Relationship Between Criminal Law and Production of Images
'Obscenity law stems from an astute recognition that representations of sexuality impart messages with important consequences for politics.'
Critically assess the relationship between criminal law and the production of images.
With the many numbers of news articles and an abundance of media coverage and attention on cases involving 'obscene' images, it seems clear that there is a place in the academic world for an extensive discussion targeting such topics.
This paper argues that the criminal law's stance on obscenity and the production of obscene images is less than clear. Using the cases involving artists Andres Serrano and Bill Henson, this essay examines the concepts and purposes of the obscenity law. It explores examples of the criminal law's failure to clearly grasp the problem at hand and the social consequences of such ambiguity, referring to the concept of 'moral panic' (Lumby and Funnell 2011).
How is obscenity defined and what part of the criminal law refers to it?
Obscenity and indecency are referred to in Australian law. For example, in Victoria, s 17(1)(b) of the Summary Offences Act 1966 states that it is an offence to exhibit or display 'an indecent or obscene word figure or representation' in a public place. Similarly, it is an offence to publish an 'indecent' article in New South Wales (Crimes Act 1900 (NSW) s 578C(2)) . In relation to this paper, these sections condemn the display of indecent or obscene images with which members of the public may come in contact either voluntarily or involuntarily.
However, the terms 'indecent' and 'obscene' are not further explained. This is problematic as the concept of indecency and obscenity by nature is subjective, as it often incites and is recognised by emotional responses to a certain thing or behaviour. Further, these legislations do not provide the circumstances under which the display of an article may or may not be obscene. For example, the term 'public' is used in a broad sense without distinguishing whether or not it includes specialised places such as art galleries in which it may be socially acceptable to show controversial materials, which those uninterested in art may never see.
Without objective and strict guidelines, the boundary is blurry which, as seen in a number of artists' cases, may result in a heated public debate, stirring up a 'moral panic'. Further, this ambiguity implies that criminal cases involving 'obscene' materials would rely on the judge's discretion, the jurors and case law, depending on which the court decisions may vary.
The ambiguity of the obscenity law and its consequences
Such was the case in a court case in 1997 concerning an artwork by a famous artist, Andres Serrano, displayed in the National Gallery of Victoria. The photograph, titled Piss Christ, portrayed the crucified Christ which was 'immersed in [Serrano's] urine when the photograph was taken' (Pell v Council of Trustees of the National Gallery of Victoria (1997) VSC 52, p. 2) Undoubtedly, this caused an outrage within the Christian community, as well as some members of the general public (Hunt 2013). Archbishop George Pell subsequently sought an injunction to prevent Piss Christ from being displayed in the gallery, arguing that the photograph was a blasphemous libel, and 'obscene' and 'indecent' under s 17(1)(b) of the Summary Offences Act 1966 (Vic) (Hunt 2013). However, Justice Harper nevertheless refused to grant an injunction, referring to the rulings of previous cases of a similar kind. He explained that in a plural society, 'the law need not bother with blasphemous libel' because it is as important to respect the feelings of non-religious people as it is to protect religious beliefs. That is, rather than using the force of law to criminalise acts and articles that may be offensive to certain groups, it would make sense to leave such matters to the capacity of the groups to 'absorb criticisms or even jibes' from each other. Further, Justice Harper stated that there was no evidence that the photograph would result in a breach of the peace (Pell v Council of Trustees of the National Gallery of Victoria (1997) VSC 52).
This case, aside from the social, political and religious debates it generated, points to the ambiguous stance on obscenity which current Australian law has. For example, s 17(1)(b) does not appear to be enough to base one's argument on, involving an image that is offensive to the individual. Looking at the Summary Offences Act, one can argue that anyone has the right to seek a legal action concerning a seemingly obscene material. However, that the obscenity law does not take 'blasphemy' into consideration and that the 'law of blasphemy was last used successfully in Australia in 1871' (Hunt 2013) is not clearly made known. Further, it is unclear when an image can be successfully labelled 'obscene' or 'indecent'. In a case involving religion and the nature of art, it appears that the law cannot simultaneously protect both religious beliefs and the freedom of expression.
