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.