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Biber, Katherine --- "Peeping: open justice and law's voyeurs" [2015] UTSLRS 3; Cultural Legal Studies (Routledge, 2015) Ch 8

Last Updated: 16 February 2017

Peeping: Open Justice and Law’s Voyeurs

Katherine Biber[∗]

Abstract

‘Open justice’ is the belief that justice must be done in public, and it must be seen to be done. Processes of open justice thus have the potential to transform us into voyeurs, deriving pleasure from the intimacies that are revealed during litigation. This chapter examines a series of voyeuristic photographs taken in Japan in the 1970s and argues that ‘peeping’, or looking discreetly, might form part of a jurisprudence of sensitivity, in which the law deals respectfully with the personal, private or secret information revealed by and about litigants, witnesses, counsel and other participants in legal proceedings.

____________________________

‘Open justice’ is the belief that justice must be done in public, and it must be seen to be done.[1] One consequence of open justice is that ‘law’ becomes a popular cultural genre, performing for a civic audience. Legal proceedings publicly scrutinise conduct that might be personal, sensitive or secret. This chapter asks whether a discourse of voyeurism can be applied to the pleasure taken in peeping at law’s secrets. It recognises that open justice sometimes has the effect of feeding voyeuristic impulses in law’s subjects, disclosing the evident enjoyment we feel when we are given access to the intimate or humiliating secrets of litigants, witnesses, defendants and victims.[2]

I will argue that peeping might be a less intrusive form of looking, and thereby retain some of the dignity of law’s participants.[3] This chapter examines voyeuristic photographs made in Japan – evidence of peeping – to explore the conflation of intimacy, disclosure and pleasure. Wherever intimate behaviour and feelings are witnessed, there is pleasure taken in intimacy’s disclosure, and recognition that its intimacy is implicitly probative. Where intimacies are photographed, they provide the viewer with proof, but they also entrust the viewer with proof’s residue: the secret. That secret demands some discretion or judgment about what we see and what we show. Voyeurs find pleasure in seeing another’s secrets, but they also deploy various strategies for guarding those secrets. This chapter argues that voyeurism is both an effect and a technique of open justice. Whilst peeping sometimes exacerbates the harms done when law’s secrets are revealed, through exploring voyeuristic cultural practices in Japan, we can see how peeping might also preserve qualities of discretion, safety, and maintaining a respectful distance.

Today, open justice enables us to peruse the contents of a rape victim’s handbag,[4] view images from a high profile suicide scene,[5] watch footage of a murder victim being smothered by her attacker,[6] and read the private diaries of victims and defendants.[7] Primarily exhibited in commercial media outlets, these materials are not released for the purpose of achieving transparency and accountability about court processes; they feed the voyeuristic impulses of a viewing public.[8] I have written elsewhere that open justice ought to be tempered with ‘sensitivity’, arguing that a ‘jurisprudence of sensitivity’ might achieve both openness and discretion. This chapter contributes to this project, arguing that voyeurism shows us how, where pleasure is taken in the intimacies or humiliations of others, some of the dignity of law’s participants might be preserved by looking discreetly. Part I introduces a series of voyeuristic photographs made in Tokyo in the 1970s, and describes the practices of peeping and exhibitionism which they represent. Part II explores Japanese geographies of sexuality, characterised by a distinctive interplay of revealing and concealing, indoors and outdoors, and in which peeping has an established history. Part III describes the Japanese concept of a ‘public sanctuary’, a space that is simultaneously public and hidden, and explains how this might be imagined as a technique for managing the intimate disclosures that are made in a regime of open justice. Part IV explains that Yoshiyuki’s photographs, despite their exotic strangeness, speak to contemporary Western preoccupations with privacy, surveillance and voyeurism. It shows how transparency has the potential to tip over into exhibitionism, inviting pleasure to be taken in practices of disclosure. Part V draws connections between discourses of voyeurism and regimes of open justice. In seeking out a space between ‘public’ and ‘private’, where sensitive information is both known and guarded, cultural scholarship has proposed various concepts for thinking about this space. Lauren Berlant proposes ‘intimacy’, DA Miller suggests the ‘open secret’, Michael Taussig describes the ‘public secret’, and Berlant and Michael Warner investigate the ‘counterpublic’. These concepts are helpful in articulating a ‘jurisprudence of sensitivity’, which urges the exercise of tact and restraint in a regime of open justice.

I. Peeping in the Park

In the early 1970s in Tokyo, a photographer walked through Chuo Park in Shinjuku and saw a couple having sex. He noticed several men creeping towards the couple to watch. Afterwards, he began visiting Tokyo parks regularly, discovering that this activity was a common feature of the park landscape at night. Many couples frequented these parks for sexual pleasure, and many more people – always men – visited those parks to watch them. The photographer researched technologies that would enable him to photograph in the dark and within six months, claiming concord with the park’s peepers, he began to take photographs.

The photographs seem shocking to contemporary viewers for their candour and audacity. Whilst all of the couples portrayed are captured in circumstances of intimacy, most of them are not engaged in sexual intercourse. Many are fully-dressed, and we might observe sweet details, such as the neatly-paired shoes beside them, or a coat laid out beneath them. The images suggest that these couples are unaware of the photographer’s presence, and many have gone to the trouble to hide behind shrubs or trees; the couples also seem oblivious to the groups of men clustering nearby, watching them. It is this feature of the images – the voyeurs – that is most disquieting. Brazen clusters of peepers come surprisingly close to the intimate couples, and sometimes we see one of them reaching out and actually touching a woman. The fashions and styling clearly locate their participants in the 1970s, but the subject matter requires no captions, and every image is named Untitled.

The photographs were supposed to capture the peepers. They were representations of voyeurism – their subjects, their maker and the audience were all practicing voyeurism. These were photographs about peeping, and from them we can learn something about how voyeuristic practices expose the pleasure taken when intimate secrets are seen by the public. The term ‘peeping’ is thought to have its origins in the seventeenth-century character of Peeping Tom who watched the naked Lady Godiva riding through Coventry; the term ‘voyeur’ derives from nineteenth-century French.[9] Whereas psychiatric and psychoanalytic literatures have recognised voyeurism as a deviant psychopathology, this chapter relies upon its more common usage as a cultural phenomenon.[10] Whilst some voyeuristic practices are intrusive and unwelcome, this chapter also explores the possibility that peeping – looking discreetly – might inform some jurisprudence of open justice, enabling law to be done openly and in public, but ensuring that sensitivities or intimacies are revealed safely.

