I’ve admitted that the motivation for the Naked Child in Art series is my shock over the Henson affair. No matter which way I look at it I see ignorance and utter stupidity. Harsh? Well consider this fact. In a panel discussion over the Henson affair, the instigator of the initial complaint, Hetty Johnston of Bravehearts, said that she and a staff criminologist looked at the offending image and agreed that it was probably child porn. On the basis of this discussion they decided to make a complaint to the NSW Police. However, when the relevant authority, the Australian Classification Board examined the image they gave it a PG rating, which meant that it could be freely published.

How is it that the director of a child protection agency decides that a PG rated image is child porn? How is it that a staff criminologist agrees? Doesn’t this suggest incompetence, that Hetty and Bravehearts are out of touch?

Up until now I’ve concentrated on artistic precedence to demonstrate that images of naked children are as old as art itself and not controversial. It is now time to consider the legal precedence – and why the ACB did not agree it was child porn and instead gave it a PG rating.

The first case to examine is the infamous Oz obscenity trial. In May 1970, the British based Oz Magazine published an issue edited by schoolkids (no 28), which was charged with being obscene.

The principle concern seems to be have been a sexually explicit cartoon of Rupert the Bear. However, the thing that concerns me here is that both the infamous schoolkids issue and issue 34, published images of naked children and these did not seem to be a focus of concern. The first is a photo by Thomas Weir of naked hippie girls (Weir was an American counter culture photographer closely associated with the Grateful Dead and the Psychedelic movement). The second was one of a set of 4 works by British artist Barry Burman.

Thomas Weir, Issue 28

Barry Burman, Issue 34

The court case is famous for a number of reasons (which can be found here). Suffice to say that defendants were eventually acquitted, thus setting the legal precedent that the magazine was NOT obscene, and therefore that the photos of naked children were also not obscene.

But the more interesting issue is what happened to the schoolkids who edited the infamous issue. If we are the believe the moral conservatives then their innocence has been corrupted in some way. Perhaps they suffer from some form of trauma. I mean, the experience must have been harmful. As it turns out we know exactly what happened to them. In his article for the Guardian I was an Oz schoolkid music journalist and novelist Charles Shaar Murray tells us.

The company of schoolkid editors included Peter Popham, subsequently a respected foreign correpondent for the Independent; Deyan Sudjic – the posse’s sole skinhead – founder of Blueprint, editor of Architectural Digest and a front-rank commentator on archi-tectural issues; Colin Thomas, a successful photographer; Trudi Braun, who became a senior editor at Harper’s; Steve Havers, cultural commentator turned web designer; and Vivian Berger, whose juxtaposition of the head of Rupert Bear with a Rabelaisian cartoon by Robert Crumb helped generate some of the most surreal exchanges ever heard in a British court.

What? These kids went on to have successful careers, most in the media? Who’d have thunk it? Could it be that the experience was positive and inspiring and the kids were pretty smart?

Murray sums it up nicely:

Depictions of sexuality and violence do not, in themselves, offer any threat. Ideas do, especially when sexuality is involved. From Chatterley to Oz, from Crash to Brass Eye, we have seen those who are threatened by ideas demand censorship in order to win cultural wars when they know, in their heart of hearts, that they have already lost the argument.

But perhaps the best comment comes from the trial record as the creator of the Rupert the Bear cartoon, 15 year-old Vivian Berger defends his actions.

Asked by Mr Mortimer [defence] why he had contributed the Rupert Bear cartoon, he [Berger] replied: “I think that, looking back on it, I subconsciously wanted to shock your generation: to portray us as a group of people who were different from you in moralistic attitudes. Also, it seemed to me just very funny, and like anything else that makes fun of sex”. Mortimer asked: “You say you did it to shock an older generation? What relevance did Rupert have as a figure or symbol?” Berger replied: “Well, Rupert would probably be known to many generations as the innocent young character who figures in magic fairy tales. Whereas here, he’s just doing what every normal human being does.” “Was it part of your intention,” he suggested, “to show that there was a more down-to-earth side of childhood than some grown-up people are prepared to think?”

“Oh yes”, Berger responded cheerfully. “This is the kind of drawing that goes around every classroom, every day, in every school.” The Judge looked wounded. “Do you really mean that?” he asked… “Yes, I do mean it,” Berger replied immediately. “Maybe I was portraying obscenity, but I don’t think I was being obscene myself.”

Mr Leary [prosecution] then elucidated from Mr Berger that he lived with his mother and his two sisters, aged 10 and 12. Yes, he had often bought Oz magazine and yes he had usually left it around the house. His mother had known about his involvement in School Kids Issue and had actually encouraged the lad to contribute. No, she did not think that it had depraved or corrupted him… Mr Leary lurched to the meat of the matter, as he described it. “You were asked by Mr Mortimer,” he nodded, “about your contribution to the magazine. Do you remember saying: ‘I thought it was portraying obscenity, but not being obscene myself’?”

“Yes, I do remember saying that,” Berger replied, somewhat hesitantly. Quick as a flash Leary inquired: “And what did you mean by that?” Berger was not to be cajoled. “Well,” he replied, “if the News covers a war or shows a picture of war, then, for me, they are portraying obscenity—the obscenity of war. But they are not themselves creating that obscenity, because it is the people who are fighting the war that are creating that obscenity. The obscenity is in the action, not in the reporting of it. For example, I consider that the act of corporal punishment is an obscenity. I do not consider that the act of reporting or writing about corporal punishment is obscene”. (source)

Sophisticated for a 15 year-old, no?

Of course the Oz obscenity trial hasn’t settled the matter. The matter is never settled because progressives push the boundaries and moral conservatives push back. Next I’ll look at the Sturges trial in America.

Note: I can imagine Bliss from my novel Wild Child lounging around like the girls in Thomas Weir’s photo, perhaps down by the creek.