06 November 2010

Psychics

In my spare time I've been looking at action by consumer protection agencies against psychics.

Here's a 2007 announcement by the UK Office of Fair Trading -
As part of its Scams Awareness Month, the OFT is warning consumers not to fall for bogus clairvoyant mailings sent out to thousands of people in the UK every year.

Letters from so called psychics or clairvoyants offer predictions or promise healing properties for a small fee. Often these mailings are aggressive in tone, predicting that something bad will happen if the recipient does not send them money. Although they are sent out in their thousands, the mailings are personalised to make recipients look as if they have been specially chosen and those who respond can be repeatedly targeted.

In one example uncovered by the OFT a mailing told consumers that the place they were living in was 'a zone which has been 'booby trapped' by negative waves', and it offered a solution for a payment of £29.

Extravagant and potentially misleading claims are also made about rituals the psychic will undertake or items, such as jewellery, that the psychic will provide and which it is claimed will bring the recipient good luck and will ward off evil forces.

'Lucky' items include Esmerelda's 'Money creating Scarab of the Pharoes', Gabriel d'Angelo's 'Happiness Beamer, Serena's 'Parchment of the Sacred Olive Branch' , Maria Rosa's 'Bracelet of Ameno' Lise and Rose's 'Gold Card' and Marie Desperance's 'Golden Thread'.

Recent OFT commissioned research into the impact of mass marketed scams indicated that more that 170,000 consumers fall victim to clairvoyant scams every year, losing around £40 million.

The OFT's Scambusters team has written to the following 'clairvoyants' about the potentially misleading content of their mailings: Chris, Esmeralda, Gabriel d'Angelo, Lisa and Rose, Maria Rosa, Marie Desperance, Pia Anderson, Rachel, Serena. None have responded. As a result the OFT is publicising its actions to allow consumers to make informed choices about 'clairvoyants' who are using PO Boxes as return addresses for their mailings. It will also be contacting overseas counterparts to ask them to shut down any post boxes used by those named.

Claims made by those named by the OFT include:
* 'Maria Rosa' who claimed 'in the next few days you will have the very tidy sum of £169,000 in your possession'
* 'Gabriel d'Angelo' claimed 'You have to trust me ... BECAUSE YOUR FUTURE AND YOUR HAPPINESS DEPEND ON IT'
* 'Lise and Rose' claim that 'there is, in your home, in the very place where you are living, a zone which had been booby trapped'
* 'Serena' claimed that 'Your life will be beautiful and you deserve it, thanks to the Parchment of the Sacred Olive Branch which will protect you and bring you happiness'.
Their supposed psychic gifts apparently failed to predict action by the OFT.

In the US the Federal Trade Commission in 2002, under the heading 'FTC Charges "Miss Cleo" with Deceptive Advertising, Billing and Collection Practices', announced that -
"Free Readings" Result in Large Phone Bill Charges

"Miss Cleo," the purportedly "renowned psychic" whose ads promote "free" readings to callers seeking advice, is the subject of a federal district court complaint filed today by the Federal Trade Commission. The complaint charges two Florida corporations, Access Resource Services, Inc. (ARS), and Psychic Readers Network (PRN), with deceptive advertising, billing and collection practices.

"You don't need a crystal ball to know that the FTC will continue to stop unfair and deceptive trade practices," said J. Howard Beales III, Director of the FTC's Bureau of Consumer Protection. "We want consumers to know that when companies make a promise in an ad, they need to deliver."

The defendants' entire operation is alleged to be permeated with fraud. According to the complaint, the defendants misrepresent the cost of services both in advertising and during the provision of the services; bill for services that were never purchased; and engage in deceptive collection practices. The defendants also harass consumers with repeated, unwanted, and unavoidable telemarketing calls that consumers cannot stop. The FTC also alleges that the defendants often respond to consumers' inquiries with abusive, threatening, and vulgar language.

The FTC's complaint names ARS, doing business as Aura Communications; Circle of Light; Mind and Spirit; and PRN, doing business as Psychic Readers Network, Inc., and their officers, Steven Feder and Peter Stolz. ARS and PRN, both located at the same address in Fort Lauderdale, Florida, operate as a common enterprise to induce consumers to buy their audiotext services -- information or entertainment programs provided over the telephone lines. The defendants purportedly are the largest providers of "psychic" audiotext services in the United States, and use a variety of marketing tools to attract consumers to their services, including TV, print media, the Internet, and direct mail. The defendants make their services available to consumers via 900 telephone numbers and bill for each minute spent on the line at a per-minute rate. They use a national network of "psychic readers" to provide "readings" to the consumer who calls the 900 number.

