Tag Archives: McClain doctrine

Whenever we talk with Arthur Houghton — the Getty’s former antiquities curator who we’ll be on stage with this Saturday at the Walters Art Museum in Baltimore — he asks a provocative question: did he or any other museum official violate U.S. law while buying looted antiquities?

The short answer, of course, is that no museum official at the Getty or elsewhere has been charged with, much less convicted of, a crime under US law. The real question, then, is: might they have?

Here’s an attempt to answer that hypothetical, using Houghton’s own writings while at the Getty Museum. As part of our “Hot Docs” series, we’ve annotated and posted transcriptions of the key documents via links below.

The Getty bought the kouros in 1985 for $10 million. Today it is believed to be fake.

Getty officials certainly knew they were buying objects from an antiquities market awash in illicit material. In April 1984, while the J. Paul Getty Museum was considering the acquisition of its infamous statue of a kouros, Houghton told the Getty’s outside counsel: “Probably 95% of antiquities on the market were found in the past three years. The only way one would obtain them was if one did not ask the specific question that would elicit the specific answer about provenance that made the material unbuyable.”

Days later, Houghton elaborated on the risks of acquiring such objects in a memo on the law to museum director John Walsh. Law enforcement authorities had made clear that under their reading of current law, museum officials could be criminally liable for acquiring such objects, Houghton wrote. “No action will be taken against the importer unless it is clear that the importer acted with certain knowledge that the material had been illegally exported from a country which had appropriate national ownership in place. If Customs believes that the importer had such knowledge, they could seek criminal penalties against the importer.”

The criminal law Houghton was referring to was the National Stolen Property Act. In the 1977 case US vs. McClain, a federal appeals court in the 5th Circuit had found that buying antiquities illegally exported from a country with a national patrimony law was equivalent to buying stolen property under US law. US government officials had made clear that this “McClain doctrine” could be applied well beyond the 5th Circuit. In effect, there was no difference between buying a looted antiquity and a hot car. The government could seize the stolen property and criminally charge those who imported it, Houghton wrote.

At the time, the Getty was buying such objects at a breakneck clip. As Houghton wrote a month later to deputy director Deborah Gribbon, “No other department of ancient art has an acquisition program as intense as ours nor one which, if it is to be maintained, requires such frequent contact with market sources.” In fact, the Getty was buying objects far faster that its staff could document them. “Some 30% of the collection has not been photographed, a significant number have no accession number, and there is no file by subject matter or chronological order to help find things,” Houghton wrote.

Harold Williams, CEO of the J. Paul Getty Trust

Word of the Getty’s potential legal exposure made its way to Harold Williams, the CEO of the Getty Trust and a lawyer who had run the SEC. Williams wrote to Walsh about the troubling rumors he had heard about the antiquities market: “Indeed, much of the conversation is to the effect that 90% of the objects on the market are presumed to have been recently come out of Italy or Greece.” Williams wanted answers, and Walsh punted to his “ethical tutor” Houghton, who was asked to explain how the museum could continue to acquire undocumented antiquities under such conditions.

John Walsh, Getty Museum Director

Houghton’s answer came in the form of another memo, this one entitled “Ethics and the Acquisition of Antiquities.” It lays out the two views on collecting undocumented antiquities: those of archaeologists, who favor restrictions, and those of curators, who feel a “special obligation” to acquire objects. In the end, Houghton concludes that the Getty is justified in the acquisition of undocumented antiquities because it is better prepared that most museums to protect, conserve and display these objects.

But how to navigate the law and the McClain Doctrine, which suggested such acquisitions could violate US law? Houghton’s solution was “optical due diligence.” In essence, the Getty would create the appearance of propriety and high ethical standards while buying what it wanted, being careful to avoid the “certain knowledge” of an object’s illicit origins that could land a museum official in jail.

Cult Statue of a Goddess (Aphrodite)

Houghton resigned from his post in 1986, but his rationale for continuing to collect undocumented antiquities became the basis for the Getty’s new acquisition policy the following year. That policy change allowed the Getty to buy a statue of Aphrodite despite clear signs it had been recently looted from Southern Italy.

Did Getty museum officials have the “certain knowledge” about the Aphrodite required for criminal charges under the McClain Doctrine?

Walsh’s handwritten notes from a meeting with Williams that September would suggest they did: “We know it’s stolen…Symes [the dealer offering the Aphrodite] a fence.”

Today, both men claim the conversation was hypothetical, not about the Aphrodite. Would that defense have held up in criminal court? Thanks to the statute of limitations, we’ll never know.

We look forward to seeing Arthur again on Sat, October 29th at the Walters Museum of Art in Baltimore. Details are here.

Hot Docs: 

Houghton on the Law

Houghton on Antiquities Ethics

1987 Acquisition Policy