684194

research-article2016
TCR0010.1177/1362480616684194Theoretical CriminologyMoore and Singh

Article

Theoretical Criminology

Seeing crime, feeling crime:

2018, Vol. 22(1) 116­–132
© The Author(s) 2017
Reprints and permissions:
Visual evidence, emotions, sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1362480616684194
https://doi.org/10.1177/1362480616684194
and the prosecution of journals.sagepub.com/home/tcr

domestic violence

Dawn Moore
Carleton University, Canada

Rashmee Singh
University of Waterloo, Canada

Abstract
Changes in prosecutorial strategies vis-a-vis domestic violence introduced new models
of investigation that privilege images of victims. Drawing on case law, we argue these
visual artefacts of victims’ injuries as well as their videotaped sworn statements
describing their assaults constitute what Haggerty and Ericson call a ‘data double’, a
virtual doppleganger who is meant to stand, often antagonistically in the stead of the flesh
and blood victim. We further suggest, following theorizing on the emotional impact of
images, that these pictures and videos, presented in court, have an emotional stickiness
that differently affects both judges and juries as compared to the testimony of the flesh
and blood victim. Thinking through temporality and notions of femininity we conclude
that the truth effect of these images is that the victim’s data double becomes more
human than human, forcing us to rethink the relationships between victims, images, and
the machinations of justice.

Keywords
Affect, domestic violence, feminist theory, photograph, visual criminology

Corresponding author:
Dawn Moore, Associate Professor, Law and Legal Studies, Carleton University, 1125 Colonel By Dr,
Ottawa, ON K1S5B6, Canada.
Email: Dawn.moore@carleton.ca
Moore and Singh 117

Introduction
Neil Feigenson (2011: 13) asks, ‘how does justice change in a culture awash with pic-
tures?’ Visual images are firmly intertwined with criminal justice practices. Building on
the classic ‘mug shots’ (Biber, 2006, 2007; Cole, 2001) and crime scene photos, we see
photography as well as video imagery playing an increasingly important role in evidence
collection. This is particularly true in the investigation of incidences of domestic vio-
lence where changes in both policing and prosecutorial practices have moved justice
systems more and more toward a heavy reliance on images and a commensurate assign-
ment of probative value. Enshrined in what is now colloquially known as the victimless
prosecution in the United States and the vigorous prosecution model in Canada, both
video and still images are now routinely privileged in the prosecution of domestic vio-
lence. Specifically, what are known in Canada as KGB statements1 are routine and their
collection, along with photographs of victim injuries, is seen as vital to good policing
practice (Dawson and Dinovitzer, 2001).
If justice is now awash with images and the prosecution of domestic violence cases in
particular is now routinely image reliant, what does this mean for the actual victim?
Where does she sit in relation to these images? How does the proliferation of images of
her injured body impact her own presence in the prosecution of her assault? As part of a
larger project on the significance of the visual in the prosecution of domestic violence,
we argue here that these images—particularly ones that contemporaneously capture vic-
tims relaying their police statements immediately following an assault—have particular
truth effects2 in domestic violence trials, effects that sit in direct relationship to but also
distinctly apart from the victim herself. We suggest that the widespread use of images in
these prosecutions creates a ‘data double’ (Haggerty and Ericson, 2000) of the victim, a
virtual doppelganger whose relationship to the actual victim is at times friendly but is
also fraught and even antagonistic, particularly for those ‘uncooperative’ victims who
recant or renarrate their experiences of violence (Dawson and Dinovitzer, 2001; Hanna,
1996; Landau, 2000; Mills, 1998, 1999). Further, we argue that beyond truth effects,
images also have certain affect, often marshaling, or intending to marshal emotive
responses that claim a degree of contestable universality which saturates their consump-
tion. The role of this affective response, we suggest, cannot be ignored in exploring a
refinement of Fiegenson’s initial question: how does justice act and change in a legal
process awash with images of victims and violence?

Theorizing visual evidence

While the literature exploring the mismatch between the law’s truth and women’s experi-
ences in domestic violence prosecutions is extensive, and the socio-legal scholarship on
visual evidence is growing, studies that aim to bridge these two bodies of work to exam-
ine how photos and videos tell the truth about violence against women are generally
lacking. Though postructuralist, feminist theorizations of law offer critical insight into
the varying ways in which the law’s claims to neutrality disqualify women’s testimony
as irrational and unreliable (Naffine, 2014, 1990; Smart, 1989), generally overlooked
within this body of work is how imagery influences the production of truth and legal
118 Theoretical Criminology 22(1)