Some of these photographs were first published in 1972 in Shukan Shinchō, an independent magazine committed to taboo-free examination of social questions. The complete series Kōen (Park) was first exhibited at the Komai Gallery in Tokyo in 1979, which was dedicated to post-war Japanese art, and the photographer used the pseudonym “Kohei Yoshiyuki”. The images were blown up to life size, the gallery was in complete darkness, and visitors were given a torch. Yoshiyuki said, “I wanted people to look at the bodies an inch at a time... I really enjoyed watching people looking at the photographs”.[11] Despite the exhibition being an underground success, afterwards the prints were destroyed, and a limited-edition book, Dokyumento: Kōen (Document: Park), documenting the park images was published in 1980.[12]

Yoshiyuki’s project, and its initial display in Japan, pre-dated the introduction of the 1985 Entertainment and Amusement Trades Control Law, which was responsible for the regulation, zoning and urban distribution of Japanese sexual practices. The law, which transformed Japan’s vast and eclectic industry of ‘love hotels’, had the effect of creating new geographies of sex in Japanese cities.[13] Yoshiyuki’s Kōen series captures a time before that law. With the publication in 2006 of Martin Parr’s influential The Photobook: A History – Volume II, in which Yoshiyuki’s park photographers were included,[14] new attention was drawn to his work. New York gallery, Yossi Milo, tracked down the artist, who agreed to reprint photographs.[15] During 2007, images from the series were acquired by the New York Museum of Modern Art, The Museum of Contemporary Art in Chicago, the Museum of Fine Arts in Houston, and the San Francisco Museum of Modern Art. Later that year, the series was exhibited in New York at the Yossi Milo Gallery, with significant public curiosity and reportage. Yoshiyuki, whose real name has never been revealed, apparently continues to work as a commercial photographer in Japan.

Western critics and viewers felt that the photographs either confirmed[16] or contradicted[17] Western attitudes about Japan. Some saw them as part of a continuing Japanese art practice of portraying voyeurism is an erotic motif, from eighteenth- and nineteenth-century Ukiyo-e woodblock erotic prints to films like In the Realm of Senses.[18] Benjamin Genocchio wrote that photographs are “by and large ... not terribly well composed or printed... slightly out of focus... at times movement blurs the figures”, but that all of these defects generate their “allure”, their “grainy realism”, and the “naughty, clandestine” experience of looking at them.[19] Susan Kismaric referred to the “predatory, animalistic” nature of the park’s voyeurs;[20] Susan S. Phillips found them “strangely unerotic”;[21] for Vince Aletti, they recalled “verité, vintage porn, frontline journalism and the hectic spontaneity of paparazzi shots stripped of their glamour”.[22] For David Cohen, they represented a “strangely wistful fusion of prurience and poignancy”.[23] Cohen questioned Yoshiyuki’s motivations: “Who is out there behind the camera each night: an anthropologist, an artist, a sexual deviant, a free love advocate, a blackmailer?”[24]

In an email interview with the The New York Times, Yoshiyuki explains the level of deception he practiced in order to produce these ‘candid’ pictures:

Before taking those pictures, I visited the parks for about six months without shooting them. I just went there to become a friend of the voyeurs. To photograph the voyeurs, I needed to be considered one of them. I behaved like I had the same interest as the voyeurs, but I was equipped with a small camera. My intention was to capture what happened in the parks, so I was not a real ‘voyeur’ like them.[25]

In these parks on these nights there were no police. Whilst these acts were criminal, they were never criminalised. There were no charges laid, no police interviews, no witnesses, no trials, no judgments. There are just the photographs. When you take away the law’s apparatus, all you’re left with is the evidence. These photographs are the residue of crimes that never encountered the law, and in viewing them we perform the same voyeurism that might, in different circumstances, invoke the law. They are probative of illicit public sex, and the making and display of these images was also unlawful in Japan. Without law’s structures, we see that our enjoyment of evidence is voyeuristic.

In 1979, Yoshiyuki’s interview with the photographic provocateur Nobuyoshi Araki was published in a Japanese porn magazine, Weekend Super:

Yoshiyuki: You can’t threaten people. You can photograph them, but the law...

Araki: So photographing them isn’t illegal?

Yoshiyuki: No, as long as you don’t say anything. If you keep quiet, take your photographs and run, it’s okay.

Araki: Really? It sounds almost criminal.[26]

What Yoshiyuki says here about the law is entirely untrue. It is illegal in Japan to engage in public indecency,[27] which includes public exposure of the genitals and also incidents which ‘violate a sense of morality’, which has been interpreted to include acts of exhibitionism and ‘peeping’ or voyeurism.[28] In Japan it is also illegal to produce, display or distribute sexually explicit material that is ‘obscene’,[29] with obscenity being defined by individual judicial officers charged with deciding whether it might evoke ‘uncontrollable or disquiet reason’. It was illegal to have sex in the park, it was illegal to watch couples having sex in the park, it was illegal to photograph them, and it was also illegal to display or distribute those photographs. Jennifer Ray writes that Japanese obscenity laws “made no exceptions for works of art”.[30] That these layers of voyeurism were not policed indicates one kind of discretion which, this chapter suggests, might protect intimacies in a regime of open justice.

In an interview with Cathy Lebowitz, the psychoanalyst Josefina Ayerza talked about the layers of voyeurism that are apparent in the Yoshiyuki photographs, but cautions against assuming that everyone who looks is equally a ‘voyeur’, or that the roles of voyeur and exhibitionist are stable. Ayerza says, “The thrill with the voyeur who is the artist with his camera is that as soon as the photographs reach the gallery it is him who turns himself into an exhibitionist. And yes, in the same act we, the viewers, are transformed into voyeurs, but only in terms of structure – it does not make you perverse because you step foot in the structure”.[31] This reading of the photographs enables us to see that the structure is itself unstable, and that individuals might slip between the zones of public and private, exhibitionist and voyeur, revealing and concealing, or that they might occupy these categories concurrently.

  1. Peeping in Japan

In order to understand how discretion might function to protect intimacies, it is necessary to know something here about the origins of a distinctly Japanese perversity, from which we can begin to imagine a ‘jurisprudence of sensitivity’, one which responds to practices and identities made manifest through both concealing and revealing.

