Promises, Promises: Lessons in Research Ethics from the Belfast Project and 'The Rape Tape' Case

Introduction

1.1 Social research has made headline news in the Republic of Ireland (RoI) on a number of occasions since 2011 as a result of ethical issues emerging from two very different research projects. Firstly, The Belfast Project (BP), which was conducted by ex-paramilitary researchers in Northern Ireland in conjunction with Boston College (BC) in the USA; and secondly, the so-called 'Rape Tape Case' (RTC) in RoI, which involved a post-graduate student and her academic supervisors from Maynooth University. Both projects became enmeshed in legal battles with significant potential harms – harms which ethical protocols are designed to avert. In this paper I use documentary sources from print and online media and project publications (e.g. McIntyre 2012; Moloney 2010) to explore the two cases and argue that they provide significant lessons for sociologists teaching and conducting ethical research.

1.2 In this paper I draw from texts on research ethics and the ethical regulations of the professional sociological bodies across the three jurisdictions affected by the BP and the RTC (RoI, UK, USA). I explore five interrelated dimensions of ethical practice which I have grouped into three themes: 1) defining ethics and avoiding harm 2) consent and ownership 3) sensitive topics. I demonstrate how careful and context-specific reflections on ethical principles may have impacted on decisions and outcomes in the BP. The RTC is positioned in contrast to highlight outcomes which I argue exemplify the ethical competence which emerges from negotiating ontological, contextual and reflective dimensions of ethics. Moreover, the decisions made in the RTC emerge from conditions which were far less predictable than those surrounding the BP and yet resulted in much more consistent ethical practice. The two cases will be described in turn before analysing them in the context of the ethical themes (above).

A Tale of Two Research Projects: The Belfast Project and 'The Rape Tape' Case

A Note on Documentary Research Methods

2.1 The outlines of the BP and RTC have been assembled using documentary research methods (Denscombe 2010; Mogalakwe 2009; Prior 2003) and sources available in the public domain. The use of public documents is a common feature of documentary research (Scott 1990), but the type of sources and analytic practice vary. For example, computer technology enables the analysis of thousands of newspaper articles within a brief time period (e.g. Voth et al. 2013) while an in-depth analysis of a single news-feature and its social impacts might also include focus group methods (Deacon et al. 1999). Other approaches involve analysing a range of news media, including online sources and traditional media (e.g. Seale 2010). In this paper my sources are made up of new and traditional media, books authored by participants in the events, and online archives which include court and parliamentary transcripts.

2.2 I became interested in the BP and RTC in 2011 while I was living in Dublin and teaching research ethics. I regularly consumed news-media and listened at least once per day to extended radio news on the Irish state broadcaster (RTE). I initially began to follow first the BP and later the RTC as sources of teaching material, but later felt that the cases merited further exploration. Thus, I began to retrace my steps through media accounts and other publically available sources – the World Press site proved particularly useful as it archived many of the documents relating to the BP http://bostoncollegesubpoena.wordpress.com. The sources I use are specific to the purpose of this paper. That is, to facilitate a 'real life' context for analysing research ethics, rather than to produce a quantitative or systematic analysis of, for example, cross-national contrasts in media framing of the BP (although this would certainly be a worthy project). As such, the cases presented here are not claimed to be definitive accounts, as this is beyond the scope of this paper, rather, the discussion here is positioned as illustrative or 'preliminary' (Birenbaum-Carmeli et al. 2006). Furthermore, documents in the public domain necessarily reflect the perspective and politics of particular interest groups and must be interpreted in this regard (Scott 1990). For example, there has been a significant contrast in the degree of media coverage of the BP between jurisdictions. So that while in RoI it made headline news in print media and continues to receive dedicated air-time on the national state broadcaster RTE (e.g. http://www.rte.ie/news/player/2012/0801/3161231-belfast-project-journalist-fears-for-his-life-anthony-mcintyre/; http://www.rte.ie/news/player/2013/0604/20208652-appeals-court-restricts-release-of-boston-college-tapes/) there has been scant coverage in British media. Documentary research is therefore always enmeshed in questions regarding the status of the 'truth' and 'facts' of data in the public domain. Indeed, the BP was initiated precisely because the 'truth' and 'facts', as officially documented, are contested by those who participated in the events concerned – namely paramilitary activity during 'The Troubles' in Northern Ireland. Similarly the RTC was embroiled in conflicting government, media and community perspectives regarding the protests over the Shell development in Mayo, RoI. Finally, the live nature of the BP has added further complications. Firstly, in that sources of evidence (including radio news broadcasts) are only publically available for limited periods of time, and secondly, the story has continued to evolve throughout the writing process, including the death of one of the key figures (Dolores Price) and the arrest of another (Gerry Adams). Overall then, the issues emerging from documentary research mirror the underlying themes of this research paper – i.e. the necessity of research ethics which can function in contexts where 'truth' and values are contested, but which are also robust enough to buffer the rule of law.

The Belfast Project

2.3 The BP, which was designed and owned by BC intended to provide an oral history archive of 'The Troubles' from the perspectives of those who had been involved in paramilitary activity on Republican and Loyalist sides, including the Irish Republican Army (IRA) and Ulster Volunteer Force (UVF). The archive, housed in the Burns Library, BC, was seen as particularly important in capturing the testimonies of still living participants, whose accounts would only be released after their death, to enable full and honest disclosure. As the project director Ed Moloney described it, 'the purpose of the Boston College-Burns Library Archive was to collect a story of the Troubles that would otherwise be lost, distorted or rewritten, deliberately by those with a vested interest, or otherwise by the passage of time or the distortion wrought in the retelling' (2010: 8). Likewise Robert O'Neill, Burns Librarian highlighted that 'The Belfast Project was an opportunity to record the stories of paramilitaries, which otherwise would have been lost to posterity. It was a noble effort. It involved a great deal of work and risk for all concerned' http://bostoncollegesubpoena.wordpress.com/2013/07/31/moloneys-bizarre-accusations-sad-to-witness/College.