Indeed, the question seems to be, as Justice Harper disputed, 'whether the court should intervene' at all (Pell v Council of Trustees of the National Gallery of Victoria (1997) VSC 52, p. 3). In order to answer the question, then, it seems reasonable to ask what and whom the obscenity law attempts to protect.
What does the obscenity law attempt to protect?
With the existence of law that prohibits 'obscene' images to be publicly displayed, the public debates surrounding the problematic image seem to have one theme in common: protection. In the case of Piss Christ, the question was whether to protect religious beliefs or artists' freedom of expression and the feelings and cultures of the non-religious. In another case, concerning photographs of a naked child apparently portrayed in a sexual manner (McDonald 2012), the debates focused on the question of protecting children and their innocence as our moral duty or protecting, again, the artists' freedom of expression and the form and nature of art.
Such heated debates by public commentators in popular media are a part of what constitutes a 'moral panic'. Kenneth Thompson (1998, cited in Lumby and Funnell 2011) explains that 'moral panic' is the suggestion that there is a threat to 'something held sacred by or fundamental to the society' and the nature of the threat is such that it attacks social order or the currently accepted ideologies.
When interpreting the debates surrounding 'obscene' images with Thompson's account of 'moral panic', it appears that the attention, anger and even outrage towards the image by the public is not only because the image itself is 'obscene', but because of the fact that the public display of it would threaten the social order, under which the public display of such images is not generally accepted. That is, that the display of 'obscene' images is not accepted by the right-thinking individuals of a certain society is part of what defines the current social ideology. In this sense, then, the obscenity law can be seen as a mechanism working to protect social order and ideologies.
The Bill Henson case
To further explore the concept of protecting ideologies by the use of obscenity law, it is sufficient to refer to the case involving an Australian artist, Bill Henson.
In 2008, public discussion and concern over sexualisation of children erupted after an image of a naked 12-year-old girl taken by Bill Henson was sent on an email invitation to a gallery exhibition in Sydney. It was felt by many that the image was pornographic and therefore obscene, and even 'revolting' and 'disgusting' (Lumby and Funnell 2011, p. 283). On the other hand, some argued that it was a beautiful and artistic photograph portraying the transition from adolescence to adulthood as the artist intended, which in and of itself was criticised to be a sexual concept (McDonald 2012).
Again, the main concern seemed to be around the idea of protection. The use of the image was felt by some to be an exploitation of child innocence and a failure to protect the children.
The 'abused' child
However, the representation of this concern was accompanied by a rather contradictory media coverage. For example, when the problematic image was shown on television, the 12-year-old's body parts were censored with black bars (McDonald 2012, p. 102). This can be interpreted as an (unintended) reinforcement of the child's sexualisation. The censoring of the child's body defeats the central point of protecting child innocence and appears as if the image is deemed inappropriate, which in turn portrays the child in a sexual and 'obscene' manner.
Furthermore, whilst discussing the potential emotional and psychological damage to the child model of the image, the child's own account of the experience was not heard in most of the discussions. That is, she was portrayed merely as a nameless victim who was unfortunately featured in such a horrific pornographic image. The commentators worried that the child would not have had the capacity to make an informed decision to participate in the photograph (McDonald 2012, p. 104), and thereby completely eliminated her agency in the process.
Interpreting this with Leela Gandhi's (1998) psychoanalytical account in her critique of postcolonialism and feminism, it is seen as the 'saving' of the victim by speaking for them, which in turn silences them and reinforces the idea of their vulnerability and victimisation. Consequently, it is the imagining of the exploited, sexualised and damaged child that brings satisfaction to the adults and experts who can help them, which cannot be achieved without taking away the child's agency. Further, a 'moral panic' would not occur to the extent that Bill Henson's photograph generated if the child was not seen as a victim, in which case the fundamental ideology of protecting the weak and the children would not seem under threat.
