A SHAMEFUL SENTENCE


The jailing of the former ABC presenter Andy Muirhead for possessing child pornography is a savage act of barbarism. Anyone who cares remotely about justice and fair sentencing should register a protest. To send a young man to prison for an offence whose effects, measured in terms of harm done to others, must remain unquantifiable, is shameful. If he had bashed someone into a coma in a pub he might well have been more leniently treated.

That child pornography is an evil and vicious thing no one needs to be told - even though we constantly are, often by the same people who would defend adult pornography as art. But to watch child pornography on a screen or accumulate a collection of it does no harm to the children who are exploited to make it. The harm to them has already been done. If the full wrath of the law were directed at the manufacturers of child pornography that would be only just. But most child pornography comes via the Internet from abroad and its makers are, as lawyers put it, beyond the jurisdiction. Not being able to get at them, Australian law directs its wrath instead at pornography-watchers here, conveniently within the jurisdiction. It seems a strange principle. If you utter or publish a libel you can expect to be sued. But not if all you do is read the libel.

If it be argued that Muirhead is being punished because, by watching child pornography he has encouraged its manufacture - that to stamp out the market will be to stamp out the manufacturer - then Muirhead is being sent to jail on a hypothesis, hardly a firm basis for such a severe sentence. If it be argued that sending Muirhead to prison will deter others from watching child pornography, this again is conjecture. The deterrence value of prison is one of the most debated of all legal arguments.

That said, Muirhead did wrong, but more severe-warning-wrong than ten-months-worth-of-jail-wrong. His and his family's humiliation and the destruction of his career should also be taken into account as being part of his punishment.

Yet the matter does not end there.

For some reason, at any time in history societies need to have someone or something to dislike, to be afraid of, to condemn - an Other, as the late Edward Said defined it. In Anglo-Saxon culture this has been variously witches, gypsies, Catholics, Moors, Jews, blacks, Chinese, Irish and foreigners in general, alcohol purveyors and, latterly, cigarette manufacturers. But with political correctness reigning supreme, most traditional objects of social fear and hatred are no longer available to be cursed or scorned, openly at any rate. In our community paedophiles and child abusers fill the vacuum. So great a menace are they considered that the police are given rights an anti-terrorist squad might find hard to secure to march into private houses and probe into citizens' private habits.

The promotion of paedophilia to its current status as the greatest social evil of all time is fairly recent. Until well into the twentieth century "kiddie-fiddlers" were as much objects of comic relief as of hatred: figures such as vicars and choirboys or naughty scoutmasters were staples of popular newspapers, vaudeville jokes and - even into the 1970s - television comedy. Then, as Browning puts it in "My Last Duchess", "all smiles stopped together". Why?

I believe the change came as part and parcel of the sexual revolution of the late twentieth century which made all kinds of sexual activity that had previously been (at least outwardly) disapproved of socially acceptable. In the name of liberty and self-realisation sex anywhere with anyone and of whatever form was to your taste became the order of the day, disapproved of by a few fuddy-duddies but sedulously promoted by, amongst others, psychologists, hippies, political radicals, cinema, television, popular music and magazines. Guilt about sex, we were told, was something that no one under any circumstances should have to feel; that was the way people had been brought up in the dark ages before the 1960s, and, argued the forces of enlightenment, look how it had screwed up their lives.

But the human capacity for guilt runs deeper than that; and all the guilt about their sexual lives that the new libertines were telling each other they didn't feel was still lurking deep in their psyches. It had to manifest itself somewhere, and it came spewing to the surface vicariously in hatred of paedophilia, the one form of sexual preference that the new morality will not tolerate. That active paedophilia is the preserve of a small squalid and secretive minority with none of the political clout of the sexually emancipated majority or even of the larger minorities of male and female homosexuals ensured that it would never be seen, as theirs were, as just one of the legitimate forms of sexual expression on offer, even if those who furtively indulged in it had the courage to try and present it as such (yet surely, repulsive though it may sound to some, for paedophiles that is what paedophilia is). At any rate, no one was going to defend it, and hatred of paedophiles became the sacrificial offering through which practitioners of all other forms of sexual behaviour, no matter how bizarre, purged their own latent and unrecognised guilt.

As for the old jokes about child abuse, in 1998 the American film Happiness appeared with a sub-plot that satirised paedophilia. But of course there are some things too serious even for the enlightened to laugh about, and this excellent film was widely condemned.

It is hard to imagine what purpose Tasmanian Chief Justice Ewan Crawford supposed would be served by sending Muirhead to prison. It won't "cure" him, if, that is, he needs curing. Sexual quests are a symptom of the incomplete individual seeking to complete itself with another individual. For some people, perhaps on account of shyness or embarrassment or immaturity, pornography is the only way to meet this need, until through luck or providence the right person comes along. Sending Muirhead to jail could retard and perhaps obliterate this possibility in his life. And if he watched pornography only for diversion or prurience, it is unlikely at this point that he needs a prison term to convince him of the inadvisability of that.

