Is this legal under English Law?


For those who may not recognise it, this is Caravaggio’s St John the Baptist, which is currently on display in Siena Cathedral. The artist was apparently in the habit of treating his boy models in a way that would give Esther Rantzen a stroke. Should any English tourist suspected of looking at this be arrested and charged on his return from Italy? Or is it only proley paedos who get done in England?

The law is consolidated in section 62 of the Coroners and Justice Act 2009:

Possession of prohibited images of children.
(1)It is an offence for a person to be in possession of a prohibited image of a child.
(2)A prohibited image is an image which—
(a)is pornographic,
(b)falls within subsection (6), and
(c)is grossly offensive, disgusting or otherwise of an obscene character.
(3)An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.
(4)Where (as found in the person’s possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to—
(a)the image itself, and
(b)(if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.
(5)So, for example, where—
(a)an image forms an integral part of a narrative constituted by a series of images, and
(b)having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,
the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.
(6)An image falls within this subsection if it—
(a)is an image which focuses solely or principally on a child’s genitals or anal region, or
(b)portrays any of the acts mentioned in subsection (7). .
(7)Those acts are—
(a)the performance by a person of an act of intercourse or oral sex with or in the presence of a child;
(b)an act of masturbation by, of, involving or in the presence of a child;
(c)an act which involves penetration of the vagina or anus of a child with a part of a person’s body or with anything else;
(d)an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person’s body or with anything else;
(e)the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
(f)the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.
(8)For the purposes of subsection (7), penetration is a continuing act from entry to withdrawal.
(9)Proceedings for an offence under subsection (1) may not be instituted—
(a)in England and Wales, except by or with the consent of the Director of Public Prosecutions;
(b)in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
See section 65 of the same Act:
(1)The following apply for the purposes of sections 62 to 64.
(2)“Image” includes—
(a)a moving or still image (produced by any means), or
(b)data (stored by any means) which is capable of conversion into an image within paragraph (a).
(3)“Image” does not include an indecent photograph, or indecent pseudo-photograph, of a child.
(4)In subsection (3) “indecent photograph” and “indecent pseudo-photograph” are to be construed—
(a)in relation to England and Wales, in accordance with the Protection of Children Act 1978 (c. 37), and
(b)in relation to Northern Ireland, in accordance with the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)).
(5)“Child”, subject to subsection (6), means a person under the age of 18.
(6)Where an image shows a person the image is to be treated as an image of a child if—
(a)the impression conveyed by the image is that the person shown is a child, or
(b)the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.
(7)References to an image of a person include references to an image of an imaginary person.
(8)References to an image of a child include references to an image of an imaginary child.

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21 responses to “Is this legal under English Law?

  1. It is just a naked boy. You can see a similar scene at the beach in the summer. There is nothing pornographic here. You’d have to be a paedophile to think different. It is claimed Caravaggio had a sexual relationship with his models, but no one really knows – and to be quite honest, centuries later, it doesn’t really matter.

    Is it just me, or are such laws smuttily worded? It is quite sufficient to refer in law to “indecent images” and allow case law to determine the meaning, but our smutty legislators apparently stood up in Parliament discussing vagina this, anus that, in public, in a way that previous generations of legislators would have thought beneath them. I stopped looking up to MPs a while ago.

    • It’s because they’re trying to define what constitutes “dirty parts”. Similar to when the BBFC grudginly changed their rules to allow some hardcore, with the humorous result of an official post on their website announcing in an embarrassed manner that they would now allow “penetration by penis, finger or dildo”.

      The basic problem they have with allowing common law case law to decide what is unacceptable is that juries are consistently more liberal than the ruling class, which is why the old Obscene Publications Act efffectively failed; the smut police got to a point of not even bringing cases to court, because of an expectation of acquittal.

