Reflections on State Use of Sex & Deception

The stories that have come out about under covers having had long-term relationships with women in activist groups, make you wonder if nothing has been written about this before. The questions around this issue are many, they are complicated and intertwined. It is difficult, for instance, to separate the question of how the women involved deal with what has happened to them on a personal level, and the problem of which legal steps to undertake, when the law is in fact inadequate as an instrument – since no rules have been written to address this.

However, as the case of the eight women who launched legal action against the Metropolitan Police for the harm caused shows, there is evidence that under covers have been engaged in intimate relations with women active in the groups the officers infiltrated, again and again in a period of at least 30 years – in the UK only. This implies that there was something of a strategy behind it, or at least that supervisors and those higher up responsible for the infiltration operations did not have a problem with state use of sex.

My project researching Secret Manoeuvres includes locating existing literature, and providing it to those interested.
One of the few academic articles I have found so far, is written by the American sociologist Gary T. Marx, now Professor Emeritus of Sociology at M.I.T. He has been writing about infiltration, protest and surveillance since the 1960s, and he is still going strong. His writing was an inspiration for my PhD, Secret Manoeuvres is the popular version.

Under-the-Covers – Undercover Investigations: Some Reflections on the State’s Use of Sex and Deception in Law Enforcement, the 1999 revision of article in Criminal Justice Ethics, vol. 11, no. 1, pp. 13-24, Spring 1992. The entire article is worth reading, but here I will lift the bits that refer to the cases at hand.

State-sponsored deception, of course, raises all the ethical issues generally associated with deception. 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, (…) the situation becomes more complex. Manipulation, temptation and deception (whether involving motives and/or identity) are joined in a potentially explosives mix.

In this article I will focus on the limited topic of sex and undercover investigations. The 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 ways that sex is used in undercover investigations? (3) How should we judge this behavior?

The nice thing about Gary Marx being a sociologist, is that he does not scare away of addressing many different aspects while trying to come to an answer.

There is a natural congruence between covert means and sex more generally and sex and undercover activities show parallels. Both are private activities. Those not directly involved are unlikely to know the details.

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. (…).

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.”

But here is where it get more interesting, I think this can help to put in words the essence of what has happened to the women involved:

As part of a larger study of undercover practices I have identified a number of ethical justifications for, and objections to undercover work. 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. Our sense of freedom, autonomy and well-being depend partly on our ability to control information about the self and on our being able to voluntarily enter into relationships with others free from both coercion and deception.

Undercover work exploits the cognitive and behavioural aspects of intimate relations by using them for purposes beyond the relationship itself. As Davis observes, intimate relations inherently involve and develop trust based on the revelation and toleration of a wider range of attitudes, inclinations, and behaviour than is the case with more casual relations. This trust leads to the exchange of “confidences,” some of which will clash with the public image the individual would like to project.

Covert operations, with their duplicity and betrayal, trade on the trust that is essential to, and defines, these primary relations. Anything that debases that trust must be viewed as undesirable (if not necessarily always indefensible). It is in this regard that seduction is the moral equivalent of rape because they both deny the dignity and freedom of the individual.

Marx then presents a model of four different forms of intimacy in undercover enforcement, depending on the presence of (presumed) psychological intimacy, and/or sexual intimacy.
Of course he concludes that the cases with psychological and sexual intimacy are more unethical than those with ‘just’ platonic friendships. He goes on to explain that when the issue is illegal prostitution, a.k.a. sex on the market place, deception presents a case less grave on his scale – but let’s leave that discussion for another moment.

Arriving at his category ‘seduction’ Marx speaks of the use of sex in classical espionage (the Russians!), and sex used to blackmail officials. But then it gets interesting again, although the examples used are from the 1960s and 1970s:

In the context of stigmatization and/or disruption, the goal is to create difficulties for a group without resort to legal sanctions. This is a classic tactic directed against politically suspect groups. For example, an informer who infiltrated the Dallas CISPES (Committee in Solidarity with the People of El Salvador), a group which regularly met in a church, reports that his FBI contact encouraged him to seduce one of the nuns in the group and film it. The Church Committee Investigation of the FBI’s COINTEL program cites a Klan informant who testified that he was instructed “to sleep with as many wives as I could” in an attempt to break up marriages and gain information.

In the context of intelligence collection, the official goal is preparedness and prevention. The infiltration of dissident political or criminal groups (or milieus) for monitoring purposes is a well-known tactic. In a Los Angeles example, an undercover agent who had infiltrated a local Maoist political organization became the boyfriend of one of the women he spied upon. Under oath he testified that, after consultation with his superiors, he regularly engaged in sexual intercourse with the woman. The relationship was used to help gather information about the woman and her associates and to establish the agent’s credibility. He later testified that during the seventeen months he was undercover, he never heard anyone in the organization talk about committing crimes, nor did he see any weapons.

Marx is quick to dismiss infiltration in order to disrupt political organisations (or criminal ones for that matter) Disruption (just like blackmail) is illegal and immoral, and “there is little to discuss in a society in which conduct is governed by due process and political expression is protected.”

However, in my view, Marx does not pay enough attention to the implication of the women involved, as this case study shows.

A further example can be seen in the FBI’s effort to locate fugitives from the Weather Underground faction of Students for a Democratic Society. A federal agent posing as a radical infiltrated a student milieu thought to be close to this faction. He developed a relationship with a political activist, and she became pregnant. After considerable indecision, and at the urging of the agent, she had an abortion. His efforts did not locate the fugitive. The agent’s work then took him elsewhere, and he ended the relationship. The woman apparently never learned of his secret identity and true motives. The situation would have been more complicated had she decided to keep the child or died in childbirth or developed a sexually transmitted disease or become mentally unstable.