objectivity. In lieu of these constitutive analyses, the few existing studies that do examine
the effects of photographs of injuries and videotaped statements in trials of gender vio-
lence hone in on very specific questions about whether or not the presence of visual
evidence in trials increases the likelihood of convictions (Dawson and Dinovitzer, 2001;
Hanna, 1996; Hay, 2012). Broader questions regarding the allure of the visual and its
production as concrete evidence that brings us closer to ‘the truth’ have yet to be explored.
The socio-legal scholarship examining visual evidence, by contrast, has generated
considerable theoretical insight into the ambivalent position of images, particularly pho-
tographs, in the courtroom (Biber, 2006, 2007; Edmond et al., 2009; Feigenson, 2011;
Mnookin, 1998; Young, 1996). In so doing, the literature illuminates how cultural
assumptions about the visual and its relationship to truth do and do not influence the
legal process. On the one hand, critical legal scholars show how broader assumptions
that ‘seeing is believing’ often contribute to the construction of visual evidence as an
objective and neutral truth teller in trials. On the other, scholars such as Mnookin (1998)
who traced the use of images in law historically, illuminate a legacy of contestation and
the reality that courts do not always take visual evidence at face value.
In bridging these literatures, we draw on the seminal insights of early feminist theo-
rists of the visual (Mulvey, 1989) and integrate them with more contemporary discus-
sions of images in law and crime as explored within cultural criminology and feminist
surveillance studies. Alison Young’s recent essay on ‘visual criminology’ is an invalua-
ble summary of where the field has brought us to date and how further scholarship can
build upon its foundations. As Young (2014) details, the grounding of visual criminology
in cultural criminology leads to a focus on how the visual works to discursively construct
crime as an artefact of our present. She offers a pointed critique of this work, drawing
attention to the somewhat predictable focus on whether or not the discursive reference
point of the images gets representation ‘right or wrong’. Importantly, she offers us the
vital rejoinder, questioning the conceptualization of images as either ‘windows or mir-
rors’ that ‘reveal and reflect a social reality’, urging instead for their theorization as a
‘point of attachment and identification—as a subject position through which we speak
and think ‘crime’’ (2014: 160). Here she draws on Ferrell’s (1997) work to make the
point that we must pay attention to the relationality of the image, how it interacts in, to
borrow the argot of Actor Network Theory, the network of the criminal event or artefact.
Thus, in outlining a methodology for how we might ‘think about/through/with images’
(Young, 2014: 161), of vital importance is the focus on the image not as an object requir-
ing interpretation, but as a relation between image and spectator.
Implicated in Young’s prescription is the suggestion that we must also read the image
as political, a thesis forwarded in the work of David Levi Strauss (2003) who locates
images firmly within the landscape of the political. Here we find our theoretical starting
point. We argue that the capture of images of domestic violence victims is a political act
with concerning implications that cannot be understood without considering the consti-
tutive role of the masculinized authoritative gaze in their production. Drawing on Laura
Mulvey’s (1989) insights on visibility regimes, as well as surveillance studies, we sug-
gest that these images constitute a ‘data double’ (Haggerty and Ericson, 2000) of the
victim of domestic violence. Haggerty and Ericson explain the data double as a feature
of what they see as a broader surveillant assemblage. Within this assemblage, bits of
Moore and Singh 119

information about us, our bodies, our activities, relationships, movements, congeal to
constitute a composite, which is in turn deployed to manage our corporeal selves. As
Haggerty and Ericson (2000: 611) describe it,

A great deal of surveillance is directed toward the human body. The observed body is of a
distinctively hybrid composition. First it is broken down by being abstracted from its territorial
setting. It is then reassembled in different settings through a series of data shows. The result is
a decorporealized body, a ‘data double’ of pure virtuality.

As powerful as Haggerty and Ericson’s notion of the data double is, it does not consider
the gendering either of the decorporealized body itself or its spectators, though in recent
years, the burgeoning field of feminist surveillance studies has emerged as a corrective
with its explorations of how dimensions of gender, race, and class impact the practices of
observing and being observed (Dubrofsky and Magnet, 2015). In reinvoking feminist
theorizing of images into the emergent field of visual criminology, we are able to glean
new insights into the feminine data double through foregrounding the vivification of
what is not human (Petchesky, 1987) and the emotive responses this figure is intended to
instigate. In the same way that the surveillance assemblage extracts and re-constitutes the
bodies of those watched, forming their virtual abstractions, victims in domestic violence
prosecutions undergo a splitting, enabling their production as docile bodies. Constituted
by and through the authoritative gaze of state power, this image of the victim material-
izes as much more reliable and easily manipulated than her flesh and blood counterpart.
In recognizing the data double—and her particular allure in domestic violence prosecu-
tions—we want to emphasize the contributions of feminism and theorizations of the
body in discussions of visual criminology, arguing that the debates in this field can and
should be broadened especially in consideration of the implications of the increasingly
visualized relationship between the victim and criminal justice systems. In drawing
attention to how the feminized data double mobilizes a scripted emotive response, we
also complicate existing insights in feminist legal scholarship on the tensions between
passion and rationality, specifically the suspicion of emotion in truth finding processes.

Valorizing the visual: The roles of images in domestic

violence prosecutions
The socio-legal literature documenting the ambivalent place and skeptical reception of
visual evidence in law highlights a need to examine the truth effects of images and vide-
otaped statements in domestic violence trials, particularly in light of their growing val-
orization by legal actors, law enforcement, and feminist reformers in recent years. The
belief in the abilities of images to tell the whole and incontrovertable truth about domes-
tic violence serves as the foundation for a prosecutorial strategy known as the ‘victimless
prosecution’. Victimless prosecutions aim to extricate domestic violence victims from
the trial process entirely and to replace them with as much corroborating evidence as
possible. Videotaped statements of victims relaying details of their assaults in the imme-
diate aftermaths of incidents are meant to act as stand ins for complainants during exam-
ination-in-chief. In its ideal form, visual evidence is meant to literally speak for itself,
120 Theoretical Criminology 22(1)

and importantly, vis-a-vis the subject position of the victim, provide an undisputed truth
of what happened.
Although the victimless prosecution has not been implemented in a Canadian legal
context to the same degree as in jurisdictions throughout the United States, the logic of
this intervention was foundational to the development of the the specialized domestic
violence courts in a number of provinces. In the case of Ontario, reformers advocated for
a modification referred to as the ‘vigorous prosecution’, which emphasized ‘the gather-
ing of solid evidence’, specifically ‘corroborating evidence’ in the form of 9-1-1-tapes,
photos of injuries or damage, medical reports, witness testimony, and audio or video-
taped victim statements’ (Department of Justice, 2005: 52). While vigorous prosecutions
cannot extricate a witness from the trial, as with the victimless prosecution, the strategy
constitutes visual evidence as a means of knowing the truth in a way that verbal testi-
mony cannot.
The privileging of visual imagery is not confined to the domestic violence trial; the
capture of images is also central to the policing of domestic violence. The following is
an excerpt from a report written by David L Swig (2010), an officer with the Morgan Hill
Police Department in California, entitled, Domestic violence response: Video recording
initial statements to increase prosecution rates. In the document, Swig discusses the
promises of videotaped statements in ‘building’ stronger domestic violence cases for the
prosecution. He refers to the abilities of video to draw viewers (judges and jurors) into
the actual incident. Quoting district attorneys who advocate for their routine use in trials,
he asserts that videos work because they ‘bring a crime scene to life in front of a jury in
a manner unlike other evidence’ (Swig, 2010: 4). These unrehearsed and visual state-
ments, Swig (2010: 3) argues, appeal to the senses, allow viewers to see and hear the raw
emotions of victims and ultimately transport them to the scene of the crime:

One of the ways this [increased convictions] can be accomplished is through the extemporaneous
video recording of the victim’s statements […] jurors would be able to hear and see initial
statements firsthand and feel the emotion of the incident and prosecuting attorneys would
benefit from viewing the video when deciding what charges to file. According to (Santa Clara
County Assistant District Attorney) Pierre-Dixon, photos and audio recordings are good;
however, video recordings of the initial statements and of the crime scene bring the jurist into
the scene and actually place them in the officer’s shoes during that incident.

