Shower scene from HQ

The law case

Along with his earnings from sports, and prior to his TV series, Ettingshausen was set up financially by the law case that emerged from HQ’s representation of his penis, which established, inter alia, the use of defamation law to claim invasion of privacy. In 1993, a jury of two women and two men awarded him A$350,000 tax-free in damages against Australian Consolidated Press (ACP), the magazine’s owner, on the basis that he had been defamed by the photograph’s publication. The basis for the decision was the implication that he had consented to his ‘genitals [being] exposed for reproduction’ to a wide readership (Australian Consolidated Press Ltd v. Ettinghausen [sic] 1993).

By contrast, under the New South Wales Workers Compensation Act, which covered employees in the state where he lived and mostly worked, ‘complete loss of the sexual organs’ resulted in a payout of A$60,724. Another comparison might be drawn with Darrell Bampton, a former player who received A$11,000 in a settlement out of court in 1978 when his penis was accidentally broadcast nationally from a dressing-room. The award to Ettingshausen drew criticism on these points from the New South Wales Law Society. Michael Lavarch, formerly chair of a parliamentary inquiry into the status of women and later Federal Attorney-General and a Dean of Law, remarked that there was at least a paradox at play when alarms over this image were compared with daily media representations of women. The late Anne Deveson, then chair of a Federal Government working party on the portrayal of women in the media, spoke of double standards, whilst hoping that men would now understand women’s feelings about pornography (“Publisher,” 1993; Hickie 1993a; Australian Consolidated Press Ltd v. Ettinghausen [sic] 1993; Harari 1993).

ACP did not accept the penis was exposed, and argued the photograph would not cause Ettingshausen any harm. It further claimed he had consented to the picture (despite the fact the magazine had published an apology to the contrary in August 1991-on the same page as a sizeable condom advertisement that spoke of ‘Discrete Objects of Desire.’). The defendant’s counsel, Ian Callinan, who went on to serve as a judge on Australia’s High Court and the International Court of Justice, said Ettingshausen’s work as a model was predicated on sexualizing himself for women, which the player conceded. This meant ‘no sense of modesty could reasonably be offended’ by the photograph. Callinan described the image as merely a ‘tracery of deep shadow and greyness and darkness.’ Ettingshausen’s reputation had ‘never stood higher,’ and his modeling career was flourishing (Harari 1993; O’Neill 1993; Hickie 1993d; Falvey 1993).

ACP appealed the finding and the amount, whilst agreeing to pay court costs of A$18,000 and A$20,000 of the damages. Later that year, a Court of Appeal found the amount awarded ‘excessive,’ and in 1995, it was reduced by the New South Wales Court of Appeal to A$100,000 ($20,000 more than Ettingshausen had requested three years earlier). Australia’s Free Speech Committee applauded the reduction. The majority on the Court of Appeal disagreed with its President David Kirby’s belief that ‘an uninterested reader could well pass the photograph without noticing the penis’-the Court was divided over how the average reasonable person would have read the offending text, but unanimously deemed the damages excessive (Australian Consolidated Press Ltd v. Ettinghausen [sic] 1993; Rolph 2006; President Kirby quoted in Heerey 2003, 305; Fife-Yeomans 1995; Pullan 1995).

In the original case, ET’s counsel was Tom Hughes, a former Cold-Warrior politician, brother of the late art critic and dogged opponent of cultural politics Robert Hughes, and father-in-law of the current conservative Australian Prime Minister, Malcolm Turnbull. Hughes cross-examined Brett M Cochrane, who took the photograph (now known only as Mister Basquali, he was briefly a café proprietor in Brooklyn). Hughes asked: ‘His penis was in the photograph, wasn’t it?’ Cochrane/Basquali examined the magazine and offered: ‘There’s no denying that.’ He could make the penis out ‘on close inspection.’ Cochrane/Basquali added that he had not requested permission from the players to take pictures, but was present as an official tour photographer, operating under a general authorization from the Australian Rugby League. No-one had asked him to stop working.

