What do we think of Henson’s argument “children can give consent”?

In The Age today, we have this report of Bill Henson’s speech defending his actions in photographing and exhibiting pictures of a nude female child in 2008. What do we think of his arguments?

People do get confused with notions of consent and harm…

A 10-year-old can consent to something that might otherwise be unlawful assault – dental work. In this state a 15-year-old can consent to a sex change. These are pretty serious things. Children’s consent plays a major part in divorce proceedings all the time…

I’m talking about the harm that results from under-age contact sport. ‘Imagine being a happy, healthy, 12-year-old boy kicking a football around one minute and then finding yourself in a wheelchair the rest of your life.

There’s no specific documentation to suggest anywhere, so far as my legal researchers have been able to discover, that shows that life modelling by children for artists results in physical or psychological damage.

The problem with this is that Bill Henson is comparing apples and oranges.

Of course, he is right – there are indeed a range of activities in which children can engage because they are legally empowered to give their own consent; just as there are other activities for which the legal consent of parents is required. But are there some other activities in which we wish to have the right, as a society, to say: “No; neither the child in question, nor any adult, is legally empowered to give consent for that.”

Certain obvious activities in this category come to mind. This category includes any action in which adults would seek to use a child for their own purposes, in particular those uses which touch upon the child’s physical or psychological vulnerability. Using a child as a model in the advertising industry falls into this category, especially if the child is sexualised in any way.

Art needs to be very careful that it does not fall into this category. Of course, many children model for photography and painting, or act on stage or in film, or perform in dance or music. The questions must always be: 1) are the interests of the child paramount (ie. is the child the major beneficiary of this activity?), and 2) is the vulnerability of the child protected in every way?

In Henson’s case, I cannot believe he fails on both counts. He took the photos for his own sake, not for the sake of his model. He initiated the photographic sessions, and he took the photos in order to exhibit them before the public for his own personal acclaim. Now this may have been excusable if he had not also exposed her physical vulnerability by photographing her naked.

It is one thing for your 10 year old daughter to give her consent to have tooth pulled by the dentist; another thing to give your consent for your 15 year old daughter to sail around the world; it is yet another thing entirely to suppose that a 10 year old girl can give her own consent to be photographed naked for the purpose of public exhibition. Not even a parent can give this consent on their child’s behalf.

Sorry Bill, your arguments do not convince.

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16 Comments

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16 responses to “What do we think of Henson’s argument “children can give consent”?

  1. Paul G

    I suspect we will be in furious agreement over this, just as the illuminati in the Henson’s audience will agree with each other (FWIW, all the surveys I have seen show that the public don’t agree with the illuminati).
    The debate is about the recent photos by Henson – if you look at Melinda Tankard-Reist’s website, she shows (edited) photos Henson took and sold earlier and which, in my opinion are clearly porn.
    A couple of other problems I have with the Henson camp followers are:

    -they want to suppress debate. As the admirable Clive Hamilton says on the subject of Henson, it is intolerable that the art community can tell the rest of us that we are not even able to comment on the photos and debate whether they are porn. That is just dictatorial.
    -the label “art” just has to be attached to an object for it to be beyond comment. This is meaningless, unless there is some way of at least defining some things as “not art”. The gobbledegook of the arts community love incomprehensibility (as Henson says), so they have no time for a debate like that.
    -there is no concept of moral harm, so it is no wonder that Henson’s lawyers couldn’t find a “study” proving harm. In fact, the harm may apply to the adult viewer as well as the child.
    -here is my definition of real art. Give a camera to a 12 year old and tell them to order Henson to take of his clothes so the child can photograph him and sell the photos for a profit. That would be art, but I’m a little reluctant to subject the poor child to such a sight.

    • Chuckle at your final suggestion. I understand that those who deal with matters of abuse always ask the question “who is the one in the position of power here?” and “are they using that power appropriately or not?”. Asking those questions, and putting the alternative scenariou which you do, Paul, shows up the situation perfectly.

    • Louise

      here is my definition of real art. Give a camera to a 12 year old and tell them to order Henson to take of his clothes so the child can photograph him and sell the photos for a profit. That would be art, but I’m a little reluctant to subject the poor child to such a sight.

      LOL!