In this one paragraph, we see a multitude of assumptions about the power of videotaped
recordings. Unlike still images or audio recordings, video recorded statements are imbued
with the capacities to transcend time, space, and the corporeal. The video, according to
Swig, allows viewers to be transported to the time and scene of the crime and to embody
the gaze of the officers investigating the incident. This authoritative gaze of criminal jus-
tice is implicitly masculine, one that seeks to know the truth about domestic violence for
the purposes of rescue, coercion, and punishment. This masculine way of seeing results in
the reconfiguration of emotion in law from a potential obstacle to truth to a form of evi-
dence that brings us closer to it. Video recorded statements allow viewers to visualize the
occurrence of the assault and, importantly, to engage with it on an emotive level. This
image–observer relation filtered through a masculine gaze gives emotions some sort of
Moore and Singh 121

probative value in law insofar as they call on the judge and/or jury to be affected by what
they are seeing. In so doing, viewers can see, hear, and presumably feel what the officers
experienced and ultimately derive a better sense of who is telling the truth.

Viewing/feeling the suffering

Tensions between affect and viewing emerge from old debates that center on the ques-
tion of how close an image brings us to the truth. This is ultimately about the subject
position of the viewer, the context of the image, and the way in which it is represented—
perhaps best exemplified by Virginia Woolf’s (1938) insights into images depicting the
horrors of war and Susan Sontag’s later (2003) response. Woolf’s assertion that such
images of barbarity instigate a scripted emotional reaction sheds light on the evocative
presence of the feminized data double in domestic violence trials. As Swig reminds us,
we are meant to feel something when we view images of women’s battered bodies. The
evidence is affected. Yet, Sontag chronicles the swift criticism lobbed at Woolf for tak-
ing a stand against war based on her consumption of images alone. How can a middle
class woman possibly know the atrocities of combat by simply viewing its images?
Woolf countered by insisting that an affective reaction to images of war is an inevitable
and necessary response, arguing for a universality of emotion and horror when con-
fronted with images of bodies torn apart, men slowly dying in fields of mud, their agu-
ish all too apparent on their pained faces. Woolf challenged her critics to find anyone
who would not be horrified by these images, concluding that we can only have a unified
response when viewing images of suffering. Sontag (2003: 9) argues this is partially
correct: the photographs Woolf examines may well produce an affective understanding
of war, but this is only revealing of a partial truth. For Sontag, to read war as a totality
by only viewing images of it is to ignore its politics (Bourdieu (1990) makes a similar
argument concerning the sociology of the image). In his quotation inset above, Sgt Swig
implies that Woolf’s universal response can be amplified by representing an image in
such a way that the viewer is placed in temporal proximity to the depicted atrocities.
While an image does not capture a ‘reality’ but rather presents us with a mediated and
incomplete interpretation of something horrible (Bourdieu, 1990; Butler, 1993;
Petchesky, 1987; Sontag, 2003),still, as Woolf (and Swig) maintain, we know how we
are meant to react.
That such affective reactions are often tethered to political ambitions is the point well
made by Petchesky (1987) in her analysis of the anti-abortion film The Silent Scream as
well as Young’s (1996) study of the images associated with the kidnap and murder of
Jamie Bulger in England. In both analyses we see unequivocally how images are, as
Woolf suggests, designed to evoke an affective response that plays on gendered tropes.
Young’s commentary on the widely published CCTV images of Bulger’s abduction out-
side a store called ‘Mothercare’ lead us to a deeper reading of the image. Returning to
Sontag’s observation that images are meant to show events in particular ways, Young
reminds us that the image of a small boy being led away quite literally from ‘mothercare’
is infected with a gendered affect of seeing, or being led to think we are seeing, an inno-
cent snatched from his mother’s arms. In the same vein, Petchesky’s analysis of The
Silent Scream makes clear that the visual vivication of fetus as person has the gendering
122 Theoretical Criminology 22(1)

effect of rendering women who elect abortions as baby killers, a trope that continues to
play out in courtrooms and on bumper stickers or signs held by protesters outside abor-
tion clinics.
Just as images of war, kidnapping, or aborted fetuses are intended to bring us to cer-
tain emotive states that play on gendered tropes, Swig’s championing of the use of vis-
ual evidence in the prosecution of domestic violence cases suggests that images of
domestic violence do similar work. They compel viewers—in this instance the judge
and possibly jury—to have an emotional response, to bring us back to the horror of the
event. The horrors we come to witness in Swig’s analysis of the capacities of visual
imagery, however, are not those experienced by the victim herself, but rather the police
officers responding to the complaint. Here, the cleavages between the human victim and
her data double and the potential antagonisms between the two, become apparent. What
counts is not how the victim felt or what she saw (a fist closing in on her face, her chil-
dren huddled in the corner crying, a beer bottle suspended over her head the moment
before she is struck). Rather, what matters is the mediation of her experiences and emo-
tional state, fragments of which the police piece together through the process of evi-
dence collection. The injuries they saw and captured on film, the disarray of the scene
of the crime, or, as we illustrate below, their own interpretations of what the complain-
ant felt or how ‘bad’ things really were emerge as central to the fact finding process.
Additionally, it is not only the horror experienced by police that is relevant here. Other
criminal justice actors including lawyers, judges, and importantly juries are meant to
experience these emotive responses.
This construction of the visual as evidence thus alerts us to a string of gendered pro-
cesses through which the emotional, typically seen as distinct from a legal fact (Scheppele,
1992), materializes as not only relevant, but integral to truth finding in domestic violence
prosecutions. The filtering of a complainant’s demeanor and body through the masculine
authoritarian gaze facilitates what could potentially be deemed irrelevant or distract-
ing—bruises, bleeding, or a complainant’s distraught demeanor—into irrefutable indica-
tors of violence. These images emerge as ‘facts’ that far outweigh a complainant’s verbal
testimony, ultimately silencing it in the event of a revised or recanted statement. For the
same reasons, visual imagery will also provide powerful corroboration for those com-
plainants who wish to proceed with the prosecution of cases.
We seek to animate this argument with examples from the 73 (mostly Canadian)
cases of domestic violence involving visual evidence we studied. The cases on which
we focus here are emblematic of the points we make and, we believe, the most useful
representations of themes we saw consistently across the cases we studied.3 The ques-
tion of whether the capacity of images to evoke emotion is probative or prejudicial, is
exemplified well in the case of R. v. LeBlanc.4 Here LeBlanc is appealing his convic-
tion on several counts of assault. The appeal is complex, involving multiple claims,
one of which is that the photographs of injuries sustained by LeBlanc’s girlfriend were
inflammatory (a point well discussed by Valverde (2006) in her consideration of grue-
some imagery). On appeal, LeBlanc claimed that the graphic nature of the photos
unduly influenced the jury, playing a significant part in his conviction. The appeal was
dismissed. On the question of whether or not the photographs proved prejudicial, the
appeals court judge reasons,
Moore and Singh 123