Specifically, the FTC's complaint alleges that the defendants:
* Deceptively misrepresent, in their advertising, that a "reading" will be provided at no cost;
* Through their agents, misrepresent the cost of the calls by claiming that consumers' free minutes have not expired, that the consumer had been awarded additional free time, or that the consumer will not be charged while on hold;
* Falsely represent that consumers are legally required to pay for services even though, in many instances, no such legal obligation exists; and
* Engages in unfair practices by frequently and repeatedly calling consumers, including consumers who had previously indicated they did not wish to receive such calls, and by failing to provide consumers with a reasonable method to stop such calls.
In addition, the complaint alleges that the defendants violated the FTC's 900 Number Rule by:
* Failing to make required cost disclosures in their advertisements, and diluting the disclosures that they do make with contradictory information; and
* Threatening to report adverse information to credit reporting bureaus without first conducting an investigation of billing errors.
The FTC is seeking a temporary restraining order against the defendants.
Miss Cleo & Co apparently dealt with the FTC by agreeing to a multimillion dollar settlement, rather than consigning them all to the devil. The FTC announced that -
In a landmark settlement, Access Resource Services, Inc. (ARS) and Psychic Readers Network, Inc. (PRN) have agreed to a stipulated court order stopping all collection efforts on accounts or claims from consumers who purchased or purportedly purchased their pay-per-call or audiotext services and forgiving an estimated $500 million in outstanding consumer charges as part of a settlement with the Federal Trade Commission. The Florida-based companies and their officers operated a massive 900 number scheme known to the public as the "Miss Cleo" psychic lines. The FTC alleged that the defendants engaged in deceptive advertising, billing, and collection practices. The settlement also requires the defendants to pay $5 million to the FTC.

"The lesson in this case is that companies that make a promise in an ad need to deliver on it - whether it's about availability, performance, or cost," said J. Howard Beales III, Director of the FTC's Bureau of Consumer Protection. "I'm no psychic, but I can foresee this: If you make deceptive claims, there is an FTC action in your future."
The FTC's complaint [PDF] and settlement [PDF] are online

Temple Bar

From 'Temple Bar' in Old and New London Vol 1 (1878) 22-31 by Walter Thornbury -
On November 17, 1679, the year after the sham Popish Plot concocted by those matchless scoundrels, Titus Oates, an expelled naval chaplain, and Bedloe, a swindler and thief, Temple Bar was made the spot for a great mob pilgrimage, on the anniversary of the accession of Queen Elizabeth. The ceremonial is supposed to have been organised by that restless plotter against a Popish succession, Lord Shaftesbury, and the gentlemen of the Green Ribbon Club, whose tavern, the "King's Head", was at the corner of Chancery Lane, opposite the Inner Temple gate.

To scare and vex the Papists, the church bells began to clash out as early as three o'clock on the morning of that dangerous day. At dusk the procession of several thousand half-crazed torch-bearers started from Moorgate, along Bishopsgate Street, and down Houndsditch and Aldgate (passing Shaftesbury's house imagine the roar of the monster mob, the wave of torches, and the fiery fountains of squibs at that point!), then through Leadenhall Street and Cornhill, by the Royal Exchange, along Cheapside and on to Temple Bar, where the bonfire awaited the puppets. In a torrent of fire the noisy Protestants passed through the exulting City, making the Papists cower and shudder in their garrets and cellars, and before the flaming deluge opened a storm of shouting people. This procession consisted of fifteen groups of priests, Jesuits, and friars, two following a man on a horse, holding up before him a dummy, dressed to represent Sir Edmondbury Godfrey, a Protestant justice and wood merchant, supposed to have been murdered by Roman Catholics at Somerset House. It was attended by a body-guard of 150 swordbearers and a man roaring a political cry of the time through a brazen speaking-trumpet. The great bonfire was built up mountain high opposite the Inner Temple gate.