2.4 Insider researchers – i.e. academics who were also convicted ex-paramilitaries including Anthony McIntyre PhD, and Wilson McCarther – were recruited to conduct extended interviews with participants from their respective sides of 'The Troubles', and journalist Ed Moloney was contracted by BC as project director (McIntyre 2012; Moloney 2010). The material, containing accounts of bombings, abductions, murder and other criminal activities, was obviously highly sensitive to those outside of the paramilitary organisations as well as those within – for example, IRA members are forbidden to admit membership to outsiders, and revenge and punishment attacks are a common feature of paramilitary activity (see Voices from the Grave, below). BC issued researchers with 'Agreement for Donation' forms which participants signed guaranteeing that the material would remain confidential and locked away in the BC archive until their death (McIntyre 2012; Moloney 2010; http://bostoncollegesubpoena.wordpress.com/exhibits/respondent-hughes-agreement/). Only then would the data be used – in non-anonymised form – to produce a public historical archive of 'The Troubles'. For example, in 2010, following their deaths, the accounts of Brendan Hughs (IRA) and David Ervine (UVF) were retold in Ed Moloney's book (2010) Voices from the Grave alongside a TV documentary of the same name http://bostoncollegesubpoena.wordpress.com/supporting-documents/voices-from-the-grave-documentary/#vog).

2.5 UK legal authorities became aware of the project as the result of a local media interview (in The Irish News ) by Dolores Price (now deceased), former IRA member and participant in the BP^[1] http://bostoncollegesubpoena.wordpress.com/supporting-documents/irish-news/. Her newspaper interview indicated that the BP archive may contain evidence relating to unsolved murders including the high profile case of Jean McConville^[2] http://www.bbc.co.uk/news/uk-northern-ireland-27234413. The UK legal authorities subpoenad the archive and the BC authorities responded very differently to the position indicated on the 'Agreement for Donation' forms. BC officials argued that they had only guaranteed anonymity within the limits of the US legal system. Therefore, when a US court ruled that the data be handed over to the UK authorities BC claimed to be bound by the decision (McIntyre 2012; http://www.rte.ie/news/2012/0108/310668-belfastproject/). There were widespread ramifications of this decision, and many individuals involved in the BP, including McIntyre, 'feared for their lives' http://www.theguardian.com/uk/2012/jan/09/ex-ira-member-fears-boston-history; http://www.rte.ie/news/player/2012/0801/3161231-belfast-project-journalist-fears-for-his-life-anthony-mcintyre/. Moreover, on 8 January RTE News reported that Prof Thomas Hachey, the head of the Irish Institute at BC, 'was told by the US Consul General in Belfast not to travel to Northern Ireland' because 'officials said his safety could be at risk "in the present environment"' http://www.rte.ie/news/2012/0108/310668-belfastproject/ .

2.6 In February 2012 the American Sociological Association (ASA) and members of the BC Chapter of the American Association of University Professors (BCCAAUP) voiced their support of the BP researchers in a direct challenge to the BC authorities. The ASA issued a statement that, 'The ASA takes the responsibility of researchers to protect the confidentiality of research data extremely seriously – this principle is at the heart of the American Sociological Association Code of Ethics, which is enforced by the ASA Committee on Professional Ethics. Similarly, the ASA works vigorously on behalf of scholars and researchers whose efforts to protect confidential data obtained from research participants have been challenged' http://www.scribd.com/fullscreen/82473519?access_key=key-1a7i9oygbmwyrc2h7gq0&allow_share=false&show_recommendations=false&view_mode=scroll. Meanwhile, BCCAAUP organised an online petition calling on BC authorities to account for themselves and to commit to protecting the anonymity and confidentiality of research participants. http://www.change.org/petitions/boston-college-investigate-belfast-project.

2.7 The legal battle regarding the BP archive is ongoing and some documents have now been released to the UK authorities. Anthony McIntyre and Ed Moloney (who once described the 'good people of Boston College' (2010: 5)) continue to campaign to protect the archive and against the decisions made by BC (McIntyre 2012; http://www.rte.ie/news/player/2013/0604/20208652-appeals-court-restricts-release-of-boston-college-tapes/; http://www.irishtimes.com/news/crime-and-law/us-oral-history-project-alleged-adams-ordered-mcconville-s-killing-1.1780055; http://www.rte.ie/news/player/2013/0604/20208652-appeals-court-restricts-release-of-boston-college-tapes/; http://www.irishtimes.com/news/crime-and-law/us-oral-history-project-alleged-adams-ordered-mcconville-s-killing-11780055)

