Ethics, Law and Criminological Research
| Published date | 01 December 1997 |
| DOI | 10.1177/000486589703000301 |
| Author | David Dixon |
| Date | 01 December 1997 |
| Subject Matter | Editorial |
Editorial
Ethics, Law and Criminological Research
David
Dixon*
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
*Faculty of Law, University of New South Wales, Sydney 2052. I am grateful to Peter
Wimshurst for his helpful comments on adraft of this.
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