Much heat and hype has been generated by the media in recent months over the Hayward Gallery’s decision to self-censor two works from the Mapplethorpe retrospective. The purpose of this piece is not to fuel any flames, but to consider the facts, the law and some of the issues involved and arising.

The facts
The Hayward took the decision to exclude two works, Rosie and Marty and Hank (see School for Scandal p3) after taking advice from the Vice Squad at Charing Cross Police Station, in Central London. The police were asked about the legal implications of exhibiting explicit photographs and they advised the gallery to ‘carefully consider’ their inclusion in the show. After due reflection they were excluded.

The law
There are three particular areas of UK law that the police and the gallery would have considered in relation to the excluded works, and the exhibition generally.

The offence of ‘outraging public decency’ still exists under the ‘common law’. That is to say, it is a criminal offence not created by Parliament, but by the courts which have recognised for the past two centuries that the public may need protection against indecent public displays in certain undefined circumstances. This offence was used successfully to prosecute Gibson and Sylviere for exhibiting freeze-dried human foetuses as ‘human earrings’ at a South London gallery in 1990. The problem with this offence is that what constitutes an ‘outrage’ and what is ‘public decency’ are not defined by statute or case law. Only a jury knows it when it sees it. This does not help the police when asked advice. However, the police do have powers of arrest and seizure of articles, since the penalty could involve a term of imprisonment exceeding five years.

The second area of law is the Obscene Publications Acts of 1959 and 1964, with which most people are more familiar (D H Lawrence’s Lady Chatterley’s Lover was unsuccessfully prosecuted under this Act). The police have no power of arrest for this offence, which attracts a maximum penalty of three years imprisonment. However, they can apply for warrants of arrest and seizure of articles from magistrates. Under this Act, the test of obscenity is laid down by Parliament: anything that has a tendency to deprave or corrupt those into whose hands the matter is likely to fall. Again, only a jury or magistrates can decide this, and so asking the police for an opinion puts them in some difficulty. Furthermore, under this Act there is a defence available for works of art: if it is proved that the publication of the article in question is justified as being for the public good on the grounds that it is in the interests of science, literature, art or scholarship. Expert witnesses are allowed to give evidence to the court on this question.

To the best of the writer’s knowledge no gallery in the UK has been successfully prosecuted under this legislation over the past 20 years. But many galleries have suffered the threat of prosecution – and have reacted accordingly. Such threats of prosecution led, eventually, to the passing of our third piece of legislation.

The Indecent Displays (Control) Act 1981 was Parliament’s best attempt at dealing with the sort of problem the Hayward must have thought it faced. The Act creates an offence of displaying indecent matter publicly; maximum penalty two years imprisonment; no police powers of arrest, but they do have powers of seizure. ‘Indecency’ is not defined, but case law indicates that something which is indecent is not necessarily obscene; something obscene is also indecent: obscenity is hard; indecency softer. Public display includes anything inside a building visible from outside, even in a shop and also includes a place to which access can be gained only by payment. However, Parliament went on from this basic prohibition, and said in the Act that if people under 18 years of age were excluded by a warning notice, then the offence would not be committed.

But more significant still, Parliament went on to exclude from prosecution ‘any matter included in the display of an art gallery or museum and visible only from within the gallery or museum’. (There are other exceptions for plays, TV broadcasts and film exhibitions). Interestingly in the Mapplethorpe context, the Act also states that ‘matter’ (for display) does not include ‘an actual human body or part thereof.

The issues
Was it wrong or foolish for the Hayward to consult the police over their fears of committing such crimes? There are strong arguments both ways. On the one hand, if the gallery had not done so and shown works which were then seized by the police and resulted in a prosecution, the media would probably have judged them to be guilty of squandering tax payers’ money for illegal purposes – whether or not they were later convicted by a jury or magistrates. On the other hand, to consult the police and effectively take their advice (carefully consider, whatever that may have meant) brought upon them substantial media criticism for not having the courage of their aesthetic beliefs and convictions – but perhaps contributed to safeguarding their public revenue grant.

In the event, the gallery took the latter course, which some cynics have judged to be the weaker, unprofessional option. Some have even seen it as quite a neat ploy: take out a couple of insignificant pieces, leak the fact to the press, sit back and enjoy the media machine do its usual job and trust that the number of visitors to the gallery will increase substantially in the resulting furore and hype. Clever.

But could the gallery have relied upon the Law to support their showing of the two excluded works? Perhaps so. The Obscene Publications Acts specifically allow potentially obscene material to be published in the interests of art and scholarship. Surely an institution as internationally distinguished as the Hayward Gallery would have been able to justify such an exposition on those grounds, if it had been prosecuted.

The Indecent Displays (Control) Act 1981 – Parliament’s latest pronouncement on this difficult area of law – specifically exempts art galleries and museums from prosecution. This is particularly significant: in 1959 the first version of the Obscene Publications Act offered no defence of artistic or scholarship merit; it was introduced five years later, in 1964, when public opinion, values and standards had shifted substantially towards greater liberalisation and freedom of expression. By 1991, Parliament was confident enough that public opinion would accept galleries and museums being trusted to show what such institutions (and not police, juries or magistrates) considered appropriate; galleries and museums were therefore completely exempted from control.

Such a reading of these Parliamentary runes leads to the conclusion that our galleries and museums should be left to make their own aesthetic judgements about what to show and how to go about it. If that is a correct reading of the legal position (and even if it is not right it is a reasonable analysis), it raises serious professional questions for our public galleries and museums. They not only have a duty to be responsible under the law, but also an obligation or covenant with the public, fearlessly to bring to our view and experience significant artistic works, however shocking or distasteful they may sometimes be.

The boundaries between indecency, obscenity and art are not clearly defined by the law. In practice, only curators and exhibition organisers can and should decide what will be shown. There is a very real danger that we are experiencing the thin end of what could become a very big wedge of self-censorship, through a well-meaning but misplaced reliance upon the law and legalities. I do not believe the law wants that to happen, and I trust it will not come to pass.

© Henry Lydiate 1996

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.