'The Rape Tape' Case

2.8 The BP came to legal and public attention via an indirect route but, as I argue below, the circumstances which gave rise to the legal challenges could have been foreseen and addressed through stringent ethical protocols. In contrast, the circumstances by which the research project embroiled in the RTC came to legal attention are almost inconceivable, yet the ethical response here was much more robust. In the RTC the focus is not the research project in itself – the nature of which has never been disclosed in public. Rather, the issues emerge because data for the research project was stored on a digital recorder which inadvertently recorded evidence of inappropriate garda (Irish police) behaviour towards two women detainees. The women were arrested during protests at the Shell development – known as the Corrib gas pipe – in Rossport, a small rural community at the tip of the Erris peninsula in Co. Mayo, North West Ireland http://www.mayonews.ie/index.php?option=com_content&view=article&id=15216%3Arape-tape-report-about-protecting-gardai-sullivan&Itemid=51; http://www.mayonews.ie/index.php?option=com_content&view=article&id=12391%3Agarda-rape-tape-unravels-new-corrib-twist&Itemid=51. The Shell development was opposed on the grounds of safety issues and the protesters' demand that the gas be refined and treated offshore gave rise to the name 'The Shell to Sea Campaign'. This campaign has continued despite the jailing of local activists known as 'The Rossport Five' (Corduff et al. 2007; http://www.rte.ie/news/2005/0930/68082-mayo/) and construction work currently taking place on the Erris peninsula (see http://www.shelltosea.com/ for full details of the protest and grounds of objection).

2.9 One of the protesters at the Rossport site in March 2011 was Jerrie Ann Sullivan a postgraduate student from Maynooth University in Co Meath. When she and another woman were arrested Sullivan was carrying a small video recording device she had been using to conduct her postgraduate research (research unrelated to the protest and garda behaviour). The women were detained for a short time and the recorder was in the possession of the arresting gardai. The device recorded the gards making jokes about raping and deporting the women – which earned the media's title, 'The Rape Tape Case' http://www.independent.ie/irish-news/courts/rape-tape-protestor-jerrie-ann-sullivan-has-case-struck-out-26847478.html; http://www.mayonews.ie/index.php?option=com_content&view=article&id=12391%3Agarda-rape-tape-unravels-new-corrib-twist&Itemid=51. When Sullivan discovered the recording and proceeded to make a complaint against the gardai, the recorder was required as evidence – and it is at this point that the ethical issues emerge for researchers and project owners/supervisors. Sullivan's supervisors agreed that in order to protect the confidentiality of the research participants whose data was also retained on the machine, and to maintain the guarantee of anonymity provided at the outset of the research, they should delete all the research files and leave only the recording of the gardai intact before surrendering the device to the investigating authorities. This action also provoked some controversy, with the academics being accused of 'tampering with evidence', despite the fact they had offered to delete the research files – which were extraneous to the investigation – in the presence of the investigating authorities (Siggins & Ryan 2012; http://www.mayonews.ie/index.php?option=com_content&view=article&id=15115%3Arape-tape-investigation-criticised-&Itemid=51). It is this response – i.e. the deleting of research data – and the commitment to the anonymity and confidentiality of research participants which contrasts with the decisions made by BC and informs the discussion of ethical practice which follows. Indeed, it is a credit to the comprehensiveness of the action by the supervisors that no information regarding the nature and content of the research project has entered the public domain.

Ethics in Theory and Practice

1) Defining Ethics and Avoiding Harm

3.1 Defining 'ethics' is a complex task, and a source of political and philosophical debate in historical and contemporary research texts (Edwards & Mauthner 2002; Oliver 2003; Ramazanoglu & Holland 2002; Seiber 1993). However, the principle of 'avoiding harm' proliferates contemporary definitions of research ethics in research texts (above) as well as professional bodies including the ASA, The British Sociological Association (BSA) and the Irish Sociological Association (ISA)^[3]. However, a number of issues and contradictions emerge not only in terms of conceptualising both 'ethics' and 'harm', but also as professional bodies attempt to navigate the terrain between providing robust protocols and guidelines – an ontological foundation – while simultaneously acknowledging the context-bound and unpredictable dimensions of ethical practice. Here, I argue that being able to competently negotiate, rather than eradicate, these tensions is the key to ethical competence, as demonstrated by the academic supervisors in the RTC.

3.2 Conceptualisations of 'ethics' vary, but a common defining principle is the avoidance of harm to research participants – as well as the researcher/s and their funding and/or host institution (Birch et al. 2002; Oliver 2003). 'Ethics has to do with the application of a system of moral principles to prevent harming or wronging others, to provide the good, to be respectful, and to be fair' (Seiber 1993: 15). Nonetheless, what constitutes 'harm' and 'good' are expressions of value and judgement which are always located in social, political and cultural context: 'ethics expresses moral judgments, for example on rights, obligations and justice' (Ramazanoglu & Holland 2002: 14).

3.3 The cultural and context-bound nature of concepts of justice and rights is powerfully illustrated in the contrasting positions of the jurisdictions involved in the BP. In the Northern Irish context rights and justice are specific to the context of moving towards peace, reconciliation and historical accounting for the period known as 'The Troubles'. Much of the post-'Troubles' work undertaken in Northern Ireland cites the model of peace and reconciliation operationalised in post-apartheid South Africa (Smyth 2003). Here, 'truth-telling' on all sides is a part of transitional justice and healing as a community moves towards a post-conflict situation (Androff 2010; Connolly 2006; Hamber 2002) – although 'truth-telling' itself is also politically contested within Northern Ireland (Lawther 2013; Smyth 2003). Transitional justice is necessarily temporal and contrasts with the permanent and rigid rule of law which operates in more established jurisdictions such as the UK and the USA. Transitional justice is, however, political (Fordham 2002). Notions of truth, rights and justice are therefore politically sensitive and highly contested in contemporary Northern Ireland, and this provided both the rationale and context for the BP. Given that the BP was itself a part of this culturally-specific, temporal process of 'truth-telling' within contested historical/political perspectives and operating in tension with the UK rule of law, it is particularly remarkable that the potential conflicts regarding the nature of rights and justice were not pre-empted by the project owners at BC. It also highlights how cultural and historical sensitivity is required at the point of conceptualising ethical parameters such as rights and justice and that it is unsafe to assume universalist meanings.

