Australian Feminist Law Journal, 2014

Vol. 40, No. 1, 1–14, http://dx.doi.org/10.1080/13200968.2014.937893

EVIDENCE AND THE ARCHIVE: ETHICS, AESTHETICS, AND EMOTION

Katherine Biber and Trish Luker*

During her lifetime, Susan Sontag sent 17,198 emails. Today they are kept in the
Department of Special Collections at the Charles E. Young Research Library at
University of California Los Angeles (UCLA), where researchers can read them on
a special laptop. The emails reveal the minutiae of her friendships, her appoint-
ments, and the small, forgotten details of everyday life. Sontag’s official bio-
grapher, Benjamin Moser, has written about the ‘queasiness’ he felt as he read them,
‘unease, sometimes verging on nausea’, as he was drawn into his subject’s sex life,
her finances, medical records, failures, disappointments, and difficulties.1 Sontag’s
email archive is stored on two small hard drives, each labelled with a Post-it note.
Sontag was born in 1933, so most of the Susan Sontag archive is on paper. The
Sontag papers run across 132 linear feet, filling 264 boxes, 67 oversize boxes and
one oversize map folder. They include letters sent to and from Sontag, arranged
alphabetically, including correspondence with artists and writers, personal corres-
pondence, and love letters. Her opera programmes, political activism, teaching
materials, notes and manuscripts relating to her published and unpublished works
are there, and also juvenilia — crayon drawings on newsprint made when she was
aged around six, and writing practice in pencil from around the same time2 — her
spelling and school workbooks, junior high school projects, exam papers and course

*Katherine Biber, Associate Professor, Faculty of Law, University of Technology Sydney. Email:
katherine.biber@uts.edu.au; Trish Luker, UTS Chancellor’s Postdoctoral Research Fellow,
Faculty of Law, University of Technology Sydney. Email: trish.luker@uts.edu.au. Thanks to
Judith Grbich, Karen Crawley, Joanne Stagg-Taylor, Isabel Karpin, David Ellison, Ondine
Karpinellison, Zach Karpinellison, the anonymous referees and contributors to this special issue.
This work was supported by an Australian Research Council Discovery grant [DP130102224
Biber] and a University of Technology Sydney Chancellor’s Postdoctoral Research Fellowship
[Luker].
1
Moser Benjamin ‘In the Sontag Archives’ The New Yorker blog 30 January 2014. Available at:
http://www.newyorker.com/online/blogs/books/2014/01/in-the-sontag-archives.html? (Accessed 15
July 2014).
2
Susan Sontag papers (Collection Number 612) Department of Special Collections, Charles E Young
Research Library, University of California Los Angeles. Juvenilia (ca 1939) Box 295 Folders 1 and 2.
© 2014 Australian Feminist Law Journal Inc.
2 AUSTRALIAN FEMINIST LAW JOURNAL

notes from her undergraduate and graduate studies.3 The collection is augmented by
her library of 20,000 books, many of them annotated or inscribed.4
The collection is probative of Sontag’s auto-archiving practices, evident since her
early childhood, and it was purchased directly from her in two tranches, with
archivists aspiring to maintain Sontag’s own systems for organising and arranging
her records.5 Whilst all archivists are familiar with the effects of time and climate
upon paper records, Moser writes about the challenges faced by UCLA archivists in
protecting Sontag’s digital files against the ravages of ‘bit rot’, the instability of
computer storage drives, and the threats of technological obsolescence; documents
she created around 1995 on a PowerBook 5300 need to be preserved using new
software and equipment enabling researchers to view these materials as Sontag
would have seen them.6 UCLA archivists have used techniques developed by law
enforcement to ensure that the documents are preserved in their original format, with
subsequent viewers leaving no digital traces upon them.7
Although Moser knows he is consulting records that Sontag deliberately intended
for public access, he nevertheless describes ‘the feeling of creepiness and voyeurism
that overcame me’ as he read Sontag’s emails, imagining her ‘thinking and talking in
real time’.8 Despite the accessibility of this vast archive, and the intimate insights it
provides into her life and affairs, there are two boxes of Sontag’s journals which are
restricted until 2029, 25 years after her death.9
Researchers who use archival sources form various ethical, aesthetic, and
emotional relations with their sources. These arise regardless of how they may
conceive of the ‘archive’. Contributions to this special issue of Australian Feminist Law
Journal investigate the material and conceptual traces of law, and explore how
scholars from different disciplines imagine themselves as working ‘archivally’. This
may involve engagement with the archive as a site, a repository of sources; it may also
be a research subject in itself, invoking distinct methods, discourses, and aesthetics.