In the present case, the nature of the injuries as depicted in the photographs may have been
helpful in determining whether the complainant was telling the truth, or whether Mr. LeBlanc’s
suggestions as to the origin of the injuries made any sense. It is difficult to see how the admission
of the photographs could have inflamed the jury against Mr. LeBlanc, having regard to the
circumstances of the case.5

While the photos may well serve to provide the viewer with a perspective on ‘what the
police saw’, they clearly also have an emotional impact, one that, following Woolf’s line
of reasoning, provides a view on violence that assists the viewer in experiencing the
violence for him/herself in a particular way. Clearly the images of LeBlanc’s victim were
graphic and clearly their graphic nature, just as with images of war, illicit a certain emo-
tional response from the viewer. What is apparent from LeBlanc’s appeal is that, follow-
ing Sarah Ahmed’s (2013) assertion, these images and importantly the emotions attached
to them, have a certain stickiness. But, returning to Sontag, the nature of this stickiness
is contingent and must be read in its broader sociological context, as well as, we argue,
in its broader socio-legal context, where tropes of the ‘recanting victim’ haunt the legal
process. Against this broader backdrop, it is the verbal rather than the emotional account
captured and mediated through images that is ultimately questioned.

Truth games
The valorization and persuasiveness of visual evidence is inextricably linked to broader
reforms in domestic violence policy, which advocated for a ‘zero tolerance’ approach to
the crime. In Ontario as well as most of Canada, mandatory charge policies and ‘no drop’
prosecution strategies essentially compel police to lay charges and victims to proceed
with the prosecution of cases, even if they prefer to withdraw charges, or express a reluc-
tance to testify. While zero tolerance interventions have benefited some victims, overall,
these policies foster a highly coercive state response toward those who do not desire a
resolution to their cases via the criminal justice system (Hay, 2012). The institutionaliza-
tion of these policies, along with the understandable reluctance of victims to endure the
violence that result from them, has drastically altered the architecture of domestic vio-
lence prosecutions through generating a specter of the ‘unreliable victim’, a figure whose
potential emergence now reconjures suspicion of abused women. Fears that victims will
recant their narratives are enshrined in case law; for instance, in a 2010 Ontario Court of
Justice sentencing hearing (R v. Meade),6 the judge in the matter noted the ‘warning’ that
in ‘cases involving domestic violence, the […] wishes of the victim should be treated
with caution’. He further argued that ‘it would be dangerous to place too much weight on
them’ and cited three previous provincial court decisions to support his claim.
The result then is a truth game played in the prosecution of domestic violence. The
game relies on visual evidence, especially that which is captured shortly after the crime
is committed (and thus sits temporally closer to the crime and, it follows, closer to the
truth). The introduction of the victim’s data double through the use of this visual evi-
dence, though presented as a way of protecting victims from having to testify in open
court, plays to the advantage of police and prosecutors seeking a conviction threatened
by the ever-present probability that a victim will recant. Not only is this evidence useful
124 Theoretical Criminology 22(1)

as ‘hard evidence’ that can override a victim’s contradictory accounts; it is also affective
as we show above, extracting sticky emotional responses from the viewer even as the
victim herself, in many cases, tries to tell us that the image is only an image, incapable
of capturing the complexities of domestic violence any more than the images consumed
by Woolf led her to a broader understanding of the complexities of war.
Consider the judgment of R v. PG,7 which addresses the admissibility of hearsay evi-
dence, a part of which is a videotaped statement that KS, the victim in the matter, pro-
vided to the police three months after the assault occurred. The deliberations consider
whether the video sufficiently meets the tests of necessity and reliability that govern
whether or not KS’s statement, which she later recanted, should be incorporated during
a trial. To be admitted, the Crown prosecutor was required to demonstrate that KS made
her statement voluntarily and that her prior inconsistent statement was sufficiently reli-
able. The judge ruled that the videotaped statement met both tests and consented to its
admission.
This case illuminates how the verbal narrative made by the flesh-and-blood-victim
during trial is eventually deemed less truthful than the one provided by her videotaped
self. The decision to override KS’s verbal testimony is alarming considering the details
of the case and the fact that right from the beginning, she expressed little desire to
involve the police or report the crime. The undisputed details reveal that KS provided
her statement only after police officers engaged in repeated and persistent attempts to
get her to report the crime, and that she felt coerced by the officers investigating the
case. These concerns were even captured on KS’s videotaped statement. When asked
by the investigating officers why she gave the statement, her response was to ‘get the
police to stop bugging me’. At the time of the incident and trial, KS was a sex worker
and advised that the frequent visits from the police were interfering with her job. In
addition, she expressed concerns about being arrested herself. Along with openly
admitting that she felt coerced by the police, KS also advised that the validity of her
initial account of the events should be re-considered in light of the fact that she was
still under the influence of the drugs and alcohol consumed the night before the police
recorded her statement.
Despite these assertions, the judge ruled that the videotape was reliable and therefore
admissible. One overarching factor in the designation of the statement as valid evidence
was the fact that it was videotaped. The judge in the matter cited R v. KGB8 as precedent,
which, pending certain legal tests, renders a statement that is videotaped as sufficiently
reliable, to the point where it can compensate for an officer’s failure to warn victims
about the criminal sanctions that could result from recanting the statement. The legal
rationale provided for privileging this form of evidence is its ability to supposedly recre-
ate ‘the experience of being in the room with the witness and the interviewing officer’.9
In this way, KGB statements as they have come to be known in Canada, have an affective
capacity that is again delivered through their temporality and opportunity to provide a
multisensual encounter with the assault (by being able to both see and hear the victim).
Getting close to the event allows for adjudicators to experience the event and that experi-
ence necessarily involves affective responses. In fact, there is a case to be made that
eliciting affect is the whole point of introducing these sensory components to a prosecu-
tion (Petchesky, 1987).
Moore and Singh 125