Fictional explorations of Japanese sexuality were transformed during the Meiji period (1868-1912), away from descriptive erotic writing towards a narrative that revealed interiority and identity.[32] McLelland described the new Japanese fiction as characterised by “a hidden realm of desire in need of confession by the protagonist and elaboration by the author”.[33] He cites Yokota-Murakami who wrote, “What is sexual thus emerges exactly as something that is private, that which has to be concealed, and therefore, to be revealed”.[34]

Shortly after, the popularisation in Japan of Freudian psychoanalytic theories saw a discourse of public morality infused with discussions of “perverse” or “queer” desire (hentai seiyoku),[35] and a concurrent distinction drawn between normal (seijō ) and perverse (ijō) sexualities. Whilst McLelland observes that the period’s aspiration for Japanese modernity had the effect of relegating “perverse” practices to an imagined feudal past, remnants of feudal non-conformist practices maintained a tenacious grip on the contemporary imagination. Of significance here, voyeurism was seen to be a perversion of, as well as a natural progression from, traditional forms of ‘peeping’. Yokota-Murakami wrote:

what distinguishes debakame-shugi (or, voyeurism) from the traditional forms of “peeping” such as kaimami (a mere glimpse: occasional glimpses that princes and courtiers obtained of the courtly ladies who were enclosed by curtains and screens) is the ontological status the former gives to one who peeps.[36]

Yoshiyuki and Araki, in their conversation, appear not to observe these distinctions, conflating the voyeur, the peeper, the photographer, the innovator and the pervert. Araki tells Yoshiyuki, “The wonderful thing about this photograph is that it shows the peeper. It’s a self-portrait. It shows your shadow. I really like that”.[37] In their discussion about the flash technology that enabled Yoshiyuki to photograph in the dark, they say:

Araki: It’s fun when you have only seconds to get a shot, and the reaction is very clear.

Yoshiyuki: Yes, it is fun.

Araki: Maybe everybody will be doing it by this summer, once word about the Sunpak flash unit spreads.

Yoshiyuki: I heard the company had a lot of inquiries after my show.

Araki: Uh-oh!

Yoshiyuki: Yeah, I won’t be able to do my work anymore. [Laughs]

Araki: You mean nobody has ever come after you when you took photographs like this?

Yoshiyuki: Never.

Araki: Wow! Maybe you’re a ninja!

Yoshiyuki: The guy who developed the Sunpak infrared strobe is a real lecher and a lot of fun.

Araki: Really? He must have done a lot of fieldwork.

Yoshiyuki: I guess that’s where the idea came from.

Araki: Lechers are the only hope for the twenty-first century. Only lechers come up with good ideas. Only lechers take good photographs. So are you one too?

Yoshiyuki: I think I’m completely ordinary, but maybe there’s a little lecher in everyone.[38]

Scholars differ in their views about Japanese attitudes to public sex. McLelland writes that public displays of affection were introduced to Japan by American soldiers after the Second World War,[39] and that American GIs sought out sex in public parks,[40] practices which were policed by US military patrols and ignored by Japanese police. He cites Yukio Mishima as authority for the claim that Japanese police “would have been unable to arrest the Japanese partners anyway, ‘since there were no laws by which they might crack down’”.[41] McLelland writes, “Public sexuality was suddenly visible and acceptable in a manner not seen prior to the war’s end, and ‘petting’ (pettingu) couples were conspicuous features of parks and shrine precincts”.[42] By contrast, Mark West cites Shōichi Inoue who, in his history of Japanese ‘love space’ wrote, “At the beginning of the Twentieth Century, many couples made love outside. In fact, the general movement of male-female interaction from outdoors to indoors is said to be an extremely recent development”.[43] West quotes a 1916 news report stating that park benches were full of amateurs in the evenings: “doctors and nurses, office workers and female assistants, manual laborers, cooks and their girlfriends, reporters and their contacts, bank workers and female apprentices”.[44] He writes that, by the time of the US occupation, “as the sun set, lovers gathered in places like the Imperial Palace grounds and Inokashira Park, and the next morning the grass was full of paper scraps and condoms”.[45] West also cites the novelist Aiko Gotō who, in 1973 said, “Sex was originally something to be done while bathed in sunlight in the middle of a field. The need to seek stimulation behind closed doors shows how weak people have become”.[46] West advances the proposition that outdoor sex was practiced by amateurs in plain view, and that sex professionals worked indoors until the 1930s, when enshuku first emerged, which were the precursors to the modern love hotel. Love hotels, a massive sector in the Japanese economy and a ‘normal’ feature of dating, marital, extramarital and professional sex, have been recognised as a highly-visible method by which sexual intimacy is hidden indoors.[47] Again, we see how Japanese sexuality holds in persistent tension the practices of revealing and concealing, with voyeurism – watching discreetly and for pleasure – now practiced by the ethnographers who study love hotels.[48]

  1. Public sanctuaries

At the same time that love hotels emerged as alternative zones of modern Japanese sexuality, there also emerged the categories of “modern boys” (mobo) and “modern girls” (moga) who “socialized together away from the prying eyes of the family”.[49] These groups met in zones that an Anglophone readership would cast as ‘public’, although for mobo and moga cohorts these spaces were ‘safe’ for this reason, where propriety – so important amongst familiars – might be preserved among strangers.

There is a distinctly Japanese concept of the ‘public sphere’ that enables these notions of ‘public’ and ‘safe’ to cohere. In a European philosophical tradition, the ‘public sphere’ is the space where citizens engage in civil discourse; Cassegard writes that civic participation demands that Westerners “temporarily bracket those dependencies, inequalities or everyday preoccupations that define our actual social status”.[50] However, in Japan, there are at least two distinct ‘publics’, of which only one is affiliated with the state. Cassegard explains that the character ōyake/kō has “a distinct elitist connotation”, as the character is “etymologically linked to officialdom, government, or imperial authority rather than to popular political participation by citizens”.[51] The word ‘kōen’ contains this character. However there is a second concept, muen, or ‘non-relation’, which is simultaneously ‘outdoors’ but separate from the state; in fact, muen offers sanctuary from the state and its agents. Muen has its medieval origins in religious temples, which were empowered to exclude secular, state authorities (funyūken),[52] and could offer asylum to those seeking sanctuary from the state and its agents. A wide range of places and groups were associated with muen, although not everyone was entitled to muen’s protection – these were not universal rights, but locally distributed among certain places or groups.[53] In his writing on the origins of Japanese queer subcultures, McLelland identifies a similar class of spaces that are simultaneously public and separate. Collectively known as hattenba, or ‘development spots’, these can be found in parks, temples and public toilets, places where homosexual men could gather, usually after dark, without fear of exposure. The notion that a space can be both public and hidden is powerful in the context of a jurisprudence in which intimate secrets are disclosed as an act of justice.

