Ethical Issues in Discovering Criminal Behavior during Interviews

Dr. Barnes confronts an extremely troubling dilemma: whether to report the violation or not. Before considering whether he can devise any route between the horns, we should look back at the route by which he reached this difficult moment.

First, we must ask whether Barnes considered in advance, as he should have, the risk of encountering such forced choices. From the outset, Barnes faces the prospect that the more success he has in winning trust and acceptance within the group he studies, the more likely that members will become less guarded in his presence and, not necessarily in a swaggering manner, reveal violations of law. After all, Barnes is not studying ordinary, law-abiding citizens. Moreover, as a researcher in sociology, he follows the conventions of his discipline in using a recording device during interviews. An upshot is the likelihood that he will record interview responses that reveal violations of law.

Accordingly, before pursuing the research it is essential to evaluate the benefit of this type of research compared with the risks. In view of the group members’ alienation from society and the dangers they pose to others, gaining an “inside” understanding of one of these groups is a worthy goal. Their involvement with weapons makes it important to study these groups and also produces the risks of just such situations as the one that confounds Barnes. The cost/benefit analysis can favor proceeding with the research only if appropriate safeguards are devised to protect the members of the group under study and the researcher.

The members of such a group are owed the respect and protection due any research subjects: full information about the aims, conduct, benefits, and risks of the research and the opportunity to give fully voluntary consent to be studied and interviewed, if not to actively participate in the research. Trust is essential to scientific enterprises; its importance to the research in question in this case is evident. The consent form is the obviously necessary and also formally required device for gaining informed, voluntary consent and trust. There should be a consent process. The effectiveness of this process depends not only on the content of the consent form but also on the discussion that Barnes should conduct as part of the process.

In that discussion the issue of violations of law should be aired, framed, of course, by the presumption against violations of law. However, anticipating that violations may occur, such risks as group members’ inadvertently or intentionally revealing violations of law must be thoroughly considered. While the researcher cannot anticipate every sort of case, she should elicit discussion of the kinds of violations that could come up and their seriousness, making clear that the list is not exhaustive and the violations range in seriousness. That effort might help to put participants on their guard both about violating the law and informing the researcher about violations. It is difficult to pronounce from outside whether it is a good idea to set a standard for exposure at the outset and how to determine a threshold. To an outsider it seems that this issue is at least worth discussing with group members.

To the extent that militia group members can become participants in the research who see themselves as contributing to knowledge about society in all its complexity, they might come to understand the bind that results for the researcher if they engage in illegal activity and the researcher finds out. This last consideration suggests that the researcher investigate not only the nature of these militias but also reasonable expectations about the kind and extent of group members’ participation in the research that can be achieved.

It seems that the discussion that Barnes conducted in the consent process was more limited than that suggested here. It may also be that additional ground-level understandings about how the research would proceed were needed and were not communicated in this instance. It is, in any case, worth the researcher’s effort to think through what additional understanding of the research process such participants need (in advance and along the way) that are not necessarily dictated by the consent form requirement.

This case makes clear how very important the consent form is to alerting researchers to their responsibilities in setting up and carrying out research. It suggests that, far from railing against the demands of the IRB, researchers should take them as cues to consider what else they owe participants, as a matter of respect and protection for participants and themselves, and what other communication at the outset and along the way can reduce the likelihood of such ethical dilemmas. The aim is to build trust and a sense of participating in a common undertaking to the extent possible.

Confronting Barnes’s dilemma, there is no neat way between the horns, but there is at least one option worth considering. Barnes could make his dilemma a subject for the participants to consider with him, on the basis of his determination (with an eye to the future) that on this particular first occurrence, it is as ethically defensible to sort out the issues with participants as to report a violation of law, not the most serious. This would be, in effect, to hold the full discussion that should have taken place originally. This kind of “forthrightness and honesty” could increase trust and predictability; it might not. That is a risk for the researcher. But this option seems ethically preferable to either horn of the dilemma and, from the perspective of an outside commentator, no more risky.

The key questions in this case lie in the tensions between maintaining a research participant’s confidentiality and a researcher’s ethical obligations to the public weal.  While Barnes is at one level ethically obliged to maintain the confidentiality of his participant, tension emerges from his awareness of these weapons and the harmful use to which they could be employed, as well as from the possibility that he could be held accountable for not revealing their existence.   Barnes’s decision is further complicated by the certainty that reporting this individual to the authorities will ruin his research prospects, and by the not-insignificant possibility that to do so will also place him at risk of retaliation by the participant or his comrades.  In discussing this case, one might look to other examples of research involving criminality — studies of illicit sexual activity (Humphries, 1970) or of drug sales and trafficking (Adler and Adler, 1983), for example—in which researchers have maintained the confidentiality of their participants and have not reported illegal behaviors.  In these cases, however, the crimes are widely considered “victimless.”