The video is also assumed to be an instrument that enables judges to read the demea-
nor of victims. For instance, when assessing the two claims brought forth by the victim
and defense counsel to prevent the incorporation of the video into the trial—(1) that KS
felt coerced by the officers to provide the statement and that (2) she was intoxicated from
the previous evening and therefore not sufficiently coherent to deliver a truthful
account—the judge advised that neither claim was true based on the ability to both see
and hear KS at the time she relayed her statement.
The judge’s specific claims about the abilities of the video to discover the victim’s
true state of mind are worth examining. Note the following quote from the judgment:

It may be true that initially, she did not want to provide a statement to the police. It may be true,
in her own words, that she was ‘getting sick of you guys bugging me,’ but she voluntarily went
to the police station and provided the video statement. Her demeanor and words and gestures,
throughout the video statement, carry no suggestion of lack of voluntariness.10

How is it that KS’s words that she felt pressured to report the crime, vocalized clearly in
the video, lost their meaning and effect? And how is it that they are not seen as ‘truth’
despite the fact that they corroborate the narratives she provided on the day of trial? And
finally, how is it that the provision of the videotaped statement three months after the
incident occurred did not factor into determinations of its reliability, nor weaken its
capacity to tell the truth? The silencing of KS relates directly to the capacity of the video
to construct a visual narrative that is far more convincing to the eyes and ears of the law,
particularly in a prosecutorial context where the wishes of domestic violence victims, as
noted earlier, are viewed with suspicion.
Another extreme example of the silencing effects of the data double draws on the
ongoing case of The State of West Virginia v. Peter Lizon.11 Though our research mainly
focuses on Canadian cases, we include Lizon here because it embodies the gravest con-
cerns raised about victimiless/vigorous proseuctions and also because American and
Canadian prosecution strategies are cognate. Grand jury proceedings revealed that
Lizon’s wife presented herself at a women’s shelter seeking respite from ongoing and
extreme abuse. Lizon’s wife arrived at the shelter with numerous injuries including a
broken foot and bruising about the face, all captured on camera by the responding police
officer summoned by the shelter worker. The shelter worker claims that Lizon’s wife told
her it was Lizon who had inflicted the injuries upon her. Later, during grand jury testi-
mony as the images of her injuries were introduced as evidence, Lizon’s wife denied that
they were the result of any form of violence but were, rather, the typical sorts of injuries
one sustains in the course of farm life. For example, she explained her broken foot stating
Lizon inadvertently dropped a jacked up tractor on it as the two were working to repair
it. Not only did prosecutors use images of Lizon’s wife’s injuries as a means of revealing
to the jury the ‘truth’ of what happened to her body; they also intimated that these images
may well testify against Lizon’s wife herself, threatening a charge of perjury as a result.
Still, Lizon’s wife maintained that, taken as they were, out of the broader context of life
on a farm, the images, though admittedly horrifying and gruesome, did not tell us about
domestic violence. Indeed there is veracity to this claim. Regardless of how Lizon’s
wife’s injuries were sustained, her contradictory account of events gestures toward
126 Theoretical Criminology 22(1)

familiar narratives in the course of domestic violence prosecutions. Women, fearing for
their own lives or the lives of their children flee and seek the most immediate help avail-
able, often the police. Later, once the imminent danger has passed, they may have recon-
sidered the implications of making the initial report (the loss of a partner whom they
love, worries about revenge, lost income, implications for child custody/care, immigra-
tion status, etc.) and, themselves taking into consideration their own broader contexts,
make the very understandable decision to attempt to prevent a prosecution. It is these
actions in an era of no-drop policies and vigorous prosecutions that can put a victim
squarely at odds with the criminal justice actors intent on securing a conviction.
The photographs of Lizon’s wife’s injuries are constituted as more reliable in their
ability to give an account of what actually happened to her than she is herself. In effect,
images of bodies sit separate and apart from the people they represent, constituting data
doubles that are capable of not only speaking in place of the victim but also, in some
instances, against her. Returning to Woolf, these images bring us into the moment of
violence and suffering and script for us an affective response that is not easily overcome
by the at times revisionist account that may come from the victim later in the trial pro-
cess. The technologically mediated victim as data double is thus rendered more human
than human (Haraway, 1985), in the sense that it is her image and the emotions and story
conveyed through it that are seen as more genuine.
Importantly then, the will to flatten an event described by Valverde (2006) does not
always emanate from what she describes as the masculinist hyper-rationality of black
letter law and its prejudice against feelings, emotions, and the body. The desire to gray
images, to remove their gruesomeness by renarrating the context in which they were
captured can also be an act of feminine resistance as women attempt to reinsert their own
personhood into criminal proceedings by asking the court to believe them and not their
data doubles. Here we recall Haraway’s (1985) argument that constituted and technologi-
cally mediated images (and entities) can only be understood as irreconcilable contests
between social reality and fiction. Crucial then is that we not aim to understand the rela-
tionship between imagery, law, and gender as a singularity. Instead, what we want to
highlight that this is a fraught relationship that is very much dependent on particular
contexts and understandings that cannot be extrapolated up into a general theory of the
gendered image and crime.
Additionally, much of this authenticity is established not by the images themselves
but by their proximity to the events. Static in nature, the video statements and photos
have not ‘moved on’ from the assault but instead remain right beside it and as such are
able to offer a rendering of the violence uncontaminated by the inevitable passage of
time one finds awaiting a case to actually come to trial. As Swig tells us, a sentiment
reinforced by the judgment in LeBlanc, the images bring us emotionally and temporar-
ily into the event. By contrast, when the living victim speaks, her narrative cannot
escape the artificial tinge it acquires as a second story delivered far after the initial
incident occurred. She is distant from her assault and has had too much time to reformu-
late it, to reimagine it in order to be able to give an accurate account of it. Human
memory is fallible in a way that images of human bodies are not (Mnookin, 1998).
Human nature, with its ability to reconsider the implications of one’s actions, is antago-
nistic to the truth. And finally, her unmediated humanness, especially in the form of
Moore and Singh 127

