Law, Photography, Decontextualization

Irving Penn, Three Asaro Mud Men, New Guinea (1970)

I want to cross two very different experiences on each other, hinging them on the process of decontextualization. The first experience is of looking at Irving Penn’s photos in his classic 1974 collection Worlds in a Small Room. The second one is of arguing the unconstitutionality of constructive murder in the case of R. v. Laviolette [1987] 2 SCR 667. 

Penn’s photos are black-and-white portraits of Peruvian peasants, Parisian tradesmen, Cretan old-timers, Spanish gypsies, New Guinea tribesmen, and so on. Penn didn’t photograph them in their natural environments. Instead, he invited them into his portable studio, and photographed them against a neutral backdrop. In his Introduction to Worlds in a Small Room, Penn said, “Taking people away from their natural circumstances and putting them into the studio in front of a camera did not simply isolate them, it transformed them.” 

Yes, but did it transform them in a good way? That’s the question I struggle with every time I look at these arresting pictures. Janet Malcolm, in a review of an exhibition of Penn’s cigarette butt photos, in which he used the same isolating method he used in Worlds in a Small Room, said, “Penn’s butts efface reality” (Diana & Nikon, 1980). That strikes me as exactly right. The same applies to his Worlds in a Small Room portraits: they remove people from their own context and treat them like botanical or zoological specimens. They efface reality. To me, that’s one of the most damning things you can say about a work of art. 

The word for Penn’s method is “decontextualization” – divorcing something from its original context. It’s a good description for what happens in certain legal cases, too. I was reminded of this point recently when I read Dale Carpenter’s Flagrant Conduct (2012), an absorbing account of Lawrence v. Texas, the landmark Supreme Court decision that overturned America’s sodomy laws. Carpenter shows how Lawrence and Garner’s lawyers, realizing the constitutional potential of their case, repackaged it. They persuaded Lawrence and Garner, who denied engaging in same-sex sodomy, to change their plea from “not guilty” to “no contest.” That eliminated argument on the facts and focused the case solely on the constitutionality of the law they were charged under. As Carpenter says, “Lawrence advanced as a case because nobody wanted to know what the underlying facts were.”

The conversion of raw facts to elegant legal argument fascinates me. I engineered such a conversion in R. v. Laviolette, in which the Supreme Court of Canada struck down constructive murder. The facts were brutal. Three young men went at night to the parish house at Kelly’s Cross, Prince Edward Island, with the intent of robbing it. The oldest of the three, Stephen, went inside and fatally struck the occupant, a priest, on the head with a length of iron pipe. All three were charged with homicide under the doctrine of constructive murder, which holds that if a murder is committed during the course of commission of a felony, such as break-and-enter, all participants in that felony are guilty of murder. 

I represented one of the two men who stayed outside the parish home. At trial, he was found guilty. In the time between his trial and his appeal, the Canadian Charter of Rights and Freedoms was enacted. On appeal, I argued that constructive murder offended Charter section 7, which guarantees, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” I contended that one of the principles of fundamental justice is that intention to murder is an element of the offence of murder, and that constructive murder eliminates that element. The Prince Edward Island Court of Appeal rejected my argument. We appealed to the Supreme Court of Canada. On December 3, 1987, the Court allowed the appeal, striking down the doctrine of constructive murder on the ground that it was inconsistent with Charter section 7.

But I’ve always had a twinge of guilt about Laviolette – the way the case was severed from its grisly facts (iron pipe, smashed skull, loss of a singular life), and repackaged as an abstract constitutional argument about the essential ingredients of murder and the meaning of “principles of fundamental justice.” It effaced reality.