1.0 WORKING WITH ARCHIVES

Questions and concerns about working with archives often turn upon matters of
access, use, and interpretation. When accessing an archive, one might be visiting an
official state record-keeping institution, perusing a private collection, searching
online, or doing something else entirely. Some access is obtained legitimately,
sometimes it is serendipitous, and at times it is illicit. For instance, the historian and
folklorist Bruce Jackson includes in his book Pictures from a Drawer photographs
3
As above Junior High School (ca 1943–45) Box 146 Folders 10 and 11; High School (1947–49)
Box 117 Folder 4 and Box 146 Folder 12; Undergraduate (1949–51) Box 146 Folders 13–15 and
Box 147 Folders 1–5; Graduate (1953–57) Box 147 Folders 6–11, Box 148 Folders 1–8, Box 149
Folders 1–8, Box 150 Folders 1–8, Box 151 Folders 1–9, and Box 152 Folders 1–8.
4
Books from the Library of Susan Sontag (Collection Number 892) Department of Special
Collections, Charles E Young Research Library, University of California Los Angeles.
5
See ‘Processing History’ in Finding Aid for the Susan Sontag papers (ca 1939–2004). Available at:
http://www.oac.cdlib.org/findaid/ark:/13030/kt2489n7qw/admin/#did-1.2.1 (Accessed 15 July 2014).
6
Moser above note 1.
7
As above.
8
As above.
9
Susan Sontag papers above note 2 at Boxes 136 and 137.
 EVIDENCE AND THE ARCHIVE: ETHICS, AESTHETICS, AND EMOTION 3

taken of prisoners at Cummins Prison Farm in Arkansas which were taken at the
time of their admission.10 Jackson discovered a drawer full of extra photographs
whilst conducting fieldwork in the prison and describes how he furtively stole
98 photographs, and then stored them in a cigar box for years until he came to
produce the book.11
Does the mode of his acquisition constitute an unethical research practice? Does
the book’s publication by a prestigious academic press recuperate his crime, and
somehow transform it into legitimate scholarship?12 Does the acknowledgment that
the photographs are haunting and compelling outweigh the methods by which they
were obtained? Conversely, the photographer and psychoanalytic scholar Henry
Bond acquired archival photographs through a legitimate process, during his
research into criminal case files in the British National Archive. However, his use
of these images, in a project wherein he attempts to ‘diagnose’ perpetrators of sexual
homicide according to a Lacanian schema by looking for ‘clues’ in crime scene
photographs, has been subjected to criticism as an instance of mis-use of archival
sources. His book Lacan at the Scene13 has been described as ‘a depraved and
degrading celebration of sexualized homicide’,14 with Bond ‘revel[ling] in the
provocative and scandalous nature of his project’.15 Are there ethical limits upon
what might be done with archival sources, and what kind of ethical precepts or
responsibilities are engaged by archival access?
In another example, the artist William E. Jones retrieved criminal evidence — a
surveillance film made by Ohio police in a 1962 operation investigating homosexual
public sex — from a retired detective’s garage. He kept a copy for himself and
sent the original 16mm film to the Kinsey Institute, thereby ‘archiving’ the
found object.16 Whereas the original film was used to prove criminality in legal
proceedings, Jones uses it as evidence of another kind: in his artwork Tearoom (1962/
2007), the film is screened in silence, mostly unaltered, and the footage becomes
evidence of gay intimacy, gay sexual practices, cruising, and policing. Jones, simply
by re-presenting archival footage in an art space, transforms it from probative
evidence into an aesthetic and political artefact.17 Must archival sources be
interpreted according to their original contexts, or can significance or meaning
change over time, or wherever the archival visitor is motivated to advance new
interpretations?
10
Jackson Bruce Pictures from a Drawer: Prison and the Art of Portraiture Temple University Press
Philadelphia 2009.
11
As above at 19.
12
Biber Katherine ‘Review Essay: Wanted: The Outlaw in American Visual Culture; Capturing the
Criminal Image: From Mug Shot to Surveillance Society; Pictures from a Drawer: Prison and the Art
of Portraiture’ (2011) 35(4) History of Photography 439 at 441.
13
Bond Henry Lacan at the Scene MIT Press Cambridge MA and London 2009.
14
Biber Katherine ‘In Crime’s Archive: The Cultural Afterlife of Criminal Evidence’ (2013) 53(6)
British Journal of Criminology 1033 at 1036.
15
Carrabine Eamonn ‘Seeing Things: Violence, Voyeurism and the Camera’ (2014) 18(2)
Theoretical Criminology 134 at 152.
16
Jones William E Tearoom 2nd Cannons Publications Los Angeles 2008.
17
See Biber Katherine and Dalton Derek ‘Making Art from Evidence: Secret Sex and Police
Surveillance in the Tearoom’ (2009) 5(3) Crime Media Culture 243.
4 AUSTRALIAN FEMINIST LAW JOURNAL

Whilst archives might be collections of facts, processes, or events, archives can