Protection of ideologies
With this interpretation, then, it seems that whether or not the nature of the 'obscene' image is illegal, the existence of the obscenity law seems to be a justification for the 'moral panics' generated by the image. That is, the silencing and exaggerated vulnerability of the 'victim' ultimately leads to the fear of threatened ideologies, and therefore the need to discuss the legality of the threat in order to justifiably eliminate the threat.
Here, it is important to point out that, as was the case with Andres Serrano's Piss Christ, there were no legal charges against Bill Henson or the gallery, and the image of the naked child was allowed to be displayed (Emerson 2008). It was decided that the image was 'mild and justified by context' (McDonald 2012, p. 110).
Then, what was ultimately achieved by the 'moral panic' and the existence of the obscenity law? Perhaps it is the consideration of the fact that ideologies are not a singular thing on which all citizens of a country agree. In our multicultural society, theoretically, all beliefs and ideologies are to be equally respected, which can be an ideology in itself. Moreover, what is believed to represent and constitute a certain ideology is different for each individual. That is, it is reasonable to believe that some Christians may not find Piss Christ to be threatening to their religious beliefs or ideology. After all, Andres Serrano identified himself as a Christian (Pell v Council of Trustees of the National Gallery of Victoria (1997) VSC 52, p. 2). And further, some of those who care about the children of our society and who consider protecting them as our moral duty may not find Bill Henson's artwork to be a threat to that ideology.
In this case, it is difficult to determine what exactly the obscenity law prioritises as an ideology in need of protection. Especially coupled with an already ambiguous concept of 'art' and the boundaries within it, the criminal law's stance on obscenity and the production of images appears to be complex and unclear. However, from the outcomes of the two cases discussed in this essay, it seems that 'context' (for example, art) is highly considered in the making of the decisions. Then, ideally, a clear description of such context, explaining when a seemingly obscene image may not be legally identified as obscene, may be needed. Still, if the main purpose of the obscenity law is to protect everyone's ideologies as much as possible, then outlining the context may indicate a prioritised ideology which defeats the point of the obscenity law. Considering this, it may be concluded that perhaps the ambiguity of the language in obscenity law serves a purpose in order to judge each case with all the surrounding information.
This paper explored the concepts and purposes of the obscenity law in Australia in relation to the regulation of production of 'obscene' images. Based on the two cases involving artists Andres Serrano and Bill Henson, and the 'moral panics' surrounding them, this paper examined the obscenity law's role in protecting ideologies. The language in the obscenity law is ambiguous and thus it appears to fail in having a clear guideline for the production and public display of 'obscene' images, often resulting in confusion and anger in public debates. However, when looking at it from a different perspective, this ambiguity may be thought to be deliberate, in order to indeed protect various ideologies depending on the context of the 'obscene' image.
Crimes Act 1900 (NSW) s 578C(2)
Emerson, D. (2008) 'Henson in clear: prosecution scrapped', Sydney Morning Herald. 6 June. Accessed 4 June 2013.
Gandhi, L. (1998) Postcolonialism and Feminism. Postcolonial Theory: A Critical Introduction. NSW: Allen & Unwin.
Hunt, E. (2013) 'Andres Serrano 'Piss Christ' triggers religious fury and court battle in 1990s trials', Herald Sun. 6 March. Accessed 4 June 2013. <http://www.heraldsun.com.au/news/law-order/andres-serrano-piss-christ-triggers-religious-fury-and-court-battle-in-1990s-trials/story-fnat7dag-1226591823318>.
Lumby, C. and Funnell, N. (2011) Between Heat and Light: the opportunity in moral panics. Crime, Media, Culture, 7(3), p. 277-292.
McDonald, D. (2012) Policing Obscenity. In P. Johnson and D. Dalton (ed.) Policing Sex. London: Routledge. P. 99-114.
Pell v Council of Trustees of the National Gallery of Victoria  VSC 52
Summary Offences Act 1966 (VIC) s 17(1)(b)