3.4 The culturally situated nature of concepts such as 'harm' are integral to the ethical guidance produced by sociological bodies which attempt to both acknowledge the limitations of a purely ontological, tick-box approach, while at the same time providing clear guidance and robust boundaries for ethical practice. The BSA provides a downloadable fifteen page 'Statement of Ethical Practice' (2004) which includes eight pages of resources for further guidance http://www.britsoc.co.uk/about/equality.aspx^[4]. The BSA statement of ethical practice defines itself as educative rather than definitive and highlights that it cannot provide a universal 'recipe' to ensure ethical practice. Instead, it provides specific headings under which ethical practice is discussed which include: 'relations with and responsibilities towards research participants', 'clarifying obligations, roles and rights' and 'pre-empting outcomes and negotiations about research'⁵. These provide a combination of both ontological – i.e. fixed ethical standards – alongside more reflexive principles. For example, under the heading 'anonymity, privacy and confidentiality' the BSA code of ethics states that

The anonymity and privacy of those who participate in the research process should be respected. Personal information concerning research participants should be kept confidential. In some cases it might be necessary to decide whether it is proper or appropriate even to record certain kinds of information (2004: 5).

3.5 The SAI (undated) has a thirteen page downloadable document (all text) which acknowledges the guidelines of the BSA, the ASA and The Australian Sociological Association as formative. http://www.sociology.ie/?pagid=25&useid=23d63ada44cb81710231ce70da983084&. The SAI locates its guidelines within the national boundary and prefaces them as follows:

Ethical Guidelines consist of a set of general principles and statements of ethical practice concerning the professional activities of sociologists in Ireland. The guidelines are intended to generate awareness about potential problems and conflicts of interest that might arise for sociologists; to draw attention to their obligations regarding the interests of persons and groups with whom they work; and to provide guidance on ethical issues they may encounter in a variety of roles and work situations (undated: 1)

3.6 SAI General principles include 'professional competence', 'integrity', 'respect for human rights, diversity and equality' and 'social responsibility'. The ASA (1999) offers an even more open-ended definition in its Code of Ethics which is 'written broadly in order to apply to sociologists in varied roles' http://www.asanet.org/about/ethics.cfm. These roles include: 'students, supervisors, supervisees, employers, employees and colleagues'. The ASA Code of Ethics sets out five key 'principles and ethical standards that underlie sociologists' professional responsibilities and conduct' at the same time acknowledging that 'the application of an ethical standard may vary depending on the context'. The five principles are: professional competence; integrity; professional and scientific responsibility; respect for people's rights, dignity and diversity; social responsibility. The ASA stipulates that the principles 'should be used as guidelines when examining everyday professional activities. They constitute normative statements for sociologists and provide guidance on issues that sociologists may encounter in their professional work'.

3.7 Many contemporary textbook discussions of research ethics have, like the professional bodies, moved beyond simplistic ontological approaches which lend themselves most easily to tick-box approaches to ethics. Here, ethics are defined more reflexively, as an ongoing negotiation within the role and responsibility of the researcher: 'ethics … refers to the moral deliberation, choice and accountability on the part of researchers throughout the research process' (Edwards & Mauthner 2002: 14). These deliberations cannot be pre-empted and redressed within standardised protocols:

The complexities of researching private lives and placing accounts in the public arena raise multiple ethical issues for the researcher which cannot be solved solely by the application of abstract rules, principles or guidelines (Birch et al. 2002: 1-2).

3.8 Here, ethical competence is a skill, 'a way of thinking' (Birch et al. 2002: 3), rather than a matter of procedure. These thinking skills are transferable between contexts and involve 'dialogue and negotiation' which are about 'how to deal with conflict, disagreement and ambivalence rather than attempting to eradicate it' (Edwards & Mauthner 2002: 21-27). This competence involves both principled (ontological) ground-rules as well as reactive decision-making. The BSA acknowledges the necessity of making 'choices on the basis of principles and values, and the (often conflicting) interests of those involved' (2004: 1). For me this is exemplified in the RTC where supervisors had both a clear ontological bottom line – at no stage would they reveal raw data or compromise participants' anonymity – which informed their reactive decision-making when circumstances arose which no amount of scrutinisation during an ethical review procedure could have predicted. Consequently, despite the accusation of 'tampering with evidence' (Siggins & Ryan 2012) and the potential legal consequences, the supervisors maintained the primacy of their ethical responsibility to the research participants. This decision is in stark contrast to the position adopted by BC where the stakes were much higher and literally a matter of life and death for the researchers and their participants.

3.9 The BC decisions regarding the BP are even more questionable when the safeguarding all of those involved in research and avoiding harm to them is a consistent element throughout the professional standards documents as well as within texts which focus on research ethics (ASA 1999; Burton 2000; BSA 2004; Denscombe 2002; Gomm 2008; Gray 2009; Hopf 2004; ISA undated; Oliver 2003; Thomas & Hodges 2010). Indeed, while 'harm' is inevitably a context-bound and subjective term, the ethical guidelines of professional bodies nonetheless attempt to stipulate the avoidance harm in ontological terms. For example, under the heading 'relationships with research participants' the BSA code states that 'sociologists have a responsibility to ensure that the physical, social and psychological well-being of research participants is not adversely affected by the research' (2004: 2). Likewise, the SAI stipulates that 'there is an obligation for members to be aware of the possible consequences of their work. In particular, they should attempt to anticipate, and to guard against, consequences for research participants which can be predicted to be harmful' (undated: 7). The BSA also specifies consideration of researcher safety and, furthermore, under the heading of 'professional integrity' draws attention to the potential risks of harm to researchers: 'safety issues need to be considered in the design and conduct of social research projects and procedures should be adopted to reduce the risk to researchers' (2004: 2).