In his writing on public parks in Japan, Cassegard says that the literal translation of kōen is ‘public garden’, and so it is significant that Kohei Yoshiyuki chose to name his series “Kōen”, when the parks he photographed were in fact functioning as hidden sanctuaries for their users. Cassegard writes about Japanese parks occupied by homeless people, and the activists who defend their rights to do so by arguing that they are not kōen, but rather ‘vacant lots’. These activists aim to reconceptualise the public sphere, away from ōyake or to gōko, muen or ‘vacant lots’,[54] attempting to “reconnect the parks to their other and largely forgotten origin as places open to those in need.[55] The vacant lot, in contrast to kōen, is a zone of hospitality and inclusion, sanctuary and security, and “does not require a bracketing of things unworthy of public display, it allows for experiments in alternative forms of survival (squatting, scavenging, community gardening, black markets and barter) as well as various expressions of life that are subject to mainstream disapproval”.[56] In Cassegard’s research with park activists, he noticed that their campaigns positioned ōyake or as Westernised concepts, alien to premodern Japanese ideas such as gōko, muen or kugai which, if recognised and reinvigorated, have the transformative potential to return to “a once-vigorous idea of public life that has fallen into neglect or has been forgotten”.[57] It is an argument that has a seductive resonance for Yoshiyuki’s photographs, and particularly their relation to – and reception by – Western audiences. That he named them “Kōen” implicitly suggests that he was provoking a Western notion of public space to operate in a zone that was, as his images plainly reveal, not understood in that way by its users. One interpretation of his chosen title, then, is that he is inviting his images to be seen as transgressions, its subjects issuing wilful challenges to public authority. However the scholarship of Cassegard, McLelland and others demonstrates that there is a legitimate alternative way of imagining these public intimacies, one that does not demand sanction for transgression, or more precisely, one that does not require transgression to be exhibited and judged as transgressive.

It is the public exhibition of these hidden secrets that achieves the shock, or power, of Yoshiyuki’s photographs. The sense of the breached sanctuary, the shameful disclosure, the thrilling revelation, these are also the effects of some acts of open justice, revealing the pleasure in seeing a secret that has fallen out of place. It is important to distinguish these effects on a spectrum of pleasure; not all voyeurisms are equal. At one end we might find the insatiable hunter (ryōki), trawling parks in the dark and physically touching couples engaged in public sex. The voyeur who hides behind a tree to watch might be engaged in a distinct category of behaviour, and the magazine reader, the photographer, or the gallery visitor enjoys a different kind of looking, and not all of them actively sought out the pleasure they received. Voyeurism demands an element of display, and voyeurs observe from a safe distance, although that distance varies. Decency and propriety might be preserved for the voyeur; they may experience the thrill of transgressing a boundary without necessarily crossing a line. In Yoshiyuki’s photographs, it is when the voyeurs reach out and touch the couples in the park that some limit may be reached. Yoshiyuki’s photographs manifest their perversity by never disclosing to us what sexual practices we are actually witnessing: are the couples exhibitionists, or have they been surprised by the voyeurs? Are the voyeurs content merely to watch, or are they active participants in these public sex acts? Are these public sex acts – which in Yoshiyuki’s photographs appear relatively coy, with their participants mostly fully clothed – all that happened in these parks, or did he select not to exhibit more explicit sex acts? David Cohen, in his exhibition review, wrote, “With photography, one perversion can segue into another. [...] Thus voyeurism begets a certain narcissism... The crucial ambiguity in Mr Yoshiyuki’s work isn’t his subjects’ libidos but his own”.[58]

In an email interview with Philip Gefter of the New York Times, Yoshiyuki gave his own account of the practices he documented, one which suggestively refuses to resolve ambiguity:

The couples were not aware of the voyeurs in most cases. The voyeurs try to look at the couple from a distance at the beginning, then slowly approach toward the couple behind the bushes, and from the blind spots of the couple they try to come as close as possible, and finally peep from a very close distance. But sometimes there are the voyeurs who try to touch the woman, and gradually escalating – then trouble would happen.[59]

His interview with Araki suggests that he witnessed explicit displays that were unambiguous,[60] and yet the images in the series Kōen seem adapted to some notion of propriety.

Araki: Are the people you photograph totally unaware of what’s going on? [...]

Yoshiyuki: The light flashes – a red light. I’d better not say anymore! [...]

Araki: They are amazing - because they are really screwing. Look at him giving it to her! You need a lot of nerve to take photographs like these. [...] These days it’s the women who are aggressive. At Shinjuku Gyoen park, for instance, the women are always on top.

Yoshiyuki: I saw that sometimes, too. But I can’t photograph that. If the guy’s on the bottom, he’ll notice the camera.[61]

Here we see evidence of Yoshiyuki’s own discretion, exercising careful judgment about what he sees and what he has chosen to show. For a jurisprudence of sensitivity, tact or restraint are crucial practices. In a regime of open justice, in the face of demands for disclosure, the law ought always to be attentive to the need, at times, for withholding. I have written elsewhere about another form of legal enjoyment, a “jouissance of restraint”, in which there is evident pleasure taken in law’s frugality.[62] However, here I propose the possibility that withholding might also be an act of justice.

