It was a case that never should have gone to trial. Once it had, the only palatable outcome was the succinct declaration uttered by Magistrate Kirsty-Ann Gunn, addressing Cayman Brac artist Ronald “Foots” Kynes last week:
“You are acquitted of the charge before the court.”
That charge, of course, was “obscene publication” – a definition stretched to the breaking point by police and prosecutors eager to punish Mr. Kynes for erecting several nude statues on his property, much to the chagrin of some of his fellow Brackers.
Deputy Director of Public Prosecutions Patrick Moran alleged that Mr. Kynes had deliberately placed the controversial statues in a publicly viewable area – beside South Side Road – to “create a scene.” But a far more shameful scene played out during the two-day trial that led to Mr. Kynes’s acquittal.
In fact, the Crown’s case against him was so weak that “Foots” himself (hardly an Atticus Finch) was able to parry the testimony of eight witnesses, and other evidence presented by prosecutors, to lead the court to the proper conclusion.
He had only to point to government-sanctioned events such as Batabano and Braccannal to answer the allegation that his nude female statues offended the public morality. To the repeated question of whether an observer might find the statues overtly sexual, he only needed to reply: “It all depends on the individual.… I can’t control their thoughts.”
Why prosecutors chose to expend limited time and resources on this case is beyond our understanding. Even more concerning is the fact that officials appeared to laser in on complaints that the statues were “offensive” (a matter of interpretation) while neglecting the clear and unambiguous crime that actually occurred when one or more individuals vandalized the statues shortly after the complaints were made.
It is inconceivable to us that police on a tiny island such as the Brac are unable or unwilling to investigate and make arrests of those who maliciously damaged Mr. Kynes’s property.
We fully understand that some people on the Brac just don’t like Foots. That is fine. There is no law that dictates a person must be liked. Likability is not a legal standard.
Imagine if Mr. Kynes had been found guilty – spurring a constitutional challenge. Even if the court ultimately ruled in favor of protecting the artists’ free expression (which it would have), the fact that the case was heard at all, in and of itself, would bring condemnation and charges of parochialism to our shores from all corners of the globe.
The bottom line is that section 157 of the Penal Code is a bad and antiquated law – so vague and poorly written as to provide cover for those who would attempt to silence an artist whose work they find distasteful. (Or, readers will remember, to offer justification for customs agents to seize a shipment of back massagers on the grounds that they may be purchased for more personal, “off label” use.)
The section of law belies Cayman’s cosmopolitan and sophisticated reputation. It should be corrected – and by that we mean stricken from the books in its entirety.