The judge's treatment of Muirhead is thoroughly in accord with community attitudes to paedophilia in contemporary Australia (indeed, Chief Justice Crawford sounds a very contemporary kind of person, being the first chief justice in Australia not to wear what he apparently considers the "out of date and unnecessary" traditional judges' robes). Yet Crawford was in a position, at least in theory, to apply reason and objectivity if he so chose and not impose the severe punishment that majority opinion would doubtless have expected. That he didn't give Muirhead a suspended or other less harsh sentence suggests that, like judges throughout history, Crawford knows which side his bread is buttered on, and wasn't prepared to go against the community's obsession with paedophilia as the one sin crying to heaven for vengeance.

Of course Crawford and his fellow judges might well share this obsession, given that it seems to be only in cases of this kind that a generally soft-sentencing judiciary, one often as much if not more concerned to identify exculpatory formative influences on an offender as to see that justice is done to the victim of the offence, forgets its liberalism and reverts to the savagery of the old-fashioned hanging judge.

One feels very sorry for Muirhead. He was one of the nicest presenters on the ABC, pleasantly mannered, modest and affable, without any trace of the condescension of certain other "personalities" on the national broadcaster. At 36 he is at an age when the best years of his career were ahead (would his age have gained him sympathy if he had pointed out that he was "young and naive" at the time of his misdemeanours, as the Prime Minister did when explaining away certain events dating back to a similar age in her middle-aged youth?). His indulgence in pornography has been a tragedy for him, a tragedy compounded by his treatment by the court. People like him are a scapegoat, a scapegoat sent into the wilderness as scapegoats were, to absolve the sins of others, in this case of a generation of sexual permissives who, while claiming the right to be free of moral disapproval for their own behaviour, consider jail sentences fair punishment for people whose sexual preferences, no matter how antisocial and regrettable, differ from theirs in that they were excluded from the "anything goes" of the sexual revolution.

4 October 2012

6 comments:

  1. Wow. As someone close to Andy, I thank you.

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  2. As someone who admired Muirhead's performance on TV, I couldn't disagree more. He might be a nice bloke to meet, but there it ends.

    The idea that watching child pornography (or any pornography for that matter, as even the least offensive of it exploits and degrades women) is a passive activity for the watcher, and a victimless crime, is as abhorrent as it is perverse. The watchers create the market and the makers abuse the children to meet that demand. Inevitably the abuse escalates.

    Muirhead got nothing more than he deserves, and arguably considerably less.

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  3. Mique, 'any pornography'? Gay porn which can get down and dirty fairly quickly I guess isn't a problem for anyone, no matter how extreme it gets. No women no problem. You might want to rethink your argument.

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  4. Sorry, Anonymous, you're quite right. I spotted that error seconds after posting it, but thought that people would "know what I meant".

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  5. I am a criminal prosecutor who deals with the occasional charge of possession of child pornography. The offence is usually detected electronically by computer servers monitoring the downloading of certain files previously identified as child pornography by means of file-sharing programmes. There is no "market" for this material because sharing it is free of charge. Usually the offender is a pornography addict, with the child pornography only a small portion of his digital library. Commonly the offender has led an otherwise blameless life, without the slightest risk that he would ever abuse children. The usual sentence is gaol: thereby providing for the seriously dangerous men who otherwise occupy the nation's prisons an object of derision (or worse). Deviant and dangerous as viewing child pornography undoubtedly is, the standards of sentencing currently imposed for this offence are out of all proportion to the degree of criminality involved in committing it (when compared to other types of offending) and the circumstances of the offenders who commit it (when compared to the criminal histories of persons usually gaoled). Well done for saying the unsayable.

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  6. Whether the standards of sentencing are out of proportion to the degree of criminality involved will surely be a matter of opinion. No doubt as a prosecutor you will be well aware of the apparent disconnect between opinions of the judiciary and the legal profession and those of the public-at-large as to what is or is not a proportional punishment. In general, I think the public would probably double any penalty the judiciary saw fit to impose in most criminal cases before the courts.

    For me, the only criterion that would modify my judgement as to what sentence would have been appropriate is that, in Andy's particular case, a mere conviction for such an offence could reasonably be seen as sufficient punishment, given the career-ending implications. But I doubt that such an outcome would have been seen as justice by the public, and it would certainly not be seen as an effective deterrent by your average anonymous sleazebag

    I disagree that no "market" exists for such things. There is a demand; therefore, someone will be motivated to supply that demand; therefore, a market exists, whether it be for cash or kind.

    The aim should be to cease the exploitation of the children, and given the reality that the chances of finding the direct exploiters are slim to none, the only feasible means of doing so seems to me to be to discourage the users. In most cases, 11 months among friends is hardly a discouragement against future offence.

    In this respect, Andy Muirhead is doubly unfortunate. The 11 month jail sentence is just icing on the cake for him. The real punishment is the permanent destruction of his former stellar career and his almost unlimited future prospects.

    Hopefully, more people will be deterred by such a high profile case.

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