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33 Research Ethics in Criminology Mark Israel, Iain Hay

INTRODUCTION While few criminologists have written about or even taught research ethics (Rhineberger, 2006), there is an oral tradition as criminologists – like many other researchers – swap stories about their dealings with various research ethics and research committees. These accounts tend to be dominated by horror stories or suggestions for ways of mollifying committees. As a result, little time has been spent describing positive interactions and not much systemic effort has been invested in exchanging models of good practice. In this chapter we move to repair this situation by taking up two major challenges. First we lay some basic groundwork, setting out the ethical terrain that now confronts criminologists, asking questions about the meaning of ethics, the relationships between ethical conduct and ethical regulation, and the key ethical issues encountered by criminologists in our work. These include, for example, informed consent, confidentiality, and harms and benefits, as well as the questions we face when conducting research in new contexts, including international or Internet-based activities. We follow this in the second major component of the chapter with suggestions for constructive ways of responding to the day-to-day and regulatory challenges that ethical conduct brings. Unfortunately, many researchers find that it is more difficult to act ethically than it should be. Why? Often, researchers in our field do not have the philosophical training to negotiate sometimes difficult ethical terrain. As researchers, we do not always recognize ethical challenges when they

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appear, nor do we necessarily have the time to make the best decisions. Moreover, the regulatory mechanisms that now surround ethical research offer the potential for perverse outcomes. David Dixon – a criminologist with extensive ethics review experience – provides a fair summary of the objections that many other criminologists have raised: [T]he current ethics process diverts attention from the key question of whether conduct of a research project is ethical. It does so by the bureaucratic apparatus of committee procedures, consent forms and information sheets which so consume and alienate many researchers that they see the ethics process as an unnecessary obstacle to doing research. Even turning from poacher to gamekeeper, I underestimated the antagonism felt by many researchers to the process (David Dixon, University of New South Wales, e-mail to Mark Israel, 6 October 2004).

We hope to go some way to reducing the antagonism to which Dixon refers. We take up criminologists’ deep concern with ethical conduct, arguing that not only do we need to extend our capacity to think seriously and systematically about what constitutes ethical conduct but that we also need to develop better understandings of the politics and contexts within which ethics are regulated, wherever we find ourselves working (Israel and Hay, 2006). This chapter updates, synthesizes and extends work that we have published elsewhere (see ‘Acknowledgements’). Where possible, we have based our discussion on examples outlined

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elsewhere in this handbook. In other cases, we have contacted colleagues and worked with them to develop illustrative material drawn from their research experiences.

ETHICS OR REGULATION? As empirical researchers, criminologists face two distinct difficulties. First, we must develop ways of working that can be regarded as ethical. Second, we have to meet the demands of regulators of research ethics. These are not always the same thing. At best, research ethics committees and frameworks help researchers respond to ethical issues. Sadly, however, there is a considerable international literature (Bosk and De Vries, 2004; Israel, 2004b; Lewis et al., 2003; Social Sciences and Humanities Research Ethics Special Working Committee, 2004) that reveals how ethical research can be compromised by bureaucratic procedural demands, particularly when ‘researchers see ethics as a combination of research hurdle, standard exercise, bureaucratic game and meaningless artefact’ (Holbrook, 1997: 59). The two requirements act simultaneously; our need to behave ethically and to satisfy regulatory requirements operates through the entire research process. Scholars might be tempted to see research ethics approval as a one-off ‘sheep dip’ or a gate to be passed through, but most committees intend their decisions to have an impact on what follows and would imagine that their work shapes what occurs before the formal review process. In Israel and Hay (2006), we suggested that some researchers might be inclined to focus their approach to research by identifying both the key intellectual debates they wish to consider and the means by which they expect to investigate them. Such an approach might involve, at best, some broad and tentative explorations of the ethical implications of choosing particular methodologies but little in the way of rigorous contemplation. This should not come as much of a surprise, given the training that criminologists have provided and received. Typically then, it is not until such researchers are compelled to respond to research ethics committee requirements that they give detailed consideration to ethical issues. It is at this point that investigators with little experience may confront serious difficulties. For instance, the biomedically derived hard architecture of some ethics forms can lead criminologists to offer particular responses to committee demands because they cannot conceive or justify any alternative. In short, for some researchers, the formal process of ethics review offers both disadvantages and