3.10 It is apparent that many of the issues which emerged from the BP constitute harm as defined by these ethical guidelines. Moreover, the aims and objectives of the project clearly constitutes an area where 'social responsibility' as stipulated by the ASA (above) is paramount. This raises questions regarding how such sensitive research with such potentially explosive consequences had neither been pre-empted by the ethical review process, or considered reactively as the events which brought the project to news headlines unfolded. Indeed, BCCAAUP drew attention to this issue in their petition challenging the Boston College authorities: 'Given the sensitive nature of the research and the complexities of protecting human subjects in this case, the committee should also investigate the extent to which the research methods and procedures were subject to institutional review and oversight' http://www.change.org/petitions/boston-college-investigate-belfast-project. McIntyre also chastised BC for never 'properly engage[ing] its formidable array of lawyers' (2012: 11). Notwithstanding the significant omissions in regards to avoidance of harm in the BP, this lacuna in ethical procedure may, however, also be related to the wider, commonplace perception that informed consent both mitigates against harm to research participants and negates participants' ownership of the data they have contributed.

2) Consent and Ownership

3.11 Informed consent is often positioned as mitigating against researcher responsibility for potential harm to research participants: 'informed consent becomes particularly significant where there is the possibility, however remote, of adverse consequences for a participant' (Oliver 2003: 30). However, according to the BSA guidelines, consent does not negate the researcher's responsibility to anticipate or prevent harm and nor does it make harm permissible (i.e. ethical). Likewise, the SAI stipulates that 'sociologists are not absolved from this responsibility by the consent given by research participants' (undated: 7). Consent is also bound up with issues of ownership, and highlights further complexities of ethical competence.

3.12 Many ethical guidelines recognise that what might be experienced as harmful can be subjective and contextual (above). Moreover, potentially harmful outcomes can be more difficult to pre-empt in sociological/social science research than, for example, in laboratory-based medical experiments: 'in the social science area, the nature of potentially adverse consequences can be more difficult to predict' (Oliver 2003: 31). Nonetheless, consent is only considered meaningful in the context where possible harms and protective boundaries have been established with participants. For example, the potential harm to participants and researchers was clearly apparent in the nature and purpose of the BP and was a key feature in the negotiations with research participants. Participants consented to have their experiences recorded solely on the basis that the data would be securely stored until after their death. Only then would their (non-annonymised) personal histories be used to create a range of freely available public archives. The conditional nature of the consent given in the BP is evident in the dialogue at the beginning of Brendan Hughes' testimony in Voices from the Grave, where, for the first time, and clearly on the basis of the assurances made regarding confidentiality, he openly acknowledges his membership of the IRA.

Interviewer: Do you have a problem with committing all of this to secret tape to be used only after you have died?

BH: I don't have a problem with that. If I did have a problem with that I wouldn't be sitting here talking […] A lot of the stuff that I'm saying here I'm saying it in trust, because I have a trust in you. I have never, ever, ever admitted to being a member of the IRA, never, and I have just done it here. (http://bostoncollegesubpoena.wordpress.com/supporting-documents/voices-from-the-grave-documentary/#vog)

3.13 It is widely stipulated that informed consent involves more than researchers simply 'stating the risks and discomforts' and gaining acquiescence to them, but also that participants must be informed of their right to withdraw from the research at any time (ASA 1999; BSA 2004; Clough and Nutbrown 2008; Gray 2009; ISA undated; Oliver 2003). The right to withdraw offers protection to the research participants both during the research interaction/s and also as the research progresses through the analysis and into publication (Inckle 2007). In this way the 'right to withdraw' constitutes ongoing consent so that if, subsequent to their contribution, a participant recants and no longer wishes to be involved in the research they can withdraw their consent and their data will be returned to them and destroyed (Inckle 2010). Oliver describes this 'as an additional safeguard' and asserts that 'the participant is regarded as the owner of the data' (2003: 31). This statement of ownership, in the context of the right to withdraw, appears to remedy to the issues emerging from the BP, in that if living contributors remain the owners of the data, then they can prevent potential harm by withdrawing their consent and requesting its return. However, Oliver goes on to provide an exclusionary clause by suggesting that 'ownership of the data' only includes the original recording (e.g. audio, video, digital) and not the transcripts made from them. For Oliver, transcripts are 'interpretations' of the data constructed by, and therefore the property of, the researcher (2003: 31). This caveat is troubling not least because it is located within a text aimed at research students (e.g. The Students' Guide to Research Ethics). Learning resources whose ethical standards incorporate clauses which negate the stated principle – in this instance of ownership – surely mitigates against the development of ethical competence and integrity.

3.14 Nonetheless, despite Oliver's caveat, if the BP had ascribed to participant-ownership even at this level, then the current situation would have been averted. For example, once participants became aware of the interests of the UK courts they could have withdrawn their consent, requested the data be returned, and the original recordings would have been restored to them for destruction. Under Oliver's protocol transcripts would remain, but it could be contested whether these would occupy legal status as evidence. Therefore, even within Oliver's limited research ethics, protection is afforded to participants of the BP. However, if participants maintained full ownership then the issue would be circumvented altogether.

