Continuing Coverage: Kiddie Porn
From The Village Voice column Scene & Heard
Art-Porn Redux, July 19, 1991(?)
Congress' latest blurring of the distinction between child pornographers and artists is the "Child Protection Restoration and Penalties Enhancement Act of 1990." Passed in the final moments of the 101st Congress last October, the law requires anyone involved in the production or distribution of "visual depictions of actual sexually explicit conduct" to maintain detailed records of the ages and whereabouts of the models depicted and to affix to each work a statement of where those records are kept. (Anyone includes photo-finishers, book distributors, librarians, and art dealers.) Failure to do so is a felony, whether or not the work might be deemed legally obscene!
The law is currently on ice for at least 60 days, thanks to a suit filed by trade organizations including the American Booksellers Association, the American Society of Magazine Photographers, and the art world's National Association of Artists Organizations and National Campaign for Freedom of Expression. On February 26, district court judge Stanley Sporkin of Washington D.C. issued a restraining order preventing the justice department from enforcing the law until it issues record-keeping regulations mandated in the bill. Once regulations are issued though, it's back to the courts again.
Sponsored by senators Strom Thurmond and Dennis (S&L) DeConcini, this version of their unconstitutional 1988 law was passed by a gutless Congress on the eve of the 1990 elections. It is, of course, another assault on artists dealing with sexuality-perhaps the least principled yet. Although the law's ostensible objective is the elimination of the kiddie-porn production, it will have no such effect. "The rationales advanced on behalf of this law are nonsensical," observed David Ogden, an attorney for the American Library Association. "Although proponents say it will get child pornographers convicted, offenders can't be convicted of child pornography, only of not keeping records."
How will it affects artists? It will transform some of them into felons by creating a body of work exempted from the protection of the First Amendment. Ogden noted that if the law had been in effect last year, several Mapplethorpe photos might have been targeted for lack of labeling, even though a Cincinnati jury found that they did not violate Ohio's extremely tough obscenity and child pornography laws.
Charlotte Murphy, executive director of the National Association of Arts Organizations, finds the language of the bill so vague that it could be "used against" artists ranging from Nan Goldin and David Wojnarowicz to Sally Mann and (even) Eric Fischl. "How do we know how some sheriff is going to interpret the nudity in Sally Mann's photos?" Murphy asked warily. "And what about when Allen Frame's picture was gay-bashed in the East Village last year? Should his address have been affixed?"
Barbara Pollack-an artist, ex-attorney, and mother-filed an affidavit in the case expressing her concerns about the new law. She makes what she calls "viewer-interactive peep show" assemblages focused on images culled from straight (adult) porno mags. How she'll meet the new law's reporting requirements is a worry itself. "My art is about the forbidden. How can it operate with a government stamp of approval? What we'll have," she sighed, "is the sex regulation bureau."
Artists who think they might be affected by the law should contact the National Association of Artists Organizations (at 202-347-6350) or the National Campaign for Freedom of Expression (at 202-393-2787) to submit statements for the next round in court.
February 4, 1992
The ACLU's Arts Censorship Project recently initiated its campaign for the abolition of the Justice Department's Child Exploitation and Obscenity Section. Given that commercially distributed kiddie porn disappeared during the late 70's-according to an Illinois Legislative Investigating Committee report-the oddly named outfit now works to eliminate adult videos and other First Amendment-protected forms of expression. Last month's kickoff press conference in Washington featured photographer Jock Sturges, playwright David Henry Hwang, and novelist Susan Isaacs. "So how come," Isaacs asked, "we've become a nation of weenies, unable to see or hear anything that offends us?"
Lolita Syndrome, April 14, 1992
Despite a decade of evidence that kiddie-porn trafficking in the U.S. is virtually nonexistent, the feds keep harassing artists who've photographed nude children: Alice Sims, Jock Sturges, and Robert Mapplethorpe (or his estate). Add British artist Graham Ovenden and his Manhattan publisher, Lawrence Stanley, to the list. The former is well known in the U.K. for his moody paintings and photographs of nude girls-imagine Balthus by way of Alex Katz-and the latter just happens to be an attorney and author of an award-winning Playboy expose documenting the government's current role as the perhaps exclusive commercial distributor of pornography depicting minors.
The allegedly lascivious goods in question were seized by U.S. Customs last October. They include photographs and the final page proofs of States of Grace, the book of Ovenden's nudes that Stanley is publishing. At a March 20 hearing in Eastern District Federal Court, Assistant U.S. Attorney Brigid Rohde finally announced that civil forfeiture proceedings would be brought against the entire packet of materials, valued by Stanley at $4,500. The reason? One page proof shows 10-year-old subject Maud Hewes sitting nude with one leg propped on a ledge, the other dangling down over the ledge.
Since obscenity does not have to be established where minors are concerned--obviating the artistic-value criterion of the so-called three-prong Miller v. California obscenity test--Hewes's parted legs are the prosecutorial key to determining lasciviousness. The kicker is that it's not the government that has to prove lasciviousness here, but Stanley who must essentially demonstrate its absence. Once again, the laws of the last decade paying lip service to protecting children are being used to fetishize their supposedly untouchable bodies. (The prevalence of incest and child abuse tells the real story about children's untouchability.) Ovenden's model Hewes, now 18 years old, explained to me, "When I modeled for Graham, I'd make up the poses and he'd shoot them/ He never asked me to be sexy and I never tried to...he's been a family friend since I was four years old."