also be emotional repositories. When Lindy Chamberlain was in Berrimah Prison
following her conviction for the murder of her baby, Azaria, thousands of people
sent her letters and cards. After her acquittal and release from prison, thousands
more wrote to her. In total, Lindy received 20,000 letters from strangers, some of
them addressed to her as ‘Lindy at Ayers Rock’, ‘the Darwin courthouse’, or simply
‘Darwin’.18 With the assistance of her parents and her then-husband Michael
Chamberlain, she collected and arranged the letters according to her own system.
For instance, hostile letters, which were usually anonymous, might be classified as
‘nasty’ or ‘nut’.19 Later, Lindy sold all of the letters, together with her personal
papers relating to her miscarriage of justice, to the National Library of Australia,
which sought to retain the letters and also her distinctive classifications.20 The
Chamberlain papers fill 70 boxes, and their first archivist, Adrian Cunningham,
asserts that they ‘reveal the depth of emotional involvement in the Chamberlain case
experienced by countless thousands of ordinary Australians’;21 the Chamberlain
papers are a literal archive of feelings.
The Chamberlain papers also provide evidence of Lindy’s personal relationship
with her archive. Cunningham explains that prior to Azaria’s death, Lindy was
‘only a marginally more retentive recordkeeper than the average person’ but her
experiences ‘transform[ed] her into an obsessive recordkeeper’.22 Michael Chamber-
lain, however, was a professional member of the Australian Society of Archivists,
and Cunningham speculates on the role he may have played in instigating Lindy’s
auto-archiving practices.23 One of the collection’s independent valuers wrote:

The style and spirit of its ordering are such that it offers an unusual degree of
completeness. It has been assembled in a fashion so rigorous that it is almost impossible
to imagine an instance of conscious or willing exclusion.24

While, of course, Lindy’s ongoing accumulation of papers relating to Azaria, a

discipline she continues today, is motivated by her desire to remember and honour
her daughter, Cunningham writes that her persistent collecting, and the decision of
the Chamberlain family to sell their papers to a public institution, responds to their
knowledge of the ‘symbolic significance’ of their litigation in Australian collective

18
Howe Adrian ‘Writing to Lindy — “May I call you Lindy?”’ in Staines Deborah, Arrow
Michelle, and Biber Katherine (eds) The Chamberlain Case: Nation, Law, Memory Australian
Scholarly Publishing North Melbourne 2009 p 221 at 223; Staines Deborah ‘Textual Traumata:
Letters to Lindy Chamberlain’ (2008) 5(1) Life Writing 97.
19
Howe above at 223.
20
See Papers of Lindy Chamberlain (1944–2010) National Library of Australia catalogue record.
Available at: http://catalogue.nla.gov.au/Record/1475359?lookfor=lindy%20chamberlain&offset=6&
max=74 (Accessed 15 July 2014). Note that a large portion of the Lindy Chamberlain papers are not
available for research.
21
Cunningham Adrian ‘Icons, Symbolism and Recordkeeping: The Lindy Chamberlain and Eddie
Mabo Papers in the National Library of Australia’ in Staines et al above note 18 at 263.
22
As above at 264.
23
As above.
24
Cited in Staines et al above note 18 at 264.
 EVIDENCE AND THE ARCHIVE: ETHICS, AESTHETICS, AND EMOTION 5

memory.25 As a collection, it demonstrates many of the themes we have invited

contributors to explore in this special issue.

2.0 WHAT IS AN ARCHIVE?

An archive might be an official repository of state records, it might be a private
collection of papers, or it may be a means of bringing together materials related to a
specific group or agency. It might be easily accessible, for instance, freely available
online, or it might require that visitors make some effort, or travel some distance,
to view its contents. It might be restricted to certain people, or it might be closed
altogether, whether permanently or for a defined period. Visitors might require
permission or documentation to access it, they might be obliged to conform to
certain protocols, or they might use an online search facility.
The archivist John Ridener writes that ‘archives hold singular information not
duplicated elsewhere’.26 Alternatively, the historian Antoinette Burton defines an archive
as ‘traces of the past collected either intentionally or haphazardly as “evidence”’.27 For
the curator Charles Merewether, what distinguishes an archive from a library or a
collection is that the archive ‘constitutes a repository or ordered system of documents
and records, both verbal and visual, that is the foundation from which history is
written’.28 As art theorist Sven Spieker explains, since the late twentieth century, ‘there
seems to be little consensus as to what an archive is, [and] how it might be distinguished
from other types of collections’.29 He argues against the conception of the archive as
‘a giant filing cabinet at the center of a reality founded on ordered rationality’.30
Historically, the notion of an archive has repeatedly reformed itself around new
administrative, technological, or ideological demands. Early efforts to consolidate
processes for state record-keeping were driven by the desire of Dutch colonial
administrators to preserve evidence of their endeavours. Later, new techniques were
demanded to collect documentation relating to the First and Second World Wars,
where records needed to be drawn together from many different sources, each with
their own record-keeping protocols and technologies. With the gradual emergence
of discourses of transparency and accountability, citizens issued new demands upon
archives. Rather than recording the workings of government, the rationale for archives
shifted to recording the nature and incidence of governance, from a power-based
institution to a memory-based structure, reflecting a shift from the subject of
administration to its substance.31
25
As above at 265.
26
Ridener John From Polders to Postmodernism: A Concise History of Archival Theory Litwin
Books Duluth MN 2008 at 4.
27
Burton Antoinette ‘Introduction: Archive Fever, Archive Stories’ in Burton Antoinette (ed)
Archive Stories: Facts, Fictions and the Writing of History Duke University Press Durham NC &
London 2005 p 1 at 3.
28
Merewether Charles ‘Introduction: Art and the Archive’ in Merewether Charles (ed) The Archive
Whitechapel Gallery London & MIT Press Cambridge MA 2006 p 10 at 10.
29
Spieker Sven The Big Archive: Art from Bureaucracy MIT Press Cambridge MA & London 2008
at 4–5.
30
As above at 1.
31
Ridener above note 26 at 111.
6 AUSTRALIAN FEMINIST LAW JOURNAL

