IN CRIME’S ARCHIVE The cultural afterlife of criminal evidence KATHERINE BIBER Introduction This article examines the cultural afterlife of criminal evidence. During the criminal trial, evidence is adduced by the prosecution in order to narrate and prove the facts supporting the charges. Strict rules govern the collection, admission and interpretation of evidence at trial, and where evidence has been improperly obtained, or where it may be irrelevant or unreliable, or if is misleading, confusing or unfair, the evidence may be excluded. However, after the conclusion of the trial, this material returns to a notional ‘archive’ and sometimes continues to proliferate culturally, but subject to no rules nor standards. This article examines some instances in which criminal evidence has been accessed and used post-trial, and asks whether these cultural practices constitute risk or opportunity, or something more benign. Crime’s archive has aroused the interest of artists, publishers, scholars, curators and journalists who have accessed it by various methods, and used it for a wide range of purposes, some of which might be transgressive, dangerous or insensitive. This article explores what is at stake in accessing crime’s archive and prolonging the cultural afterlife of criminal evidence. It responds, in part, to Eamonn Carrabine’s call for a ‘critically engaged visual criminology’ (2012: 487). For Carrabine, criminology’s ‘cultural turn’ has made scholars more attentive to the transformation of ‘traumatic experiences into visual art’ 1 (2012: 486), and he proposes an ethical framework for asking questions about representation. This article argues that we might begin this critical engagement by inaugurating a jurisprudence of sensitivity, where ‘sensitivity’ is a concept recognised by law as justifying limits upon representation or disclosure. Once probative value has lapsed, and cultural value is ascribed to some items of criminal evidence, this article shows how a ‘sensitive jurisprudence’ might make us attentive to the potential harm done by retrieving this material from crime’s archive. Central to this article is the question: What can be done in crime’s archive? Public records and legal process are presumptively open and transparent, but material therein might be private, personal, sensitive or humiliating. Archive laws and practices recognise the concepts of ‘privacy’, ‘personal information’ and ‘sensitive information’ and use these to guide decisions about access and use. However, these concepts do not anticipate the projects of the archive’s creative users, allowing this material to slip into the cultural sphere. Whilst this article does not argue against the release of criminal archival material, it demands that any release is nevertheless sensitive to the consequences that may flow. Part I is a case study, illustrating what I argue is an insensitive cultural use of crime’s archive. Part II shows a wider range of cultural uses of criminal evidence and situates those cultural practices within some contemporary cultural theories and practices relating to ‘archives’. Part III explores ‘open justice’ as a mechanism for opening the legal archive, and explains how open justice has failed to address the practices of cultural users of crime’s archive. Part IV then proposes a ‘jurisprudence of sensitivity’ by surveying how ‘sensitivity’ currently operates as a legal concept within open justice, and then pushes that concept closer towards the possibility 2 of identifying the harm that is sometimes done when criminal evidence leads a cultural afterlife. I. Perverting the course of justice This article opens with a case study with the aim of illustrating one instance in which criminal evidence captures the imagination of both legal and cultural users. Henry Bond’s book Lacan at the Scene (2009) represents an instance in which photographic evidence taken for a criminal investigative purpose is re-used for a cultural theoretical enterprise. Whereas the original material is already violent, profane, and violates crime’s victims, this article argues that Bond’s re-use is insensitive, for the way it reifies transgression, and does so without adequate justification. Nevertheless, Bond’s endeavour highlights a new range of concepts and questions which, despite a growing cultural hunger for criminal archival materials, have failed to be addressed by the legal institutions which create and preserve these records. Researching his book Lacan at the Scene, Henry Bond visited the British National Archive and sought access to English murder case files between 1955 and 1970. He was looking for files which contained original crime scene photographs. The cases he examined had been ‘solved’ in the judicial sense – the perpetrators of these homicides had either pleaded guilty or they were convicted following a trial. However, Bond had the idea that the photographs in the files contained further ‘clues’ which, when subjected to Lacanian readings, would enable him to diagnose the perpetrators as neurotic, psychotic or perverse. 