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Philip Stokes calls for a more intelligent attitude to the controversy over photographing children

When indecency is in the eye of the beholder

The sporadic commotion in the courts and press over the photographing of children is symbolic of a whole range of problems and conflicts concerning the relationship of the individual to the state today. But that is no comfort to the people who find themselves at the sharp end, visited in their homes by the police, or confronted by an airport customs officer with the look of a triumphant truffle hound, as he leafs through an art book or naturist magazine retrieved from the hand luggage. For it is the officer in charge on the ground who determines the meaning of indecency, and the statutes are silent as to what the indecent might reasonably be taken to be. Neither does the recorded wisdom of Her Majesty's judges offer much illumination.

Such vagueness never deters action, though. With energies more appropriate to the pursuit of crime than the disputation of aesthetic taste, vast quantities of material and effects are confiscated. The experience of Ron Oliver might be an extreme case; but the removal and retention by the police of some 20 000 items of his property, when by their own account they were concerned with only three images, is surreal by any standards.

The average accused person, found in possession of one or two books of photographs, is likely to discover that the authorities are interested only in a couple of images from each of them; but he will be perplexed indeed to discover that somebody else whose possession of the same books has fallen under the scrutiny of another police force, may be charged in connection with quite different images.

Despite this arbitrary interpretation of the law, the authorities often act with a certitude of judgement that is quite wrong where the matter has not yet even come to court. The records of interrogations, especially of the child subjects of photographs themselves, reveal shocking efforts by the interrogators to construct indecencies and promote an atmosphere of obscenity, with the possible effect of creating stigmatised victims where none existed prior to the authorities' intervention.

In the cases under consideration here, the images do not show any crime; that is to say, they do not represent injury to or interference with their subjects. If they did, there could be no argument; the image would evidence the event, and the perpetrator could be brought to trial with the photographer joined as accessory. But they do not. Instead, underlying intentions and events preceding and succeeding the making of the photographs in question are inferred, as must be the dispositions and activities of any third party who later comes into possession of those images.

For all the care and advanced science applied to the study of physical evidence - the bloodstains, the traces of explosives, the marks upon surfaces - the forensic credibility of photographic speculations is on a level with that of the inquisitions of witchfinders, whether from the seventeenth century or from the much more recent and no less regrettable events in Orkney and elsewhere. Can anybody really be satisfied with the application of the standards of magic and superstition in these areas?

All we may see in a photograph is the configuration of a limited slice of the world as it was in a tiny sliver of time: what we see is all we can truly know. When we speak about that photograph as the representation of an event, it is only because our instinct is to make sense of things through the stories we tell ourselves about them. If we read a story out of a photograph, then, it must be virtually all our own fiction with only the tiniest anchorage to a real event. So we are left with the ironic conclusion that the dire anathematisations of the moralists and enforcers are probably no more than fantasies boiling up from the pressure cookers of their own battened-down libidos. Julia Somerville and her family, with countless others, know all the squalor that can come leaking out of those quarters.

When the law claims to be able to see intention, it does so in the face of the philosophical axiom that we cannot know the mind of another; that all we may know is their behaviour. While the possession of nude photographs of children may be significant in the case of somebody known to be guilty of paedophile acts, it is wholly improper to reverse the argument and assume that another person might be contemplating indecent acts just because they possess such photographs. By that logic, one should jail anybody possessing antiques magazines on the grounds that they will eventually commit burglary.

The failure to understand the mechanisms of representation, compounded by the obscurity of the law, leads to some extraordinary outcomes in the courts. One always hopes that they will be partially redeemed by being comic; but tragedy is never far away and absurdity is universal, as it has been throughout the history of censorship trials (Lady Chatterley, Oz). The heretical among us will be forgiven for suggesting that such uses of the law can only undermine the broader legislative and judicial system.

We note too, that such farcical performances are echoed across the world in courts which deal with the non-violent aspects of sexual behaviour, or indeed with any matter of belief or private action that does not involve demonstrable harm to third parties. It seems as impossible to legislate for justice in these areas as it is to conduct the consequent legal processes with either logic or dignity; yet the lesson that the state has no business in the beliefs or private actions of its citizens has thus far proved unlearnable.

In Anglo-American societies deeply scarred by Puritanism, there is an ingrained tendency to forbid others to do that which one dislikes doing - or does not wish to be known as doing - oneself. The tendency to ban things and persecute people, despite having been so historically discredited, is alive and malignant under a UK government which claims social justice as its motor. The fight for an intelligent understanding in the matter of the photography of children is both an aspect of opposing censorship, and a component in the general struggle to reform and so strengthen the legislature and judicial practice of the United Kingdom.

Philip Stokes is a photographer and writer, recently retired from teaching photography, and now a Senior Research Fellow of Nottingham Trent University

Reproduced from LM issue 108, March 1998



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