Criminalization of scientific misconduct

Medicine, Health Care and Philosophy https://doi.org/10.1007/s11019-018-9865-7 SCIENTIFIC CONTRIBUTION Criminalization of scientiic misconduct William Bülow1 · Gert Helgesson2 © The Author(s) 2018 Abstract This paper discusses the criminalization of scientiic misconduct, as discussed and defended in the bioethics literature. In doing so it argues against the claim that fabrication, falsiication and plagiarism (FFP) together identify the most serious forms of misconduct, which hence ought to be criminalized, whereas other forms of misconduct should not. Drawing the line strictly at FFP is problematic both in terms of what is included and what is excluded. It is also argued that the criminalization of scientiic misconduct, despite its anticipated beneits, is at risk of giving the false impression that dubious practices falling outside the legal regulation “do not count”. Some doubts are also raised concerning whether criminalization of the most serious forms of misconduct will lower the burdens for universities or successfully increase research integrity. Rather, with or without criminalization, other measures must be taken and are probably more important in order to foster a more healthy research environment. Keywords Criminalization · Fabrication · Falsiication · Plagiarism · Scientiic misconduct Introduction Scientiic misconduct and fraud is a prevailing problem in science and threatens to undermine integrity, credibility and objectivity in research (Fanelli 2009; Pickett and Roche 2018). It also risks undermining trust, both among researchers and the general public (Shamoo and Resnik 2009; Hansson 2011; Resnik 2014). It is therefore important to consider the possible means of countering fraud and misconduct in research. The perhaps most drastic suggestion is that at least the most serious forms of fraud and misconduct, such as fabrication and falsiication, should be criminalized and, when it has occurred, punished (Redman and Caplan 2005, 2015; Sovacool 2005; Bhutta and Crane 2014; Pickett and Roche 2018). By criminalization we here mean the decision of making some action a criminal ofense for which one may merit criminal punishment, such as ines, community service or even incarceration. * Gert Helgesson [email protected] 1 Department of Philosophy, Stockholm University, Stockholm, Sweden 2 Stockholm Centre for Healthcare Ethics (CHE), Department of Learning, Informatics, Management and Ethics, Karolinska Institutet, Stockholm, Sweden The need for criminalization of scientiic misconduct has been defended in the bioethics literature (see e.g., Bhutta and Crane 2014; Redman and Caplan 2005, 2015; Sovacool 2005; Pickett and Roche 2018). However, from a philosophical point of view, the decision to criminalize a particular action stands in need of a moral justiication. Criminal punishment, such as imprisonment, involves either intentional harm or the intentional deprivation of some good, such as liberty. It also has negative consequences for family members and those socially, economically and emotionally dependent on the person being punished. Granted that there is a prima facie duty not to intentionally harm others, a moral justiication for criminalizing a certain behavior, and thereby allowing for the imposition of punishment, is therefore required. Among those who defend the need of criminalizing serious scientiic misconduct, the assumption is often made that fabrication, falsiication and plagiarism (FFP) are the most serious forms of misconduct (Bhutta and Crane 2014; Sovacool 2005). In line with this assumption, it has been argued that these are the types of misconduct that should be criminalized, whereas other forms of misconduct, such as selective presentation of results, sloppiness and inappropriate use of statistics, are explicitly excluded (Sovacool 2005). Others reject this idea, arguing that serious misconduct that 13 Vol.:(0123456789) W. Bülow, G. Helgesson should be criminalized includes more than FFP (Redman and Caplan 2005; Pickett and Roche 2018). In this paper, we will raise a number of concerns with regards to proposals of both kinds. The ambition is not to give the inal answer to whether or not scientiic misconduct should be criminalized and, if it should, how the details of such law should be construed, but rather to provide some irst steps by pointing out diiculties that need to be considered before a decision can be made. In particular, we argue that given a tentative moral justiication for criminalizing research fraud and scientiic misconduct, a law targeting only or primarily fabrication, falsiication and plagiarism is both too inclusive and too exclusive; that is, it would include acts that arguably should not be criminalized and exclude behavior that arguably should be, at least if fabrication or falsiication is so. Even if drawing the line at FFP does not work, it can be diicult to decide which instances of scientiic misconduct ought to be criminalized. But even if it is possible to draw the line in a non-arbitrary way, we argue that if the aim of criminalization is to protect integrity and objectivity in research, it is not clear that criminalizing the most serious forms of scientiic misconduct will accomplish all that would often be expected of such a law. On the contrary, it may cause problems in its own. The criminalization of scientiic misconduct, despite its anticipated beneits, is at risk of giving the false impression that dubious practices that fall outside the legal regulation “do not count”. It is also far from certain that criminalization of the most serious forms of misconduct will lower the burdens for universities or successfully increase research integrity. Rather, with or without criminalization, other measures must be taken and are probably more important in order to foster a more healthy research environment. However, before we develop our arguments in greater detail, we will irst look at the possibility of justifying the criminalization of scientiic misconduct in the irst place. The moral basis for criminalization of scientiic misconduct Criminalization is an important topic in legal philosophy and the philosophy of criminal law, and substantial discussion has been devoted to the appropriate scope and use of criminal law (see e.g., Feinberg 1984; Husak 