Photographers Need to Reexamine What Consent Means

Looking back at the deeply personal photographs that Mary Ellen Mark took of a young prostitute named Tiny, or Robert Mapplethorpe’s BDSM portfolio, or Donna Ferrato’s harrowing portrait of domestic abuse, how could any of them have imagined their images one day populating online publications and Instagram feeds? Photographers who examined critical issues before the digital era wielded more control over where their sensitive images appeared.

Today, keeping subjects apprised of where their faces will appear is an especially important factor in obtaining consent to take their photograph. “Consent shouldn’t just be one conversation,” said Nina Berman, a photographer and professor at Columbia University’s School of Journalism. What starts as a personal series may be published by a magazine, or become a touring gallery show, or a book, each iteration releasing more images across social media. Images from photographer’s websites can be saved or screenshotted, becoming fodder for Instagram and Pinterest. Asking someone to sign their rights away without their full understanding of the photographer’s intentions for the work—and that it could potentially be viewed by anyone—means taking advantage of people who may already be vulnerable. Obtaining consent from subjects is no longer enough; photographers should make sure they have informed consent.

A series by Andrew Moisey sits at a unique intersection of this debate. Moisey’s long-term body of work “The American Fraternity” was photographed from 2000 to 2008, but not published widely until 2018 (writer Alina Cohen covered it for Artsy in November). His black-and-white images were positioned as an infiltration into American fraternity life, a bastion of American manhood. But because the images were stripped of identifying information or context, and it was presented in the form of a fraternity ritual book, it toed the line between documentary and fine-art allegory.

“The American Fraternity” was the perfect storm of a series. When the book’s press images were released, Supreme Court Justice nominee Brett Kavanuagh was under the microscope for allegedly sexually assaulting Christine Blasey Ford when they were teenagers; his later behavior as a member of the Yale chapter of Delta Kappa Epsilon was particularly scrutinized. Critics said fraternities funneled patriarchal and predatory behavior to the highest reaches of power—a concern emphasized in Moisey’s book, which lists federal legislators and justices, as well as prominent CEOs, who were members of fraternities. Moisey’s images were picked up by news outlets including BuzzFeed News, Time, and Vice. His pictures painted a toxic portrait of frat life: brothers lined up with bags over their heads, or antagonizing a dog; a woman who appeared to be passed out on a bed, her legs splayed open.

It was Moisey’s intention for his images to represent the broader culture. His volume, he said, is a fraternity fantasy. “The goal was to disenchant people with that fantasy,” he explained. “To show them what it is and to make them ask, ‘Do we want this as part of the world?’”

But in February, writer Alexis Schrader of BUST accused Moisey of neglecting to obtain release forms from women shown in compromising positions. In a book that shows women as potential victims, not seeking permission from the women seemed like a particularly egregious oversight. The monograph ends with an essay by Cynthia Robinson that says, “Later maybe one of them will say, ‘She was totally into it, she just passed out.’”

Speaking with Artsy, Moisey confirmed that he obtained releases from both men and women when it was required. Photographers aren’t required to have signed release forms at all if they are shooting in public spaces, where there is no expectation of privacy. The fraternity house can potentially operate as both a private and public space, and when the doors open up for parties, the expectation of privacy lessens. Nancy E. Wolff, a digital media lawyer, supported this notion, but emphasized that privacy laws vary by state.

Moisey said he was careful about whose faces were identifiable and which images were made available to the press. According to Moisey, he chose not to publish or distribute the series until 2018 as another protective measure for the people he photographed. His subjects “would have moved on to different moments in their lives, [and] would look different,” he explained. But waiting that long also meant the landscape for images drastically changed. When he began his series in 2000, digital cameras were just beginning to hit the consumer market; when he finished shooting in 2008, college students were posting pictures of parties to Facebook. A decade later, his photos made their way onto Instagram and the viral news cycle, neither of which existed when he began. How could anyone in the images have expected his work to be presented and shared the way it was?

While Moisey may have checked the marks in obtaining the release forms legally required, Berman believes re-contextualizing the images as indicative of all fraternities meant sacrificing informed consent. “If you connect the pictures with the essay—which is his intention by putting it in the book,” she said, “then the women in the pictures are seen as in potential danger”—victims in “a sexual predator culture.” There is no other way to see the image of the girl passed out on the bed.

But when asked, Moisey doesn’t recall if the girl actually was in danger. She was drinking from a bottle of champagne and fell back onto the bed, which could be harmless or not. Is it fair to present her as a potential victim, and the representation for all victims of rape culture? Moisey believes that through his images, he is dismantling the secrecy by which fraternities operate; he had a “moral obligation” to show his view into their lives. But the context matters just as much as the image itself, for the subject and the audience. Displaying documentary series in a fine-art context gives Moisey the space to assert he isn’t making any claims of factual truth, but it ultimately weakens the narrative and his ethical stance.

When Moisey shot his body of work, he couldn’t have predicted that it would publish just after the Kavanaugh hearings. But he did make the decision to publish it long after the events took place, during a period of increasingly charged social debate on sexual assault and consent. Since photographers can’t predict when projects become salient, Berman believes that sharing one’s intentions for the project and keeping up with subjects is crucial. “These are not cut-and-dry decisions,” she said. “As a photographer, artist, journalist, you want to make meaningful work, and you go through sometimes quite a lot of years of doing it to try and get it right, and then you publish it and then it’s no longer yours.”