The Politics of Asking and the Myth of Informed Consent, Carolyn Anderson & Thomas W. Benson

Taken from Documentary Dilemmas: Frederick Wiseman’s Titicut Follies, 1991 Southern Illinois University Press. Fortunately, a large part of the chapter of this book that most interested me was available on Google books.

In the first chapter, the authors give an overview of Wiseman and his legacy: “[Wiseman] has stretched the limit of what counts as documentary film to the point where it has challenged what at one time appeared to be fairly settled matters of Style, practice, and politics, of the relations of documentary to its subjects, its audiences, its means of knowing and its claims as art.” (p 1)

They also point out that his choice of the term reality fiction is no accident: “Wiseman’s use of the term ‘reality fiction’ seems less like a claim upon film theory than a way of pointing at the inevitable tension between social actuality and film form.” (p 2) quite right, and this is why I think he uses fiction in this way – to highlight the fact that it is not objective, but a constructed narrative. Kudos.

The authors point out the underlying principle behind this rationale: “At every step in the process of production and distribution, the filmmaker, no matter how independent, is making choices that constrain the form of the work and its reception and interpretation by the public.” Although they report that when they inquired Wiseman about constraints, he reputedly replied “What constraints? There are no constraints. I get the money and I make the films. There are no constraints.” (p 3)    so what’s the big deal with this film?

The paradoxical problem with the film is expressed as follows: “the case of ‘Titicut Follies’ provides a clear and compelling means to consider the tension in a democracy between the public’s right to know and the individual’s right to privacy.” (p 4) does the end justify the means? Or at least mitigate and somehow excuse the perpetrators? Topical issues surrounding state security vs. personal privacy in the sense that personal emails and text messages may be infiltrated without permission from either the sender or receiver. These are interesting questions, and I may return to the topic of end justifying means later on.

Wiseman is famously quoted as saying to an audience after the initial release of Titicut Follies:

Bridgewater, like any maximum security prison, is not the kind of place you parachute into and hide in the hills and make forays into the cell blocks when nobody’s looking. It took a year for me to get permission to make The Follies.”

In a sense, by pointing out this fact, he is stressing that there could have been no misunderstanding about the project, and that there was nothing clandestine in the enterprise (there were rumours immediately after the initial release of the film that hidden cameras had been used, which influenced its ethical reception). This is what he refers to as the ‘politics of asking’ – in a sense gaining authorised access and subsequently claiming journalistic rights over the materials collected. Unfortunately, as the subsequent legal battle made clear, despite the apparent consonant aims of the filmmaker and the prison authorities to produce a document that it was hoped would prove instrumental in improving conditions at the institution, once the film had been made its very existence became the subject of passionate debate: “Whether one sees the litigious and often acrimonious history of ‘Titicut Follies’ as a demonstration of an unfortunate, avoidable breakdown in communication, an exercise in cross purposes and sensibilities, or an example of personal betrayal, consent — as bureaucratic procedure, ethical imperative, and oral contract — is a key concept in the film’s history.” (p 7)

The correctional facility in Massachusetts where Wiseman filmed Follies was a state institution with characteristics of both a maximum security prison and a mental hospital. Owing to the nature of Bridgewater, it is clear that some of the (accepted) principle elements of informed consent were at the very least problematic:

(1) conditions free of coercion and deception
(2) individual competence to consent
(3) full knowledge of procedures and anticipated effects

Of course, how could the first two criteria be met under the conditions of being housed in state institutions – not only were the inmates regarded as criminal and therefore essentially not free from coercion, but they were held as criminally insane, which raises the question of who was to evaluate their competence (“both freedom to consent and mental competence, on which legal competence rests, became highly problematic” (Image Ethics, p 83)). The third point is probably the most dubious as far as I’m concerned, since not only is it extremely difficult during the production stage to predict what a documentary presentation will look like or what form it will ultimately take, it is almost impossible to predict what effect a selection of visuals will have on an audience. As such, the very notion of informed consent under such circumstances should have raised a question or two.

I later located an earlier version of this particular piece of writing, published in essay form as part of the publication IMAGE ETHICS The Moral Rights of Subjects in Photographs, Film, and Television Edited by Larry Gross, John Stuart Katz, and Jay Ruby, OUP 1988, pp 58-90. Here it is titled ‘Direct Cinema and the Myth of Informed Consent: The Case of Titicut Follies‘.