3.15 A more robust position in regards to consent and ownership is again is evidenced by the position of the academic supervisors in the RTC. Here, participant consent was equated with obligations regarding protection of the the raw, non-anonymised data which was destroyed rather than transferred to a third party – even when that third party had legal standing. Had the BP taken this position and destroyed the data contributed by still living participants – which McIntyre has petitioned BC to do http://www.rte.ie/news/2013/0127/364750-boston-college-dolours-price/ – then a very different outcome would have emerged: an outcome much more congruent with the expectations of participants who contributed their experiences as well as the researchers who collected them.

3.16 Issues of ownership are further complicated by the current research climate where research is often owned by a PI, funder or body other than the person who is actually conducting the fieldwork. This diminishes the researcher's control and ownership over the data and the ethical decisions made. In the case of the BP this meant that the promises made by researchers to the participants were overruled by BC. In the RTC the data (and recording device) were also institutional property, but here the academic supervisors acted in accordance with the guarantees made to research participants and deleted research data rather than violate ethical commitments. The case of the BP seems to indicate that researchers who do not own the data that they collect should be extremely cautious about the parameters outlined by the project owner/s and subsequent promises made to research participants. The lesson here seems to be that all promises, including those made by project owners, require thorough investigation before the research proceeds.

3.17 Further complexities of ownership are elaborated in the ASA, BSA and ISA ethical guidance. Under the heading 'professional integrity' the BSA specifically cautions researchers regarding awareness of 'national laws and administrative regulations … which may affect the conduct of their research, data dissemination and storage, publication, rights of research subjects, of sponsors and employers etc.' (2004: 2). Researchers are again reminded of this in the section on 'anonymity, privacy and confidentiality' which explicitly states that 'research data given in confidence do not enjoy legal privilege, that is they may be liable to a subpoena by courts and research participants should be informed of this' (2004: 5). Likewise, in an international context, social researchers are cautioned that in general they 'have no right to withhold evidence and could therefore come under pressure from the police and courts to hand over data. This is particularly relevant for sociologists working with deviant behaviour and criminality' (Hopf 2004: 337). It does not seem unreasonable, then, to expect the owners of the BP to have conducted some background research regarding legalities and possible consequences of the project across the jurisdictions involved prior to it commencing. Indeed, it is significant that such procedures were apparently not mandated by the ethical review board/ethics committees involved in the BP (above), particularly when the ASA code of ethics (subsection 11:02(a)) stipulates that 'sociologists [must] inform themselves fully about all laws and rules which may limit or alter guarantees of confidentiality' (1999: unpagnated). In contrast, supervisors in the RTC had only the protocols of one jurisdiction to confront when making their ethical decisions, but nonetheless prioritised their ethical commitments.

3.18 Finally, in the ASA, BSA and ISA codes of ethics, consent is bound up in commitments to protect the anonymity of research participants and the non-disclosure of identifying material, a principle which is also reflected in research text books (e.g. Clough & Nutbrown 2008; Gomm 2008; Mauthner et al. 2002; Oliver 2003; Richie & Lewis 2003). Both the BSA and ISA (using almost identical language) specifically caution researchers to avoid both 'unrealistic guarantees of confidentiality' and 'not to permit communication of research films or records to audiences other than those to which the research participants have agreed' (BSA 2004: 3; ISA undated: 6). These stipulations combine both ontological issues (the law of the land – or 'unrealistic guarantees') with a reflexive competence that requires balancing often competing demands. The ASA (subsection 11:01(a)) goes further and stipulates that sociologists are obligated to protect confidentiality 'even if is there is no legal protection or privilege to do so' (1999: unpaginated). In this light the original guarantees made by BC seem at best naive and at worst founded on poor knowledge and a worrying lack of background research regarding the legal context and ethical parameters in which the research was taking place.

3.19 A key element of meaningful, i.e. informed, consent is adequate information regarding the research, its purpose, process and any possible risks or consequences (ASA 1999; Denscombe 2002; Kent 2000; Liamputtong & Ezzy 2005; Thomas & Hodges 2010). It is standard procedure for this to be contained on an information form, which provides potential participants with an outline of the research and the contact details of the researcher – and supervisor or PI in the case of student or contracted research (for templates of information forms see: Denscombe (2002: 192-3); Thomas and Hodges (2010: 92); Kent (2000: 85) http://www.socialwork-socialpolicy.tcd.ie/research/ethics.php (click on 'ethical approval form')). Protocols stipulate that participants have the opportunity to ask questions or raise concerns, and only once they are satisfied do they sign the consent form (examples of consent forms available in Denscombe (2002: 192-3); Inckle (2007: 223); Thomas & Hodges (2010: 92); Kent (2000: 84)) – some researchers use a combined information and consent form, especially when conducting online research (Liamputtong & Ezzy 2005). Feminist researchers often provide additional protection to participants by providing them with a transcript agreement (Byrne 2000: 154) or researcher commitment form (Inckle 2007: 224). This form is signed by the researcher and outlines the rights of the participant, the ethical obligations of the researcher and incorporates any stipulations requested by individual participants.