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advantages: it can unreasonably restrict ethical responses but it can also offer a significant mechanism for stimulating ethical reflection. Sadly, having received the formal stamp of regulatory approval, some researchers appear to believe that the time for ethical reflection is over. However, no matter how well prepared they are, no matter how thoroughly they have constructed their research project, and no matter how properly they behave, researchers are likely to have to deal with a variety of unanticipated ethical dilemmas and problems once their study commences. Ethical consideration is never a ‘done deal’. More experienced researchers can draw on their knowledge of how they and their colleagues have developed research plans, interpreted ethical guidelines, engaged with research ethics committees, and managed the practicalities of negotiating ethics in the field. From the outset of their research, they can anticipate many of the problems they are likely to encounter in their research as well as the issues they may face having their proposed work accepted by a research ethics committee. By comparison with more junior colleagues, they may have broader scholarly networks to draw on for advice and greater negotiating power with regulators, though some very senior social scientists have expressed on record their frustration with review processes (Israel, 2004b; Social Sciences and Humanities Research Ethics Special Working Committee, 2004). More thoughtful – though not always more experienced – researchers know that ethics needs to be designed into a project from the outset; is ‘what happens in every interaction’ (Komesaroff, in Guillemin and Gillam, 2004: 266); and continues well after the research is concluded.

WHAT IS ETHICS? Ethical behaviour helps protect individuals, communities, and environments and offers the potential to increase the sum of good in the world. Ethical research conduct assures trust and helps protect the rights of individuals and communities involved in our investigations. It ensures research integrity and, in the face of growing evidence of academic, scientific and professional corruption, misconduct and impropriety, there are now emerging public and institutional demands for individual and collective professional accountability. Ethics, in the words of Beauchamp and Childress (1994: 4) is ‘a generic term for various ways of understanding and examining the moral life’. It is concerned with perspectives on right and proper conduct. One branch of ethical philosophy, normative ethics, offers the moral norms

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which guide, or indicate what one should do or not do, in particular situations. While this ethics literature can be quite daunting to most nonphilosophers – and that includes us as writers on research ethics – in summary, there are two major ways of assessing whether people’s actions and decisions are ‘right’ or ‘wrong’, ‘bad’ or ‘good’. Consequential or teleological approaches see the judgment of acts as ethical or not on the basis of the conse ces of those acts. • Non-consequential or deontological approaches suggest that our evaluation of moral behaviour requires consideration of matters other than the ends produced by people’s actions and behaviours. •

We do not want to oversimplify ethics. There are other alternative and derivative approaches, including casuistry and virtue ethics which we will not discuss here. And, in the past two decades in particular (as feminist criminologists will be well aware), advocates of feminist ethics have challenged traditional constructions of the purposes of research, the role of the researcher and the way in which researchers interact with research participants, arguing for greater concern with relationship, particularity and inclusion (Halse and Honey, 2005; Preissle, 2007). In some cases, this has been expressed in terms of an ‘ethics of care’ as an alternative or, as is more commonly argued, complement to traditional ‘ethics of justice’. We shall return to the ‘ethics of care’ later in this chapter, when we consider the responsibilities that researchers might have to individuals, groups and organizations who are not actually participants in the research.

WHAT MAJOR ETHICAL ISSUES AFFECT CRIMINOLOGY? Informed consent Most professional and institutional, national and international guidelines and ethical codes for research demand that, other than in exceptional circumstances, participants agree to research before it commences. That consent should be both informed and voluntary. In most circumstances, researchers must provide potential participants with information about the purpose, methods, demands, risks, inconveniences, discomforts and possible outcomes of the research, including whether and how the research results might be disseminated. What is going to happen to them and why? How long will it take? What are

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the risks? What are the potential benefits? Who is funding the work? In some cases, providing information to ensure informed consent may take considerable time and effort for both researchers and research participants. In other cases, it may be sufficient to provide potential participants with a list of their entitlements and a range of information they can request. Researchers are usually expected to record participants’ agreement to take part. Generally, researchers have to negotiate consent from all relevant people (and organizations, groups or community elders), for all relevant matters and, possibly, at all relevant times. Several researchers have argued that consent should be dynamic and continuous and not limited to the beginning of the research project. There are plenty of examples, of course, where this has not happened, including the extensive non-therapeutic experimentation on prisoners in the US (Advisory Committee on Human Radiation Experiments, 1996; Hornblum, 1998) and Philip Zimbardo’s creation of a mock prison at Stanford University in 1971 (Zimbardo et al., 1999). In their work on bioethics, Faden and Beauchamp (1986) depicted informed consent as an autonomous action, committed intentionally, with understanding, and without controlling influences resulting either from coercion or manipulation by others or from psychiatric disorders. However, researchers may find it difficult to assess whether potential participants’ circumstances allow them such freedom. In consequence, special procedures are often adopted when attempting to obtain consent or assent from vulnerable and dependent groups. For example, in some cases, it may be appropriate to obtain parental consent or assent when interviewing their children. On the other hand, telling parents that you are interviewing their children because of their active membership of a gang or requiring young offenders to sign consent forms in the presence of adult witnesses may be wildly inappropriate. While undertaking work on juvenile gangs in St Louis, Decker and van Winkle (1996) appointed a university employee to act as an advocate for each juvenile participant. As advocate, the colleague made sure that interviewees understood both their rights in the research process and the nature of the confidential assurances. By comparison, the Human Research Ethics Committee at University of New South Wales insisted that Janet Chan and Jenny Bargen collect signatures documenting consent for their research between 2000 and 2002 on the New South Wales Young Offenders Act 1997: When dealing with people in conflict with the law, especially young people, the insistence on written

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consent, which in turn had to be witnessed and signed by an independent person, is quite unreasonable – it discourages participation and appears (at least to the subjects) to contradict the assurance of anonymity (Janet Chan, University of New South Wales, e-mail to Mark Israel, 8 October 2004).

