testified that although they knew she had been supportive of Mr. Ovenden, they didn't remember the specifics of what she said, and thus her statements that are reprinted here from secondary sources were inadmissible as evidence. Judge Cottle ruled that there was no harm and no foul.

That Graham Ovenden’s conviction on these charges is unjust, unfounded and a product of police mischief is patently obvious. Oh, and that "indecency"? It was merely for taking photographs when Ms. Hewes was naked. There wasn't any other "indecent" act on the record. The judge made that perfectly clear in his instructions to the jury.

An small (but highly relevant) excerpt from "For the Sake of the Children," which was part of the Channel 4 series Films of Fire, can be downloaded here, courtesy of Pigtails in Paint. The film was made in late 1996 (when Maud Hewes was 22) and shown on British television in 1997.

(Youtube took the clip down within 24 hours of being posted, probably due to the image of Emily Ovenden and Maud Hewes (nude in profile) or Ms. Hewes alone (from the waist up). Never mind that the the photographs are plainly legal in the United States (no genitalia displayed) and the film showed on broadcast television throughout the U.K. Mrs. Grundy is alive and well and working for Youtube...)

Graham Ovenden's suspended sentence was set to be reviewed by the Court of Appeal on Friday, July 26, 2013, but the Court of Appeal has now determined that it will reconsider the sentence only when it decides whether to accept the appeal of Mr. Ovenden's conviction. Of course, anything other than a reversal of the conviction will be a failure of justice.

The Guardian's Yellow Journalism

This post is in response to a piece of hysterical vitriol by Deborah Orr, published yesterday online at The Guardian, Society's lenience belongs with Graham Ovenden's child portraits - in the past. Artist on Trial attempted to post a comment (leaving out the commentary below regarding Ms. Orr and reporter Steven Morris, and not referencing this blog), but each time the comment was deleted within a few minutes of posting, despite the fact that it in no way violated The Guardian's "community standards." One would have thought The Guardian was a serious newspaper, but in fact it has proved itself -- through opinion pieces like Orr's and reportage regarding Graham Ovenden over the past six months by Mr. Morris -- no better than the gutter press, passing off prosecutorial posturing and accusations dismissed at trial as "facts" and leaving the actual facts of the case unreported. This is the type of journalism that one can now expect from The Guardian: to be accused is to be guilty, and any defence, whether based on fact or in law, must be silenced.

The "indecency with a child" charges brought against Graham Ovenden (under the 1960 Indecency with Children Act) was a sinister ruse on the part of the Crown Prosecution Service to turn nude photographs, taken with the permission of the models and their parents, into "molestation" charges. But there was no molestation in connection with the photography. 5 of the 7 charges of which Mr. Ovenden was convicted involve ONLY taking nude photographs, with no touching, no coaching into poses, no undressing the models. And the two models whose images were the basis of those 5 charges strongly defended Mr. Ovenden during that liberal era, the 1990s, when they were in their 20s, stating plainly that they chose their own poses and Mr. Ovenden was only there to witness it.

When it came to the jury instructions on those 5 charges, the question put to the jury was whether or not they believed "that right minded people" would regard the taking of a photograph of a child while she is nude to be "something that was obviously indecent towards her." These were plainly trumped up charges, as the law requires a second limb, about which the jury was never properly instructed: "That the Defendant did the act intending to derive sexual satisfaction from the knowledge that the child was watching him." (R v Colin Francis 88 Cr App R 127, emphasis added.)

As any intelligent person will perceive from that latter language, this law was never intended to apply to mere photographing, but to indecent exposure or perhaps some act during photographing involving plain manipulation of the child -- of which there was none alleged amongst the 5 charges, as adduced at trial from the models themselves. It is a non-sequitur to ask whether a defendant who merely takes a photograph of a nude child intended to derive "sexual satisfaction from the knowledge that the child was watching him." Obviously the charges against Mr. Ovenden relating to photographs should have been brought (if at all) under the 1978 Protection of Children Act for "indecent" photos, but the CPS chose this route for two reasons. First, the photographs of one model were created prior to 1978, so the CPS would have been limited to charging Mr. Ovenden with possession of those images unless it could prove that he had printed them post-1978. Second, the CPS chose to proceed under the 1960 Act in order to brand Mr. Ovenden with the modern equivalent of "the scarlet letter" and so that moral entrepreneurs like Deborah Orr could rant hysterically about child abuse and rhetorically spit on Mr. Ovenden by calling him a "paedophile" -- thereby (so Ms. Orr believes) uttering the final word on the matter and condemnation of the artist for all time. In fact, Ms. Orr's call for an end to "leniency" is nothing more than an attack on ideas, a cry of paranoid intolerance that is characteristic of what has become an almost permanent state of panic surrounding child abuse. It has nothing to do at all with the actual protection of children.

As to the two remaining charges of conviction, Mr. Ovenden maintains that these are false. They involve a single model. One of the charges involves getting into a bath with her (at about age 6) and asking the girl to wash his "John Thomas." The other is cupping her chest from behind while she was clothed (at age 10) and saying "come on, let's have a feel." There are good reasons in the context of the trial to disbelieve these accusations -- reasons that will be elucidated during appeal, and of course discussed on this blog. In the meantime, Mr. Ovenden the artist is very much alive.

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 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