3.20 Documents in the public record for the BP show that a combined information and consent form were provided to research participants which were referred to as 'Agreement for Donation' http://bostoncollegesubpoena.wordpress.com/exhibits/respondent-hughes-agreement/. These documents, signed by each participant, contained the commitment that the recordings would remain securely locked away in BC until the participant's death. However, the BC authorities claimed that this guarantee was only ever made within the parameters of US law and would never be assumed to take precedent over legal standing. BC also claim that this caveat was made clear in the contract signed by Ed Moloney. (Moloney's contract was, one stage, available on the World Press website http://bostoncollegesubpoena.wordpress.com, but it is no longer available). McIntyre (2012) also acknowledges that the contract signed by Moloney contained the legal caveat, but argues against it superseding the guarantees made on the 'Agreement for Donation' forms. Nonetheless, the lack of clarity and consistency in interpreting the guarantee at different levels of the project is in itself an ethical issue, which is all the more notable in light of the political sensitivity of the project.

3.21 The lesson here seems to be that in cases of sensitive research where data may be of interest to the courts of law, it is essential that the situation regarding legal privilege and the position of the researcher/s and owner/s of the project is thoroughly investigated prior to commencing the research and is clearly outlined to all involved. It also seems that when researchers are involved in gathering sensitive data but are not project owners, they cannot rely on the guarantees from project owners and should conduct their own investigations regarding legal standing. Moreover, as with all of the other ethical concepts discussed (e.g. 'justice', 'harm' (above), 'sensitive research' is itself intertwined with issues of definition, politics, power and responsibility (Seiber 1993).

3) Sensitive Research

3.22 The discussion of ethical practice thus far has highlighted some of the possibilities by which stringent and thoroughly investigated protocols around, for example, avoiding harm, consent and ownership may have impacted on the difficulties and dangers faced by those involved in the BP. When the additional cautions which are applied to researching sensitive topics are considered – such as the need for multiple perspectives and responsible stewardship – further protections for participants in the BP emerge alongside cautionary lessons for future researchers.

3.23 Research is defined as 'sensitive' for a variety of reasons: including, for example, that it includes experiences of a taboo, intimate or distressing nature (Lee 1993; Renzetti & Lee 1993; Seiber 1993). Likewise, research which includes those involved in violence, criminal or dangerous activities is considered particularly sensitive and raises complex issues regarding the extra vigilance and forethought around ethical dimensions, alongside more in-depth justification of the research itself (Hopf 2004; http://www.socialwork-socialpolicy.tcd.ie/research/ethics.php). Such research may be justified by the claim that it meets specific needs of a community or a society which cannot be adequately explored by any other means as in the case of the BP (above). Thus, 'the researcher should learn what kinds of outcomes community members would consider a benefit and plan to give back to the participants and their community as many of those benefits as possible' (Seiber 1993: 18). The rationale for the BP was formulated not only in terms of contributing to the historical record, but also in terms of aiding future conflict-resolution.

It was envisaged that the material would be of benefit not merely to historians but also to people involved in conflict-resolution and policy-making right across the board. If the causes of politically violent conflict can be better understood and anticipated in advance then it stands to reason that the potential for averting such conflict increases (Mcintyre 2012: 4).

3.24 However, future benefits of sensitive research can only be achieved when the risks and outcomes have been assessed from multiple perspectives. Moreover, like concepts of 'justice' and 'harm' (above), there can be no taken-for-granted meaning of sensitivity.

Different groups are likely to perceive the research differently … Sensitivity and the perception of risk are highly subjective. What the research participant or gatekeeper perceives as a risk or as a sensitive matter may not be perceived as such by the investigator … Some sensitivities have to do with differences in values and political agendas. (Seiber 1993: 17-18).

3.25 In regards to the BP it is reasonably foreseeable that data containing information about unsolved, open murder cases would be of interest to the presiding jurisdiction as well as to victims' families and communities. Moreover, in the context of an evolving political context where parameters of history and legality are still contested a multi-perspective approach is all the more important. This multi-view approach was absent from the BP, which apparently deemed accounting for 'both' sides of 'The Troubles' as an adequate framework, rather than acknowledging there are more than two perspectives bound up in the conflict – including those of UK legal authorities. Such a limited approach is at best naïve, and here dangerously neglectful. Guidance on the ethical conduct of sensitive research stipulates 'trying to imagine unintended consequences' (Gillies & Alldred 2002: 44) and cautions researchers that 'individuals or communities may be helped or harmed by the conduct, publicity and results of the work' (Seiber 1993: 15). In the RTC research sensitivities are less apparent because the purpose of the research project and the content of the deleted data is not in the public domain. Nonetheless, the supervisors considered the implications of their actions from the perspective of the research participants, the commitments to anonymity and confidentiality made by the researcher, the institutional policy on ethics, legal standing and their own position (Ryan 2012; http://www.mayonews.ie/index.php?option=com_content&view=article&id=15115%3Arape-tape-investigation-criticised-&Itemid=51).

3.26 Finally, 'responsible stewardship of the data and all the knowledge that is gained' (Seiber 1993: 19) is integral to ethical conduct in sensitive research. The stewardship outlined to participants at the outset of the BP appears to be both responsible and protective. Indeed, the fact that the data was to be stored in a research archive outside of the UK and RoI apparently added to the safety afforded. But responsible stewardship requires more than appearances, and it is crucial that protections offered are based on legal fact and the explicitly stated intentions and boundaries of those who 'own' the data archives. The stewards of the BP archive at BC were not willing to take responsibility for contesting legal demands for disclosure of the material, despite the assurances given to research participants which implied that their protection was inviolable. In the RTC the stewards demonstrated a much higher level of responsibility for the guarantees of anonymity provided to participants and indicated acute sensitivity to how 'individuals or communities may be helped or harmed' by disclosure of the material. The decision, by which the RTC supervisors were willing to put themselves at risk of legal censure before they endangered research participants, demonstrates unwavering commitment to the guarantees made to the research participants.

