When does art become child porn?

Not far from the strip joints of Soho is an image of a child having sex with an adult that can be seen for nothing any day of the week. The child is a boy of about 10 or 11, completely naked, his backside raised and partially turned to the viewer. The adult is a young woman, also naked. She is slipping her tongue into his mouth; he is squeezing her right nipple between his fingers. Not only is the boy clearly underage, but this sexual abuse of a minor turns out to be incestuous, too – the woman is actually his mother.

Anyone can view this scene between the hours of 10 and 6 throughout the year. There are no cordons or barriers, no advance warnings. Children are actively encouraged to look. The police have never shown the slightest interest. Indeed, practically the only people who have tried to censor Bronzino’s An Allegory with Venus and Cupid are the Victorian moralists who painted over the nipples.

What is going on in this bizarre gridlock of limbs? At the National Gallery, where the painting hangs, there is general agreement that nobody agrees. The picture was probably painted for a French king known for “his lusty appetites”, in the euphemism of the gallery guide; but it may also incorporate a warning against depravity: the howling figure on the left is commonly held to personify terminal syphilis.

Now, I submit that when you look at reproductions of the image – away from the milling crowds, out of its frame, in a different context, all of which could describe equally well the conditions in which it was painted – you cannot help but notice that a child is explicitly fingering an adult. It may be that you are struck by this in the gallery too, in which case you have probably also observed that your fellow visitors manage to notice no such thing. We are either blind to – or very good at ignoring – the sex in old master art.

This is not just any sex, of course: it involves a child, the strongest cultural taboo of our times. We may think nothing now of the kinds of image that shocked and outraged our predecessors – Manet’s Dejeuner Sur l’Herbe, which so appalled his contemporaries with its bizarre party of dressed men and naked woman, is a beacon of high art to us. We wouldn’t put a figleaf (as the Victorians did) on Canova’s naked statue of Napoleon. Works of art become more or less transgressive as societies change.

But in the case of children, the transgressions may appear worse now than in the past. Fragonard’s painting of a young girl masturbating with the aid of her pet spaniel’s tail is a chilling sight in the Munich Alte Pinakothek. Greuze’s The Broken Pitcher, with its pubescent girl holding the eponymous cracked vessel but with one breast bared, so that the viewer may be edified by the spectacle of a fallen child, her virginity ruptured, while at the same time enjoying the forbidden pleasure, is a morally repugnant painting, manipulative and hypocritical. Yet some art historians are inclined to shrug, citing it as a sign of the times, an expression of French society at that period. Louis XV, after all, had a brothel in the Parc aux Cerfs full of underage girls ready to fulfil the court’s appetites.

Greuze is an unusual case in that we actually know the names of some of his child models. Were he painting now, in Britain, we might well expect the police to arrive at his studio. We might well expect the Protection of Children Act of 1978 to be cited – the exploitation of a minor, the indecent image of a child under the age of 18 – and certainly a colossal outcry in the press. And the corollary: an equally outraged defence of Greuze’s rights as a painter and of the image as a work of art.

But here, already, is one of the complications in this extraordinarily tricky area of law that is not likely to get any simpler as time passes. Is it the making or the displaying, selling and distribution of indecent images of children that constitutes the offence? Who is to say what is or isn’t indecent? Should the law treat differently – to make an admittedly absurd but useful hypothetical – the Bronzino or the Greuze? Both are intended as allegories. Both are “fictions”. But unlike Greuze, Bronzino’s degree of realism is so remote – the flat patterning, the ceramic chill of the figures – that one cannot imagine that actual children were ever involved.

We would never remove these paintings from the National Gallery or the Louvre. Not only are they prophylactically sealed against affront by virtue of time and status in these cathedrals of sanctified art, but they have the figleaves of myth on the one hand – not real people, only gods indulging in the usual revolting ways – and moral content on the other. To the pure of mind, everything is pure; filth is in the eye of the beholder.

And in any case, these are paintings not photographs. They have passed through someone’s imagination; they don’t stand in one-to-one relation to reality. They are what we might call fictions. But that, alas, apparently no longer stands as a legal argument in the English-speaking world. Witness two recent cases in America and Australia.

In Australia a man was convicted of possessing child porn in 2008. The offensive images showed Bart and Lisa Simpson engaged in lewd acts. The defence argued – as we all might – that the Simpsons aren’t real children, never mind that they are bright yellow, have only four fingers and very oddly shaped heads. The judge ruled that “the mere fact that the figure depicted departed from a realistic representation in some respects of a human being did not mean that such a figure was not a ‘person’”.

In America, last December, Dwight Whorley appealed against his jail sentence for knowingly receiving pornographic manga cartoons involving the rape of children. These were defined as “obscene visual depictions”. The judgment – Whorley versus the United States of America – is extremely finely detailed and involves numerous other counts, including downloading obscene photographs of children, all of them indicating the defendant’s paedophilia – but what it makes clear is that the court allows no distinction between “actual” and “virtual” pornography.

I may be wrong, but it seems to me that Bronzino (or the National Gallery, to be precise) might be in trouble were a case to be pursued before such judges in America.

