by Sherry F. Colb
In my column for this week, I examine the practice of undercover police officers, sanctioned by at least three states, having sexual contact with suspected prostitutes. The alleged purpose of this sexual contact is to help catch the suspected prostitute agreeing to exchange sex for money. The theory behind the allowance is that if sex workers know that police are prohibited from having any sexual contact with suspects, then sex workers will ask police to touch them sexually before agreeing to exchange sex for money. If a prospective customer refuses to touch them, then they will know they are dealing with a cop and will refrain from any further commercial activity. In the column, I consider three perspectives, that of a feminist/anti-trafficking advocate, that of a libertarian, and that of a moralist, and discuss, for each one, how the allowance for sexual contact between police and suspected prostitutes would fare.
In this post, I want to consider the more general question of what undercover police officers should be able to do in their efforts to persuade their suspects that they, the officers, are actually fellow criminals in whom the suspects can place their trust. The ideal for undercover police officers is that they simply provide an opportunity for a suspect to commit his crime and that they (the police) do not do anything that is uniquely tempting or that pressures the suspect to do something that he would not otherwise do. Such excessive temptation or pressure, if great enough, could later be deemed entrapment by a court, a finding that would serve as a defense for the suspect in a criminal case.
Potential entrapment is not, however, the only ethical problem involved in undercover operations. In the above example, when police fondle a sex worker's breasts in order to come across as a bona fide customer, police are arguably sexually exploiting the sex worker, quite apart from any possible entrapment. That they are doing so in order to pave the way for arresting the sex worker probably makes their behavior more rather than less exploitative. With a crime like prostitution, where even those who believe it is in theory victimless must acknowledge that practitioners are frequently the victims of violence and are regularly in danger of rape, pretending to be a customer essentially involves pretending to be one of those people who might be interested in hurting the target. When that pretense involves touching the target sexually, the officer treats the target as an object. And on some definitions, the touching could resemble a sexual assault by deception (because police are misrepresenting a material fact in order to get sexual consent). Doing what it takes to catch a prostitute may thus amount to what is arguably the abuse of the suspected prostitute.
Another set of difficulties that arise with undercover work involves the need to commit crimes against third parties in order to seem like an authentic criminal. Say a police officer has successfully infiltrated a violent drug gang. Gathering evidence against the gang is unquestionably an important objective, because it will help get dangerous, violent people off the street. But one cannot be scrupulously law-abiding and expect gang members to accept one as part of a gang. So how far should the illegal behavior go? Most of us would accept an undercover cop's violating the speed limit to convince the gang members that he is one of them (after all, police speed in their own vehicles all the time). We might also accept the officer's using drugs with the gang members to prove his bona fides (because many of us do not regard drug use as inherently wrongful). But what if the gang commits a robbery? Would we accept the officer's participation in the robbery as a getaway car driver? If so, then what if he goes into the bank with the other robbers? Does it matter that they would commit this robbery anyway, whether or not the police officer came along? Does that make his participation, as driver or fellow robber, harmless?
I am inclined to say that being the getaway car driver would be acceptable. This is partly because the gang members are not really "getting away" when the cop drives them, because he is later (presumably) going to testify against them based on what he has witnessed, including what they say about the robbery while he is driving them "away." I am less sure about his going into the bank with them. If he plans to make an arrest immediately after they order a teller to hand over money, then maybe that would be okay. On the other hand, there is a risk of people getting killed at that point, and by going along with them to the robbery site, he has played a role in facilitating their getting to the point where they might potentially kill someone. And what if he is trying to build a bigger case against the group, so he does not intend to stop them from committing the robbery? Then it feels awfully troubling to have him acting the part of a bank robber, threatening innocent civilians' lives, just to build a larger case against his fellow robbers.
The possibilities do not stop here, however. Undercover police might find themselves in a position in which they are expected to kill someone or else expose themselves as an officer and potentially be killed themselves. For instance, what if the gang gets into an unexpected firefight with members of a rival gang? If the undercover officer stands by doing nothing he will have "outed" himself as either a police officer or, at the very least, as someone other than what he claims to be. This could get him killed. But what is the alternative? Should he shoot at people? What if they are shooting at him--does that make it self-defense? Should he shoot to miss? And if he is asked to kill a particular person, does the fact that the target is a "bad guy" who may be interested in killing him (along with the other members of the gang) make it okay for him to kill this person? A fascinating movie entitled "Deep Cover," starring Laurence Fishburne, explores some of these issues and is worth watching.
Undercover operations perhaps inherently pose ethical dilemmas for those involved in them. For example, when an animal rights activist goes undercover as a slaughterhouse worker in order to expose the horrific cruelty that happens at a slaughterhouse, that activist must help slaughter animals in order to keep her job so that she can reveal everything. But her whole reason for going undercover is that torturing and slaughtering innocent, helpless animals for food that people do not need is an atrocity that cannot be justified. If so, then what is she doing participating in that atrocity? Do the ends justify the means? Well, when footage of slaughterhouses emerges from such operations, it is worth exposing people to it, but it remains unethical to slaughter an animal, even if the goal is to expose the fact that animal slaughter is wrong. I suppose this means that I am not a utilitarian, because the latter would be open to the argument that the ends justify the means.
Ultimately, then, undercover work regularly involves the undercover worker in activities that are wrongful and that must be justified, if at all, on the grounds that the ends justify the means. One must therefore subscribe to utilitarian principles, where morality demands maximizing good outcomes, however one does that. I suppose (that in this domain at least) I lean more toward the deontological way of thinking, whereby some acts are simply wrong, even when they are carried out to serve some higher purpose. And, as Michael Dorf pointed out in a related blog post a couple of years ago, although it may be possible for deontologists to justify utilitarian calculations that aim to "maximize rights" in some respects, it is very difficult to do so by participating directly in their violation.