Whether accumulated for posterity and history or responding to ideologies

of open government and accountability, the creation of archives suggests that
somebody will one day seek access. For archivists, the smallest unit of archival
organisation is the ‘record’.32 It is through the process of archival appraisal and
organisation that information becomes a ‘record’; records are valuable not only for
the information they contain, but simply because of their retention in the archive.
Records anticipate a future archival user, somebody who might be interested in the
information they contain, and the context from which they emerged. What counts as
a ‘record’, however, has been subject to ongoing disciplinary wrangling, much of
which may be cancelled by radical technological change.
However, even without a future visitor, an archive might come into being,
thereby fulfilling Burton’s ‘archive logics’, wherein the past is brought into contact
with the present, and perhaps the future.33 Indeed, the creation of an archive may be
the fulfilment of a desire — the desire to accumulate, to arrange, or to store. An
archive which is accumulated for its own sake is not stored in anticipation of future
access. In this way, gathering, collecting, gleaning, hoarding, sorting, ordering,
arranging, and re-arranging might all be labelled archival practices.
But can any accumulation of materials be regarded as an ‘archive’? Burton describes
the anxieties of some scholars that ‘everything’ might be an archive, ‘everywhere and
hence nowhere’,34 and which might be a consequence of democratisation, where
individuals and non-government groups now also frequently inaugurate archival
projects. Spieker, writing in the context of art production, explains that, to some extent,
the term has to be surrendered:

artists will call ‘archives’ whatever they want. … The term has its own history already in
the discourse of art, and I suppose one simply has to accept that. … [But] one has to be
very careful not to void it of any specific meaning.35

As these theorists demonstrate, the notion of the ‘archive’ has been claimed and
contested within cultural and critical discourse in the humanities. However, in calling
for contributions to this special issue, we were motivated by a specific interest in
exploring how scholars have deployed the term within legal inquiry. In particular, we
were interested in whether legal evidence could be imagined archivally. We invited
contributors to explore the types of uses to which evidence is put after the conclusion
of court proceedings, and also to examine the ethical, aesthetic, and affective
implications of drawing upon this material. Given the interest in contemporary
cultural theories to invoke the notion of the archive discursively, we were also
motivated to explore the mode of ‘archival thinking’ in relation to legal discourse.
Evidence — the material adduced by parties to support their claims in litigation —
might include documents, witness testimony or real evidence, including objects,
32
As above at 124.
33
Burton above note 27 at 11.
34
As above at 5.
35
Spieker Sven Un-knowing, Getting Lost, Linking Points in Space: The New Archival Practice paper
presented at Artists & Archives: A Pacific Standard Time Symposium, Getty Research Institute 12
November 2011. Proceedings accessible at http://www.youtube.com/watch?v=NVKTtyr6dBk Part 1
of 3 at around 1.02.00 – 1.05.12. (Accessed 15 July 2014).
 EVIDENCE AND THE ARCHIVE: ETHICS, AESTHETICS, AND EMOTION 7

places, experiments, or demonstrations. Increasingly, evidence also includes photo-

graphic or digital visual materials. During the legal process, evidence is governed by
strict rules and processes limiting the ways it might be tendered, used, and
interpreted. However, after the conclusion of proceedings, these rules no longer
apply, and evidentiary material returns to a notional archive, where it may or may
not be subject to archival regulations.
Does an evidentiary afterlife continue in the archive? Indeed, evidence continues
to live, being accessed and reanimated for an ever-growing range of purposes and
projects. Some of the contributors to this special issue explore the evidentiary archive
by testing the limits of archival thinking, with creative works enabling scholars to
investigate some of the claims made upon archives, conceptually, for the advance-
ment of their own projects.
In ‘Rotten Prettiness? The Forensic Aesthetic and Crime as Art’, Rebecca Scott
Bray describes the art practice of four contemporary artists who rely upon
the aesthetics of the criminal archive. She explains how art photography might
appropriate legal evidence and documentation for its aesthetic effects, and its
indexicality — that it might refer to something outside of itself. In some of the work
discussed, the artists construct their own crime ‘archives’, accumulating traces of
past events and re-presenting them as evidence of something beyond crime. These
contemporary artists are engaged in abstractions and translations of the concept of
an archive, drawing upon the aesthetic qualities of legality and forensics, and making
new demands upon discourses of crime as spectacle.
Whereas Scott Bray writes about wilful accumulation as an archival practice, it is
accidental accumulation which is the subject of the contribution by Prudence
Black and Peta Allen Shera, ‘Out, Damned Spot! The Stained Cloth of Kennedy,
Lewinsky, and Margiela’. The authors investigate accidental stains on garments, and
the probative and affective nature of these inadvertent ‘archives’. By identifying
specific instances of contamination and fascination, their article draws our attention
to the notion of accumulation itself, as a site of anxiety and abjection. In this way,
they test the limits of the concept of an archive by associating it with the notion of
the evidentiary trace.