So when I read the many irate comment threads insisting that Britain is now the most illiberal country on earth because Tate Modern “has caved into the police” and removed Richard Prince’s Spiritual America – the Brooke Shields image – I strongly doubt the truth of these claims. In 10 years as art critic for this newspaper, only three cases involving the police and images of children come to mind (I’m happy to be corrected here) and not a single one resulted in a prosecution.

In 2001 a photograph taken by Tierney Gearon was the subject of a police raid on the Saatchi Gallery. I remember being astonished at this news. The News of the World called the exhibition in which it appeared, I Am a Camera, “a revolting exhibition of perversion under the guise of art” and called for the whole thing to be closed down. The show was one of the best Saatchi ever held in his old premises in north London. There were no images of perversion. The supposedly inflammatory shot showed two naked children at the beach in identical masks. The scene was comical – one cartoon face shared between two, and a light skit on Botticelli’s Venus, too.

The police, tipped off by the public, visited twice. Saatchi did not remove the image. The police did not threaten to seize the pictures (no matter what the papers claimed). Nothing happened, except to the artist herself. The children in the picture were her own: “A lot of press people came up to them and said: ‘How do you like your mum taking pictures of you naked?’ It was very painful to me as a mother and one of the reasons I moved out of London. But the truth of the matter is that the police weren’t that bothered, because if they were they’d have said you have to take the pictures down immediately. I think what they wanted… was a case they could take to court and finally set down some boundaries.”

That show contained another photograph, Klara and Edda Belly Dancing, by Nan Goldin, about which no hue and cry was raised whatsoever. Until, that is, it was shown again six years later at the Baltic Arts Centre in Gateshead, when staff themselves contacted Northumbria police. I don’t care for this image. I wouldn’t wish my own young daughters to be photographed this way – one of them naked, genitals exposed to the lens, prone between the legs of the other – and I certainly would not wish such a photograph to be publicly displayed out of respect for their rights.

Nor am I immune to the suggestion made by the eminent lawyer Anthony Julius that the title deflects attention from the actual image, attempting to control the spectator’s response to what is clearly a full-frontal depiction of a child’s vulva. It is not a good work of art and it is not to be supposed that Goldin – whose images of Manhattan’s Lower East Side demi-monde are often extremely moving – has no sense of the need to clothe the child’s vulnerability with that explanatory title.

For Julius, it is an act of bad faith. “It’s aesthetically immoral – a violation of an artist’s professional morals. Just as there’s a set of principles guarding business life, there is a distinct set of morals guarding an artist’s life.” But he does not call for it to be censored and, indeed, once again, there was no charge.

Lawyer Kerrie Bell examined the work for the Crown Prosecution Service. “There is actually no legal definition of what is or isn’t indecent. Case law has decided that it’s for a jury to decide, based on ‘current recognised standards of propriety’. I had to look at the photo and decide whether a jury would determine it indecent and I decided not.”

Who can define “current recognised standards of propriety”? The CPS can only guess at what a jury might think. But consider that in the intervening years between the Saatchi and Baltic shows our awareness of unimaginably atrocious paedophile crime has grown exponentially and you may understand why the Baltic’s own staff felt the need to contact the police for advice.

When an inspector from the Obscene Publications Unit visited Tate Modern’s Pop Life on 30 September, the prompt was a seizure of outrage in the press. But art lawyer Mark Stephens, of Finers Stephens Innocent, doesn’t think it takes much to rouse the Met these days. “This smacks of overzealous policemen with little cultural understanding tramping about the Tate in their hobnail boots,” he says.

Yet even within the art world, Richard Prince’s rephotographing of Garry Gross’s infamous photograph of the 10-year-old Brooke Shields slathered in oil and wearing nothing but mascara – the erotic shot made for a Playboy publication, the copyright unsuccessfully sued for by the adult Shields in an attempt to suppress it – remains moot. Queasy, exploitative, pornographic: these are all words I have heard in recent weeks, and not of Gross’s original photograph, either.

For it is by no means clear how the appropriation – the rephotographing and framing of the shot – differs in its content, as opposed to its context (the “quotation marks” of low lighting, crimson walls and gold frame). Indeed, rephotographing sounds very little different than the category of proliferation in the Child Protection Act.

Tate Modern has said that the police were by no means heavy-handed. The decision to remove the photograph was taken by the museum – publicly funded, publicly accountable – itself. Yet both sides have been vilified, even though, as far as I can see, the photograph might well be regarded as indecent according to the culture of our times. Culture, after all, encompasses more than art.

I don’t ask for this work to be banned – I am in favour of censure, not censorship. But I would like to know, once and for all, what is or isn’t unlawful. Tate Modern has, I think, been judicious in withdrawing the image and replacing it with another – Spiritual America IV, in which Shields reprises the original pose 30 years later, this time clothed in a bikini, as if reclaiming her rights. But still, a full-scale prosecution would have been useful to discover how a jury would have decided the case.

Quite apart from anything else, since we define them both as art, it would have established some of the aesthetic, if not moral, distinctions between Bronzino and Prince. And we would discover, democratically, our current views of propriety.