womanhood, renders her an essentially untrustworthy subject. If her truth is only acces-
sible through her words, popular wisdom tells us that those words, especially coming
from a woman, can be manipulated, confused, and incomplete, all detriments not suf-
fered by the visual image (Valverde, 2006).

Capturing the image

The tensions we identify that emerge as we explore how visual evidence plays out the
juridical realm suggest that images do not always speak for themselves. The image does
not stand alone, unmediated in the courtroom. The context around which the image is cap-
tured also matters. For example, in the case of R v. Stewart12 photos of bruising on the
victim’s face, shoulder, back, and neck were captured by a Royal Canadian Mounted Police
officer the day after her assault took place. These images were entered into evidence at
trial. The officer who took the photos testified that the images themselves did not capture
the severity of the injuries, offering that the bruising on the victim’s body was worse than
it appeared. The officer’s commentary on the photos was received at face value by the
presiding judge who ruled, in large part on the basis of the police officer’s testimony, that
the assailant was indeed guilty of domestic assault. Stewart is an important and interesting
case not only because it shows the weight given to who captures the image, but also because
the subject position of the photographer can at times enable that person to reinterpret the
image for the court through his own affective response, given that the photographer holds
a position of neutral truth teller as described above (Bourdieu, 1990). Finally, the case
attests to the inherent authority of the police/masculine gaze. It is the officer’s interpreta-
tion of the injuries and bruises on the complainant’s body that clinches the guilty verdict.
The Stewart case is contrasted with R v. Felix.13 In Felix it is the complainant who
captures images of her own injuries, sustained, she explains, during an altercation with
her long-time partner and father of her child. The images, according to the court record,
show her bruised face with very noticeable swelling around the mouth and the eyes. The
complainant testified she took the images within hours of the assault. According to the
complainant, these images captured the result of one of a series of assaults she sustained
at the hands of the accused over a four-year period. The complainant did report one of
these other assaults to the police shortly after it happened. The responding officer, a Sgt
Biggs, testified that she saw a bruise on the complainant’s shoulder during her investiga-
tion but no photographs were taken.
In her ruling, the judge fully accepts the statement of the Sargent, stating, ‘Sgt. Biggs
is an experienced police officer who gave her evidence in a professional and straightfor-
ward manner. I accept her evidence without qualification or caveat.’14 The judge, how-
ever, did not look favorably on the complainant. Citing a number of inconsistencies in
her testimony and a history of dishonesty, the judge found the complainant’s evidence,
including her photographs, void of crediblility and ruled in favor of the accused. Unlike
Stewart where the photographs are not only given credibility but have their credibility
heightened by virtue of the fact that they were captured by a police officer, in Felix we
see the inverse: images captured by a dubious victim, despite the fact that a credible
police officer had witnessed injuries on the same victim’s body are discredited because
the victim is labeled dishonest.
128 Theoretical Criminology 22(1)

Who is behind the lens does very much matter in assessing the ability of an image to
tell a story of abuse. The routine credibility of the police officer gives license for the
image to stand in place of the victim’s own account and the police officer is allowed to
renarrate those images if it is warranted whereas a victim herself, at least a dubious one,
cannot produce her own data double to speak on her behalf. Instead the images she pro-
duces have their veracity questioned as the judge insinuates what we already know to be
true, what is captured on film is not always what is ‘real’. There are instances, however,
when a complainant’s own images and what she saw effectively serves as a stand in or
supplement to what the police saw. In these contexts, the capacity of images to evoke a
routinized response from the judiciary is key to understanding their believability in law.
In R v. Borg,15 for example, the victim took photos of her own injuries that formed the
basis, in part, of the appeal by the defendant. Justice Miller, in upholding the appeal,
directly links the impactful nature of the images of the victim’s injuries (including two
black eyes) with his own sense that the victim is far more credible than the assailant.
Miller places great weight on these images as not only illustrating that the victim sus-
tained significant injuries but also that the victim suffered greatly during and after the
assault. In these cases, it is visual evidence that holds up the victim’s testimony, proving
the truth of her words which, one can only assume, would hold far less weight if they
could not be accompanied by images of her battered body; images that are of her and
simultaneously apart from her.

Conclusion: Does justice change in a culture awash with

pictures?
We see a repeating narrative: a criminal justice system that mitigates its mistrust of actual
victims of domestic violence and their concomitant tendency to recant or reluctantly
report incidents of abuse through the use of visual evidence. While the ‘vigorous prose-
cution’ model is routinely presented as a humanitarian feminization of the criminal pro-
cess, alleviating the trauma of revictimization that has plagued prosecutions of violence
against women, the cases we study suggest that, far from protecting victims from revic-
timization, the reliance on visual evidence often serves to facilitate the silencing of
domestic violence victims and the further removal of their agency within the prosecution
of their assaults.
Based on our analysis, we draw three core conclusions. First, visual evidence creates a
second victim, one we refer to as a data double (Haggerty and Ericson, 2000) but who
could just as easily be thought of as a cyborg clone of the victim, made up by bits of visual
information about the victim in order to stand in her place (Haraway, 1985) though, con-
trary to Haraway’s assertion, this cyborg is not post-gender. We certainly would not deny
that this data double may well serve as a relief for some victims who are justified in want-
ing a proxy of themselves during what is often an incredibly difficult experience of having
to relive and repeat a narrative of abuse, especially in an open courtroom. At the same
time, we know that many, if not the majority of victims wish to change or erase their
accounts of victimization as they move through the criminal process. Through the creation
of the visual data double this agency, often expressed through a refusal to co-operate with
an investigation or prosecution, not only stands in stead of the victim but often stands in
Moore and Singh 129