  1. Peeping at Japan

This chapter uses Yoshiyuki’s photographs, and the Japanese context in which they were taken, to illustrate how Anglophone notions of open justice might be understood through a discourse of voyeurism. For this analogy to work, Yoshiyuki’s images must be both exoticised and familiar. Some scholars advance coruscating criticism of the West’s embrace of Japanese transgressive photo art, of which Nobuyoshi Araki is the most famous and prolific exponent. Christian Kravagna argues that Araki’s work – best known for relatively hardcore scenes of naked women in scenes of bondage and penetration, but which also includes images exceptionally similar to Yoshiyuki’s park photographs[63] – is misogynistic and sexist, and yet it has been recuperated by Western proponents including Nan Goldin.[64] Jean-Christophe Ammann cautions that Araki’s pictures “may be shocking to our Western eyes”, implicitly challenging Western audiences to overcome their ‘shock’, and suggesting that to Japanese eyes the images are banal.[65] Kravagna writes that Araki’s sexism and exploitation of women and women’s bodies is “exonerated” through an “exoticised reading” of his photographic practice; that various forms of “legitimation” are deployed by Western audiences and critics “repressing or rebutting the uneasiness” of his work.[66]

Responses to Yoshiyuki from Western critics have focused less upon the artist himself – likely because he has worked under a pseudonym and given very few interviews – and more upon the work itself. Whereas some viewers have recognised his work as emerging from a Japanese tradition, and some have seen his work as a commentary upon Japanese socio-sexual mores, most have sought to equate Yoshiyuki with Western practitioners of candid photography, and to identify his work as responding to contemporary Western preoccupations with privacy, surveillance and voyeurism. Yossi Milo, whose New York exhibition of Yoshiyuki’s photographs was their first showing outside Japan, said “The photographs are specifically of their time and place and reflect the social and economic spirit of the 1970s in Japan. Yet the work is also very contemporary”, citing privacy discourse, voyeurism, surveillance, and “a cultural climate obsessed with the personal lives of everyday people”.[67] Most of the Western responses to Yoshiyuki’s work seek to connect it with Western themes and practitioners. Karen Irvine, curator of the Museum of Contemporary Photography in Chicago, sees Yoshiyuki as working in the same tradition as Weegee and Walker Evans, photographers who could “capture public moments covertly”; Susan S. Phillips, photography curator at the San Francisco Museum of Modern Art, also compared Yoshiyuki with Weegee, “one of the great photographers who was interested in looking at socially unacceptable subjects”.[68] Philip Gefter, in his writing on Yoshiyuki, cited other instances of photographers capturing transgressive behaviour and subjects, from Bressai’s 1920s photographs of prostitutes in Paris, which were photographed with the consent of the subjects, to Merry Alpern’s 1990s photographs of prostitutes in New York, captured covertly from an apartment window.[69] Kenneth Tam has compared Yoshiyuki with Alvin Baltrop, whose “Pier Photographs” (1975-1986) chronicled the transient visitors to a disused pier beside New York City’s West Side Highway, and which attracted the homeless, drug users, gay cruisers, suicides, murders, and other illicit behaviours.[70] Baltrop, like Yoshiyuki, attempted to befriend his subjects first, acting as a participant as well as an observer, and going to considerable effort to capture his photographs. Jennifer Ray has compared Yoshiyuki with Minor White and Evergon, both of whom documented aspects of gay sexuality, and particularly gay cruising.[71]

The West’s ‘discovery’ of Yoshiyuki’s photographs is a narrative that slips clumsily off the page: chance encounters, walks in the park, hidden cameras, secret identities, a hidden world, the discovery of an unknown talent and, ultimately, a sell-out show. It is easy to be sceptical about claims that Western audiences stumbled accidentally upon Yoshiyuki’s photographs, after they had spent over 30 years in the Japanese underground. More likely, given the contemporary Western fascination with surveillance, technology and identity, they were skilfully released at precisely the right moment to dilute a relatively toxic discourse – permeated by fears about state secrets, terrorists, total surveillance and the end of privacy – with a charming and surprising series of photographs from 1970s Tokyo parks after dark.[72]

Their off-the-rack ‘fit’ with existing Western concepts of voyeurism was demonstrated in 2008 by the American fashion photographer, Steven Meisel, who made a series of photographs for Italian Vogue. Styled by Andrew Richardson, the images undeniably referenced Yoshiyuki’s Kōen photographs without actually citing them, portraying primarily Caucasian models in a park at night engaged in various acts of sexual exhibitionism and voyeurism, with some photographs closely matching scenes from Yoshiyuki’s images. Despite commissioning the images as an editorial, Italian Vogue refused to publish them, and instead they appeared in V magazine under the title “The State of Sex”.[73] Not acknowledging Yoshiyuki’s images as their source, the V photographs were accompanied by the magazine’s definition of ‘dogging’, identifying it as a distinctively British tradition:

Dogging (verb): A British expression for participating in sexual acts in a semi-public place (usually a secluded car park or a forest preserve) or watching others doing so. Often, there are more than two participants... as watching is encouraged, voyeurism and exhibitionism are heavily associated with dogging. The people taking part often meet either randomly or arrange to meet up beforehand over the internet.[74]

That Yoshiyuki’s photographs could be so seamlessly transformed into a generic visual register of high-end fashion, and that then-current British media reports about public sex could easily stand in for a distinctly Japanese perverse tradition, illuminates the universal recognition of voyeurism. We see how visual pleasure is taken in the exhibition of intimacies, and that intimacies are easily performed for a viewing public. As a metaphor for open justice, we see how unstable is the distinction between transparency and exhibitionism, a distinction that turns on whether it is pleasurable to look.

  1. Open justice, visual pleasure

Open justice must be tempered with sensitivity; transparency without accountability and judgment becomes exhibitionism. Legal proceedings, and the evidence adduced in those proceedings, frequently disclose information that may be private, personal, sensitive, intimate or secret. Whilst there are some existing legal principles or processes that protect some of this information from being disclosed, a ‘jurisprudence of sensitivity’ would see judgment exercised about whether and how to protect intimate or humiliating information disclosed in public proceedings. A jurisprudence of sensitivity could draw upon concepts used by cultural scholars to carve out a space between ‘public’ and ‘private’: Lauren Berlant invoked the term ‘intimacy’ for its capacity to unsettle the distinction between the public and the private.[75] D.A. Miller used the term ‘open secret’ to capture the tact or discretion required for managing personal secrets.[76] In Michael Taussig’s work, the ‘public secret’ refers to “that which is generally known, but cannot be articulated” because the secret, to retain its power, must be publicly shared as a secret.[77] David Bell, writing about public sex, recognised the “ambivalence” of space that is simultaneously public and private, with corporeal practices transforming it from one to the other, and back again. Kevin Waldby argues that the notion of ‘public sex’ is misleading; instead preferring the term ‘not private’ sex, to highlight that “the paradox of public sex is its hiding”.[78]