Some zealous Protestants, by pre-arrangement, had crowned the prim and meagre statue of Elizabeth (still on the east side of the Bar) with a wreath of gilt laurel, and placed under her hand (that now points to Child's Bank) a golden glistening shield, with the motto, "The Protestant Religion and Magna Charta", inscribed upon it. Several lighted torches were stuck before her niche. Lastly, amidst a fiery shower of squibs from every door and window, the Pope and his companions were toppled into the huge bonfire, with shouts that reached almost to Charing Cross.

These mischievous processions were continued till the reign of George I. There was to have been a magnificent one on November 17, 1711, when the Whigs were dreading the contemplated peace with the French and the return of Marlborough. But the Tories, declaring that the Kit-Cat Club was urging the mob to destroy the house of Harley, the Minister, and to tear him to pieces, seized on the wax figures in Drury Lane, and forbade the ceremony.

As early as two years after the Restoration, Sir Balthazar Gerbier, a restless architectural quack and adventurer of those days, wrote a pamphlet proposing a sumptuous gate at Temple Bar, and the levelling of the Fleet Valley. After the Great Fire Charles II. himself hurried the erection of the Bar, and promised money to carry out the work. During the Great Fire, Temple Bar was one of the stations for constables, 100 firemen, and 30 soldiers.

The Rye-House Plot brought the first trophy to the Golgotha of the Bar, in 1684, twelve years after its erection. Sir Thomas Armstrong was deep in the scheme. If the discreditable witnesses examined against Lord William Russell are to be believed, a plot had been concocted by a few desperate men to assassinate "the Blackbird and the Goldfinch" — as the conspirators called the King and the Duke of York — as they were in their coach on their way from Newmarket to London.

This plan seems to have been the suggestion of Rumbold, a maltster, who lived in a lonely moated farmhouse, called Rye House, about eighteen miles from London, near the river Ware, close to a by-road that leads from Bishop Stortford to Hoddesdon. Charles II had a violent hatred to Armstrong, who had been his Gentleman of the Horse, and was supposed to have incited his illegitimate son, the Duke of Monmouth, to rebellion. Sir Thomas was hanged at Tyburn. After the body had hung half an hour, the hangman cut it down, stripped it, lopped off the head, threw the heart into a fire, and divided, the body into four parts. The fore-quarter (after being boiled in pitch at Newgate) was set on Temple Bar, the head was placed on Westminster Hall, and the rest of the body was sent to Stafford, which town Sir Thomas represented in Parliament.

Eleven years after, the heads of two more traitors — this time conspirators against William III — joined the relic of Armstrong. Sir John Friend was a rich brewer at Aldgate. Parkyns was an old Warwickshire county gentleman. The plotters had several plans. One was to attack Kensington Palace at night, scale the outer wall, and storm or fire the building; another was to kill William on a Sunday, as he drove from Kensington to the chapel at St James's Palace. The murderers agreed to assemble near where Apsley House now stands. Just as the royal coach passed from Hyde Park across to the Green Park, thirty conspirators agreed to fall on the twenty-five guards, and butcher the king before he could leap out of his carriage. These two Jacobite gentlemen died bravely, proclaiming their entire loyalty to King James and the "Prince of Wales".

The unfortunate gentlemen who took a moody pleasure in drinking "the squeezing of the rotten Orange" had long passed on their doleful journey from Newgate to Tyburn before the ghastly procession of the brave and unlucky men of the rising, in 1715 began its mournful march.

Sir Bernard Burke mentions a tradition that the head of the young Earl of Derwentwater was exposed on Temple Bar in 1716, and that his wife drove in a cart under the arch while a man hired, for the purpose threw down to her the beloved head from the parapet above. But the story is entirely untrue, and is only a version of the way in which the head of Sir Thomas More was removed by his son-in-law and daughter from London Bridge, where that cruel tyrant Henry VIII had placed it. Some years ago, when the Earl of Derwentwater's coffin was found in the family vault, the head was lying safe with the body.
I do like the "restless architectural quack and adventurer" in this piece of literary Stilton.

05 November 2010

UK IP review

UK Prime Minister David Cameron has announced an independent six-month review of that nation's intellectual property regime, with the standard emphasis on 'high-tech innovation'.

Cameron spoke about "how the Government can help make Britain the most attractive place in the world to start and invest in innovative technology companies". A neo-Keynesian might of course question whether gutting social services and the education sector will undermine the Cameron-Clegg initiatives.