The American Sociological Association (1999) requires its members to obtain consent from both children and their guardians except where: the research imposes minimal risk on participants; the research could not be conducted if consent were to be required; and the consent of a parent ‘is not a reasonable requirement to protect the child’ (s.12.04b) as in, for example, cases where the child has been abused or neglected. A similar exception is outlined in the Economic and Social Research Council’s (ESRC’s) Framework for Research Ethics (2010: 30). Several criminologists undertaking research in prisons or with the police or private security agencies have pointed out how difficult it may be to ensure that they have obtained informed consent from all relevant parties (Liebling, 1992; Norris, 1993; Rowe, 2007; Waddington, 1994). First, it can be difficult for researchers to assess whether many potential participants have freedom of action – people held in detention may believe that they will be punished if they refuse to take part in research, for example. Second, the nature of information given to participants may be incomplete. This might be because the nature of the interview would make it difficult to predict what might be uncovered (see Gadd, this volume, on the Free Association Narrative Interview Method) but it might also be by design. One has to wonder whether researchers have always explained to offenders that the purpose of their research on, for example, burglars might be to make it more difficult for burglary to take place. In some cases, nevertheless, it may be possible and appropriate to develop methodologies that help promote autonomy and rebuild capacity. The complexities of informed consent have proved particularly problematic for researchers engaged in covert research or deception. Deception could compromise both the informed and voluntary nature of consent but some researchers have argued that consent need not be obtained where any harm caused by lack of consent might be outweighed by the public benefit obtained. In addition, it might be impossible to gain access to some participants if other people are not deceived. For example, Paweł Moczydłowski (1992/1982), later to become director-general of prisons in postcommunist Poland, entered Polish prisons to undertake his research by joining study groups of questionnaire-wielding students. Researchers have

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also had difficulty with the ethics review process when institutionally standardized consent processes have been imposed that mandate excessively formal information sheets, signed consent forms, or extend such processes to secondary use of interview data (see Godfrey, this volume). This might jeopardize the safety and autonomy of research participants, the quality of the research, as well as the integrity of the consent process itself.

Confidentiality When people allow researchers to investigate them, they often negotiate terms for the agreement. Participants in research may, for example, consent on the basis that the information obtained about them will be used only by the named researchers and only in particular ways. The information is private and is offered voluntarily and in confidence to the researcher in exchange for possibly not very much direct benefit. While social science research participants might be hurt by insensitive data collection, it is important to be aware that more significant risks are typically posed by what happens to data after it has been collected. In some research projects, negotiations around confidentiality may be fairly straightforward. Some criminologists operate in relatively predictable contexts where standardized assurances about anonymity may be included in a covering letter with a questionnaire. However, other work takes place in informal and unpredictable environments, where agreements need to be negotiated with individuals and groups and renegotiated during the course of lengthy fieldwork as new issues emerge, ranging from the use of interpreters to the discovery of past or impending criminal activity. Lizzy Stanley has investigated the activities of transitional justice bodies within South Africa, Chile and Timor-Leste. Working in Timor posed considerable problems when it came to safeguarding confidentiality: Timor is a small place and it also has a ‘gossipy’ culture. Maintaining confidentiality is difficult – you can ultimately control your own behaviour but not that of interpreters, translators, transcribers. However, some victims were also attuned to this. For instance, one victim took me to one side and gave me a story, in stilted English, that he didn’t want the interpreter to hear. He’d never met the interpreter and didn’t know him... but he was a Timorese and he didn’t know who he might know (Lizzy Stanley, Victoria University of Wellington, e-mail to Mark Israel, 10 November, 2009).

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A further complication may arise if the participant has commercial interests to protect and the resources and expertise to ensure that these protections are stipulated in any agreement. However, obligations of confidentiality cannot be considered absolute and in some situations – such as when gross injustice is uncovered – researchers have contemplated disclosing to a particular person or group information received under an implied or explicit assurance of confidentiality. Lowman and Palys (2000) argued that in such cases of ‘heinous discovery’, researchers should distinguish between the kinds of serious harm that they could anticipate discovering during a particular piece of research and those that they could not. In the first instance, Lowman and Palys argued that researchers had two options: either be prepared to hear about such activities and keep quiet, or do not undertake the research. Having witnessed police violence during his doctoral research in the UK, Clive Norris (1993) reached a similar conclusion: Given that I had expected to encounter police...