opposition to her, providing a contradictory account of injuries, encounters, and violence

and ultimately discrediting the flesh and blood human victim, in the most extreme cases
to the point (as in Lizon) where the data double is actualy able to testify against her origi-
nator as threats of perjury charges are lobbed at the recanting victim.
Second, visual evidence is also tied to an emotionality of criminal law that is often
overlooked (Petchesky, 1987; Valverde, 2006). Though her commentary lacks nuance,
Woolf’s point, echoed by Petchesky, that we do tend (and are guided) toward emotive
responses to horrific images remains well taken. And just as Sontag helpfully points out
that these images fail to give us the ‘whole picture’, criminal proceedings are rarely
compelled by this perspective. Less interested in sociological context and more inter-
ested in probative value, questions of demeanor, credibility, and gauging the severity of
the incident in question, it comes as no surprise that the emotions attached to these
images, especially when their intent is to reveal to us ‘what the police saw’, do stick and
this emotional stickiness carries sway in courts. The scripted emotive effects the femin-
ized data double registers in domestic violence trials draws attention to new and differing
relations between ‘truth’ and emotion, one which complicates how both are typically
conceptualized within feminist legal scholarship. Within the context of the domestic vio-
lence cases examined, the emotions evoked through images of violence and victimiza-
tion are not distrusted as a form of contamination to pure reason. Rather, these visual
narratives are assumed to facilitate the truth finding process.
Finally, the allure of the data double from the point of view of police and prosecutors
is obvious. This well-disciplined, gendered subject has time on her side. She is forever
within the criminal event, showing us in temporal proximity ‘what the police saw’ in the
aftermath of an assault. She is also immutable. Her visible injuries will never heal though
their nature may change depending on who views them. Her words cannot be altered and
her demeanor as she is represented on camera cannot change its composure. All of these
aspects of the data double constitute an ideal, gendered victim, far from the one police
and prosecutors routinely encounter in these instances. Her composite is the injured,
helpless woman turning to the criminal law for the protection and redress it forever
promises victims of crime (Smart, 1989; Walklate, 2007). As the ‘(passive) raw material
for an active gaze’ (Mulvey, 1989: 25), which, in the context of the criminal justice sys-
tem, is gendered male, she remains unchanging from the moment the evidence is col-
lected to the moment it is presented at trial. Unlike the corporeal victim, the data double
is incapable of thinking through the consequences of reporting, of changing her mind, of
wanting to retell her story in a different way, all features that throw a wrench into the
machinations of justice.
What we are left with then is a new kind of script for prosecuting domestic violence,
one in which a new character, the data double, has an uneasy and potentially volatile
relationship with the human victim. On one hand, the data double may support the vic-
tim, providing those aspects of temporal proximity and immutability the victim lacks
thereby, in those instances where the victim is ‘compliant’, providing helpful evidentiary
backup on the road to conviction. But more often, as we have seen in this research, the
data double, tenaciously more believable than her flesh and blood doppleganger, serves
to silence the victim herself, erasing her from the criminal process and inserting herself
instead. Far from helping the victim to substantiate her claims, the victim’s data double
130 Theoretical Criminology 22(1)

becomes a nemesis who blocks the victim’s ability to affect the course of the prosecution
of her own victimization, making her, the victim, extraneous to the prosecution process.
Theoretically, we can only discover this deeply gendered actor in the play of criminal
justice when we place different strains of thought alongside each other. The emergent
field of visual criminology takes us a long way into being able to critique the image but
has not always done so through a feminist lens. Skance studies (Dawson and Dinovitzer,
2001) on images and domestic violence prosecutions are equally void of these analyses,
opting instead for positivist accounts of the use of images. Thankfully, the work of femi-
nist cultural theorists opens the conversation such that we are able to ourselves ‘see’ the
machinations of a culture awash in images and a patriarchal justice system. We have no
feminist theory of images used in criminal proceedings but we do have more analytic
opportunities to understand the gendered repercussions of the increasingly privileged
role of images in juridical realms.

Acknowledgements
We wish to thank Mariana Valverde, Les Moran and Justin Paulson as well as our anonymous
reviewers for providing contructive and incredibly helpful feedback on earlier versions of this
piece. We also wish to thank our research assistants, Marcus Sibley and Elise Wohlbold for their
talented support.

Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/
or publication of this article: This research is supported by a grant from the Social Science and
Humanities Research Council of Canada.

Notes
 1. Explained further below, KGB statements are sworn video statements typically given in
police stations by victims. Under the precedent setting R v. KGB case, these statements can be
used instead of the victim’s testimony at trial as long as their use passes certain legal tests.
  2. See Valverde’s (2006) discussion of this term. She uses it to denote the ways in which particu-
lar expressions of truth are instantiated in both common knowledge and legal expertise.
  3. We recognize that factors other than gender play into the reading of an image. Unfortunately,
because this research focuses specificially on case law, it was not possible for us to parse out
other variables like race or indigeneity. Canada does not keep records on the races of those
involved in a criminal proceeding and, despite our best efforts, we were never able to see the
actual evidence discussed in the cases. This gap is being corrected in our ongoing research
through interviews with domestic violence survivors. In these interviews, race and racism
emerge as key themes repeatedly.
 4. R v. LeBlanc, 2005 NBCA 6.
 5. R v. LeBlanc, 2005 NBCA 6 at 14.
 6. R v. Meade, 2010 ONCJ 18 at 6.
 7. R v. PG, 2007 OJ 5772.
 8. R v. KGB, 1998 OJ 1859.
  9. ibid at 4.
10. R v. PG, 2007 OJ 5772 at 10.
11. The State of West Virginia v. Peter Lizon, 2012 ongoing.
Moore and Singh 131