The Intellectual Property Office media release reports Cameron as indicating -
I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age. ... It will particularly focus on how the IP system can be improved to help the new business models arising from the digital age.
Not quite the land fit for heroes, given that all the major liberal democratic states has voiced the same rationale.

The review, to be completed by April next year, encompasses examination of -
+ Barriers to new internet-based business models, including the cost of obtaining permission from existing rights-holders;
+ the cost and complexity of enforcing intellectual property rights within the UK and internationally;
+ interaction between IP and Competition frameworks;
+ the cost and complexity faced by SMEs in accessing services to help protect and exploit their IP.
+ what the UK can learn from the US regarding the use of copyright material without rights-holder permission.

Prints of darkness

A reader - alas not a fan - of this blog has recently contested my assertion that contemporary law does not recognise the agency of spiritual entities (eg courts don't blame ghosts or demons for theft, assault and other crime). Sorry, evading responsibility by blaming misbehaviour on Baron Samedi, Casper the Ghost, Elvis or the gremlins just won't work except as an indication of mental problems.

That non-recognition was illustrated in today's ABC report regarding Rachel Hadley, labelled tabloid-style as 'Mum killed toddler to 'expel evil spirits''.
Rachel Cherie Hadley stood on her son's chest and mouth to expel evil spirits, court heard.

A court has found a mother was psychotic when she killed her two-year-old son by standing on him.

The Supreme Court in Adelaide received psychiatric reports that Rachel Cherie Hadley stood on her son's chest and mouth to expel evil spirits.

The doctors said she thought she was curing him, rather than killing him.

An autopsy found the toddler died from asphyxiation.
Unsurprisingly, the court did not find that the two-year-old had been inhabited by a denizen from the Pit. Instead, the fatal footprints reflected his mother's mistaken, tragic belief.
Justice Kevin Duggan found his mother was mentally incompetent when she killed him. ... The woman's lawyer, Bill Braithwaite, said there would be no application for her release, meaning she is expected to be kept in a mental health facility."

Erasure

From 'Sexual Reorientation', a paper by Elizabeth Glazer (Hofstra University Legal Studies Research Paper No. 10-30) -
Ten years ago, Kenji Yoshino wrote about the "epistemic contract of bisexual erasure", the tacit agreement between both homosexuals and heterosexuals to erase bisexuals. While the tenth anniversary of the publication of Yoshino's article is reason enough to revisit the topic of bisexual erasure, the recent storm of same-sex marriage litigation presents an even more pressing reason to revisit the topic.

Lately, it seems more homosexuals than heterosexuals are erasing bisexuals, and more overtly than at the time Yoshino identified the phenomenon of bisexual erasure. Because the fight for same-sex marriage recognition is a fight to fit into the guarded category of marriage, members of same-sex relationships and their advocates have an interest in fitting into a stable sexual orientation category, which bisexuality is not. This Article, at the very least, hopes to make the bisexual slightly less invisible from legal scholarship at a time when the threat of bisexuality, and the erasure of bisexuals, seem to have intensified. More ambitiously, this Article introduces terminology that serves as a first step toward making bisexuals - along with other individuals along the continuum of sexual orientation who are even more invisible than bisexuals - visible.

This new terminology distinguishes between an individual's "general orientation" and an individual's "specific orientation". An individual's general orientation is the sex toward which the individual is attracted as a general matter. An individual's specific orientation is the sex of the individual's chosen partner. In many cases the two orientations are identical, but for bisexuals who partner with only one person the two orientations necessarily differ. While introducing new words will not solve the problem of bisexual invisibility, it might allow those who have struggled with asserting their bisexual orientations - those who were in a relationship with a member of the opposite sex and later wished to partner with a member of the same sex (or vice-versa) - to do so without having to recant their previous relationships. This terminology describes an individual's sexual orientation with reference to her status as well as her conduct. It also describes her sexual orientation individually as well as relationally. Moreover, in addition to ameliorating the problem of bisexual invisibility, distinguishing between individuals' specific and general orientations will help to debunk commonly believed myths about bisexuals, bridge the gap between diametrically opposed sides of the stalemated same-sex marriage debate, and clarify the purpose of the LGBT rights movement by broadening the concept of sexual orientation.
Perhaps, of course, we might be wary about putting people into boxes (rather than merely closets) and humane - for want of a better word - if they fail to meet our expectations regarding 'fixity' or affinity.