The trial, which is explored in great depth by the authors, was less about whether the inmates themselves were competent to give consent (as I had first assumed), but more over what exactly was to be shown and how. Although Wiseman seems to have been given overriding consent from the prison authorities (even this fact is held to question), there are numerous instances where there was a clear difference of opinion or assumption. Although both Wiseman and Gaughan “subscribed to the Griersonian notion that a documentary film could be a direct agent of change” and “saw positive opportunities in the surface negativism of the documentary tradition of social indignation” (p 62) it appears that their visions of the final film were at odds. The two men “seem to have assumed an equal familiarity with and acceptance of each other’s intentions regarding the Bridgewater film. It was an assumption that would prove unfounded.” (p 68)

One of the points raised by the presiding judge was that Wiseman had made promises that he didn’t keep, citing the fact that the film was originally intended to be focused on three persons – an adult inmate, a youthful offender under 35-day observation and a correctional officer (p 64). The fact that Wiseman’s final film strays from this was obviously presented as evidence that Wiseman could not be trusted. As a documentary photographer (possibly this is the same in any line of photography), very often the plan that had been envisioned and the stark reality when one is shooting can be very different; stories often unfold in front of the camera, or there comes about a directional or artistic shift in subject matter or narrative, and this is part of the problem we face even with signed consent forms – what was set out as the original objective can change during, even as a result of, the production process.

Go-ahead was given for filming to commence, but only verbally. The commissioner stated that this was pending advice from the state attorney general and on condition that the final version of the film would be subject to approval from the Corrections Department, whereas Wiseman claimed that the only conditions stipulated were that the crew be accompanied at all times by Bridgewater staff, that only competent inmates were to be photographed and that the staff would determine their competency. Gaughan and the prison officers claimed that they were informed of the state’s right to final approval, but Wiseman contested this. There was no explanation of the release procedure or the determination of competency, but it was made clear that anyone who objected would not be filmed (since all were encouraged to support the film’s production, any absence of objection would denote agreement to be filmed!). The filmmakers contend that they were under the impression that all subjects were competent unless they had been specifically informed to the contrary, while the actual procedures for determining competence were never clearly defined.

The only piece of written evidence concerns protecting the inmates’ rights, noting that the “usual precautions” be observed but without explicitly describing what they constituted. The commissioner only later testified what those precautions should entail:

The usual precautions are that no faces are shown in any of our institutions in filming, that no man’s picture is shown under any conditions unless he signs a legal release, that he has to be competent to sign such a release and that the filming of such inside an institution would be supervised. (p 68, cited from court hearing transcriptions) The attorney general’s advisory opinion stated that Wiseman had to obtain written releases from all persons photographed.

Interestingly enough, Wiseman has never obtained written releases for his films since Titicut Follies (apparently on the advice of his lawyers – Image Ethics, p 60). He instead audio tapes his explanation of the documentary he is making and if participants consent, they supply their full name address and telephone number. This has come about as a result of his experience with the legal suppression of Follies, and Wiseman calls it “the gap between ideology and actual practice, between the rules and the way they are applied” (cited from Westin, A. 1974. “‘You Start Off with a Bromide’: Wiseman on Film and Civil Liberties.” Civil Liberties Review 1(2):52-67.)

The authors also make quite an incredible claim, that “The emotional impact of three seminar tours of Bridgewater encouraged Wiseman to move from law into film-making.” (p 61) Wiseman had studied law at Yale and the Sorbonne, as well as having held research posts at Boston University (Law-Medicine) and Harvard (Social Relations Department) so this switch was no impulsive decision, and goes some way to explain his determination to obtain permission to film and his passionate resolve in the face of all subsequent court action. The fact that he was a novice filmmaker at the time of shooting Follies is something that was not really taken into consideration at the time (possibly since his other credentials eclipsed this minor shortcoming). David Eames, the camera operator, was also relatively inexperienced, and was looking to gain experience in filmmaking, but as the authors point out, when the two men “were formally presented to the Bridgewater staff in early April, it was not as men looking for some documentary film training. Their stated goal was to “educate” the public about the institution.” (p 69) Here we have an important point raised about the qualification of the documentarians; even if release forms are prepared and signed, they tend to work only one way and assume the professionalism of the documentary makers (see next article).

On the subject of consent from the inmates, the authors point out that at no point were the issues of determining competency or obtaining releases broached by Wiseman or the senior prison officials (this goes back to the assumptions that were made by both parties), although it was made clear that anyone who objected would not be filmed (in such an event, they had to indicate unwillingness, since the absence of any gestural indication would be taken as assent), and it was also made clear that the superintendent expected all the staff to fully support production of the film. As such, the guards even recommended some of the scenes that feature in the final cut as events that they thought would provide interesting material (the strip search at the beginning of the film, the doctor’s interview with a new arrival, the same doctor force feeding an inmate, a burial). The rare objections that were raised were respected, although there seems to be dispute over whether Wiseman promised not to show nudity.