  2. Louise

    Most modern art is sheer crap. Art ought to be all about the good the, true and the beautiful. Perhaps if Henson could produce art, we might listen to him.

    Am definitely in furious agreement with you, David.

  3. R. J. Stove

    Orwell’s splendid and lengthy attack on the moral failings – all indulged, of course, in the name of “art” – displayed by Salvador Dali remains as relevant as ever (it is, of course, written from a non-religious standpoint):

    http://www.k-1.com/Orwell/site/work/essays/dali.html

  4. Peregrinus

    I think the focus on “consent” is misplaced. And I also think this focus is found on both sides of the argument – “this is OK because the children consented” versus “children cannot consent to this!”

    The truth is, I think, the children can consent to this (or to anything) but their consent isn’t really the issue.

    We tie ourselves in knots over this. There is a pronounced tendency, for example to label all sex with someone underage as “child rape” on the basis that an underage person “cannot consent to sex”. But the logic of this is that a sixteen-year old girl who has consensual, and even mutually enthusiastic, sex with her fifteen-year old boyfriend, has raped him – and if they are both fifteen then each has raped the other, and furthermore each is an accomplice in his or her own rape. (And if the matter is dealt with in court each will in due course end up on the sex offenders’ register.) Down that road lies madness.

    I’m not saying that it’s just find and dandy for two teenagers to have sex, as long as they are both enthusiastic about it. It is not; it is extremely problematic. But it is neither truthful nor helpful to characterise it as “rape”, or to treat it as rape. If nothing else, this trivialises the experience of children – and indeed adults – who are raped.

    So, back to Henson. I really don’t think the issue here is whether the children consented, or could consent, to being photographed and exhibited. Whatever the problem is here, it’s not a problem which magically disappears if the child subject of the photograph consents. I think we need to identify what the issue is, though, before we can think our way through this.

    I’m hampered here because I haven’t seen the photographs. Are we concerned simply with harm to the children concerned? With harm to childen generally? Or with a wider societal harm? (I.e. a harm to ourselves) What harm, exactly? Are we simply uncomfortable at being confronted with images of pubescent sexuality? Why?

    Does it make any difference that these are photographs of real children, as opposed to paintings? Caravaggio gave us some distinctly erotic representation of pubescent and adolescent boys, painted from life models; they are reckoned among the glories of western art. Apart from the fact that Henson may not be as talented or as significant as Caravaggio, is there any other difference which would separate Henson’s work from his, in moral terms?

    Granted, somebody already disposed to paedophilia or ephebophilia could be gratified or aroused by Henson’s work. That thought is both sickening and worrying. But the same could be said of the paintings of Caravaggio just mentioned. Can we ban Henson and display Caravaggio? Or do we ban both?

    I have more questions than answers. I don’t find this an easy one.

    • In my argument, Perry, I did not equate underage sex and rape nor did I make the giving of consent the basis for my argument. Mr Henson did that. My point was that we should be able to say something along the lines that “even though the individuals involved in such and such an action have given their ‘consent’, that doesn’t make that action right or acceptable”. In other words, our laws should be able to say when and in what cases the giving or withholding of “consent” makes an this or that action legal or illegal, ethical or unethical, ie. to define what is and what is not “legal consent” or perhaps “ethical consent”. Do you get what I mean? Thus I agree with you when you say “Whatever the problem is here, it’s not a problem which magically disappears if the child subject of the photograph consents.” The question is: is this an action to which a child can give consent in such a way as to make it legal? IOW, the child may “give consent”, but this consent is not sufficient to make the action “legal” or (which is slightly different) “ethical consent”.

      Does it make any difference that these are photographs of real children, as opposed to paintings?

      Instead of Caravaggio (we do not know who his models were or what his relationship with them is), let us consider if it would have made any difference if Henson were a painter rather than a photographer, and used the same girl for his model. If this were the case, I would say no, there is no difference. The issue here is not the final product (painting or photograph), but the way in which the artist uses his model (with emphasis on the word “uses”). Since both Caravaggio and his model are now dead, his paintings can be viewed as objects in themselves. But were Caravaggio alive today, and were the circumstances of his paintings and his treatment of his models known to us, we would certainly be able to ask the question: Has he acted legally/ethically in relation to his model?