03 November 2010

Exasperation

Having delivered my ANZSOG seminar paper on 'Identity Theatre: Rhetoric & Reality in Contemporary National Identity Schemes' I'm playing catch-up with reading, including Ronald Desiatnik's Without Prejudice Privilege in Australia (LexisNexis Butterworths 2010), Culture Crisis: Anthropology and Polotics in Aboriginal Australia (Sydney: UNSW Press 2010) edited by Jon Altman & Melinda Hinkson and John Willinsky's The Access Principle: The Case for Open Access to Research and Scholarship (Cambridge: MIT Press 2006).

The features a brief review of 'Wrapped in Data and Diplomas, It's Still Snake Oil' by Katherine Bouton in the NY Times offers a brief review of Bad Science: Quacks, Hacks, and Big Pharma Flacks (Faber 2010) by Ben Goldacre.

Bouton comments that -
Ben Goldacre is exasperated. He’s not exactly angry — that would be much less fun to read — except in certain circumstances. He is irked, vexed, bugged, ticked off at the sometimes inadvertent (because of stupidity) but more often deliberate deceptions perpetrated in the name of science. And he wants you, the reader, to share his feelings.
Let's just say I do.

Bouton goes on to explain that Goldacre's -
initial targets are benign. Health spas and beauty salons offer detox footbaths for $30 and up, or you can buy your own machine online for $149.99. You put your feet in salt water through which an electrical charge runs. The water turns brown, the result of electrolysis, and you’re supposedly detoxed. Dr. Goldacre describes how one could produce the same effect with a Barbie doll, two nails, salt, warm water and a car battery charger, thus apparently detoxing Barbie. The method is dangerous, however, because of the chance of getting a nasty shock, and he wisely warns readers not to try his experiment themselves.
Goldacre reportedly offers more than just spirited debunking of nonsense -
The appearance of “scienciness”: the diagrams and graphs, the experiments (where exactly was that study published?) that prove their efficacy are all superficially plausible, with enough of a “hassle barrier” to deter a closer look. Dr. Goldacre ... shows us why that closer look is necessary and how to do it.

You'll get a good grounding in the importance of evidence-based medicine (the dearth of which is a “gaping” hole in our culture). You'll learn how to weigh the results of competing trials using a funnel plot, the value of meta-analysis and the Cochrane Collaboration. He points out common methodological flaws: failure to blind the researchers to what is being tested and who is in a control group, misunderstanding randomization, ignoring the natural process of regression to the mean, the bias toward positive results in publication. "Studies show" is not good enough, he writes: "The plural of 'anecdote' is not data".
Indeed. I doubt that Dr Goldacre is a fan of Grof and Laszlo.

Bouton comments that -
Goldacre has his favorite nemeses, one of the most prominent being the popular British TV nutritionist Gillian McKeith, whose books and diet supplements are wildly successful. According to her Web site, “Gillian McKeith earned a Doctorate (PhD) in Holistic Nutrition from the American Holistic College of Nutrition, which is now known as the Clayton College of Natural Health.” (The college closed in July of this year.) Clayton was not accredited, and offered a correspondence course to get a Ph.D that cost $6,400. She is also a "certified professional member" of the American Association of Nutritional Consultants, where, Dr. Goldacre writes, he managed to get certification for Hettie, his dead cat, for $60. Ms. McKeith has agreed not to call herself 'Dr.' anymore.
Perhaps my dead moggie - Ervin of World Futures would presumably describe her as "no longer living in the familiar form in this world but ... alive nonetheless" - a certification. So very useful in this universe and other parts of the metaverse.

As I've commented elsewhere, nonsense can be dangerous.
Sometimes bad science is downright harmful, and in the chapter titled 'The Doctor Will Sue You Now', the usually affable Dr. Goldacre is indeed angry, and rightly so. The chapter did not appear in the original British edition of the book because the doctor in question, Dr. Matthias Rath, a vitamin pill entrepreneur, was suing The Guardian and Dr. Goldacre personally on a libel complaint. He dropped the case (after the Guardian had amassed $770,000 in legal expenses) paying $365,000 in court costs. Dr. Rath, formerly head of cardiovascular research at the Linus Pauling Institute in Menlo Park, Calif., and founder of the nonprofit Dr. Rath Research Institute, is, according to his Web site, "the founder of Cellular Medicine, the groundbreaking new health concept that identifies nutritional deficiencies at the cellular level as the root cause of many chronic diseases".

