Fraud charge

In 1980, Ovenden was prosecuted but found not guilty of fraud pertaining to his involvement in the production of hoax calotypes, purportedly images of Victorian street children by a photographer "Francis Hetling". The images were actually taken by Ovenden's friend, Howard Grey, and re-photographed and printed by Ovenden.^[13] Some of the images had been shown at the National Portrait Gallery.^[14]

States of Grace

Mostly, however, Ovenden's work has been controversial for its depiction of prepubescent girls. In 1991, as States of Grace was being published, a set of proofs and a photograph for the book were seized by U.S. Customs and held for over seven months. In February 1992, the U.S. Department of Justice claimed that the work depicted "sexually explicit conduct" and therefore was illegal to import, sell or own. During a court hearing one month later in the United States District Court, Eastern District of New York, a federal prosecutor identified page 54 as containing the sole offending image in the book. This was a substantial retreat from the government's initial position that the book contained numerous images which, theoretically, could be found illegal.

A hearing before Magistrate Zachary Carter was held on 28 May 1992, attended by the subject depicted in the allegedly offending image, then 18 years of age, and eminent photo-historian and critic, A. D. Coleman. Both witnesses were prepared to testify and proffered written statements. The subject of the image on page 54 said:

I have known Graham Ovenden as a family friend for fourteen years – since I was four years old. I have modeled for Graham on numerous occasions – in fact, too numerous to count – for both his photographs and paintings. I have modeled for him both clothed and fully nude, both alone and with other children.... The portrait which the United States has charged as indecent is a portrait of me as I was eight years ago. I am not acting in a sexual way in the picture and Graham never asked me to sexual or treated me as a sexual object. The accusation that the image is "obscene" is, to me, an accusation that I am 'obscene,' something to which I take offense.

A. D. Coleman's prepared statement noted the many artistic qualities of the image which were inconsistent with their being labelled "lascivious." Representatives of the American Civil Liberties Union's ACLU Foundation Arts Censorship Project were also in court to offer their brief, which was joined by artists, art critics, administrators and organisations, in opposition to the government's attempt to censor States of Grace. As to the image on page 54, the ACLU brief stated: "[W]hether viewed individually or as part of the entire book, Ovenden's portrait appears plainly to be a photograph with genuine artistic, not pornographic, intentions, and thus a constitutionally-protected work of art."

Ovenden himself attested in writing as follows: "Symbolically speaking, we are dealing with feelings of the heart and the human yearning for Edenic simplicity – a state of grace, as it were, where there is neither sin nor corruption. The apple has yet to be eaten. The subject, of course, symbolizes this state in the photograph. At the same time, we see that the attainment of Eden is no easy task: the vulnerability of the child suggests, or rather confirms, the fragility of Eden, as well as its fleeting nature in the face of the concerns of the adult world and the demands of modernity."

Ultimately, no testimony was required at the 28 May 1992 hearing. In the face of the subject's account of her experience of being photographed by Ovenden, the statements proffered by Ovenden and Coleman, and the support of the ACLU and others, the government acknowledged defeat and returned the photograph and the proofs. Two months later the book was imported into the United States.^[15]

On 21 May 1998, censors in New Zealand classified States of Grace as UNRESTRICTED, meaning that it was deemed suitable for all audiences. A document containing the classification, Classified books from 1963 to 31 July 2009 is available online from the New Zealand Office of Film & Literature Classification.^[16]

On 5 May 2000, the San Diego Public Library announced that it did not consider States of Grace (as well as David Hamilton's Twenty Five Years of an Artist) to contain child pornography and stated that both Ovenden and Hamilton are "contemporary and historically important photographers" whose work is "culturally and artistically significant" and "within the library's collection-development guidelines". The determination was made in response to a ruling by a San Diego Superior Court judge that a man had photocopied images from those books "not for art's sake but for sexual purposes."^[17] In late October 2009, British customs permitted entry of Ovenden's book, States of Grace, sent to a customer who purchased it at auction in the United States on eBay. The auction price was $350.00.

Confiscation and return of images

A year later, in England, some of Ovenden's photographs were confiscated by the Obscene Publications Squad from Scotland Yard but returned after a campaign by Lord Hutchinson and fellow artists Sir Hugh Casson and David Hockney.^[18][19]

Ovenden's work Five Girls and 29 other images in the permanent collection of the Tate Gallery were accessible online until October 2009, following the scandal that erupted over a photograph of Brooke Shields as part of the Tate Modern's 2009 Pop Life exhibit.

2009 prosecution and failure of case

In 2009 Ovenden was charged with 16 counts of creating "indecent" photographs or pseudo-photographs (i.e., artistic renderings which appear to be photographs) of children, and two counts of possessing 121 "indecent" photographs or pseudo-photographs of children. The 121 images are all versions or stages of the 16 works and had been deleted from Ovenden's computer at the time his home was raided in 2006. The images were subsequently undeleted by police. The prosecution argued that these images are "indecent" and that there can be no defence of creating or possessing "indecent" photographs or pseudo-photographs for artistic purposes. The defence argued that the works 121 images were temporary stages toward the creation of the 16 works, that those works constitute art and in no event were any of the works created with criminal intent. The Crown has not alleged that the images at issue depict any actual children.^[20]

On 22 October 2009, after less than two days of trial, the jury was discharged and a new trial date set.^[21] On 9 April 2010, after a five-minute hearing, the case was thrown out by the judge as two key prosecution witnesses, police officers who had searched his home three and a half years earlier, failed to appear in court. The police declined to comment and the CPS refused to disclose how much the investigation had cost the taxpayer. Graham Ovenden described the police as "totally and utterly transfixed by childhood sexuality" and himself as "a controversial figure and, at the moment, a very angry old man".^[22] The prosecution declined to launch an appeal.^[23]

2013 charges, prosecution and conviction

On 19 April 2010, the Western Morning News said the Child Abuse Investigation Team of the Metropolitan Police, the force which had carried out the three and a half-year investigation for the trial, was investigating Ovenden over allegations of child sex abuse.^[23] Ovenden said such allegations had been made at the start of the previous investigation and dropped, and that, "the Metropolitan Police are being very vindictive about this."^[23]

In March 2013, Ovenden went on trial at Truro Crown Court, accused with nine charges of indecency with a child and indecent assault on victims aged between six and 14. He denied the claims.^[24] On 2 April, Ovenden was found guilty of six charges of indecency with a child and one charge of indecent assault against a child. The charges came from adults who claimed they had been abused by Ovenden as children. Some of them involved claims that he abused children while they were posing for his pictures.^[25] The abuse charges related to incidents between 1972 and 1985.^[26] Ovenden was sentenced to 12 months imprisonment, suspended for two years.^[27]

On 9 October 2013 the Appeal Court increased his sentence to an immediate prison term of 27 months.^[28]

Following his conviction, the Victoria and Albert Museum removed half of their 14 Ovenden images from its website, and the Tate removed 34 of his images from its online collection,^[29] although it later reinstated images of three abstract landscapes.^[30] In 2015, District Judge Elizabeth Roscoe ordered that Ovenden's personal collection of paintings and photographs, created by him and others, be destroyed, stating: "I have very little doubt that sexual gratification is, at the very least, part of Mr Ovenden’s reasons for making these images."^[31] Ovenden responded to the press that: "I am a famous artist. I am an equally famous photographer, and they are destroying material which has been in the public domain for over 40 years."^[29]