Berlant and Warner suggest the term ‘counterpublic’ to describe spaces which might be ephemeral or ‘secret’ sites.[79] They argue that the public/private distinction is produced by heteronormativity, which in turn reifies these categories and their relationship. They call for a queer refusal of the distinction and a concurrent refusal of heterosexual hegemony; public discourses of sex have the effect of creating a “hegemonic national public around sex”; the notion that heterosexual “privacy” is in any way ‘private’ relies on our failure to notice that the institutions of familial economy, health and reproduction, all of which are public and national, are not represented. Whilst much of this chapter argues for some sensitivity about how we show what we know, Berlant and Warner’s intervention demands that we are also attentive to what we have failed to notice. Broadly, they argue that where “privacy” is protected, violations of privacy’s norms are demonized (as perverted, obscene, exploitative, etcetera).[80] Further, the articulation of “intimate life” as the “elsewhere of political public discourse” serves as a distraction from recognising the inequalities in our economic and political lives. They identify “[i]deologies and institutions of intimacy” as achieving privatization, where the public sphere is purged of responsibility for its citizens.[81] Berlant and Warner argue that the privatisation of the sex act also renders private – or more precisely, unnoticed – the heterosexual hegemony implicit in a much wider range of acts that are not typically regarded as sex acts: “paying taxes, being disgusted, philandering, bequeathing, celebrating a holiday, investing for the future, teaching”, and so on.[82] They draw upon Foucault’s The History of Sexuality to make the point that, in a civil society, confessional and expert discourses “equate[s] true personhood with sex and surround[s] that sex with dramas of secrecy and disclosure”.[83]

Their account seems to narrate both Yoshiyuki’s photographs and their critical reception in the West. Whereas some of the Japanese sources suggested that public intimacy, whilst visible, need not be disclosed, the Kōen images perform precisely the “privatization” and the “drama” that Berlant, Warner and Foucault cautioned against. Returning to the notion of open justice, perhaps we ought to keep perspective of the fact that, whilst some of law’s disclosures may be shocking, humiliating or exploitative, most of the time law’s business remains unseen, or unobserved, because nobody has come to watch. The principles of open justice are mostly sound, and also have the potential to respond to Berlant and Warner’s urging of a radical visibility in response to the marginalisation of certain social cohorts. Consistently, they demand that society’s ‘outsiders’ occupy spaces of visibility on the ‘inside’, and that in so doing they are seen. Berlant and Warner would likely welcome some of the visual pleasures that attend a radical visibility, and they give their own account of a sex performance in a leather bar, where the crowd is “transfixed by the scene of intimacy and display, control and abandon, ferocity and abjection”, “moaning softly with admiration”, “whistling, stomping, screaming encouragements”.[84] Yet it seems necessary to draw a distinction between intimacies that are performed to be seen, and those that were never intended to be seen. Taking pleasure in the former completes the performance; taking pleasure in the latter is voyeurism.

In my earlier writing on illicit public sex, with Derek Dalton, we used the term “secret sex” to describe sex acts that occurred in public spaces but which were not meant to be seen, nor permanently recorded.[85] That writing was motivated by an artwork named Tearoom (1962-2007) by William E. Jones, a Los Angeles artist with a partially archive-based practice, much of whose work portrays gay sexuality. Tearoom is made from 55 minutes of film footage taken by police officers in 1962 in a men’s public toilet in Mansfield, Ohio. The footage was captured secretly by a police officer hiding behind a two-way mirror, and caught men engaged in illicit homosexual sex acts; at least 31 men were convicted of sodomy as a result of the footage, serving mandatory minimum prison terms of 12 months. In our writing about Jones’ work, the word “secret” conveyed some of the inadequacy of the term “private” for illicit conduct which occurs in public space. Bennett and Grant draw a distinction between “privacy as an intrinsic or aesthetic value” and “privacy as an instrumental or ‘strategic’ value”.[86] This distinction offers a helpful way of conceptualising open justice, where decisions are routinely made to classify material as ‘open’ or ‘closed’ following instrumental or strategic guidelines, oblivious to the fact that ‘open’ and ‘closed’ also appear on an aesthetic register. Strategic disclosures imagine that information can be managed within a safe, lawful and bounded space; aesthetic disclosures linger on the illicit, risky and hidden aspects of personal intimacy. The aesthetic effect of seeing a secret exposed is powerful, and the impulse to watch is irresistible. Where the law orders disclosure, even in the name of accountability and transparency, it has the potential to transform us into voyeurs.

Yoshiyuki’s photographs and their public reception play repeatedly upon the idea of the ‘secret’. Yoshiyuki, in his elusive relationship with his public – his real identity is a secret – lets it be known that he discovered a secret world and that he was the first to document its existence. His first exhibition was held secretly:

Araki: I heard that you didn’t issue many invitations. That was a bad idea. It’s a shame you didn’t make a really spectacular gesture.

Yoshiyuki: I’m a coward.

Araki: Cowards don’t go around spying on people and photographing them having sex. What was your motivation?[87]

Secrecy can function as an aesthetic strategy without any foundational necessity to conceal. Yoshiyuki’s ‘secrets’, crucial to the success of Kōen, crumble when pressed. The world of public sex in Tokyo parks was evidently well-known; his photographs show that the parks were crowded with participants, and Mark McLelland’s account of a danshō raid in which police and journalists documented a known yet hidden sexual subculture, demonstrates that photographers had visited Tokyo parks after dark 25 years earlier to capture their ‘secret’ world. Indeed, many of Yoshiyuki’s viewers have already noted that his work follows an established Japanese artistic practice – from woodblocks to film – of documenting sexual voyeurs. And despite the claim that nobody knows who Yoshiyuki really is, he was easily found and contacted by New York art dealers and journalists. For a secret to retain its power, one needs to remain within the logic of the secret, and its necessary paradox. It is known and hidden, released but guarded. Perhaps this is crucial to law’s management of intimate secrets. Within a regime of open justice, justice must be seen to be done, but the disclosure of the secret demands that somebody is there to see it. Law’s gatekeepers generally function with cold efficiency, effectively excluding all those who cannot speak law’s language, cannot access law’s domain, or cannot decode law’s secrets. Whilst most of this chapter targets striking, and sometimes shocking, disclosures – where one of law’s secrets has fallen out of place, resulting in harm or humiliation – we also need to concede that, most of the time, law’s secrets are safe, because nobody has come to discover them.