Dr. Rath’s ads in Britain for his high-dose vitamins have claimed that “90 percent of patients receiving chemotherapy for cancer die with months of starting treatment” and suggested that three million lives could be saved if people stopped being treated with “poisonous compounds.” He took his campaign to South Africa, where AIDS was killing 300,000 people a year, and in newspaper ads proclaimed that “the answer to the AIDS epidemic is here.” The ads asked, "Why should South Africans continue to be poisoned with AZT? There is a natural answer to AIDS". That answer was multivitamin supplements, which he said "cut the risk of developing AIDS in half."

"Tragically," as Dr. Goldacre writes, Dr. Rath found a willing ear in Thabo Mbeki. Despite condemnation by the United Nations, the Harvard School of Public Health and numerous South African health organizations, Dr. Rath’s influence was pervasive. Various studies have estimated that had the South African government used antiretroviral drugs for prevention and treatment, more than 300,000 unnecessary deaths could have been prevented.

You don’t have to buy the book to read the whole sorry story, which is readily available online. Dr. Goldacre believes in the widest possible dissemination of information. But if you do buy the book, you'll find it illustrated with lucid charts and graphs, footnoted (I’d have liked more of these), indexed and far more serious than it looks. Depending on your point of view, you’ll find it downright snarky or wittily readable.
Christine Corcos meanwhile points to a follow-up to the Charna Johnson case in Arizona (weird, but alas no weirder than claims in World Futures) and highlights Christopher Buccafusco's 43 page 'Spiritualism and Wills in the Age of Contract' [PDF]. As I've indicated elsewhere in this blog, Australian courts don't respect the authority of statements supposedly delivered from the dead (or undead) via a medium and, irrespective of pious expressions by exponents of akashic holism, are unlikely to do so in the near future.

01 November 2010

Injury and compensation

The NSW Government has announced 'in principle' support to recommendations in the report [PDF] by the Honourable Michael Campbell QC, a retired Supreme Court judge, regarding compensation for women who lose an unborn child as a result of a criminal act.

The report follows an incident in which a NSW woman lost her unborn child after being hit by a vehicle whose driver was charged with multiple offences, including aggravated dangerous driving causing grievous bodily harm. NSW Attorney General John Hatzistergos indicated that -
After the incident, the Government appointed the Honourable Michael Campbell QC to undertake a review of laws to determine if current offences allow the justice system to respond appropriately.

The Campbell Report concludes that the current offence provisions and sentences do allow the justice system to respond appropriately to criminal behaviour that leads to the death of a foetus.

For example, as a result of the 2005 legal change known as 'Byron's Law', a person who deliberately inflicts grievous bodily harm upon a pregnant woman, causing the destruction of a foetus, faces 25 years in jail – the same maximum as manslaughter.

The severity of the sentence gives recognition to the trauma suffered by expectant mothers who lose an unborn child as a result of being a victim of crime.
The 2005 change to the Crimes Act 1900 (NSW), through the Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW) codified the decision in R v King (2003) NSWCCA 399.

In that decision the court held that an injury causing the destruction of a foetus could constitute infliction of grievous bodily harm upon the mother. The subsequent codification amended the statutory definition of grievous bodily harm to include "the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm".

The Campbell Report recommends that consideration be given to -
- amending the Victims Support & Rehabilitation Act 1995 (NSW) to include the loss of a foetus, so as to provide for compensation to victims who lose an unborn child as a result of a criminal act; and,

- establishing a scheme to provide for the payment of the funeral costs of a stillborn child, in certain circumstances, lost as a result of a criminal act.

A woman who loses a foetus as a result of criminal conduct could receive victims' compensation without the need to establish psychological injury.

Sexting

The Sydney Morning Herald today reports,somewhat excitedly, on the aftermath of DPP v Eades [2009] NSWSC 1352, characterised as Australia's first sexting case.
Damien 'Ezzy' Eades is caught up in legal history but perhaps not in the way he would have liked.

The 20-year-old from Sydney's western suburbs is at the centre of Australia's first 'sexting' case, after a schoolgirl sent a nude photo of herself to his mobile phone. The maximum penalty he faces is a two-year jail term.
We might perhaps start by asking whether there's a need to refer to Mr Eades - apparently guilty of the crime of residing in the western suburbs - as 'Ezzy'.