An undercover operation might be directed against a particular group or individual because there is a suspicion of criminal activity. For example an officer who successfully infiltrated an international drug ring was greatly aided by having an affair with one of the group’s leaders. Marx is quite clear about such situations:

[T]he mere fact that the goal is legal is not sufficient to conclude that it is sound as public policy. Legality is a necessary but certainly not a sufficient condition for the use of sex in an investigation. Here it is appropriate to recall Justice Stewart Potter’s observation that just because there is a legal right to do something, it does not mean that it is the right thing to do. After determining that the goal was legitimate we must next ask, How was sex used in the investigation?

The arguments summed up by Marx for the use of sex in cases not directly tied to a crime, resonate the explanations used by Minister of Policing Nick Herbert in the Parliament debate when he was questioned about the behaviour of Kennedy and Lambert by Caroline Lucas in Parliament, and Deputy Commissioner Craig Mackay struggling at the Police and Crime Committee of the London Assembly on 27th September questioned by Jenny Jones, the Green member the London assembly.

Sexual involvement is not bait held out in reward for participation in illegal activities. Instead, it is used to help the individual fit into a criminal environment or setting. The sexual behaviour adds credibility and may be a means of gaining information. It can also be a self-protective device since not to become involved (whether with sex or drugs) would cast suspicion on the agent. The offering of a woman can be a test and may create a dilemma for the agent. One agent notes: “Avoiding sexual compromise is no easy task when working undercover. It is, in fact, one of the job’s greatest challenges.”

This second form certainly raises ethical issues, but they are ancillary to the criminal behaviour. The violation of trust is a price paid to obtain, or at least not to block, obtaining some other end. This is not as abhorrent as using sex to tempt the target into illegality. It is also less morally unacceptable if the agent is a passive respondent rather than the initiator.

Marx continues to examine various cases, to see which ones are more, and which ones are less acceptable. None of his reasoning is very convincing at this point, I think. But that may be because his starting point is that some kind of infiltration should be possible – and I disagree. (Going down that road you get into thought experiments like, should infiltration with the intimacy aspects be voluntary. And will men be more eager than women. Yuk.)

Some of his questions, however, do come back in the discussions today:

Is a romance to gain a confession for say murder or to search for the Weather Underground fugitives more acceptable than sex used to further the commission of a crime? Is a relationship in order to solve a serious crime more acceptable than the infiltration of the Los Angeles Maoist group described above, which was undertaken for diffuse intelligence gathering?

Does the successful confession in the murder case mean that use of the tactic was more acceptable than in the Weather Underground case, where the fugitives were not found? If the Los Angeles case had discovered a plot to blow up City Hall, the agent would likely have been a hero. But he apparently found nothing. It is tempting to make the end result the criterion for judgement. Yet such a criterion conflicts with the important principle that means have a moral component, apart from ends.

If, Marx brings up, in pursuing the broader social good, harm is done to individuals (for example, in the cases of the duped pregnant woman and the romantic partner in Los Angeles) should they be entitled to compensation as a result of being innocent third-party victims harmed by an undercover investigation?

Marx does not give an answer.

Of use for the coming case in the London Court, it might be good to know, that in the 1990s some rules were set in the US (I do not know if they have been amended since, or have been overruled in the meantime).

The U.S. Court of Appeals for the Second Circuit recently set forth criteria for establishing when sexual relations between a government agent and a defendant constitute “outrageous conduct that would require dismissal of an indictment. To rise to a level of a constitutional violation it must be shown that (1) the government “set out to use sex as a weapon in its investigatory arsenal” (2) a government agent initiated the sex or allowed it to continue to achieve a government goal, and (3) the sexual relationship occurred during or close to the period covered by the indictment and “was entwined with the events charged therein.”

In the concluding paragraph, Marx sums up a lot of ifs and oughts – conditions in which infiltration and further deception might be used by authorities.

In considering the ethics of sex as a part of an undercover investigation, I would take the same approach as I took to the general question of whether undercover tactics were ethical.The answer depends on responses to a series of questions about the specific case. I argue that the greater the affirmative or “harm-avoiding” answers, the more justified undercover means are. The questions involve seriousness, alternatives, democratic decision-making, consistency with the spirit of the law, prosecution as a goal, clarity of definition, crime occurrence, grounds for suspicion, prevention, autonomy, degree of deception, bad lessons, privacy and expression, collateral harm, equitable target selection, realism, and relevance of the charges.

Our assessment should also be conditioned by the goal of the investigation, the cost of taking no action, the degree of intrusion and the nature of the betrayal, the skill of the operatives, and the likelihood that the deception will be publicly judged in court. But in general there should be a strong presumption against trading in the currency of intimate relations, no matter how noble the goal.

The problem with the suggested guidelines, is that the recent examples and those further in the past in the UK show that there was never such a balanced decision to start an operation, to continue it, and to use sex – or not. Without any kind of regulation for surveillance and infiltration of campaigners and activists, there is no forum to hold the police or intelligence agents to account. The dozen or so of official reviews into the Kennedy case have not been very promising as examples of transparency either. On the contrary. Without any legal framework or other forum of accountability, suggestions for possible acceptability of infiltration and intimate deception will only be used as rather cheap  excuses to cover up unacceptable practices.

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