3.0 ARCHIVES AS OFFICIAL RECORDS

Legal historians have long recognised that legal archives, such as court records,
contain valuable information which may not be available elsewhere. Records of
court proceedings, including transcripts and other evidentiary materials, are unique
archival sources because they are the official record of a legal system. Such
documents have distinctive characteristics, including their potential sensitivity and
confidentiality, which must be considered when transferring them into archival
records so that they can be used for research purposes. Certain principles, policies,
and practices govern public access to court records which are intended to balance the
sometimes competing interests of open courts and individual rights to privacy.36
36
Shepard C J ‘Court Records as Archival Records’ (Summer 1984) 18 Archivaria 124; Bellis Judith
‘Public Access to Court Records in Australia: An International Comparative Perspective and Some
Proposals for Reform’ (2010) 19 Journal of Judicial Administration 197.
8 AUSTRALIAN FEMINIST LAW JOURNAL

Furthermore, while certain court records must be preserved as a record of court

proceedings, others have research value, which may not be recognised at the time of
preservation. When engaging in archival research involving government records,
researchers have reported that valuable files have been destroyed under the authority
of archives legislation.37 While an archivist’s role is to facilitate access to records,
there may be conflicting interests in attempting to balance preservation, access, and
ethical concerns of privacy, as well as the increasing pressures to cut costs.
In complex ways, archives mark the passage of time. The time of the
administrative or judicial process is separated from the time at which its records
enter the archive. The archival institution marks time by ensuring that these
documents serve the prescribed term of closure before they are opened, or the
necessary period of storage before they are destroyed. Thinking temporally about
archives, Don Brenneis proposes we see documents as having ‘careers’, which are
marked by moments of commencement and completion, reading, citing, evaluation,
meetings with others, and their role in achieving certain outcomes.38 It is a seductive
analytical proposal that a document might be considered in light of its successes and
failures, as leading a starring role or consigned to obscurity, and that its career
survives in the archive, subject to the ongoing vicissitudes of scholarly interest.
The legal scholar and anthropologist Annelise Riles draws attention to these
temporal shifts in the archive. The moment of document creation might anticipate
some future instance of retrieval, but she argues that there is a need for scholars to
think deeply about what else has happened in between, and to recognise that those
moments are thought of differently by bureaucracies and by everyday people.39 Riles
is engaged in an ethnographic project, and so she proposes the term ‘artifact’ to
describe the document in the moment of its retrieval. Documents thus become
artefacts of knowledge, events, ideas, and practices, demanding ethnographic
methods for their analysis and description. These methods bring with them a
distinctive epistemology, ethics, and aesthetics, demanding that scholars reflect on
knowledge-making practices — including, and especially, their own.40
As these accounts indicate, the meaning and value of archival sources reflects
distinctive disciplinary and intellectual paradigms. For example, in the ethnographic
approach adopted by Ann Laura Stoler in her work in postcolonial studies, less
attention is given to the content of the archival sources such as government
commissions and reports, than to their form and placement.41 Rather than accounts
of what people thought happened, she argues that close attention to the ‘surplus
production’ of official state archives — such as marginalia, transgressions
between official and unofficial records, rumour, the unexpected, unwritten, and the
37
Rubenstein Kim ‘Erring on the Side of Destruction? Administrative Law Principles and Disposal
Practices under the Archives Act 1983 (Cth)’ (1997) 4 Australian Journal of Administrative Law. The
Commonwealth and all States and territories have archives or public records legislation which
specifies standards and codes of practice for the sentencing and disposal of records for the public
service and state instrumentalities.
38
Brenneis Don ‘Reforming Promise’ in Riles Annelise (ed) Documents: Artifacts of Modern
Knowledge University of Michigan Press Ann Arbor 2006 p 41 at 56 and 65.
39
Riles Annelise ‘Introduction: In Response’ in Riles as above at 18.
40
As above at 23.
41
Stoler Ann Laura ‘Colonial Archives and the Arts of Governance’ (2002) 2 Archival Science 87.
 EVIDENCE AND THE ARCHIVE: ETHICS, AESTHETICS, AND EMOTION 9