12. R v. Stewart, 2011 NJ 49.

13. R v. Felix, 2011 OJ 117.
14. R v. Felix, 2011 OJ 117 at 8.
15. R v. Borg, 2009 ON SC 5146.

References
Ahmed S (2013) The Cultural Politics of Emotion. New York: Routledge.
Biber K (2006) The specter of crime: Photography, law and ethics. Social Semiotics 16(1): 133–
149.
Biber K (2007) Captive Images: Race, Crime, Photography. New York: GlassHouse.
Bourdieu P (1990) Photography: A Middle-Brow Art. Cambridge: Polity.
Butler J (1993) Endangered/endangering: Schematic racism and what paranoia. In: Gooding-
Williams R (ed.) Reading Rodney King, Reading Urban Uprising. New York: Routledge,
15–22.
Cole S (2001) Suspect Identities: A History of Fingerprinting and Criminal Identification.
Cambridge, MA: Harvard University Press.
Dawson M and Dinovitzer R (2001) Victim cooperation and the prosecution of domestic violence
in a specialized court. Justice Quarterly 18(3): 593–622.
Department of Justice Canada (2005) Final report of the Ad Hoc Federal-Provincial-Territorial
Working Group reviewing spousal abuse policies and legislation. Ottawa, Canada:
Department of Justice.
Dubrofsky RE and Magnet SA (2015) Feminist surveillance studies: Critical interventions. In:
Dubrofsky RE and Magnet SA (eds) Feminist Surveillance Studies. Durham, NC: Duke
University Press, 1–20.
Edmond G, Biber K, Kempt R, et al. (2009) Law’s looking glass: Expert evidence derived from
photographic and video evidence. Current Issues in Criminal Justice 20(3): 337–377.
Feigenson N (2014) The visual in law: Some problems for legal theory. Law, Culture and the
Humanities. Epub ahead of print 20 December 2011. DOI: 10.1177/1743872111421126.
Ferrell J (1997) Criminological verstehen: Inside the immediacy of crime. Justice Quarterly 14(1):
3–23.
Haggerty KD and Ericson RV (2000) The surveillant assemblage. British Journal of Sociology
51(4): 605–622.
Hanna C (1996) No right to choose: Mandated victim participation in domestic violence prosecu-
tions. Harvard Law Review 109(8): 1849–1910.
Hay D (2012) Battered women’s experiences of the criminal justice system: Decentering the law.
Feminist Legal Studies 20: 121–134.
Haraway D (1985) Simians, Cyborgs and Women: The Reinvention of Nature. New York, NY:
Free Association Books.
Landau T (2000) Women’s experiences with mandatory charging for wife assault in Ontario,
Canada: A case against the prosecution. International Review of Victimology 7(1–3): 141–157.
Levi Strauss D (2003) Between the Eyes: Essays on Photography and Politics. New York:
Aperture.
Mills L (1998) Mandatory arrest and prosecution policies for domestic violence policies. Criminal
Justice and Behavior 25: 306–318.
Mills L (1999) Killing her softly: Intimate abuse and the violence of state intervention. Harvard
Law Review 113(2): 550–613.
Mnookin J (1998) The image of truth: Photographic evidence and the power of analogy. Yale
Journal of Law and Humanities 10(1): 1–74.
132 Theoretical Criminology 22(1)

Moore K (2010) Visualizing domestic violence: A digital archive of evidence photography in

legal observation and popular media. Thinking Gender Papers. UCLA Center for the Study
of Women, UC Los Angeles.
Mulvey L (1989) Visual pleasure and narrative cinema. In: Mulvey L (ed.) Visual and Other
Pleasures. London: The Macmillan Press, 14–26.
Naffine N (1990) Law and the Sexes: Explorations in Feminist Jurisprudence. Sydney, Australia:
Allen and Unwin.
Naffine N (2014) Feminism and Criminology. London, UK: Wiley.
Petchesky RP (1987) Fetal Images: The Power of Visual Culture in the Politics of Reproduction.
Feminist Studies 13(2): 263–292, (Summer, 1987).
Scheppele K (1992) Just the ‘facts,’ Ma’am: Sexualized violence, evidentiary habits, and the revi-
sion of truth. New York Law Review 37(37): 123–172.
Smart C (1989) Feminism and the Power of Law. London, UK: Routledge.
Sontag S (2003) Regarding the Pain of Others. New York: Picador/Farrar, Straus and Giroux.
Swig DL (2010) Domestic violence response: Video recording initial statements to increase pros-
ecution rates. West Sacramento, CA: California Commission on Peace Officer Standards and
Training.
Valverde M (2006) Law and Order: Images, Meaninigs, Myths. Princeton, NJ: Rutgers.
Walklate S (2007) Imagining the Victim of Crime. London, UK: Open University Press.
Woolf V (1938) Three Guineas. London: Hogarth Press.
Young A (1996) Imagining Crime. London: SAGE.
Young A (2014) From object to encounter: Aesthetic politics and visual criminology. Theoretical
Criminology 18(2): 159–175.

Jurisprudence
R v. Borg, 2009 ON SC 5146.
R v. Felix, 2011 OJ 117.
R v. KGB, 1998 OJ 1859.
R v. LeBlanc, 2005 NBCA 6.
R v. Meade, 2010 ONCJ 18.
R v. PG, 2007 OJ 5772.
R v. Stewart, 2011 NJ 49.
The State of West Virginia v. Peter Lizon, 2012 ongoing.

Author biographies
Dawn Moore is an associate professor of Law and Legal Studies at Carleton University. Alongside
this ongoing project on images of domestic violence with Rashmee Singh. She is also working on
a second grant on the infringement of prisoners’ rights. Moore has also written on sexual violence,
hate crime, risk, addictions and feminist theory.
Rashmee Singh is an Assistant Professor in the Department of Sociology and Legal Studies at the
University of Waterloo in Ontario Canada. She has published in Law and Social Inquiry, Social
Politics, and The Canadian Journal of Sociology. Her current research examines the governance of
domestic violence and the role of visual evidence in the prosecution process. She is also involved
in an additional project examining specialized prostitution courts in the United States.