Censorama, November 10, 1992
It's the courts, of course, that define pornography, and an October 15 ruling by the Third U.S. Circuit Court of Appeals expanded that definition. The Philadelphia court ruled, for the first time, that clothed depictions of children may be pornography, if "lascivious" displays of the genitalia (actually the clothing covering the genitalia) are the focus. This focus-much less the image-maker's intent-is often difficult to pinpoint, as the Mapplethrope trial demonstrated. Lawrence Stanley, an attorney for Pennsylvania defendant Stephen Knox, noted that "Congress clearly meant nudity when it wrote the law." Although the depictions at issue were not artworks, Stanley observed that the implications of the ruling are potentially broad: "Anyone who photographs the kids around the pool-parents, artists like Gerard Malanga-better watch out." On-the-beach music videos with under-18 models are also at risk.
Ironically, today's most vociferous defender of the First Amendment is John Frohnmayer. I heard the ex-NEA chair speak at the New York State arts conference on October 15, and he was the scheduled main event at a two-day "community dialogue on censorship" in Minneapolis at the end of October. The public official who made a career of caving into Jesse Helms's fundamentalist cabal is now preaching that "freedom of expression is not a compromisable position." The attempt to rehabilitate his reputation isn't merely Nixonian, it also seems to be working. The weirdest part of Frohnmayer's 9 a.m. performance was his vocalization of a parody he sang (!) to the tune of "We Are Marching To Pretoria": "We are marching to oblivion/Don't give in, not to sin..."
Art Molesters, February 15, 1994
Roseanne Arnold's view of Michael Jackson-"the perfect picture of a child molester"-apparently jibes with many prosecutors' image of photographers who take pictures of their unclothed children. Late last year, police seized the work of two photographer-mothers, Marilyn Zimmerman and Robyn Stoutenburg. The good news is that no charges were filed against Zimmerman, and that those filed against Stoutenburg have been dropped. The bad news is that both were forced to obtain costly legal representation and to face the horrific prospect of losing custody of their children.
When it comes to imagery of children-in-the-buff, federal law encourages citizen surveillance of other citizens. Zimmerman, a tenured Wayne State (Michigan) University art prof, was brought to the attention of campus police by a janitor who retrieved (filched?) from the trash a contact sheet depicting Zimmerman's three-year-old daughter bathing and sometimes touching her crotch. After questioning Zimmerman, 12 police officers made a shambles of her home and office as they confiscated eight boxes of pictures, negatives, and exhibited artworks.
Tuscon, Arizona, police learned about Stoutenburg from a school principal who was concerned that her students could see the photographer's prints of nudes and foods by looking through the window of Gallery Six & 13, where they were hanging. (No, the principal didn't bother to call the gallery.) A dozen pictures-including images of a partly nude woman with an egg on her stomach and Stoutenburg's four-year-old son holding a plucked chicken in front of his genitals-were seized. Tuscon mayor George Miller sensitbly asserted that the seizure of pictures without art-expert input "smacks of censorship," while deputy Pima County attorney Kathleen Mayer believes that the chicken picture implies felonious sexual contact.
Although Zimmerman and Stoutenburg's travails seem depressingly contemporary, such artist abuse hardly began post-Ed Meese. Consider an incident in which the Voice was involved (long before I worked here) in 1979. During the late '70s, photographer Jaqueline Livingston produced a series of multi-image posters of male nudes, including one with shots of her six-year-old son playing with himself. Two days after the Voice printed an illustrated article about Livingston, she received a letter notifying her that she was the subject of a report of suspected child abuse.
Four months later, New York Child Protection Services declared the report "unfounded." In 1979, the existence of child sexuality (and presumed innocence) seems to have been at least tacitly acknowledged; today Livingston, who lost her Cornell University teaching job because of the widely publicized incident, might be doing time.
More: At the urging of anticensorship groups, the House recently deleted language from the Violence Against Women Act implying a casual link between porn and violence. Let senators Moynihan and D'Amato know you want this offensive linkage removed from the Senate's version of the bill....An ACLU survey on censorship in Minnesota libraries found that 73 per cent of respondents felt pressured to censor themselves. One noted that "in 19 years of being a school librarian my biggest problem has been elementary teachers worrying about their students' minds being corrupted by witches or sex in books."
O, Canada, January 18, 1994
Canada's precipitous slide into a free-expression-free zone continues unabated. The Canadian Supreme Court's adoption of the so-called Butler decision, a MacKinnon-esque outlawing of imagery that "degrades" women, has led yahoo customs officials repeatedly to ban feminist and queer materials from entering Canada. (Annie Sprinkle and Maria Beatty's self-help tape, Sluts and Goddesses, recently banned on appeal, is both.) Last June, under election-time pressure, the conservative government hastily passed an anti-kiddie-porn bill that bans the depiction of (undefined) "sexually explicit activity" involving people under 18 or those depicted as being under 18. In other words, Canadians over age 14 can legally engage in consensual sex, but nobody can depict it.
It was only a matter of time before an artist was charged under this draconian law; 26 year-old Eli Langer now faces up to 10 years in jail for allegedly violating it. At a December 22 press conference, the Toronto painter defended his Old Masters-y paintings of masturbation, and sex between adults and children, as an "effort to address both personal and social issues." Artist Elaine Carol characterized them for the Toronto Sun as "beautiful paintings that bravely explore the patriarchal abuse handed down from grandfather to youth."
I haven't seen images about these works about child abuse (nor will you), because Langer's lawyer, Frank Addario, can't send photos of them to the Voice without exposing himself to charges of possessing and distributing child pornography!
Why did Langer have to explain his intentions at a feeding frenzy of a press conference? Astonishingly, according to Addario, it is unclear whether the burden of proof of artistic merit rests with the artist or the government. Think this couldn't happen here? Thank 104-mostly Republican-members of Congress for their December 27, friend of the court brief to head off the Clinton administration's more-morally-macho-than-Pat Robertson attempt to widen our child pornography laws to include depictions of clothed children not acting lasciviously.