unsaid — reveals colonial archives as records of uncertainty and doubt about ‘the
rubrics of rule’ and how to make it correspond to the changing imperial world.42 In
this way, Stoler argues that colonial archives reveal anxieties about subject
formation and the psychic space of empire.43
However, Rebecca Monson points out in her contribution, ‘Unsettled Explora-
tions of Law’s Archives: The Allure and Anxiety of Solomon Islands’ Court
Records’, that legal scholars have had little to say about their own approach to
archival materials or the ethical implications of their work. Monson draws on her
own engagement with the records of land commissions and courts in Solomon
Islands to consider not only the content and form of the archive, but also the allure
and anxiety it induced in her while conducting research. By identifying her own
discomfort, anxiety, and fear while conducting research, Monson adeptly casts light
on some of the ethical aspects of scholarly archival research.
Legal proceedings in relation to historical injustices have played a major role in
increasing attention to colonial archives as contested sites, including debates about the
evidentiary weight that should be attributed to documentary sources. In Australia,
archival institutions contain extensive holdings of documents relating to the governance,
dispossession, and surveillance of Aboriginal people, which have been used as evidence
in native title claims, and for compensation by members of stolen generations, as well as
stolen wages, heritage claims, and royal commissions. Uncertain about their connec-
tions to family and community as a result of state practices of removal and
displacement, Aboriginal people often resort to accessing archival records in attempts
to establish their identity and connections to family and country. State collecting
institutions have recognised the important role they can play in facilitating access to this
information, but the experience may be fraught by mistrust of government institutions.44
Further, research inquiries may result in surprising, embarrassing, or shocking
discoveries, or raise questions about the accuracy of the record.45
In another contribution, ‘Archiving the Northern Territory Intervention in Law,
and in the Literary Counter-Imaginary’, Honni van Rijswijk engages with the notion
of law as an archive. She focuses on the figure of the ‘abused Aboriginal child’, arguing
that this figure has been significant to the production of myths of the Australian
nation-state and to the rule of law. It is being used, she suggests, to justify the
continued administration of Aboriginal communities. Examining the policies relating
to the Northern Territory Intervention and subsequent Stronger Futures legislation,
van Rijswijk explores how reading law as an archive opens up the possibility of a
counter-archival practice that disorients law’s claim to violent jurisdiction over
Aboriginal people. She takes Alexis Wright’s most recent novel, The Swan Book
(2013), as an exemplary counter-archival text that interrupts law’s archival practices
and claims.
42
Stoler Ann Laura Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense
Princeton University Press Princeton NJ 2009 at 20.
43
As above at 25.
44
Russell Lynette ‘Indigenous Records and Archives: Mutual Obligations and Building Trust’
(2006) 34(1) Archives and Manuscripts 32.
45
Williams Loris, Thorpe Kirsten and Wilson Andrew ‘Identity and Access to Government
Records: Empowering the Community’ (2006) 34(1) Archives and Manuscripts 9 at 12.
10 AUSTRALIAN FEMINIST LAW JOURNAL

4.0 CRIMINAL ARCHIVES

For the historian Stephen Robertson, police records are sources ‘polluted with
authority’.46 Illicit lives and events elude official documentation which, once created,
drains these episodes of their transgressive vibrancy. Police records, like those of many
other public agencies, attempt to impose order, classification, and structure upon
unruly eruptions of human behaviour and affect. Criminal records are nevertheless
powerful for the fact of their creation in an atmosphere of trauma and disruption.
Writing about eighteenth-century French police records, Arlette Farge reflects upon
the status of the criminal informant in the moment of documentation:

Their words were recorded right after the events transpired, and even if they were
strategic at the time, they did not follow from the same mental premeditation as the
printed word. People spoke of things that would have remained unsaid if a destabilizing
social event had not occurred.47

Farge suggests that the criminal archive transforms people into witnesses, and also
into authors.48
As the rules of evidence persistently remind us, representations are made by
‘makers’; evidence transforms people who experience events into ‘makers’ of
representations about those events; indeed, the status of the ‘maker’ is unique in
the law of evidence. The maker is the person with personal knowledge, they are the
source, first-hand to a fact in issue, theirs is the best evidence. The documents they
produce, or the people who witness their representations, become second-hand, or
remote, sources of evidence. People who know something and then say something
about what they know, become — usually inadvertently or reluctantly — the makers
of archival records.
In a contribution entitled ‘Plots and Artefacts: Courts and Criminal Evidence in
the Production of True Crime Writing’, Kate Rossmanith narrates her own
encounters with criminal evidence and crime archives. As both a cultural scholar
and a creative writer, Rossmanith explores the possibilities and limits of writing
creatively from legal evidentiary sources. This is her account of being given access to
courtrooms, criminal case files, and court transcripts, and having to think carefully
about the ethics and aesthetics of working with these materials. Recognising the
sensitivity of much of this data, she also understands that crime’s cruelty and trauma
is the basis for its literary power, demanding careful thought and judgment for a
creative non-fiction writer. In her article, Rossmanith describes some of the decisions
she made, in which she disclosed or withheld certain information from her readers,
and works through the process of balancing literary and dramatic opportunities
against the acute pain felt by crime’s participants and victims.
Juliet Darling, in her contribution ‘On Viewing Crime Photographs: The Sleep of
Reason’, narrates her own raw encounter with criminal evidence. Following the
death of her partner, Nick Waterlow, killed by his adult son, Darling describes
46
Robertson Stephen ‘What’s Law Got to Do with It? Legal Records and Sexual Histories’ (2005)
14 Journal of the History of Sexuality 161 at 162.
47
Farge Arlette The Allure of the Archives trans. Scott-Railton Thomas Yale University Press New
Haven & London 2013 at 6.
48
As above at 7.
 EVIDENCE AND THE ARCHIVE: ETHICS, AESTHETICS, AND EMOTION 11

the process of preparing to view the crime scene photographs at the morgue. She
examines her own feelings about the killing, and about her desire to see the
photographic evidence, as well as the efforts of friends and professionals who offer
advice and support. Recoiling from the experience of seeing images of violence
deployed by artists in their work, Darling, on viewing photographs from Nick’s
death, discovers the importance of love and empathy in approaching crime’s archive.
As an artist, writer, and film-maker, Darling is well aware of the aesthetic effects of
criminal evidence, and of the power of genre and spectacle upon its viewers. Her
article argues forcefully for the need for context; for there to be a connection between
the image, what it represents, and why it was made and demands that we don’t treat
lightly the privilege of accessing the archive.