In their conversation, Araki tells Yoshiyuki: “They [the photographs] are powerful enough to thrill anyone who comes to see them”;[88] Yoshiyuki says, “at that time, nobody ever dreamed they’d be photographed”.[89] As a curator at the Museum of Contemporary Photography in Chicago, Karen Irvine, said, “our appetite for observing people in extremely personal circumstances doesn’t seem to wane”.[90] In Yoshiyuki’s photographs we encounter subjects whose sexual secrets were never supposed to be captured, represented or made permanent; these were sexual liaisons that were supposed to disappear back into the darkness. Whereas voyeurs look without permission, are the beneficiaries of open justice really voyeurs? They – we – do not perpetrate any recognised legal or moral violations, and yet the experience of looking at law’s secrets is often so powerful because we recognise some unspecified kind of trespass: we are looking at something that was never supposed to be represented, and never meant to be seen. The subjects of Yoshiyuki’s images failed to anticipate the technological innovations that enabled their capture. Does that failure create an ethical obligation for those of us who might look at them? Does it limit our motivations for looking? Are we, for example, restricted to looking for the purpose of forming a judgment? We can adduce evidence of transgression and reach a proven finding? Can we look and learn? These images might enable us to study the history of public sex, or the history of surveillance, or voyeurism? Are we also entitled to look for pleasure? Can we look and be aroused? Disclosures will have multiple effects, not always predictable or governable. A regime of open justice achieves transparency through disclosure, in a technique that is designed to teach us about the processes of justice, and to give us confidence and trust in the regime. However, as this chapter has argued, open justice has the potential to function in ways that may be exhibitionistic, with the effect that it transforms us – its beneficiaries – into voyeurs. Disclosures, particularly sensational, intimate or humiliating disclosures, give us a taste for secrets, and feed an ongoing hunger for more disclosures, and for more shocking and strange disclosures. Whilst we ought to remain vigilant about our processes of justice, and continue to scrutinise them, we need to remain attentive to what open justice might do to us.


