The portrayal of nude children in works of art is controversial. The Bill Henson case in Australia and similar cases in the United States and England have sparked vigorous debate about censorship. In this paper we reflect on why nudity is a problem at all, who is in need of protection from it and why.
Public nudity is prohibited by virtually every known human society, using written or unwritten rules. The extent of prohibition varies from just the pubic region to also including the breasts. Why do we prohibit public nudity? The usual reason given is to protect public morals and not to cause offence. Yet nudity of young children is not offensive. In every society we know, young children are allowed to run around stark naked with absolute freedom, and it would be sad if this was not the case. Older children and adults are expected to be ‘decently’ clothed, although isolated nudist beaches are tolerated in many countries. The moral prohibition against public nudity is reflected commonly in legislation, with the presumed intention not only of being explicit about and preserving societal values, but also of protecting the innocent against ‘corruption’. The Concise Oxford Dictionary gives ‘moral deterioration’ as one definition of corruption.
Adult nudity in paintings and photographs is generally acceptable to society, even erotic art, although when the nudity is sexually explicit, it may be considered to be pornography. The word pornography derives from the Greek words porne for prostitute and grapho, meaning ‘I write or record’. Pornography is literally the written description of prostitutes, but has come to mean the treatment of obscene subjects or topics in literature or art, and in particular the depiction of explicit sexual subject matter for the purposes of sexual excitement. A pornographic book or artwork is deemed by society to be in danger of corrupting or offending the reader or viewer. Do we need censorship to protect us from corruption? Some argue strongly against most if not all forms of censorship. In general, we believe that a competent adult is owed the autonomy to decide whether or not to expose themselves to ‘pornographic’ works and is mature enough not to be ‘corrupted’ even if exposed. The most commonly accepted mode of pornography involves the portrayal of one group of consenting adults performing for the pleasure of another group of consenting adults. In these circumstances, no one needs protection because all the persons involved are of a suitable maturity level to decide whether to participate in the manufacture or consumption of pornography. But society comprises more than just competent adults. It includes children, and also adults who may not be fully competent.
Parents and carers are expected to exert tight control over their young children's exposure to violent or sexually explicit content on television, video games and the Internet. Parents and carers are unlikely to be able to control their children's viewing totally, so society legislates by assigning late night viewing times to adult television programmes, by requiring video games and cinema films to be classified according to content, and by banning under age children from seeing adult-rated films. However, society wants to set and maintain a certain level of propriety, and works depicting unnecessarily explicit violence or sex are usually prohibited, even if children can be protected from exposure to them. This may be in part because some adults are not intellectually mature or psychologically stable enough to be relied upon to resist the potentially damaging influence of excessively violent or sexually inappropriate material.
The involvement or portrayal of naked children in works of art introduces another dimension – our duty to protect children from exploitation. In the National Gallery in London, a 16th-century painting by Angelo Bronzino shows a naked boy, bottom protruding, fingering his mother's nipple while they kiss (see Fig. 1). Images of child abuse are proscribed on the Internet and elsewhere. Bronzino's masterpiece would mandate an immediate phone call to child protection authorities if the characters were real. But the characters are Cupid, the Roman god of erotic love and beauty (cupido means ‘desire’), and his mother Venus, goddess of love. The painting is clearly sexually explicit but is not considered pornographic. On the contrary, it is considered an allegorical masterpiece, displayed in a free public art gallery for any child or adult to see. To show how concepts of public morality can change, however, the Victorians did paint over Venus' nipples. What would have made this painting pornographic? If the model for Cupid had been a real, live boy, if Venus was his real mother and if the painting was a life-like ‘photographic’ record, we might judge the moral issue differently. In these circumstances, who would we be protecting by banning the painting? Surely, the well-being of the boy would be our primary concern, more than any danger to the public morality. Would he really have been capable of giving informed consent to participating in a sexual act with his mother or to being portrayed in the act?
When actress Brooke Shields was 10 years old, a photograph of her appeared in a Playboy publication known as Sugar ‘n’ Spice. She was depicted in a bathtub, wearing only mascara and with her naked torso oiled. The photograph was taken by a commercial photographer called George Gross. When she was an adult, Brooke Shields sued for copyright, in an effort to suppress further publication of the image. She was unsuccessful. Subsequently, New York artist Richard Prince re-photographed the original Gross image, gave it the name ‘Spiritual America’, and displayed it in the Guggenheim Museum without exciting comment. In 2009, however, the Tate Modern in London mounted an exhibition, Pop Life: Art in a Material World, which included the Richard Prince work. An essay in the exhibition catalogue states that the artist's desire is not to elicit the ‘lubricious titillations’ that it was shot to spark in its original incarnation, but to provoke thought about the child star's story. Responding to media stories, the police forced the Tate Modern to withdraw the photograph.
