Ethical Considerations in Criminal Justice Research: Informed Consent and Confidentiality

However, no legal protections are described which may benefit researchers in their refusal to breach confidentiality agreements. From a purely ethical standpoint, researchers should only breach confidentiality if the subject specifically consents to the breach, the information is already in the public domain, and/or public interest in disclosure outweighs its interest in maintaining confidence. However, criminal justice researchers may be exposed to three different types of legal conflict concerning research ethics: the obligation to report certain crimes as prescribed in mandatory reporting laws; learning of potential or intended future crimes that may harm third parties; and being subpoenaed to testify in court on issues pertaining to a particular research participant or crime.

Beginning with an attempted third-party subpoena of the Kinsey Institute at Indiana University, the secondary legal literature which has developed since the 1970s, particularly out of the civil litigation discovery process, has severely threatened research confidentiality (Bond, 1992; Lowman & Palys, 2001). Consequently, criminal justice researchers have historically resisted requests for confidential research information on ethical grounds, oftentimes without any legal protection.

Confidentiality concerns are even more complex in studies of juvenile offenders. The American juvenile justice system has focused primarily on accountability, recompense, and public safety concerns to the detriment of rehabilitation and research confidence. In the majority of states, juvenile proceedings are open to the public and media, while records are readily disclosed to other public agencies (Webb, 2008). As minor research subjects are not legally autonomous, family and community interests must be factored into the development of confidentiality contracts.

While communities may be legitimately concerned with the development of responsible citizens, families are afforded privacy protection in decisions to raise their children free from unnecessary intrusion. Accordingly, researchers must acknowledge these potentially conflicting interests when presented with confidentiality issues. Therefore, scholars in this area of study are sometimes forced to reveal confidential information in the event that it threatens a third party, but must always consider the potential harm that disclosure may have on the juvenile (Mulvey & Phelps, 1988).

Conclusion

Societal perceptions of marginalized groups have contributed to historical instances of unethical experimentation on vulnerable participants, prompting significant governmental intervention. Subjects are now afforded protection through informed consent requirements, though the potential for coercion has not been eliminated. Moreover, contemporary laws present ethical dilemmas which may force researchers to violate the trust of those who provide self-deprecating information for the purposes of criminological inquiry.

Nonetheless, the validity of criminal justice research hinges upon the protection of stigmatized individuals and confidential information. Professional societies have since adopted codes of ethics in order to safeguard the civil rights of research subjects. However, researchers remain exposed to legal ramifications regarding the refusal to breach confidentiality agreements for the benefit of third parties.

---

References

Berry, R. M. (2005). Informed consent law, ethics, and practice: From infancy to reflective adolescence. HEC Forum, 17(1), 64-81.

Bhutta, Z. A. (2004). Beyond informed consent. World Health Organization. Bulletin of the World Health Organization, 82(10), 771-777.

Bloomberg, S. A. & Wilkins, L. T. (1977). Ethics of research involving human subjects in criminal justice. Crime & Delinquency, 23(4), 435-444. doi:10.1177/001112877702300408

Bond, T. (1992). Confidentiality: Counseling, ethics and the law. Journal of Workplace Learning, 4(4), 4-9.

Doblin, R. (1998). Dr. Leary’s Concord Prison Experiment: A 34-year follow-up study. Journal of Psychoactive Drugs, 30(4), 419-426.

Erlen, J. A. (2010). Informed consent: Revisiting the issues. Orthopaedic Nursing, 29(4), 276-80.

Juritzen, T. I., Grimen, H., & Heggen, K. (2011). Protecting vulnerable research participants: A Foucault-inspired analysis of ethics committees. Nursing Ethics, 18(5), 640-650.

Kauzlarich, D. & Kramer, R. C. (1998). Crimes of the American nuclear state: At home and abroad. Boston, MA: Northern University Press.

Lowman, J. & Palys, T. (2001). The ethics and law of confidentiality in criminal justice research: A comparison of Canada and the United States. International Criminal Justice Review, 11(1), 1-33. doi:10.1177/105756770101100101

Mulvey, E. P. & Phelps, P. (1988). Ethical balances in juvenile justice research and practice. American Psychologist, 43(1), 65-69.

O’Neill, O. (2003). Some limits of informed consent. Journal of Medical Ethics, 29(1), 4.

Reeder, G. D., Monroe, A. E., & Pryor, J. B. (2008). Impressions of Milgram’s obedient teachers: Situational cues inform inferences about motives and traits. Journal of Personality and Social Psychology, 95(1), 1-17.

Reverby, S. M. (2011). “Normal exposure” and inoculation syphilis: A PHS “Tuskegee” doctor in Guatemala, 1946-1948. Journal of Policy History, 23(1), 6-28.

Rhineberger, G. M. (2006). Research methods and research ethics coverage in criminal justice and criminology textbooks. Journal of Criminal Justice Education, 17(2), 279-296, 398.

Richardson, L. S. (2009). When human experimentation is criminal. Journal of Criminal Law & Criminology, 99(1), 89-133.

Salgo v. Leland Stanford Jr. University Board of Trustees, 317 P.2d 170 (Cal. Ct. App. 1957).

Semeniuk, I. (2010). A shocking discovery. Nature, 467(7316), 645.

Waltz, E. (2006). US ponders unlocking the gates to prisoner research. Nature Medicine, 12(1), 3.

Webb, P. (2008). Privacy or publicity: Media coverage and juvenile justice proceedings in the United States. International Journal of Criminal Justice Sciences, 3(1), 1-14.