Wiseman claimed that no inmate ever said he did not want to be photographed, and any inmate who expressed an unwillingness to be photographed by a gesture such as “waving away the camera, putting a hand over the face, turning around, turning a coat collar up” was not photographed (Tr. 13:132). (p 72)

Although staff consent was assumed, there were also times when Wiseman claimed he asked permission from the prison officers to film – in particular an incident where they are shown taunting an inmate. The staff of the facility did little to protect the privacy of the inmates, and the fact that subjects acknowledge the camera’s presence does not necessarily indicate fully informed consent to be filmed.

There is also the issue of social power – since the prison officers were directed to cooperate, the inmates were in a position even more susceptible to the direction of others (the staff and film crew): “Individuals could say no—as the film-makers claimed—but they were expected to say yes. Often the individuals filmed said nothing; silence was considered consent.” (p 83) Although informed consent should not be subject to hierarchies of power, but rather unaffected by them (it has even been proposed that those in positions of less power require more protection).

Not only does Wiseman refer to his films as “reality fictions” or “reality dreams“, he considers the process of filmmaking “a voyage of discovery“. In this sense, it would be very difficult at the outset to have a clear idea of the form and structure of the film and as such the content that would make the final cut. Wiseman also declared that for him the editing process is a completely individual activity:

“I don’t believe in this whole business of testing out a film with an audience, or asking somebody else what they think or even showing it to a small group and asking for their reactions. It’s not that I’m not interested in their reactions, but after you’ve worked on a film for a year and have made the selections that you have made, you are the one who knows what works and what doesn’t work better than anybody else.” [Halberstadt 1974:22] (p 75)

Although I agree to a large extent with Wiseman, since you as filmmaker have seen all the images and know which scenes should be included or not – the ones that work best in the narrative whole, I also see advantages to consulting with subjects on which images are to be used. In my case, selecting still images is much easier than sifting through hours of footage to select the desired scenes. As it was, Wiseman spent a year “editing the 80,000 feet of film into an 87-minute feature” (p 75); had he gone through each scene with the persons included for their approval, it would have made the process unfeasibly lengthy.

The authors point out that the observational, non-interventionist character of Wiseman’s film is partly to blame for the treatment it received; had he made a more didactic documentary, or a camera-as-catalyst movie, or even a film expose of the discrepancy between theory and practice, the narrative context would have made the film less vulnerable to accusations of voyeurism or deceit.

There is even dispute over initial reactions to the finished film, with Wiseman claiming that the commissioner and attorney general reacted positively while they both “testified that legal and ethical questions were raised when they first saw the film in June.” (p 77)

The dilemma of consent is partly practical (how to get it), but essentially ethical (how to get it fairly and then not abuse it). Without the participation of social actors, the documentary form known as direct or observational cinema could not exist. Without the informed consent of the subjects, the form lacks ethical integrity; without freedom for the film-maker, it lacks artistic integrity. (p 81)

Wiseman expected participation and cooperation during filming, but complete autonomy whilst editing (he positioned himself as an independent filmmaker once the footage had been amassed) and this, the authors claim, was expecting the impossible. They are also quick to point out that Wiseman’s legal knowledge would have meant that he understood the importance of a formal written contract, but that its absence was advantageous to him (“Nowhere in writing was there any claim by Wiseman of the rights of the press or the public’s right to know; nowhere in writing was there any claim by the state of its right of censorship” p 83).

The problem of getting release forms signed at the beginning of production is pointed out by the authors:

The procedure of consent before, during, or immediately after the act of filming creates a situation of trust in the film-maker’s judgment, rather than a situation of truly informed consent. Subjects who say yes to the film in a camera sometimes say no to the film on screen. Ideally, consent is processural, not contractual (p 84)

In other words, consent should be given at each step of the process. How realistic is this? I must admit that I do sometimes show my subjects the images during shooting process, particularly at the beginning of a project, to build rapport and trust, and to let the subjects see how they look on film – especially when I feel a particular frame is successful. I also make it a principle to agree on which frames are to be included in the final selection and respect participants’ wishes if they feel that a particular shot should not be used for any reason.

Projects begin in a mood of cooperation that sometimes diminishes as choices are made and disappointments accumulate. The Bridgewater film project began without easy cooperation, without full disclosure of goals and consequences, among individuals and institutions that held different, even contradictory, values and sensibilities. (p 85)

This is one pitfall that I do not wish to repeat with my project. I am trying to be as transparent and honest as possible with my participants, and letting them know that they have ultimate power over which images are to be used and which not. I hope that I do not have any dilemmas involving aesthetic choices that run counter to their wishes.

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