As an 18-year old Mr Eades, in 2008, worked at a KFC outlet. He exchanged text messages, including "a hot steamy one" with a 13-year-old girl with whom he had become friends. Eades sent a photo of himself naked from the waist up, duly reproduced on the front page of the online SMH. The child expressed a liking for that snap, explaining "I do like so I only got to send one of top half sorry for the slow reply but I'm in the shower." Eades reportedly responded "Send whatever you want bottom even better." Ouch! By now the sound of ringing alarms should have been knocking the chicken out of the deep-fryer. The girl, with just a dash of common sense, indicated that "Well I will take it now but none will be sexy after all it is a picture of me."

The SMH reports that -
The girl then says she has taken about four and doesn't know what to send.

Eades says to send the best. ''Your choice," he texts.

Girl: "OK I'm about to send one so don't laugh even though you probably want."

She then sent a full frontal photograph of herself naked which she had taken holding her mobile in her hand.

When the girl's father checked her mobile phone, he went to the police. Eades was charged with incitement of a person under 16 to commit an act of indecency towards him. He was also charged with possession of child pornography.
Things were now looking bad for Mr Eades, charged under ss 61N(1) and 91H(3) of the Crimes Act (NSW).
When the matter came before Magistrate Daniel Reiss at Penrith Local Court in March last year, the magistrate dismissed both charges. Mr Reiss said that the photo itself was not indecent and that he was not able to take into account the background context of the text messages which he noted did suggest "a sexual aspect behind his request".
Magistrate Reiss also said there was no evidence that the relationship progressed beyond friendship, a consideration evident in R v Murray Colin Stubbs [2009] ACTSC 63, an ACT online grooming case cited by several Information Law students regarding questions of evidence and intention. In considering s 91H the magistrate held that "the sexual context" had to be determined from the photograph itself, finding that there was no sexual activity depicted in the photograph - 'simply a photograph of the complainant standing naked in a bedroom "and there is no posing, no objects, no additional aspects of the photograph which are sexual in nature or suggestion".

The Director of Public Prosecutions appealed, under the Crimes (Appeal and Review) Act 2001 (NSW), over the "act of indecency" charge, with James J of the Supreme Court ruling that the magistrate had erred. Mr Reiss should have taken into account the sexual nature of the text messages, Mr Eades's intention, and the age difference between Eades and the girl.

The matter was referred back to the Local Court to be heard again, with leave for an appeal by Mr Eades being granted in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241. The NSW Court of Appeal has dismissed that appeal, ordering him to pay costs. We might infer that NSW Legal Aid has picked up the tab. Onwards to the Local Court for a fresh hearing.

A perspective on vexed questions regarding child poronography is provided by the decision in DPP (Cth) v Ison [2010] VSCA 286 and DPP v Smith [2010] VSCA 215.

31 October 2010

the company of the dead

From Deborah Solomon's 28 October NY Times review of Grant Wood: A Life (New York: Knopf 2010) by R. Tripp Evans -
Wood was only 50 when he died of pancreatic cancer in 1942. His posthumous reputation was its own forlorn drama; critics and art historians who should have known better wrote him off as a propagandist for conservative values. He was accused of fostering a shrill nationalism that was actually compared to the unalloyed evil of the Third Reich. After the war, the art historian H. W. Janson asserted that "the Regionalist credo could be matched more or less verbatim from the writings of Nazi experts on art". In 1962, when Janson published his now classic textbook on the history of Western art, he made no mention of Wood.

Wood had to wait for the arrival of postmodernism and its assault on the official story of art before he could be rehabilitated. Now he is back, and it says something about the folly and failures of art history that it took the special claims of gender studies to bring Wood's life into view in our time. Evans wants to convince us that Wood longed for what he could not have — but a longing for men was not what made him distinctive or memorable. He longed for the company of the dead and tunneled back through time in his enchanting and elegiac paintings. He deserves to be remembered as one of the essential eccentrics of ­American art.
Solomon comments that -
In interviews and profiles, Wood was inevitably described as a "shy bachelor", and Evans states confidently in his introduction that the artist "spent most of his life masking — not always successfully — his homosexuality". But a man who stifles his desires to the point of near extinction cannot accurately be called gay, and by the end of the book the reader has no idea whether Wood was ever intimate with a man. Affairs are hinted at, but the author is unable to document them; Wood himself claimed to be innocent of carnal satisfactions. One of his friends is quoted in the book recalling a night when Wood seems to have confessed to being chastely asexual, which is not implausible.