[∗] Faculty of Law, University of Technology, Sydney, Australia. Katherine.Biber@uts.edu.au I am grateful to Kohei Yoshiyuki, and to his representatives at Yossi Milo Gallery, including Francesca Fanelli and Alissa Schoenfeld. Thanks also to Paula Kupfer at Aperture Magazine, Philip Gefter and Michael Lorenzini. I am fortunate to have so many colleagues and friends who have offered advice and guidance as this research developed: Isabella Alexander, Paul McCartan, Lesley Townsley, Honni van Rijswijk, Trish Luker, Rosanne Kennedy, Barbara Caine, Helen Groth, Glenda Sluga, Tess Lea and Julia Kindt. I thank Marett Leiboff sincerely for the support and encouragement she has given.
[1] Joseph Jaconelli, Open Justice: A Critique of the Public Trial (Oxford University Press, 2002); Emma Cunliffe, ‘Open Justice: Concepts and Judicial Approaches’ (2012) 40 Federal Law Review 385; J.J. Spigelman, ‘The Principle of Open Justice: A Comparative Perspective’ [2006] UNSWLawJl 19; (2006) 29(2) UNSW Law Journal 147; Colleen Davis, ‘The Injustice of Open Justice’ (2001) 8 James Cook University Law Review 92.
[2] Katherine Biber, ‘Inside Jill Meagher’s Handbag: Looking at Open Justice”, Alternative Law Journal forthcoming.
[3] See also Rosemarie Garland-Thomson, Staring: How We Look (Oxford University Press, 2009).
[4] See, for example, ‘Galleries: Evidence in the Jill Meagher murder case’ Herald Sun (online), 13 March 2013 <http://www.heraldsun.com.au/news/law-order/gallery-fnat79vb-1226596531880?page=1> [5] See, for example, ‘More of Kurt Cobain’s suicide scene pictures released by Seattle police’ The Sydney Morning Herald (online), 31 March 2014 <http://www.smh.com.au/entertainment/music/more-of-kurt-cobains-suicide-scene-pictures-released-by-seattle-police-20140331-35slu.html> [6] See, for example, Emma Partridge, ‘Video reveals the moments before Lisa Harnum died, and what Simon Gittany did next’ The Sydney Morning Herald (online), 1 November 2013 <http://www.smh.com.au/nsw/video-reveals-the-moments-before-lisa-harnum-died-and-what-simon-gittany-did-next-20131101-2wq4h.html> [7] See, for example, Kate Kyriacou, ‘Court releases journal entries by Allison Baden-Clay, one written days before she disappeared’ The Courier-Mail (online), 15 December 2012 http://www.couriermail.com.au/news/queensland/brisbane-supreme-court-releases-journal-entries-by-allison-baden-clay-one-written-just-days-before-she-disappeared/story-e6freoof-1226537242449; see also ‘Diary of a mum accused of killing her four babies’ The Sun-Herald (online), 6 April 2003 <http://www.smh.com.au/articles/2003/04/05/1049459859119.html> [8] Katherine Biber, ‘Evidence from the Archive: Implementing the Court Information Act in NSW’ [2011] SydLawRw 25; (2011) 33(3) The Sydney Law Review 575; Katherine Biber, ‘In Crime’s Archive: The Cultural Afterlife of Criminal Evidence’ (2013) 53(6) The British Journal of Criminology 1033.
[9] Jonathan M. Metzl, ‘Voyeur Nation? Changing Definitions of Voyeurism, 1950-2004’ (2004) 12(2) Harvard Review of Psychiatry 127, 129.
[10] See Clay Calvert, Voyeur Nation: Media, Privacy, and Peering in Modern Culture (Westview, 2000).
[11] At the exhibition, Yoshiyuki also displayed stills he had made from sex videos filmed, and left behind, by patrons of a pay-by-the-hour ‘love hotel’.
[12] Philip Gefter, ‘Sex in the Park, And Its Sneaky Spectators’, The New York Times, 23 September 2007, Art 37. NYT, 23 Sept 2007, AR 37
[13] See Mark D. West, Law in Everyday Japan: Sex, Sumo, Suicide, and Statutes (University of Chicago Press, 2010); Sarah Chaplin, Japanese Love Hotels: A cultural history (Routledge, 2007).
[14] Martin Parr and Gerry Badger, The Photobook: A History Volume II (Phaidon, 2006), 296-7.
[15] Rachel Wolff, ‘A Lost Voyeur’s Paradise: Images from Tokyo’s furtive sex life, brought to light again’, New York (online), 24 August 2007 http://nymag.com/nymag/guides/36605/
[16] Parr, above n 14, 297; Yossi Milo, cited in Gefter, above n 12, 38.
[17] Susan Kismaric, cited in Gefter, above n 12, 38.
[18] Alexandra Munroe, cited in ibid.
[19] Benjamin Genocchio, ‘The Listings: Kohei Yoshiyuki: The Park’ The New York Times (online), 7 September 2007 http://query.nytimes.com/gst/fullpage.html?res=9A0DE1D7153BF934A3575AC0A9619C8B63
[20] In Gefter, above n 12, 38.
[21] In ibid.
[22] In ibid.
[23] David Cohen, ‘Peeking In on the Social Set’ The New York Sun (online), 6 September 2007 http://www.nysun.com/arts/peeking-in-on-the-social-set/62042/
[24] Ibid.
[25] Cited in Gefter, above n 12, 37-38.
[26] Reprinted in English as ‘Down in the Park: Yoshiyuki Kohei’s Nocturnes: Interview by Araki Nobuyoshi’ (2007) 188 Aperture 74.
[27] Japanese Penal Code, Article 174, as explained in Milton Diamond and Ayako Uchiyama, ‘Pornography, Rape and Sex Crimes in Japan’ (1999) 22(1) International Journal of Law and Psychiatry 1.
[28] Ibid.
[29] Article 175 in ibid.
[30] Jennifer Ray, Repression and Rebellion: Cruising and its Depiction in Works by Minor White, Kohei Yoshiyuki, and Evergon (MFA Thesis, Columbia College Chicago, 2012) 23.
[31] Cathy Lebowitz, ‘Kohei Yoshiyuki: The Park: Cathy Lebowitz interviews Jozefina Ayerza’ (2007) 30 Lacanian Ink, 163, 166.
[32] Mark McLelland, Queer Japan from the Pacific War to the Internet Age (Rowman & Littlefield, 2005), 19-20.
[33] Ibid, 19.
[34] In ibid.
[35] Ibid, 20.
[36] In ibid, 20.
[37] Araki, above n 26, 78.
[38] Ibid, 78-79.
[39] In McLelland, above n 32, 62.
[40] In ibid, 68.
[41] In ibid, 68.
[42] In ibid, 62.
[43] Cited in West, above n 13, 157.
[44] In ibid, 158.
[45] In ibid.
[46] In ibid, 157-8.
[47] West, ibid; Chaplin, above n 13.
[48] Ibid.
[49] McLelland, above n 32, 24.
[50] Carl Cassegard, ‘Public Space in Recent Japanese Political Thought and Activism: From the Rivers and Lakes to Miyashita Park’ (2011) 31(3) Japanese Studies 405, 407.
[51] Ibid, 410.
[52] Ibid, 413.
[53] Ibid, 414.
[54] Ibid, 418.
[55] Ibid, 416.
[56] Ibid, 417.
[57] Ibid, 417.
[58] Cohen, above n 23, 15, 19.
[59] Gefter, above n 12, 37-8.
[60] Araki, above n 26.
[61] Ibid, 74.
[62] Katherine Biber, Captive Images (Routledge-Cavendish, 2007), 108.
[63] For example, the untitled image reproduced in Akiko Miki, Yoshiko Isshiki and Tomoko Sato (eds), Nobuyoshi Araki: Self. Life. Death (Phaidon, 2005), 437.
[64] Nan Goldin cited in Christian Kravagna, ‘Bring on the little Japanese girls!’ (1999) 13 Third Text, 48, 69. See also Nan Goldin and Nobuyoshi Araki, Tokyo Love (Scalo, 1995).
[65] Kravagna, ibid, 68.
[66] Ibid, 65.
[67] In Gefter, above n 12, 38.
[68] In ibid 38.
[69] Ibid, 38.
[70] Kenneth Tam, Disappearing in plain sight or How we used to have casual sex before Craigslist (MFA thesis, University of Southern California, 2010). See also Douglas Crimp, ‘Alvin Baltrop’ (2008) 46(6) Artforum 269.
[71] Ray, above n 30. White’s erotic photographs were only published posthumously, in 1989, and were unknown during his lifetime.
[72] Gefter, above n 12.
[73] The images are reproduced as a slideshow in ‘The State of Sex’ V Magazine (online), V56, 2008 <http://www.vmagazine.com/site/content/825/> [74] In ibid. See also David Bell, ‘Bodies, Technologies, Spaces: On “Dogging”’ (2006) 9 Sexualities, 387. Martin Parr also linked Yoshiyuki’s photographs with the then-contemporary phenomenon of ‘dogging’, above n 14, 297.
[75] Lauren Berlant, ‘Intimacy: A Special Issue’ in Lauren Berlant (ed), Intimacy (University of Chicago Press, 2000).
[76] Cited in Eve Kosofsky Sedgwick, ‘The Epistemology of the Closet’ in H. Abelove, M.A. Barale and D.M. Halperin (eds) The Lesbian and Gay Studies Reader (Routledge, 1993), 45-46.
[77] Michael Taussig, Defacement: Public Secrecy and the Labor of the Negative (Stanford University Press, 1999), 5-6
[78] Kevin Waldby, ‘”He asked me if I was looking for fags...” Ottawa’s National Capital Commission Conservation Officers and the Policing of Public Park Sex” (2009) 6(4) Surveillance and Society, 367, 369.
[79] Laurent Berlant and Michael Warner, “Sex in Public” (1998) 24(2) Critical Inquiry 547.
[80] Ibid, 550.
[81] Ibid, 553.
[82] Ibid, 555.
[83] Ibid, 559.
[84] Ibid, 564-565.
[85] Katherine Biber and Derek Dalton, ‘Making Art from Evidence: Secret sex and police surveillance in the Tearoom’ (2009) 5(3) Crime Media Culture 243..
[86] C. Bennett and R. Grant (eds) Visions of Privacy: Police Choices for the Digital Age (University of Toronto Press, 1999), 4.
[87] Araki, above n 26, 76.
[88] Ibid.
[89] Ibid, 78.
[90] In Gefter, above n 12, 38.


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