5.0 THINKING ARCHIVALLY

The photographer and theorist Allan Sekula understood archives as both ‘an
abstract paradigmatic entity and a concrete institution’; in either instance, he
claimed that archives are responsible for the pervading sense of ‘equivalence’
between the stored record and the context from which it emerged. Sven Spieker
distinguishes the eighteenth-century archive —such as ‘classificatory tables, empty
grids, and abstract schemes for the organization of knowledge’ — from a nineteenth-
century institution containing ‘discrete traces (records)’, in which time is ‘contin-
gent’. Spieker claims that scholars visit these institutions because they are interested
in ‘time itself. Not history, I hasten to add, but time in flux and ongoing’.49 These
descriptions demonstrate the transition from history to historicity and time to
temporality that characterise a contemporary orientation towards the archive.
Critical theorists including Jacques Derrida, Michel Foucault, and Jean-François
Lyotard turned their attention to the archive and archiving as subjects of inquiry,
and as metaphors for memory and forgetting. Detecting this ‘archival impulse’, art
theorist Hal Foster identifies artists who have shifted away from a memorialising
approach to the past, in favour of a more fragmented and ephemeral past, in which
Foster sees ‘new orders of affective association’ in practices known as ‘counter-
memory’, ‘counter-monument’, or ‘counter-archive’.50
Whilst postmodern scholarship has contributed to changing how archivists have
imagined their role, John Ridener detects a far more significant impact from social
movements of the 1960s and 1970s.51 He points to demands for visibility and
recognition which emerged from the margins, from groups under-represented in the
archive and therefore from history. These histories demanded new kinds of research,
but also inaugurated new forms of record-keeping. As well as broadening the
categories of records that are retained, archivists face new challenges in the nature of
‘records’ themselves. Whilst digital files, emails, and Tweets need new forms of
storage and description, so too do skateboards, zines, performances, and stickers.52
49
Spieker above note 29 at 5–6.
50
Foster Hal ‘An Archival Impulse’ (2004) 110 October 3.
51
Ridener above note 26 at 101–42.
52
For example see The Riot Grrrl Collection at the Fales Library & Special Collections New York
University. Description and finding aids. Available at: http://www.nyu.edu/library/bobst/research/
fales/riotgrrrltest.html (Accessed 15 July 2014).
12 AUSTRALIAN FEMINIST LAW JOURNAL

These forms have prompted the archivist Brien Brothman to call for a ‘poetics’ of
archiving, reflecting the growing difficulty of distinguishing information, adminis-
tration, and cultural production.53
As Ridener identifies, during the 1970 and 1980s, feminists and gay and lesbian
activists, concerned to ensure documentation of their political struggles which were
generally excluded from official histories, established private and community-based
archival collections. Kate Eichhorn argues that feminist interest in archives has a
direct relationship with perceptions of the temporality of its own political movements
and that it undergoes resurgence at times when feminist activism appears to have
been in decline.54 She points out that archival activism, that is, interest in previous
generations’ political activities, has served as a spurn for political mobilisation in the
present and for the future.55 Eichhorn suggests that archival work opens up
possibilities of being in time and history differently, serving to legitimise new forms
of knowledge and cultural production, thereby resisting notions of teleological
progressive history. The notion of queer time, she suggests, can work to undermine
the constraints of temporal logics.56
Similarly, in her work on the development of lesbian public cultures in the
United States, Ann Cvetkovich uses queer theory as a methodology for analysis of
the importance of affect, specifically trauma, to understanding the place of the
archive in the formation of public cultures.57 Rather than inert collections of
documents, she argues that cultural texts are repositories of feelings and emotions,
coded not just in their content but also in the practices that are employed in their
production, reception, and ultimately in their archival collection. In this way,
cultural texts are viewed as ‘archives of feelings’ where the traces of marginalised
communities are materialised, often in unconventional forms such as ephemera,
experimental literary and performance genres, and low-budget audio and video
recordings.58 Cvetkovich argues that lesbian and gay history demands ‘a radical
archive of emotion in order to document intimacy, sexuality, love, and activism —
all areas of experience that are difficult to chronicle through the materials of a
traditional archive’.59
However, concerns about the fragile impermanence of archival sources held in
private collections also gives rise to ethical questions about what is considered
private and what should be kept for public record.60 As Margaret Henderson points
out, when dealing with the personal papers of feminist activists, the distinction
53
Ridener above note 26 at 119.
54
Eichhorn Kate The Archival Turn in Feminism: Outrage in Order Temple University Press
Philadelphia 2013.
55
See also Hildenbrand Suzanne ‘Introduction: Women’s Collections Today. Women’s Collections:
Libraries, Archives, and Consciousness’ (1986) 3(3/4) Special Collections 2.
56
Eichhorn above note 54.
57
Cvetkovich Ann An Archive of Feeling: Trauma, Sexuality, and Lesbian Public Cultures Duke
University Press Durham & London 2003.
58
See, for example, Lymn Jessie ‘The Zine Anthology as Archive: Archival Genres and Practices’
(2013) 41(1) Archives and Manuscripts 44.
59
Cvetkovich above note 57 at 241.
60
Bartlett Alison, Dever Maryanne and Henderson Margaret ‘Notes Towards an Archive of
Australian Feminist Activism’ (May 2007) 16 Outskirts Online Journal. Available at: http://www.
outskirts.arts.uwa.edu.au/volumes/volume-16/bartlett (Accessed 15 July 2014).
 EVIDENCE AND THE ARCHIVE: ETHICS, AESTHETICS, AND EMOTION 13