3 Bond’s book opens: ‘I begin with a novel and engaging premise: what if Jacques Lacan – the brilliant and eccentric Parisian psychoanalyst - had left his home in the early 1950s in order to travel to England and work as a police detective? How might he have applied his theories in order to solve crimes?’ (Bond, 2009: 1) Bond concedes, in his second paragraph, that his research has a ‘flippant or comedic starting point’ and he describes the process by which he re-photographed the archival images, enabling him to ‘reenter’ the crime scenes ‘capturing my own evidence’ (Bond, 2009: 5). Although I am cautious not to present the view that law’s use of this evidence is unproblematic, (see Biber, 2007) my purpose here is to show that we ought to remain vigilant against post- legal uses which, in their refusal of law’s limits, also refuse all sensitivity towards law’s subjects. Bond is fascinated by sexual homicide, and his text is accompanied by many photographs taken from criminal case files, in which the murdered corpses of rape victims are reproduced, usually in full-page images. Of course, these images had already been displayed years earlier, for police investigators, prosecutors, judges and jurors, and that earlier exhibition – albeit with the justification of criminal process – constituted the creation of this archive of violence and violation. However, I argue that Bond’s re-use of this archive is without adequate justification; a veneer of psychoanalytic theory loosely disguises his own fascination with (mostly) women who are murdered, (mostly) by their rapists. These images, I argue, and also Bond’s analysis of them, are harmful for the manner in which they degrade, shame and sometimes mock these victims of sexual homicide. Here is an example of one of Bond’s investigations, conducted over slightly fewer than three pages, accompanied by three photographs, at the end of which Bond concludes that a homicidal rapist is a pervert: A woman was travelling on a train between Sussex 4 and Surrey in 1965. A male passenger made a sexual advance towards her – ‘What about it?’ – which she declined. He raped and killed her. Bond reproduces two images of the woman’s body on the carriage floor, partially wedged beneath the seat, her clothing in a humiliating state of disarray, her handbag on the seat above her. Bond imagines the ‘quasi-intimacy’ of the train compartment, and speculates that the woman was a ‘seemingly flirtatious stranger’, and provocatively describes this crime as an ‘inversion’ of ‘the romantic notion of the chance encounter with a stranger on a train’ (Bond, 2009: 53). He writes, ‘finally these strangers did form a lasting relationship, but only as perpetrator and deceased’ (Bond, 2009: 53). Bond’s analysis is not interested in rape and murder; it is in the visual representation of these crimes’ effects in the crime scene photographs. He notices that, in the photographs, the victim’s ‘skirt [is] pulled up to reveal underwear, stockings, garter, and so on’ (Bond, 2009: 53, 57); the description is gratuitous as the photographs he reproduces spare none of these details. Bond spends the rest of his analysis of this case examining graffiti scratched on the door of the train compartment, reproduced in his third photograph. He describes the graffiti, variously, as ‘obscene/erotic’ (Bond, 2009: 57), as ‘erotic/obscene’ (Bond, 2009: 58), as a depiction of ‘gang rape’ (Bond, 2009: 57), as ‘violent rape’ (Bond, 2009: 58), and as ‘the residue of a perverse act’ (emphasis in original) (Bond, 2009: 57). He is interested in the ‘exhibitionistic dimension’ of graffiti, and wants to ‘creat[e] a dialogue’ between the drawing and the murder scene, both of which he describes as ‘depictions’ of a ‘similar fantasy scenario’ (Bond, 2009: 57). Drawing a bizarre analogy with Steven Spielberg’s film Close Encounters of the Third Kind, Bond becomes interested in the shift from two-dimensional to three- dimensional representation, writing: ‘It is as if the drawing of a violent rape were 5 escalated’; for Bond it is the ‘escalation’ of a ‘fantasy’ into ‘reality’ that confirms the diagnosis of the pervert. He speculates: ‘Perhaps this erotic/obscene drawing was produced by the murderer while traveling sometime before on a familiar train journey – as if he responded to the graffiti/diagram next to his seat by posing a brusque rhetorical question: “Does not one perverse image demand another?”’ (emphasis in original) (Bond, 2009: 58). This concludes Bond’s analysis. He moves swiftly on to his next violent sexual homicide ‘investigation’, accompanied by further abject, humiliating and – frankly – heartbreaking crime scene photographs. Bond’s book is not consigned to the ‘cult/alternative’ genre, as has applied to other books he identifies and which are characterised – just as his book is – by their prurient and possibly perverted fascination with rape and murder (Bond, 2009: 26). His book is published by the MIT Press, in its Short Circuits series, edited and with an enthusiastic Forward by Slavoj Žižek. Žižek’s contribution opens: ‘The only thing I feel qualified to add to Henry Bond’s outstanding book is what I see as its philosophical presupposition: the weird status of the camera’s eye’ (Bond, 2009: xi). The remainder of Žižek’s contribution is about himself and his own preoccupations – Proust, sex gadgets, Soviet silent cinema, Deleuze, Kant – before he concludes: ‘what makes [the crime scene photographs] so unsettling is that they record traces of something we cannot really accept as an actual event, or grasp how it could have happened’ (Bond, 2009: xv). In Lacan at the Scene, both Bond and Žižek inexplicably, ‘cannot really accept’ – that these photographs do represent ‘actual events’; they represent aggravated sexual assaults, intimate-partner homicides, and murders by strangers, almost of all of which are perpetrated upon women. The author, editor and publisher have forgotten that the 6 reality and gravity of these crimes demands sensitivity, and they have collaborated in displaying the violated corpse of each woman repeatedly, cruelly and without any reflection upon the trauma she has suffered (Bond, 2009: 37-8). The book is, for this reader, a depraved and degrading celebration of sexualised homicide, whose victims are little more than ludic pawns in a Lacan-lite parlour game. Bond’s enjoyment of his project – the book’s endnotes are crammed with his boundless edification – and its scholarly façade, gives rise to serious questions about whether and where limits might be drawn around the re-use of evidence from sexual trauma. One value of Bond’s book is that it has provoked these questions, some of which this article begins to address. Several of the book’s reviewers do not share my concerns: Daniel Hourigan, who noticed that the book was a ‘sometimes gruesome read’ and that the photographs were ‘abject depictions’, nevertheless concluded that the images ‘always remain objects of a most critical and tasteful engagement’ (Hourigan, 2010). Similarly, Owen Hewitson conceded the book’s ‘disturbing content’, but believed ‘Bond is careful […] to be sensitive to his subject matter and to avoid any hint of the callous voyeurism or noir pastiche that is a familiar cliché of the detective fiction genre’ (Hewitson, 2011: 109- 111). Neither reviewer explains how photographs of real rape and murder might be displayed in a ‘tasteful’ or ‘sensitive’ mode. Whereas the heft of this volume derives from the truth of these images – they really are probative of rape and murder – its reviewers go to some effort to show that these images might be experienced theoretically. Bond himself engages in some meretricious taunting of his readers on this issue. He asks: ‘Do you not, gentle reader, feel a little dirty as you browse the lurid images? You may also notice that my version of this conscious justification is that I present the photographs as part of a Freudo-Lacanian study’ (Bond, 2009: 197 footnote 7 104, emphasis in original). In her review, Margaret Kinsman represses her own revulsion: ‘Although still very hard to look at – they are, quite frankly, gruesome – with the passage of time, these photos have acquired a historical patina that distances one from how they show the events they depict’ (Kinsman, 2010: 116); repressing affect with critique, she then describes Bond’s writing as ‘stimulating, creative and unsettling in an interesting manner. His approach evokes a kind of aesthetic pleasure, which unsettles even as it satisfies’ (Kinsman, 2010: 116). In her review, Viola Brisolin – who briefly raises the charge of Bond’s own voyeurism before acquitting him of it – overstates his scholarly achievements here: ‘Bond’s rigorous method and resolute approach’; his ‘deft … moves’ and ‘skilful interpretations’. Brisolin refers to the raped and murdered women as ‘The objects depicted in these images’ (Brisolin, 2011: 672). Like the book’s other champions, including Žižek, and his dust-jacket patrons, Victor Burgin, Bruce Fink and Dylan Evans, some of the book’s reviewers seem to have been beguiled by Bond just as, for Lacan, the pervert and his audience