      So, they then started a process of introducing more specifically worded laws to try to force convictions. The basic problem as I see it is that the people of Britain are consistently less hysterical about porn and sex than the elites, and this is a long-standing dichotomy. We don’t like people being hurt, raped, abused etc, and will happily throw the book at them. But pictures of tits and bums, we’re just not that bothered about. Censorship is a fetish of a small hardcore of women (the Feminists and Tory Wives, basically).

  2. There’s a better Caravaggio than that- his Cupid.

    I’ve myself brought this up before, but I wonder if it’s wise, since the Harridans will probably take it as a cue for a general pogrom against even the historic fine arts.

    The basic problem is with definitions of what is “pornographic”, which is one of those words that is intrinsically perjorative and thus useless. In particular-

    “An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.”

    This is impossible to prove or disprove in a court of law. You cannot prove what is in another person’s mind. I would guess that Caravaggio had at least some sexual motivation in his choice of subject matter. The problem is that sexuality isn’t compartmentalised, any more than any other aspect of life is.

    But yeah, it’s really about the proles. If I drew an equivalent of Caravaggio’s Cupid and posted it on the internets, it’d be kiddie porn.

    • Ian B, along with Dearieme, I’d love to read your memoirs or autobiography.

      • Bit lost for words here. Don’t mean to be rude, but (this probably demonstrates my own stupidity) I’m not sure if you’re taking the piss or not.

        • Not taking the piss — I didn’t mean to connect that with this particular post. You just are always quite sensible and seem to have fairly good judgement, and it would be interesting to read about the life behind the opinions. It could be a bit like Nock’s memoirs: part memoir, but part his opinions on things.

  3. Ian,

    We are reaching the collective view as a society that child nudity is inherently disgusting – more so than adult nudity.

    Yet, in fact, child nudity is inherently innocent.

    You could argue that adult nudity is, or can be, so too – but adults have fully formed sexual organs, and so there is an implication of possible sexual arousal – particularly if the individual is attractive. But children’s bodies are just not sexual.

    We are sleepwalking into a social view that children’s bodies are more sexual and/or sensuous than those of an adult. That is weird – and indeed perverted – view of reality – and yet it seems to be the view of our government.

  4. Ian B, I’m personally not in favour of smut on broadcast TV – people should be allowed to find their own – but here’s the point. The jury system is designed to allow popular input, nullifying laws that are seen as over-the-top, so I think it would have been better to just say “indecent images of a child”, and then to allow juries to decide the rest, rathe than trying to front-run the juries into supporting bad laws.

    • David, I agree.

      That’s why I said the authorities are passing laws like this to “short-circuit” juries using their own sense and reason.

      As to smut on TV, I think the market can find a level with this. Even a pornophile like me doesn’t want tits and bums all day every day, and I don’t think broadcasters would just start flooding TV with them if there were no decency standards, because what they want is viewers, and the viewing demographic is much wider than men with boxes of Kleenex. In fact, we know already that women are more strongly targetted by advertisers than men, so if they don’t want endless TnA, it won’t be shown. It will depend how reserved the audience are in such matters.

      I’ll also add that in reply to your above previous comment about “sexualisation of children”, I agree. I think my own view on nudity is rather Hellenist. In that sense, I think the human body has an aesthetic appeal which is not necessarily sexual. Indeed, I find a well sculpted male body visually pleasing, but not sexually so, since I am not gay. This used to be the attitude of our arts. This has in the past couple of decades been replaced by an absolute hysteria that anything which may be construed as sexual automatically is, including any flesh, effectively.

      My local theatre has a finely painted safety curtain, festooned with cherubs. Who are naked. I cannot deny that no doubt some genuine “paedophile” has sat in the audience feeling sweaty looking at them, but they are not there for their sexual appeal but for that more general Hellenistic aesthetic appeal. The current laws effectively deny that such a perspective exists, which is a shocking and distressing subversion of centuries of artistic development in Europe.

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  6. Sections 5(b) and 6(a) cover the problem here of pornography. I read the Act as saying this is not pornographic. It’s merely a picture of a nude young man doing what appears to be cuddling a sheep/goat. Nobody said he can be naked while cuddling a sheep/goat, although I guess it’s not something we’d all really want to do.