between public and private is difficult to establish.61 As she asks: ‘Who controls the
narrative of self enabled by the archive?’62 This negotiation is more difficult if the
research is conducted posthumously. The private papers of public figures, such as
writers, may include records of friendship, love, romance, and sexuality, and
therefore may raise ethical questions about the boundary between private life and
public scrutiny. These distinctions are not easily established because they are subject
to constant recalibration, particularly as sensibilities of privacy are increasingly
eroded by new technologies and means of communication.63
In the contribution by Rosanne Kennedy, ‘Affecting Evidence: Edith Thomp-
son’s Epistolary Archive’, a series of love letters acquired legally probative force
when their author and the recipient were both charged with murder. Edith
Thompson and Freddy Bywaters were private individuals until they fell under the
public glare of infamy, and their personal correspondence was tendered as evidence
in a notorious trial conducted in 1922 in London. Using an approach which draws
on Cvetkovich’s notion of an archive of feelings to an analysis of the evidence from
the trial, Kennedy examines the letters as melodrama and intimacy. She argues that
the ‘epistolary’ form functions as a way of archiving emotion, with desire, fantasy,
and uncertainty simultaneously heightening the effect of the letters for a reading
public, whilst also undermining their reliability in law. Kennedy aims to contribute
to feminist critical legal scholarship, and to do so in a manner that situates emotions
at the centre, driving the legal processes and media reportage that respond to crimes
of passion. That law provokes emotions is well known; Kennedy’s contribution
advances the idea that we might conceive of these collections of feelings archivally.
Legal archives, including court transcripts, are also being used by feminists to
create verbatim theatre, motivated by a desire for authenticity and truth-telling, such
as in transitional justice contexts. By using authentic testimony as a source for
artistic work, verbatim theatre draws attention to the passage of time and the way
history is constructed from narratives. In her contribution ‘But I Want to Speak Out:
Making Art from Women’s Testimonies’, Olivera Simic provides an account of a
new wave of documentary theatre in the Balkans which uses authentic testimonies
from archival sources collected in private hearings and courts. She discusses plays
created by feminist theatre directors from Bosnia-Herzegovina, Kosovo, and Serbia
which use women’s testimonies about war and violence that cross regional and
ethnic lines. Here, the performances act as local strategies for intervention and truth-
seeking, while at the same time facilitating audiences to bear witness as part of a
process of symbolic reconciliation and reparation.
Legal archives might also produce other performative effects. Heather Roberts,
in her contribution, ‘Telling a History of Australian Women Judges through Courts’
Ceremonial Archives’, draws on courts’ public records to demonstrate the value of
this archive for (re)telling the history of Australian women lawyers. Drawing on the
archives of the High Court, Federal Court, and Family Court between 1993 and
2013, she employs a performative notion of law to read the judicial swearing-in
61
Henderson Margaret ‘Archiving the Feminist Self: Reflections on the Personal Papers of Merle
Thornton’ (2013) 41(2) Archives and Manuscripts 91.
62
As above at 95.
63
Dever Maryanne, Newman Sally and Vickery Ann The Intimate Archive: Journeys through
Private Papers National Library of Australia Canberra 2009 at 2.
14 AUSTRALIAN FEMINIST LAW JOURNAL

ceremonies as a vital component in the construction of judicial identity and

authority. Roberts highlights the way legal convention usually excludes from the
record evidence of judicial subjectivity; judicial swearing-in ceremonies are an
exception to this norm. Her contribution suggests that the increasing presence of
women on the bench has signalled changes in the event and in the content of the
court archive.
The contributions to this special issue of Australian Feminist Law Journal
demonstrate the rich scholarship, and potential, in thinking about evidence and
the archive. By treating legal sources as a literal archive, contributors have engaged
with questions about access, use, and interpretation of archival materials. They
have focused closely on aspects of evidence, sources, records, documents, and
data, to investigate legal materials in all of their complexity and diversity. In
doing so, contributors have brought into legal scholarship some of the contemporary
theoretical approaches to thinking archivally, in which processes of questioning,
abstracting, and counter-archival imaginings are evident. Contributors have also
turned their inquiry towards the ethical, aesthetic, and emotional aspects of archives,
and the demands that law’s materials make upon scholars to exercise care and
judgment. Our aspiration for this special issue is that it inaugurates ongoing inquiry
into the stakes, risks, and opportunities in exploring law’s archive and re-examining
law’s evidence.