are drawn into a symbiotic mutuality. Of course, these women are not now, and never were, objects, and their relocation from criminal case files into cultural theory is, for this reader, neither tasteful nor sensitive. Lacan at the Scene takes criminal evidence, initially gathered for the purpose of investigating and prosecuting homicide, and puts it to a gruesome new purpose. Bond repeatedly remarks upon the bewilderment of the archivists he confronted, and his frustration at their attempts to place restrictions upon his requests to access these files, suggesting emphatically that these bureaucratic philistines are impeding his crucial theoretical endeavour. Among those Bond thanks in his ‘Acknowledgements’ is Luc Sante, who probably inaugurated the practice of making coffee-table books out of crime 8 scene photographs, with his books Low Life and Evidence (Sante, 1992, 2003). Bond cites several other books in this burgeoning genre (Bond, 2009: 197 footnotes 104, 106), and he explains that his book originated in his Ph.D research in a UK university (Bond, 2009: 203 footnote 53). And so, whilst Bond’s project represents for this reader the comprehensive failure of administrative, scholarly and ethical standards to prevent the post-trial mis-use of criminal evidence – nobody stopped him; some cheered from the sidelines – his is not the only work in which criminal evidence has re-appeared in a cultural setting, with troubling consequences. One aim of this article is to highlight the difficulty of distinguishing those re-uses which are mis-uses without some guidance about how one might exercise sensitivity within crime’s archive. It also needs repeating that lawful uses might, in some accounts, also constitute mis-uses. II. Cultural uses of crime’s archive Bond is just one in a flourishing field of artists and other creative and scholarly practitioners whose work draws upon official records, but who aims to put these materials into fresh, often unanticipated, contexts. Some of this work is shocking, for instance in its graphic displays of sexual violence and homicide (see Biber, 2010), its wilful aggravation of the traumatic circumstances from which it arose, (see Scott Bray, 2011; Biber, 2006a; Biber and Dalton, 2009c; Anita & Beyond, 2003; Birmingham, 2012) or for the illicit means by which it was obtained by its creative users (see Biber, 2011c). Some of this work actively interrogates the implicit logics of the archive from which it was recovered (Jones, 1986/2007, Tearoom; see Biber and Dalton 2009; Biber, 2011a), or forces new logics to prevail (Justice & Police Museum exhibitions Crimes of Passion 2002-2003; City of Shadows, 2006; Doyle, 2005, 2009; see Biber 2006b, 2011b; Maley, 2007; Safe, 2011; Crerar, 2012). Some of this work grapples with the 9 accusations of voyeurism that arise when one looks without permission (Hanrahan, 1999). All of this work transgresses the limits that the law would impose upon access, use and interpretation of evidence. This article acknowledges the shared interests of legal and non-legal users of criminal evidence, but also recognises that there is often a point at which our concerns conflict. It asks whether, where and how some new limits might be drawn to confine or control our mutual fascination with criminal evidence, and our current misunderstanding or refusal of each others’ motivations. It proposes a ‘jurisprudence of sensitivity’ to open this dialogue. It must also be noted that legal and non-legal users are not necessarily separate cohorts; law and culture are always and already interdependent. Cultural users of criminal evidence give us new concepts for thinking about this material. They may use evidence aesthetically, historically, politically, theoretically; they may see value in abstracting a single moment from an evidentiary narrative and – redacting context and explanation – working with that; they may be looking for evidence of something else – a lost history, everyday habits, even psychoanalytic diagnosis. No longer seeking to resolve facts in issue, cultural users of criminal evidence provoke other responses: affect, arousal, curiosity, nostalgia, pleasure. Furthermore, and which is explored in more detail in the next section, post-trial deployments of criminal evidence create a conflict between existing concepts in the administration of criminal justice, between transparency and secrecy, between the ideals of open justice and the protection of confidences. The socio-legal discourse of ‘open justice’ and the cultural-political discourse of ‘transparency’, have emerged concurrently with a broader cultural sensibility, one that has been called the ‘archival turn’ (Stoler, 2002: 87, 95), the ‘archival impulse’ (Foster, 10