The key witness for the defense was Shona Martyn, then editor of HQ and later a senior publisher with HarperCollins, film-production executive, board member of the Sydney Writers’ Festival, and section editor for the Sydney Morning Herald newspaper. Her Twitter feed discloses a committed liberal feminist (https://twitter.com/shonamartyn?lang=es).

Hughes asked Martyn whether she would be offended by any implication that she had agreed to the depiction of her genitals with an eye to mass circulation. Martyn responded she would not, providing the outcome was ‘a tasteful shot’ in a magazine such as HQ. She deemed the photograph ‘flattering’ to Ettingshausen. Hughes maintained that any reasonable reader of the magazine would consider Ettingshausen an inappropriate person to continue in his second job, which was as a school development officer for rugby league, since all the boys ‘would have penises too’ (Hall 1993, 8, 12; Hughes and Cochrane quoted in Hickie 1993e; Martin quoted in McAsey 1993; Australian Consolidated Press Ltd v. Ettinghausen [sic] 1993).

When shown a square-meter enlargement of the image, Martyn conceded that it had been ‘careless’ to permit reproduction of a picture in the magazine featuring a ‘shaded area’ that might be taken for a penis. She had ‘been struggling to look at it’ and could just make out ‘some shadow.’ Hughes described a ‘white shape with what looked like pubic hairs.’ Martyn demurred, but acknowledged that she discerned ‘an off-white shape’ that ‘could be a penis.’ The following exchange then took place. It has become ‘one of the most famous pieces of cross-examination in Australian legal history’ (Rolph 2006):

The line about the duck references Martyn’s Aotearoan/New Zealand accent-its flat ‘i’ sees ‘dick’ swell into ‘duck’ (“Judge Attacks,” 1993; “Judge Slams,” 1993; Gordon et al. 2004). ET’s interaction with his counsel was less playful.

Hughes asked: ‘Is that your penis in the lower half of the photograph?’ Ettingshausen replied, ‘Definitely’ (quoted in Harari 1993).

The presiding judge in the New South Wales Supreme Court, David Hunt, deemed the jury’s damages payment reasonable, and criticized subsequent media coverage. Justice Hunt, later a member of International Criminal Tribunals for Yugoslavia and Rwanda, emphasized that the ‘award was made not simply because the plaintiff’s penis was shown in the photograph,’ but because publication in HQ amounted to ‘an extraordinarily serious imputation about a wellknown young sportsman with an unchallenged good reputation for observing standards of decency’ in the eyes of ‘the ordinary reasonable reader.’ He added A$13,416.66 as interest, noting the defendant had conducted the case like ‘a death wish.’ Justice Hunt stressed that Ettingshausen was ‘entitled to a good cushion.’ Cochrane/Basquali went on to appear as Ashley Taylor’s entry for the Archibald portraiture Prize, captured showering with a camera dangling over most of his penis (Hunt quoted in Hickie 1993f; O’Neill 1993).

The critical case cited as a precedent in Hunt’s judgement was Burton v. Crowell Pub Co. from 1936, in which the Second Circuit Court of Appeals for the Southern District of New York heard a previously-dismissed action. The plaintiff, Crawford Burton, a renowned amateur steeplechase jockey, complained that an image published by the defendant in a magazine made him look ‘physically deformed and mentally perverted’ and ‘guilty of indecent exposure.’ The Court found the defendant had a case of libel and slander to answer, even though the ‘trivial ridicule’ that might descend on Burton was ‘patently an optical illusion’ and in any event part of an advertisement in which he had consented to appear.

Crowell Publishing had printed a photograph of Burton in an advertisement for Camel cigarettes. Burton was quoted as endorsing Camels for their calming effect after ‘a crowded business day.’ This annotation accompanied two photographs. The first depicted him in riding attire after the race, holding his cigarette, whip, and cap, with ‘Get a lift with a Camel’ as the caption. Problems arose with the other picture. It depicted Burton heading for the post-race weigh-in, carrying his saddle with one hand beneath the cantle and the other under the pommel. The seat is below his waist, and the line formed by a loose girth seems to connect him to it. In the words of Circuit Judge Learned Hand,¹ ‘the photograph becomes grotesque, monstrous, and obscene; and the legends, which without undue violence can be made to match, reinforce the ribald interpretation. That is the libel.’ He was struck by the picture’s ‘lewd deformity.’ Burton may have posed for the photographs, but he had not been shown the outcome, in which his penis was constructed unrealistically (Burton v. Crowell 1936, 154; Heins 1993, 172). Hand matters more than any other lower-court judge, so often has he been quoted in the proceedings of the US Supreme Court (Oakes 1995; Gunther 1994). The decision became a precedent in the HQ case because Australian courts frequently turn to renowned British or US decisions for juridical guidance (Lindsay 2013; Von Nessen 1992).

