Under‐the‐covers undercover investigations: Some reflections on the state's use of sex and deception in law enforcement

Abstract

I have no sympathy for those who are crybabies about the fact that police officers are selling to those who want to buy drugs. We use every legal means that we can. We want everybody to know that the next drug buy may be from a police officer. Or it might be from a former girl friend working for police who has invited you to her hotel room. arrest and trial of former Mayor Marion Barry after he had purchased drugs from an ex-girl friend raises a variety of ethical and policy issues involving police deception.[1] One of the most interesting involves friendship and undercover investigations. When, if ever, is it appropriate to use friendship and the lure of sex as part of an investigation? State-sponsored deception, of course, raises all the ethical issues generally associated with deception.[2] It also raises some issues that are unique to the state as the symbolic repository of societal values (for example, the need to avoid setting bad examples). But when friendship and sex are present, as in the Barry case, the situation becomes more complex. Manipulation, temptation and deception (whether involving motives and/or identity) are joined in a potentially explosive[3] mix. In this article I will focus on the limited topic of sex and undercover investigations. deceptive use of sex may magnify the basic issue of the violation of trust found within the broader topic of false friend deception. It might help our understanding of the larger topic if we focus on the narrower one. Here I ask: (1) What is at stake and what is different when undercover operations have a sexual component? (2) What are the main ways that sex is used in covert investigations? (3) How should we judge this behavior? Some parallels exist between sexual and undercover activity. Both are private activities. Those not directly involved will not know much about what goes on. Secrecy and temptation may play important roles in each. Both romance and undercover activities can involve heightened efforts to create impressions, the keeping of secrets, and intense bonding. Prostitution, like undercover work, may involve role-playing and feigning emotions (and to judge from the classic scene in the film When Harry Meets Sally, faking it is not the exclusive preserve of professionals). Undercover activities, with their secret watching and audio and video recordings, have a voyeuristic quality. Terminology such as deep penetration and access have multiple referents. Targets of investigations frequently report being screwed by the agent after their arrest. Agents sometimes refer to the agency they work for as their mistress. For some agents the excitement of undercover has a sexual parallel. As one highly experienced agent put it in an interview with a co-worker, The best undercover is exalted in what he's doing; it's almost a sexual thrill. In the case of the mata-hari phenomenon, undercover and sexual roles may be professionally interwined --although one recent account suggests that Mata-Hari may have been framed.[4] A possible link between homosexuality and spying, at least in the post-World War II British context, has often been noted. There seems to be a natural congruence between covert means and sex more generally. I have identified a number of ethical justifications for, and objections to, undercover work.[5] Among the objections is that of lack of respect for the sanctity of intimate relations. Restrictions on the use of spousal testimony reflect this concern. Unlike the impersonal and instrumental relationships of the marketplace, intimate relationships are valued as (and assumed to be) ends in themselves. They flourish to the extent that individuals feel free to express themselves without suspiciousness or fear of others' ulterior motives. In a larger sense, intimate relations can also have instrumental or functional consequences in positively linking the individual to others. …