Ethics, Law and Criminological Research
David Dixon1997, Australian & New Zealand Journal of Criminology
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Abstract
Criminology in Australia and New Zealand has numerous strengths, but a sustained tradition of quality research involving direct contact with people involved in illegal activity is not one of them. It is of great concern that, as such research (using ethnographic and other methodologies) is developing, it is coming under increasing threat from institutional ethics committees which have raised legal and ethical objections to proposed projects (see eg, Bermingham 1997; Fitzgerald & Daroesman (eds) 1996). Some projects have had to be abandoned or substantially amended, while others have received approval only after lengthy negotiation. Such research may involve those conventionally identified as criminals and their associates and, indeed, their victims. It also may involve officials such as police and prison officers: reports of their wrongdoing may be particularly sensitive. Broadly, there are three areas of concern: first, the confidentiality of research data; secondly, the research subject's informed consent to participation; and thirdly, the researcher's criminal liability arising from knowledge of or contact with the illegal activity. Underlying these is a broader concern by ethics committees and their institutions about legal liability and insurance cover. Confidentiality can be provided so far as is possible by standard techniques of data recording and storage. However, the law cannot be relied upon to protect the confidentiality of information about research subjects or data if an application for a subpoena is made. Even under new developments in professional confidential relationship privilege, protection would depend upon judicial discretion, and so no guarantee of legally protected confidentiality could be given.' The difficulty in securing even this limited measure (which has received parliamentary attention in NSW only because of its connection to the protection ofrape counsellors' notes to which defence lawyers have sought access) gives little ground for optimism about a wider protection for research data through either privilege (Leo 1995) or confidentiality certificates (as under legislation regulating some research in the United States). This is particularly so in criminal cases where the benefits of confidentiality for the researcher's data may have to be weighed against possible conviction of the accused (Fitzgerald & Daroesman (eds) 1996). If the law's protection cannot be relied upon, researchers may have to face difficult ethical decisions which may result in them breaching confidentiality, with potentially damaging consequences both for research subjects and for future researchers seeking access and cooperation (Leo 1995), or being punished for choosing to protect the confidentiality of their subjects. The latter was the course chosen by a PhD candidate at Washington State University who refused to provide the
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