ET’s grey areas are literal as well as metaphorical. ACP argued that the source of Ettingshausen’s shame amounted to ‘a very, very indistinct collection of shadows ... no more than in the groin area.’ Hughes told the jurors this was ‘an insult to your intelligence.’ The penis was definitely in the text: ‘There is some suggestion that it’s a shadow. I bet it’s the only shadow you’ve ever seen that is lighter than the surrounding area.’ Legal precedent exists for a preocupation with pubic hair as the index of a darker, tubular presence. When DH Lawrence’s pictures caused great anxiety in Britain, police tests of obscenity included a search for follicles (ACP quoted in Hickie 1993d; Hughes quoted in O’Neill 1993; Hunter et al. 1993, 79, 141).

ACP claimed that even if the jury thought there was ‘the suggestion of a penis,’ Ettingshausen’s use of his body as a sex-object to advance his career as a model problematised any suggestion of defamation and the award of damages. Ettingshausen acknowledged to the Court that he had sold himself as a sex symbol to straight women in calendar-stills, posters, a TV commercial in which he appeared without a shirt on pulling up the zipper of his jeans, and a posed photograph in pajamas. But he argued that these images differed from the HQ photo, which he found ‘a very offensive shot and a pornographic shot … because it shows my genitals which I believe to be a very personal part of my body which I do not want to be shown to anybody’ (quoted in Hickie 1993a).

ET said he had been dogged since the magazine’s appearance by taunts from colleagues when posing for team pictures (‘Hang your cock out, ET’ and ‘Make sure you don’t get ET’s cock in the photograph’ were representative statements). He had received repeated requests from women to autograph the picture. When asked if the simple sight of male genitals was offensive, Ettingshausen replied: ‘Not in an encyclopedia but in a book such as this, yes’ (Ettingshausen quoted in Hickie 1993a, O’Neill 1993; Harari 1993). In the appeal, the Court noted the claim that ‘his penis was something between him and his wife’ (Australian Consolidated Press Ltd v. Ettinghausen [sic] 1993).

Masculinity

What underpinned the case, philosophically and politically? The naked male body could not be seen at ease, in an un-posed, unanalyzed, unprofessional, unprofessorial condition for ‘anybody’ to see. It was legitimate fodder in an anatomy or life-drawing context, but not in an over-the-counter magazine. When Edouard Manet’s Olympia and Déjeuner sur l’herbe were first exhibited, it was as much their air of langorous ease and unconcern as the depiction of nudity that enraged critics. And as Paul Foss notes in his account of Robert Mapplethorpe’s notorious “Man in Polyester Suit” photograph, being shot ‘on the slack’ is risky, signifying as it does a lack of strength in this most ‘downcast and reticent’ of nude registers (1985, 8). The body at rest does not accumulate strength and productivity. The soaping ET, engaged in jovial self-repair-and-maintenance, was blissfully unaware of his duty of control.

This issue connects to the distinction between nakedness and nudity. The naked form implies being ‘deprived of our clothes,’ a ‘huddled and defenseless body.’ The nude, by contrast, looks ‘balanced, prosperous, and confident.’ Where the photographed naked form encourages an invigilating gaze, reconnoitering imperfections in the specific human subject in-focus, its nude sibling invites contemplation of the space between art and life, as the photographer seeks to reproduce the painterly nude (Clark 1956, 3, 6-9).

There is the sense here that the penis can be a legitimate object of disembodied study or creativity where it is a fetishised sign standing for a generic object. Conversely, when it appears outside the domains of artistic or physiological education, and represents a particular individual, the implied reader shifts from being a seeker of scholarly knowledge or aesthetic elevation and into a prurient gossip.