The possibility, however remote, that these weapons could be used for violent criminal activity or in a revolt against government authority — and thus the possibility that the consequences would be much more severe and widespread — problematizes a comparison with victimless crimes.  On the other hand, one might argue that the types of weapons involved in this case are commonly owned, and thus represent a level of threat to which law enforcement agents are accustomed, and for which they are prepared to encounter.  Ironically, it is perhaps the rather prosaic nature of the weapons that complicates the issue: if Barnes’s participant had revealed that he’d constructed a truck bomb, Barnes’s obligation to the public weal would be unquestionable.  In this sense, Barnes’s decision may be guided by considering the threat posed to the public by various weapons along a continuum of lethal force.  By this utilitarian logic, Barnes might dismiss the need to report illegal personal weapons such as rifles.  What complicates this scheme, however, is the difficulty that would arise in intermediate cases — discovering an illegal pistol at one end of the continuum or a massive truck bomb at the other makes for an easy decision, while a machine gun might not.

In such cases, it might be useful for researchers to rely on cues of an individual or group’s intent, or on the group’s narratives vis-à-vis their weaponry.  In this case, Barnes might note that American militias generally consider their personal weapons (rifles, pistols, etc.) as defensive in nature — necessary tools to protect themselves from potential governmental coercion or tyranny.  A large bomb, by this standard, would be an offensive weapon, and is thus not consistent with the group’s narrative of action.  Possession alone of such a device could then be reasonably assumed to reflect imminent criminal intent, and would thus warrant action on the part of the researcher.  The converse is not true, however — it does not necessarily follow that possession of weapons considered by their owners to be defensive in nature can be seen as an absence of violent intent.  Ultimately, a researcher in such a case cannot definitively gauge his respondent’s intent.

Nancy Scheper-Hughes (2004) provides an illustration of one alternative to non-reporting of observed criminal behavior.  After studying illicit human organ trafficking networks, she offered general testimony to various legislative bodies and health agencies about the nature of the networks and their operation.  Following this example, Barnes might offer a description of militia activities to the appropriate authorities without naming specific members of the groups he’s studied. Upon finding evidence of coerced organ donation, however, Scheper-Hughes actively cooperated with international law enforcement agencies to target traffickers and surgeons.  Her decision to do so was clearly reached as the result of reaching an ethical tipping point — and how to identify that boundary is precisely the dilemma Barnes faces. Unfortunately, though, this example offers little guidance, for coercive organ harvesting provides such an egregious violation of all humane ethical standards that it cannot be seen as comparable to the crime of violation of gun possession laws.

In considering his design of the study and his discussion of informed consent with his participants, one might ask whether Barnes’s knowledge that many of his research participants maintain a defiant attitude towards many forms of Federal regulation—particularly in matters of gun control—should have led him to a more explicit or specific formulation of his informed consent materials.  Looking forward, this could be instructive to his future research and that of others. Offering warnings against discussing specific illegal acts—ranging from the common (illegal firearms possession) to the most extreme (bomb plots or other conspiracies)—rather than a blanket proscription against discussing “illegal activity,” might have prevented this situation in the first place, and could prevent a reoccurrence of such a case.  One must ask, however, whether we can reasonably expect a researcher to anticipate each and every possibility.

Similarly, by obtaining a Certificate of Confidentiality from NIH or other Federal agencies, Barnes can protect his participants’ recorded interviews from subpoena, thus further minimizing the risks they face by participating.  These documents, however, do not prohibit researchers from voluntarily disclosing information about research participants in cases in which the researcher believes them to be at risk or a danger to others.  Regulations governing these cases, however, explicitly state that if a researcher intends to make such voluntary disclosures, he should clearly indicate this on the consent form provided to potential participants.  This suggests that Barnes, ideally, should have more thoroughly considered the possible criminality he would encounter and set the standard for disclosure beforehand.  It is, however, difficult to predict how an interviewee would react to such a practice.  On the one hand, this might produce a more guarded interview.  On the other, such forthrightness and honesty in the early stages of the consent process might be seen as an indicator of the trustworthiness of the researcher.  Unfortunately, for any benefit this practice might provide, it could actually increase the risks faced by the researcher: what might happen when a research participant, in the middle of a taped interview, catches himself revealing behavior the researcher has indicated he will report to the police?  This represents an illustration of the unpredictability that characterizes the core of this case.  The uncertainty to what purpose the weapons will be put, the unpredictability of the reaction from participants, and the uncertain risks to both the public and the researcher himself creates the dilemma.

References

• Adler, Patricia and Pete Adler. 1983. “Shifts and Oscillations in Deviant Careers: The Case of Upper-Level Drug Dealers and Smugglers.” Social Problems 31(2): 195-207.
• Humphries, Laud. 1970. The Tearoom Trade: Impersonal Sex in Public Places.  Aldine Publishing Company: Chicago.
• Scheper-Hughes, Nancy. 2004. “Parts Unknown: Undercover Ethnography of the Organs Trafficking Underworld.”  Ethnography 5(1): 29-73.