      It really isn’t that difficult, Perry, and the artistic merit of the final result (or otherwise) does not excuse the methods by which these results were obtained. We cannot change how Caravaggio acted (and by all accounts he was not the most morally upright of individuals), but we can change the way our contemporary artists behave.

      The quality of the art does not excuse the artist if he acted illegally/unethically to create it.

      • Peregrinus

        Hi David

        I wasn’t intending to put words in your mouth. It was Henson who talked about the role of consent and argued that children can and do consent. My point is, why should the issue be framed in terms of consent at all? I appreciate that you said nothing at all about underage sex (and neither did Henson); I raised it as a not unrelated issue which illustrates the inadequacy of approaching the matter in those terms.

        You say . . .

        My point was that we should be able to say something along the lines that “even though the individuals involved in such and such an action have given their ‘consent’, that doesn’t make that action right or acceptable”

        . . . and I completely agree with you. Consent is relevant to this extent; if the child did not consent to be photographed for exhibition, this would certainly be wrong. But it doesn’t follow that, if the child did consent, everything is OK.

        But I think we need to go on from there and say, if the presence/absence of consent is not our issue, what is? And that’s where I begin to flounder. I do have a problem with this, no doubt about it, but I find it hard to articulate exactly what that problem is.

        You suggest a distinction between Caravaggio and Henson:

        The issue here is not the final product (painting or photograph), but the way in which the artist uses his model (with emphasis on the word “uses”). Since both Caravaggio and his model are now dead, his paintings can be viewed as objects in themselves. But were Caravaggio alive today, and were the circumstances of his paintings and his treatment of his models known to us, we would certainly be able to ask the question: Has he acted legally/ethically in relation to his model?

        I think that’s helpful. But, if we can treat Caravaggio’s paintings as “objects in themselves”, why not Henson’s photographs? Surely they are objects, with an existence and significance of their own, once they have been created? Can we not display and admire the photographs, while at the same time deploring what was done to produce them? And, if we can’t, will we be able to do this once Henson’s subject is safely dead? Why? Are we saying that the only harm here is to Henson’s subject and, once she is beyond harm, our concerns disappear?

        Let me put a hypothetical; suppose Henson’s photograph was taken twenty years ago, and the subject was now a woman of 33. Would you have a concern if she exibited the photograph herself, or consented to the owner exhibiting it?

        • Let me put a hypothetical; suppose Henson’s photograph was taken twenty years ago, and the subject was now a woman of 33. Would you have a concern if she exibited the photograph herself, or consented to the owner exhibiting it?

          If this were the case, I would certainly have less problem. Then the issue would simply be whether the pictures themselves are suitable for public viewing in terms of their content. If, as in your hypothetical, Henson had been invited by the child and the family to take these photos without any intention to exhibit them, and instead given them to the family for the girl to have when she grew up as her own possession and property, that would have radically changed the transaction of “power” between the photographer and the subject. I would still want to raise the question of why a parent would allow someone to take photographs of their naked 10 year old daughter (I certainly wouldn’t!) – or for that matter take such photos themselves. You see, the subject of the photos remains a problem. But certainly your hypothetical would be a very different situation. We would probably still feel a little uncomfortable about someone exhibiting photos of themselves taken as a child in such a pose, but we would probably respect the decision of the adult to display them.

  5. Matthias

    Bill Henson’s antics to me two years ago ,meant that artists of his genre ,you know the :
    -elitist and dictatorial
    -unethical and amoral (immoral)
    – snobbish libertines but basically undemocratic
    -pornographic
    -syncophantic
    deserve to receive no funding, until they prove that their art is not exploitive.

    • Louise

      they shouldn’t get guvvermint funding at all. let them find their own patrons. that’ll sort them out.

      • Peregrinus

        I don’t know whether Henson gets public funding for his work. But, in any event, is that not a bit of a red herring? If his work is harmful to the children who are its subjects, then not providing public funding is hardly an adequate response.

      • Peter

        It is a sad fact that, unfortunately, we have ample evidence to suggest that he could find plenty of people who are prepared to pay for this sort of thing.

  6. Matthias

    You are right pere. He deserved the full force of the law but the concept.t of Lex Rex was supplanted by cultural relativism and Rex Lex. Better check on that with Samuel rutherford