In this case, the problem was not the sight of men’s genitals in the shower, but their reproduction. Ettingshausen’s wife Monique gave evidence that he didn’t ‘do nude photos,’ had been anxious since the publication of this one, and was experiencing difficulty concentrating on-the-job. Robert Abbott, the Australian Rugby League’s general manager, described Ettingshausen as ‘the epitome of what was good and healthy,’ somebody who ‘always portrayed an excellent standard of living and decency’ (Monique Ettingshausen quoted in Hickie 1993b; Abbott quoted in Thorp 1993). At issue, then, is women observing men in a way that is not active and powerful -an image of male-to-male relaxation and nudity. And the contradictions that mount up when the male body is put on display for commercial reasons.

The prurience that seems to have been central to Ettingshausen’s discomfort is historically related to specific occasions of textual reproduction and encounter; to doubts over the ability of readers to balance their bodily responses to a text with aesthetic interpretation on a higher plane. Hence tendencies in the regulation of pornography towards specifying the occasions of reading and the practices and identities of readers, as opposed to the suggestion that texts are inherently obscene. Such tests of pornography emerged with the spread of print culture and its ability to cross boundaries of high and low aesthetic forms and readers. And obscenity is generally defined by its readers as much as its content. Their social positioning in a social sphere of unevenly-distributed cultural competence determines the risk and harm a text can produce, not simply its symbolism (Hunter et al. 1993, 211, 146, 138-39).

This issue clearly applied to the case in question. An appeal-court judge juxtaposed HQ’s ‘serious articles’ with the photograph of Ettingshausen. His ‘overall impression of the magazine [was] substantially one of mild and harmless titillation’ (Australian Consolidated Press Ltd v. Ettinghausen [sic] 1993). Akin to Martyn’s testimony in the original case, the argument was that the impact on a sophisticated readership would be minimal. She stressed that the readership of HQ was comprised of ‘educated, intelligent women ... interested in the world’ (quoted in Hickie 1993b). By contrast, Ettingshausen initially claimed that the HQ imagery implied he was an ‘indecent and lewd person’ who had ‘willingly pandered to the prurient interests of ... readers’ by posing for the magazine. He revised this position somewhat later, to the effect that it was suggested he had allowed his genitals to be reproduced for a wide readership (quoted in Hunt 1991, 3-4). We recall that the original case featured competing interpretations of ‘the ordinary reasonable reader.’ Fitness to govern the body is a crucial test here, for readers and writers; can each be relied upon to rule themselves? ET describing the responses of other people and his wife detailing the impact on his psyche was relevant testimony, not just the hermeneutics of black-and-white photography.

That matter of impact was also central to Ettingshausen’s business career, as both athlete and celebrity. Sporting heroes and heroines function as models of desire. The paradox at the heart of sport, its simultaneously transcendent and imprisoning qualities that derive from its astonishing capacity to allegorize, is most obvious -perhaps most transformative- in the field of celebrity culture. For with the advent of consumer capitalism and the New International Division of Cultural Labor, the male body in particular has become an increasingly visible and powerful locus of passionate investment. The manipulation of appearance through fashion, adornment, nutrition, and conditioning has changed the clothes we wear, the desires we feel, the exercises we do, and the images we consume (Miller 2001).

Sports and sex jumble together. They cannot be kept apart, for they live cheek by cheek, cheek by capital, torso by torso, torso by Totti, boot by boot, boot by Beckham-just like the other major social categories that characterize sport-age, race, class, religion, region, language, empire, media, and nation. With the advent of consumer capitalism and postmodern culture, the male body has become an increasingly visible locus of desire. The manipulation of appearance through fashion codes, bodily adornment, calculated nutrition, and physical conditioning has changed the daily terms of trade in the clothes we wear, the desires we feel, and the images we create and consume. It’s not just women who are objects of the gaze, not just women who are physically damaged in the interests of social expectations, and not just men who are inspecting the bodies of others for foibles and follicles (Miller 2001).

