No more "artistic merit" defence for child pornography in New South Wales
Changes to the criminal law rely on police and the courts to consult with arts experts before deciding whether material is art or child abuse
By Elizabeth Fortescue. Web only
Published online: 24 March 2010
Sydney. The NSW Government has announced that people charged with child pornography offences will no longer be able to claim the "artistic merit defence". NSW Attorney-General John Hatzistergos said the changes to the NSW Crimes Act would allow courts to better distinguish between child pornography and art.
Law-makers have been grappling with their response to the public furore which broke out in 2008 when the prominent Australian photographer Bill Henson exhibited pictures of naked children.
Police removed the photographs from the RoslynOxley9 gallery in the chic Sydney suburb of Paddington, following complaints. After validation of the photographs by the Classification Review Board, however, they were put back on display. However, only people who rang ahead to the gallery were granted access to the exhibition.
Henson was not charged, but his work continues to stir up heated discussion both for and against his use of nude child models.
In his statement (released 9 March) Mr Hatzistergos said a clear line does not currently exist between child pornography and art, and that this situation is not ideal for the public or the artistic community.
“Laws introduced today make it clear that if a court determines that material is ‘child abuse material’, the fact that it is art can no longer be used as a defence to a charge of child pornography,” Mr Hatzistergos said.
The minister’s statement said that NSW laws will adopt Commonwealth provisions under which the court looks at the artistic merit of the material when deciding whether it is child pornography, rather than relying on the defence of artistic purpose being raised.
The changes were formulated in consultation with the National Association for the Visual Arts.
NAVA executive director Tamara Winikoff said it might at first appear that the removal of the artistic merit defence could make artists more vulnerable to constraints on their freedom of expression.
But she said this was balanced by the onus being placed on police and the Office of the Director of Public Prosecutions to establish that the material in question “is such that a reasonable person would find it offensive in all the circumstances”.
“NAVA is currently working with the ODPP and the police on protective protocols so that art experts are consulted and can advise on whether the material had been produced by a genuine artist and had ‘artistic merit’, taking into account its context, intention and meaning,” Ms Winikoff said.
Ms Winikoff said NAVA understands that a clause will be inserted into the Crimes Act which accepts classification by the Classification Review Board as a complete defence. “This was one move that lead to resolution of the Bill Henson case,” she said. “It allows artists, galleries and publishers to approach the Classification Review Board if they are unsure about a particular work of art."
“We are concerned that while public anxiety about protection of children is absolutely understandable, it needs to be focused on pre-empting or catching the real perpetrators and not artists,” Ms Winikoff said. “We have never heard of a case where an artist was found guilty of making artwork which was child pornography.”
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