    • I think Cupid is at least in danger of being in contravention of 6(a). It’s pretty clearly legs akimbo.

  7. The other point is that the painting was sexually toned down. Looking at the legs of this boy – the model was probably a young man, and not a boy – with relatively muscular legs that you wouldn’t expect boys to have – and I think there is a certain amount of evidence that painters of the Renaissance period chose to paint “little boy’s penises” on post-pubescent youths in order to NOT create an erotic image (see Michelangelo’s David for an example of a model who was clearly post-pubescent, but given improbably underdeveloped genitalia).

    There is actually no evidence at all the model for this painting was a pre-pubescent boy, and the muscular legs actually indicate the opposite. The painting was consciously de-eroticised by Caravaggio, which is why this discussion is a nonsense. This is not a case of paedophilia at all.

  8. Stephen Clarke

    6F is my favourite. This aside, the Caravaggio in the cathedral in Malta used to frighten the life out of my. A severed head, chiariscuro, surrounded by uncleaned canvass and swirling incense…

  9. If I might hazard a further comment, the boy has pretty enough legs, but everything else is increasingly distasteful the further up you go. The face, I’m sure, would drive the average punter sweating and muttering from Leicester Square. Either Caravaggio had perverse tastes, or the Romans of his age were much decayed from their ancient virtues.

    Would our Lord and Saviour have willingly gone into the Jordan with anyone so nasty as this John the Baptist is made to appear? I, for one, would have sat down and waited for a dinner invite from Caiphas.

    • What do you think of the Cupid, Sean?

      • Might be useful for one of those aversion therapy courses.

        • The figure has a distinctly dwarfish aspect. I’ve studied it quite a lot, and as a minor artist myself, I think it was Caravaggio attempting to apply “manly” aspects of physique to a boy’s proportions, hence resulting in the dwarfishness. Whatever the cause, there’s definitely something visually wrong about it.

          But anyway, getting back to the subject matter, I find it hard to believe there isn’t a deliberate focus on the genitals by the artist. I must add that I have no problem with that at all, myself. But I think that if produced by a modern artist, perhaps with less skill, it would surely be in contravention of this awful law.

  10. Christie Davies comments on FaceBook:

    “Oscar Wilde’s messenger boy catamites were under age, so he would be jailed for even longer today. Ironically it was the same 1885 Criminal Law amendment act that made the age of consent 16 that was amended by Labouchere to prosecute the acts of gross indecency which led to Wilde’s prosecution. His gay friends among the artists such as Henry Tuke and John Singer Sargent painted for the pedophile market.”

    • As I often try to remind people, the institutionalised persecution of homosexuals was a liberal, radical, feminist (first wave) construction. One of the most appalling false histories we have to deconstruct is the myth that this was some kind of right wing, conservative system.

      Which is one reason I find modern “social conservatism” frequently infuriating, since upon historical analysis one realises that in many aspects the moral system being touted as conservative and traditional is actually the radicalism of the Victorian Era (sexual prudery, drug prohibition, etc). This opens up the field for the current “progressive” Radicals to portray themselves as White Knights saving people who were (and are) persecuted under prohibitionary rules implemented by predecessors in their own movement. Nowhere is this more the case than with the issue of homosexuality.

    • I cannot find any indication that Sargent painted “for the paedophile market” or produced anything with any such connotation, however vague, other than he did a few portraits of children of an entirely normal kind. “The Daughters of Edward Darley Boit” is an amazing work, which bizarrely somebody called David Lubin has declared to have a sexual connotation, which leaves me mystified and is apparently cobblers.

      Tuke did paint a lot of naked young men, no doubt because he liked naked young men. Whether this was for a “paedophile market” I do not know, but this seems unlikely considering that the paedophile wasn’t invented until some time in the 1980s. I find the entire paradigm in which we are expected to discuss these matter utterly exasperating.