Sporting bodies are embossed with signs of free will, self-control, health, productivity, and transcendence. Hence the almost inevitable code-switching between good and bad conduct among athletes: high-performance dietary supplements versus illegal drugs, sexualized display in advertisements as opposed to extra-marital affairs in private, club loyalty and disloyalty, or any other oscillation between and within written and unwritten rules that classify good and bad. The male body is the principal currency of sports, despite the increasing marketability of women athletes. Its passion and unreliability mark it out for disappointment and excess as much as fulfillment and success.

Joseph Maguire (1993) typifies today’s sporting body as a site of discipline and domination, a mirror, and a form of communication. The disciplined body is remodeled through diet and training. The dominating body exercises power through physical force, both on the field and-potentially-off it. The mirroring body functions as a machine of desire, encouraging mimetic conduct via the purchase of commodities. The communicative body is an expressive totality, balletic and beautiful, wracked and wrecked. These taxonomies bleed into one another, and can be internally conflictual or straightforwardly functional. They are carried by human, commercial, and governmental practices that stretch and maintain boundaries between athletes, sporting performance, aspiration, and audience.

Athletes are constituted as models for emulation, displacing the traditional role of sovereign royalty as symbols of higher conduct. They form a new kind of labor aristocracy-people from working-class backgrounds who become fleetingly wealthy and famous at a young age and flicker as incendiary, phantasmatic signs of bourgeois mobility. Athletes turn into celebrities when their social and private lives become as important as their professional qualities, providing stereotypes of success, power, and beauty. As figures of consumption and emulation, they incarnate dramatic roles and fashions that imply the limitations and promises of an age. Such stars represent the Zeitgeist. The sports celebrity is hence a complex mix of marketing methods, social signs, national emblems-i.e. products of capitalism and individualism and objects of personal and collective consumption-with desire and control. This is a necessarily unsteady relationship. Each tendency imbricates the public with the private and publicity with intimacy. Room for error is literally boundless, as is evident in the case of ET from both 1991 and 2012 (Wenner 2013).

And although this commodification of male beauty and vulnerability may seem to presage a significant change in the gendered relations of the body, there are deeply regressive forces still at play, as indicated by the idea of ‘prurient’ women readers of HQ. In the same period as the 1991 Ettingshausen controversy, another Sydney rugby-league team, Balmain, was taken to court for refusing dressing-room access to Jacquelin Magnay, then a reporter with the Sydney Morning Herald and later The Australian’s European correspondent. No post-match interviews by women with players or officials were permitted in that area because Balmain men required particular privacy. In 1995, the Human Rights and Equal Opportunity Commission found in her favor and against the club (Halloran 2007). This issue of equal access to the changing-shed has legal precedent dating from baseball’s 1977 World Series, when Sports Illustrated’s Melissa Ludtke, later of Time magazine, was banned from the locker room by commissioner Bowie Kuhn. As she explained it, ‘I, and others like me, were presented as women who wanted nothing more than to wander aimlessly around a locker room, to stare endlessly at naked athletes’ (Ludtke Lincoln 1979). The fact of reporters disturbing players was not relevant-it was the prospect of the female gaze that so exercised their minds, however much that may have been about their fantasies as opposed to reality. As Ludtke said, ‘All I and other female sportswriters want is a chance to compete on an equal level with the men’ (Ludtke Lincoln 1979). She sued successfully on the grounds that her 14th Amendment rights were being violated (Melissa Ludtke and Time, Inc., Plaintiffs, v. Bowie Kuhn, Commissioner of Baseball et al. 1978).

Despite victories for women journalists in case after case, many obstacles are still erected to free passage, including sexist remarks and intimidating behavior by players and officials. Perhaps most notoriously, Lisa Olson of the Boston Herald was subjected to intense abuse by members of the New England Patriots after a 1990 National Football League fixture. Challenged over their conduct, the players countered that she was ‘a looker,’ i.e. a woman who gazed at their genitals. There are many other such instances in the US big leagues of players physically and verbally intimidating women reporters in sexualized ways, frequently with the support of team ownership (Sider 1993; Fuller 1992; Disch and Kane 1996; Ricchiardi 2005).