Whether one blames Gross or Brooke Shields' mother or both for this whole sad saga, it is clear that Brooke consented when aged 10, at least implicitly, by allowing herself to be photographed and she subsequently changed her mind. It is because she is famous that we are aware that Brooke Shields changed her mind. We are far less likely to hear about other pubescent children who give ‘informed consent’ to be photographed naked and who subsequently regret it. Adults may change their minds after giving consent, too, but children are more vulnerable to subtle pressures from their parents and others. Brooke Shields' change of heart regarding the photograph may not be typical of all such cases, but it does question the ability of a minor to make an informed decision in the first place.
In 2008, the well-known Australian photographer, Bill Henson, was about to participate in an exhibition in a Sydney art gallery, when the gallery was raided by police, again in response to media stories.1 The police confiscated Henson's photographs of naked 12- and 13-year-old children, although they later released the photographs and Henson was not prosecuted. This action sparked considerable controversy, censorship versus artistic freedom. Many people think the images were artistic, not sexually explicit and certainly not pornographic. We ought to acknowledge and not inhibit children's growing awareness of their sexuality. Nevertheless, the Henson photographs raised questions about the age at which a child can be considered competent to give informed consent. Can a child this age really foresee the future embarrassment the photographs could cause them, photographs that will remain permanently available on the Internet?
The author David Marr, whose work we admire greatly, argues strongly that Henson's child models and their parents had consented and that the police action constituted heavy-handed censorship.2 The Chapter of Community Child Health of the Royal Australasian College of Physicians (RACP) expressed concerns that the children had not been protected adequately against exploitation.3 In a College newsletter, Dr Jenny Proimos, President of the Paediatric Division of the RACP, framed the problem in terms of the United Nations Convention of the Rights of the Child and the best interests of the photographed children.4 The third article of the Convention states ‘In all actions concerning children. . . the best interests of the child shall be a primary consideration.’ Article 34 states that the child should be protected from ‘all forms of sexual exploitation and sexual abuse’. The notion of protection from harm needs to be balanced with the notion of informed consent. Article 12 states ‘Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.’
Was the Chapter of Community Child Health correct to advocate for children in this particular situation? This is not an issue of aesthetics, although Henson's dark, brooding images make him the Leonard Cohen of photography. It is certainly not a child protection issue. It is highly debatable whether or not the photographs were ‘sexually explicit’. In our view, the issue is whether or not the children were being exploited and were truly able to give consent. The children who acted as models for Bill Henson were close in age to Brooke Shields at the time she was photographed for Playboy. We are unconvinced by arguments that the children and their parents gave consent. Ethics committees oversee consent of a child of this age to be involved in research or to receive controversial medical treatment. Who oversees artists? We argue that consent by a child of this age to photographs which many might consider sexually explicit is unlikely to constitute true informed consent.
We are not saying that child nudity in art is wrong. Little children ought to be allowed to play naked in all innocence, and child nudity in art should not be made into a child protection issue. In North America, it is apparently a child protection offence for a father to take a bath with his little children, a sad and ridiculous over-reaction to the problem of child sexual abuse. Obviously, children must be protected against being shown participating in sexual acts. But it is not clear whether they should be protected against being portrayed in poses that might be interpreted as sexually explicit. Elton John has in his house a photograph, Klara and Edda Belly Dancing, by Nan Goldin. It shows two very young girls playing naked, and we see a full frontal close-up of the genitals of one of them, who is perhaps 2 or 3 years old. The photograph has been shown at least twice in exhibitions in the United Kingdom, the first in London where it excited no comment. The photograph was shown again later in Gateshead near Newcastle, the scene of a major national scandal about child sexual abuse in the 1980s which prompted the Cleveland Inquiry.5 The Gateshead art gallery staff notified the police, but the police declined to prosecute.6 Are we protecting the innocent or getting rid of innocence?
One problem with invoking the law is that the law can be an ass. In 2008, in Australia, an NSW Supreme Court judge upheld a decision to convict a man of possessing child pornography and using his computer to access child pornography after his computer was found to contain pictures of Bart, Lisa and Maggie Simpson having sex with one another. The man was fined and given a good behaviour bond.6 The judge determined that, under state and commonwealth law, a fictional cartoon character could be considered to ‘depict a person’. It is unclear who is being protected by this judgement, but child pornography laws should exist first and foremost to protect children.
Australian states and territories have varying legislation concerning children in art, including whether it is illegal for artists to work with naked children. The Australia Council for the Arts is developing protocols for artists working with children, which will need to be followed by any artist who wants to receive Australia Council funding.7 Some critics have objected to the restrictive nature of the protocols.8 We believe it is commendable that artists develop a code of conduct which acknowledges the need to reconcile artistic freedom with the needs and rights of children.9 Paediatricians not only need to support art, which is so valuable for children, but also need to advocate strongly for children's need to be protected against exploitation because, as history has proved, we cannot guarantee that parents will always protect their own children from current or future harm.