3.27 The lesson here follows on from the earlier stipulation regarding clear, consistent documentation – and interpretation of it – for all parties. Sensitive research, and especially that which may be of interest to legal bodies, requires that researchers and project owners explicitly define a single standard of responsibility and stewardship and ensure it is communicated to all involved. Moreover, these guarantees must be promises that can and will be kept regardless of what transpires, and should only be given after full consideration of all possible consequences has taken place. And while this might seem to place an impossible burden on those wishing to conduct research, guarantees could be formulated along the lines in which confidentiality and its limitations are set out by statutory services in RoI in order to comply with child protection legislation (Department for Children and Youth Affairs 2011). This would mean indicating, for example, that everything disclosed during the research interaction will remain anonymous and be protected from legal privilege unless a child (or 'vulnerable adult') has been, or is currently being, harmed. (Obviously if the researcher and/or project 'owner' is not willing to challenge legal privilege then this would be stated here instead). This kind of statement equalises the self-protection for the researcher and research participants who may then chose to proceed – or not – in full understanding of the extent to which they are protected by and/or from the law.

3.28 Overall then, researching sensitive topics, especially those which involve illegal activities, requires extra vigilance on the part of those who conduct research as well as those who have ownership of it including funders and host institutions – BC in the case of the BP. It necessitates thorough exploration of issues around legal privilege and adopting a clear position in relation to it, as well as viewing the possible consequences and outcomes from multiple perspectives. Sensitive research requires a clear baseline ethical standard which informs all subsequent decisions regarding the protection of the data, including under legal duress. This kind of vigilance would have prevented the on-going legal battle over the BP archive and the risk, distress and reputational damage caused to all of those involved.

Concluding Reflections and Lessons for Ethical Practice

4.1 The issues arising from the BP and the RTC provide some significant and cautionary lessons for sociologists conducting and teaching ethical research in the current research climate. These lessons highlight essential components of ethical research, especially regarding sensitive topics, which include:

• Cognisance of cultural and temporal contexts which may create very different understandings of concepts such as 'rights' and 'justice'.
• Context-specific exploration of possible consequences and harms to research participants, researchers and others involved in, or affected by, the research.
• Consideration of the potential risks, harms, benefits and interests in the research from the perspectives of multiple and contrasting interest groups.
• Securing legal advice across all affected jurisdictions regarding the possible consequences of gathering and storing data when research participants are themselves, or have named other, living individuals who may have committed crimes.
• Attention to national precedents regarding legal privilege, ensuring that the researchers and project owners are well informed regarding the jurisdictions relevant to the research.
• With regard to the legal situation (above), the adoption of a robust position (an ontological bottom line) regarding the researcher/s and project owner/s stance, i.e. are parties prepared to risk the consequences of breaking the law to protect research participants? Research should proceed only once this is agreed, and this principle must inform all subsequent decisions.
• Clarity and consistency regarding the rights of participants, including: the extent of their ownership over the data they contribute; the parameters of their right to withdraw; and any limitations of anonymity and confidentiality.
• Researchers, especially those who are not project owners, need to be aware of the limits of their own role and ownership regarding the data and explicate this during their interactions with research participants.

4.2 Overall, then, it is essential to remember the locatedness of all of the concepts, perspectives and values which inform sociological research and education in research ethics. 'Our ethical stance will reflect our own moral, political and cultural location in the social world' (Birch et al. 2002: 1) – and this may be very different from the location, beliefs and perspectives of our research participants, the research owners and legal professionals. This means that researchers cannot take for granted even fundamental concepts such as justice, harm and sensitivity, and that we are ethically obligated to fully explore and explicate their meanings before we commence our research. It is also essential that we comprehend the relationship between our role and legal privileges across all the jurisdictions which may be involved so that ultimately neither researchers nor owners of research projects make promises that they cannot or will not keep.

Notes

¹ It has also been suggested that Moloney's (2010) publication Voices from the Grave and the subsequent TV documentary were also instrumental in alerting the UK authorities to the content of the BP archive (McIntyre 2012; http://www.rte.ie/news/player/2013/0604/20208652-appeals-court-restricts-release-of-boston-college-tapes/). However, this view is not shared by those involved in the project, and it has even been suggested that if this was the case, then it provided BC with substantial time to produce a legal defence and protection of the archive (McIntyre 2012).

² In 2014 Gerry Adams, Leader of Sinn Fein and MNILA, was arrested and questioned in regards to the disappearance and murder of Jean McConville. His arrest was controversial since the case against him allegedly relied on the testimony of Brendan Hughes (made public in 2010) and not new material from the BP archive. This led to accusations of political motivation since Adams' arrest was immediately prior to the European and local elections (http://www.irishtimes.com/news/politics/gerry-adams-complains-to-psni-over-his-arrest-1.1788017 http://www.irishtimes.com/news/politics/mcdonald-claims-adams-arrest-politically-contrived-1.1780051).

³ The Oral History Society also produces a code of ethics which address a number of ethical issues specifically in the context of oral history research http://www.ohs.org.uk/ethics.php. The Oral History Network of Ireland also provided a forum for McIntyre (2012) to explore the BP and its consequences.

⁴ The BSA statement acknowledges the codes of ethics of the Social Research Association, the ASA, and the Association of Social Anthropologists of the UK and Commonwealth as formative documents.

⁵ Other headings include 'professional integrity', 'relationships with research participants', 'covert research', 'anonymity, privacy and confidentiality', 'relationships with and responsibilities towards sponsors and/or funders' and 'obligations to funders and/or sponsors during the research process' (BSA 2004).

References