Conclusion

Every photographer and reporter needs to notice-and every player needs to be the object of such notice. But no-one is clear about what should be noticed, how far the inspectorial gaze should go, or whose it should be. Heartaches begin in the male changing-sheds. Why? Because the post-match male letdown is a cathartic, liminal event, a space for transcending body contact. Perhaps it is the fear of a female gaze at shadows-or their gaze at men gazing into that darkness-that so exercises men’s minds. The shower scene from HQ is far from the tautness of ET in his pin-up mode as per the cover of his ‘pictorial biography.’ And its Janus face is Ettingshausen’s childlike begging for forgiveness from Monique after his exogamy had become a media topic.

The Appeals Court that set aside ET’s payout and ordered a new trial remarked that ‘[c]ommon experience demonstrates that male nudity is now much more frequently seen’ (Court quoted in Falvey 1993). The eventual award of A$100,000 satisfied Ettingshausen. But it was not the end of the case’s career. He was called “The Nudist” on talk radio; made the subject of graffiti; and ribbed by colleagues. He felt under pressure to perform at an even higher level than before on the playing field. Playwright David Williamson alluded to the case in Brilliant Lies. And the matter was cited as a precedent in several other legal cases involving sportsmen’s penises (Rolph 2006). Yet ET’s own, authorized video produced on retirement, The E.T. Story: The Life and Career of Andrew Ettingshausen was marketed by claiming him as a ‘sex symbol’ (quoted in Rolph 2006). One of his teammates, Ian Roberts, was soon to come out, posing naked for a gay arts magazine, writing a fitness column for OutRage, and signing a sponsorship deal with a major telecommunications firm targeting gay customers (Miller 2001).

In the past four decades, professional male sports have been transformed into an internationalist capitalist project. New pressures and forms of bodily invigilation accompany the spoils. As part of the desire to address spectators- and market their attention to advertisers-the male body has become an object of the gaze of gay and female money. It is up for grabs as a sexual icon. Sculpted features, chiseled waste-lines, well-appointed curves, dreamy eyes, administered hair, and an air of casual threat that does not need traditional machismo to electrify are the currency of the day. Tom Hughes might have argued on ET’s behalf that ‘[s]elf-respecting people don’t like being seen as a sort of a hunk of human flesh, a plaything’ (quoted in Rolph 2006) but that’s exactly what his celebrity was calculated on.

Through all this complex, at least paradoxical masculinity, Ettingshausen’s marriage was an anchor of respectability, of suburban reliability as opposed to his marketing as a sexual fantasy. And insurance as an image, because, like beauty and fitness of all kinds, the years will attenuate athletes. Age will weary them. The marriage’s reassuring quality was jeopardized in 2012 when a former colleague, ex-player Paul Mellor, appeared on national television accusing Ettingshausen of a year-long affair with his wife, saying he wanted to ensure fans could see past corporate imagery: ‘This will give them a better understanding of who he really is,’ Mellor told A Current Affair (quoted in McDonald 2012).

Mellor’s interview was the signal for a multi-year public-relations campaign predicated on the power of the confessional and the use of the psy-complex as an explanation for and antidote to exogamy. Let down by business partners, dealing with post-athletic disappointments, shutting down communication with family, Andrew turns to an unacceptable outlet and must pay the price, but continues a lifetime of service by sharing his story as a warning to others that they must seek professional help when down (Brunsdon 2016). And he is truly sorry. Ettingshausen told the Women’s Weekly:

Those words, more deliberately sculpted even than his elegant facial features and muscular torso, were chosen to draw on a confessional mode that would allow for his continued marketability as a commercial entity, one that relied on his wife Monique as a producer of his TV show, who at the time was also about to launch a line of leather clothing with one of their daughters (https://zaliah.com/).

The sense of a childish boy who can never quite grow up and who must rely on his wife for a quasi-maternal, eternal forgiveness, is there for readers of the Women’s Weekly. It is part of a profoundly reactionary masculinity that relies on the conventions of the culture industries for profit and forgiveness in equal measure. The boom in men as objects of desire is no more progressive than any other commodity desire.