I talk to the trees, and they talk back to me

From Jenni Diski's spirited 32(21) LRB (4 Nov 2010) review of Harmony: A New Way of Looking at Our World (Blue Door 2010) by HRH the Prince of Wales, Tony Juniper & Ian Skelly -
Since the late 19th century a particular kind of nature spirituality has been dear to the hearts of the half-educated, or angry, or ineffectual (if only in their own heads) English and Anglo-Irish upper classes and landed gentry. It derives in part from Neoplatonism mixed with naturalistic pantheism and more than a dollop of Jungian spiritus mundi; also in part from a general feeling that the lovely world into which they were born entitled has been spoiled by, well, too many people and machines, and life being made warmer and easier, and all that sort of unpleasant thing. From the 1890s onwards there was the Rosicrucians-Golden-Dawn-Hermetic mob, picked up by Yeats and friends, Rudolf Steiner and anthroposophy, and various ladylike adaptations of Eastern philosophies; later the pro-Fascist Jorian Jenks joined Lady Eve Balfour's Soil Association as well as Kinship in Husbandry, started by the enthusiast for early Nazism Rolf Gardiner; Kathleen Raine converted from a modernist poet to found the Temenos Academy (current patron the Prince of Wales), with its Ten Basic Principles: 'Acknowledgment of Divinity', 'Spiritual Vision, as the life-breath of civilisation' etc. In the 1970s the wealthy businessmen and members of the Clermont Club Teddy Goldsmith and John Aspinall (the latter more concerned for his captive tigers than their keepers who were occasionally killed by them, and for nanny murderers than the murdered nanny) started the Ecologist magazine, supported by Laurens van der Post (spiritual mentor to the Prince of Wales), which suggested in its first issue that it might be an idea to offer the public 'a bounty for submitting to sterilisation'.

What makes me think of this darker side of the history of English ecology and nature-loving is partly the Prince of Wales's own frequent references to some of those organisations, people and ideas (the Emerald Tablet of Hermes and the (apocryphal) Gospel of Mary Magdalene get super-large-print quotes, along with Fritz Schumacher, Gandhi and St Augustine), but also his repeated use of phrases like 'ancient wisdom', 'the golden thread', 'integrated medicine' and his insistence that the world has been going to rack and ruin ever since Galileo was so stubborn about the planets and that awful Francis Bacon wrote The New Organon to usher in the Enlightenment with its terrible materialism. Only 400 years after this disaster, along came modernism, which HRH identifies exclusively with brutalism and quotes as its exemplar, not just Le Corbusier, but more importantly in his view, Marinetti (more Futurist, I think, than Modernist). And with all this unnatural badness, and the Industrial Revolution too, the ancient wisdom handed down by 'the people' has just plain disappeared. Except for a knowing few, the masses have lost the golden thread, stopped listening to the harmony of the spheres, rejected beauty and love ('no brain-scanner has ever managed to photograph a thought, nor a piece of love for that matter') and forgotten how to live according to the natural all-controlling rhythm of the planet. ...

This ancient wisdom stuff is ineffably silly. When and where was it taken seriously? Most of 'ancient' history consists of small populations making a subsistence living in the only way they could with the technology available to them. There never was a non-materialist time, except in the world of magic and the kind of religion and social organisation that made sure the peasants provided a tithe to keep the priestly authorities free to think up theology, and the worldly elite capable of protecting and grabbing land for themselves. Good stories are essential to people, of course, but everyone lives (and always has) within their means when they have to, and beyond them (think potlatch as well as credit cards) when they can. For all the talk of the good, spirit and Nature Herself, I suspect that what HRH is really missing is feudalism. And here's an awful thought for those who are taken with treading Nature's path: if as the natural beings we are, we have developed technologies that allow us to fulfil material wishes that might cause the planet to give up the ghost, then are we not just doing the work of Nature Herself?
As readers of this blog might suspect, Mr Windsor has received the thumbs up from quantum holism guru Ervin Laszlo -
A remarkable vision of a Prince with a remarkable and timely vision of his own — a book to read both by those who take an interest in the life and work of the Prince of Wales, and those who take an interest in, and a measure of responsibility for, our common future.