2008; Moore 2009; Duf 2014). Despite this, bioethical discussions on whether to criminalize scientiic misconduct rarely engage with this literature, at least as far as we know. Instead claims are sometimes made among those who defend criminalization that many instances of research fraud are similar to other types of criminalized behavior, such as inancial fraud or theft, and that scientiic fraud should therefore not be treated any diferently (see e.g., Redman and Caplan 13 2015). Arguments are also often made that sanctions are required for the sake of deterring potential fraudsters (e.g., Sovacool 2005; Redman and Caplan 2005, 2015; Bhutta and Crane 2014). Underlying each of these arguments is the concern that scientiic misconduct has negative efects on research integrity. Also the negative impact it might have on research participants and society as a whole is emphasized. Arguments by analogy are often weak. In particular, arguments of the kind that “B is justiied because B is similar to A in the relevant sense, which is justiied” leave the core question unresolved, since it does not show either that B or A is justiied. Although comparing research misconduct to behavior that is criminal has strong rhetorical efect, the relevant question is whether they share relevant moral properties and wrong-making features. And even if they do, it is not clear that sharing relevant wrong-making features is enough for criminalization. For example, not all forms of dishonest behavior are considered to be criminal, although they resemble other forms of fraudulent and dishonest behavior already criminalized. Hence, we better leave the analogies aside and address directly what is the appropriate scope and use of criminal law. Without adhering to a speciic normative theory of criminalization, we assert that for an act or behavior to be criminalized it must fulill the following three criteria: 1. The act to be criminalized should cause or threaten to cause non-trivial harm to others 2. The act should be wrongful 3. The law criminalizing the act should foster or promote an important value that is independent of the law Our irst criterion is a version of the Millian harm principle, according to which the state is allowed to interfere with an individual’s liberty and autonomy for the sake of preventing harm to others, whereas harmless immorality (if there is such a thing) is not a suicient ground for either criminalization or state interference (Mill 1977). However, in order to be criminalized, and to ultimately merit criminal punishment, the act or behavior must also satisfy the wrongfulness constraint. In other words, the ofense must constitute a wrong in a relevant sense, which is the second criterion. What qualiies as wrongful is, of course, open for debate. Following Douglas Husak (2009), we assert that the content of the wrongfulness constraint should be derived largely from moral philosophy. At the very least agents who intentionally and willingly do something that causes or threatens to cause non-trivial harm to others, without there being a suicient moral reason to do so, are doing something wrongful. Grave negligence, of some sorts, would also qualify as being wrongful, as when there is a duty involved, for instance a duty not to expose research participants to serious risks of harm. Criminalization of scientiic misconduct The claim that one only ought to criminalize wrongful acts which cause, or threaten to cause non-trivial harm, are often assumed in the context of criminal law, and it has been argued that this restriction provides internal constraints on criminalization (see e.g., Husak 2008). As Husak points out, the fact that an ofense should involve non-trivial harm is asserted in defenses, such as the defense of de minimis, which suggests that a defendant’s conduct did not actually cause or threaten to cause the sort of harm which the law sought to prevent, or did so only to an extent that is too trivial to merit any condemnation of conviction (Husak 2008, p. 67). Similarly, common excuses, such as the claim that the defendant committed the ofense under duress, suggests that he is less blameworthy (or perhaps not blameworthy at all) than if there had been no excuse. This asserts, however, that the original criminal ofense is wrongful. Otherwise excuses of this kind would not make any sense (Husak 2008, p. 73). One might also add that since punishment is a matter of expressing blame or censure, it is ultimately concerned with wrongdoing (see e.g., Duf 2014). As we discuss in the following section, criminalization should not only target wrongful acts that cause or threaten to cause non-trivial harm, but should also serve compelling instrumental purposes and promote an important value that is independent of the law. However, if we irst focus on the non-trivial harm and wrongfulness criteria alone, it is prima facie plausible that serious forms of scientiic misconduct may be criminalized. Fabrication and falsiication, for example, are arguably both wrongful and potentially harmful (Resnik 2014). In medical science, they may be harmful due to the consequences of being misleading about such things as treatment efects and patient safety. Besides its direct harm, it is also important to note that fraud can jeopardize the goods that may come out of science. Scientiic misconduct can also easily undermine the public’s trust in research, as it often attracts massive attention in public discourse (Resnik 2014; Hansson 2011). As Sven Ove Hansson has pointed out, this implies that research requires strict ethical standards in order to ensure public trust and minimize the risk that essential scientiic activities, including clinical trials and animal experimentation, become diicult or impossible to perform (Hansson 2011). That wrongful acts causing non-trivial harm may be criminalized does not mean that they must be. There may be good reasons why criminalization should be resisted even if these two criteria hold. While some philosophers may be inclined to say that the law should track morality, and that the fact that an act constitutes a serious moral wrong is in itself a reason to criminalize it, a more reasonable position, we think, is that having the law should also foster or promote important values that are independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice (Segev 2017). In the next section, we discuss the various values and ends that the criminalization of scientiic misconduct could promote. The rationale for criminalization of scientiic misconduct The question whether criminalizing scientiic misconduct helps promoting important values has been subject to discussion in the bioethical literature. The main argument in favor of criminalizing scientiic misconduct is that it is needed for the sake of protecting research integrity as well as research participants and the public at large (Bhutta and Crane 2014; Redman and Caplan 2005, 2015; Sovacool 2005). For instance, Sovacool (2005) argues that stricter penalties could help deter intentional acts of scientiic misconduct, such as fabrication, falsiication and plagiarism. In combination with better protection for whistle-blowers it could also encourage colleges to report instances of misconduct and give raise to institutional reform with the aim of fostering integrity and honesty in the scientiic community (Sovacool 2005). Similarly, Redman and Caplan (2005) suggest that criminal sanction for the most egregious cases of scientiic misconduct might suiciently raise the stakes to serve as a deterrent. In support of this claim they point out that if the maximum penalty for serious misconduct is no worse for junior researchers than the routine “penalty” for not publishing in high-ranked journals, this is not suicient as a deterrent given the beneits fraud may have for the individual who gets away with it (Redman and Caplan 2005). Therefore, being denied research funding or lose the possibility of securing a future career in academia is not enough as a deterrent. If they are right, this means that criminalization of serious forms of scientiic conduct can be morally justiied. Many of the arguments we have seen in defense of criminalizing scientiic misconduct focus on deterrence as the overall justiicatory aim of punishment. In contrast, other penal aims are not mentioned—or at least not explicitly so. It is therefore worth pointing out that arguments given in support of criminalizing scientiic misconduct may also ind support in the idea of retributive justice or from expressivist theories of punishment. According to standard retributivist theories, it is intrinsically morally good that wrongdoers get what they deserve, which is to sufer a punishment proportionate to the wrongfulness of their action (Walen 2016). In relation to scientiic misconduct, some may argue that merely being denied opportunity to apply for research funding or being able to secure an academic position is not a proportionate punishment for deliberate scientiic misconduct, especially since these are consequences that an unsuccessful junior researcher would face anyhow. A similar conclusion can be made on behalf of expressivist theories of punishment, in which the aim of punishment is to communicate 13 W. Bülow, G. Helgesson an appropriate moral condemnation or public denunciation of the wrongdoing (Wringe 2016). Insofar as the lack of formal punishment amounts to a failure to provide an appropriate moral disapproval, the expressivist could also favor criminalization of serious forms of scientiic misconduct in order to be able to communicate appropriate moral blame or public disapproval (Pickett and Roche 2018). Besides penal aims, defenders of criminalizing scientiic misconduct hold that the basic due process that would follow from criminalization is necessary in order to ensure a fair and balanced misconduct investigation (Sovacool 2005; Redman and Caplan 2005). Another potential beneit of criminalization is that it would take away the burden associated with such investigations from the universities, but also increase the legitimacy and eiciency of such investigations (Sovacool 2005). In contrast to the above, others have argued that there are other, non-punitive ways, in which to deal with the prevalence of scientiic misconduct besides criminalization. For instance, Birgitta Forsman has argued that we need to copy the safety thinking of aviation, introduce a system for “deviation reports” and focus on measures aimed at eliminating the risk for “accidents” (Forsman 2009). One of us has argued elsewhere that there is an essential lack of analogy between aviation safety and reduction of scientiic misconduct in that aviation personnel have no personal interest in causing aviation incidents, while scientiic misconduct may have a considerable payof for those doing it, if it remains undetected (Eriksson and Helgesson 2013, p. 54). However, one should be aware that the criminalization of scientiic misconduct may make researchers less likely to report incidence of misconduct, and hence lead to less detection of fraud, in comparison to a deviation report system. This is because the criminalization may raise the stakes and deter potential whistleblowers from reporting, as they may not want to send a colleague to jail or do not want to be involved in a criminal investigation. For the sake of the argument, we will accept that there is a sound moral basis for criminalizing serious scientiic misconduct, at least prima facie. In the subsequent sections we wish to point to some problems and complications that follow from such a position. In doing so, we start by raising some problems associated with equalizing serious scientiic misconduct with FFP. We then argue that there is a risk associated with criminalizing misconduct in terms of its possible perceptual efects, as it may give researchers the false impression that instances of misconduct that falls outside the legal regulation do not count. Last, we suggest that if serious misconduct is not to be conlated with FFP, the demarcation issue largely remains. We also raise doubts about whether criminalizing the most serious forms of misconduct will lower the burdens for the universities or 13 whether it will ensure fairness or help promote integrity in research. Diiculties with criminalizing FFP Two important questions to ask when criminalizing any area are: Is the appropriate set of cases included, and is the appropriate set of cases excluded? Put diferently, are any cases included that do not belong, and are there other cases that are excluded that should not be? If you want to criminalize serious cases of scientiic misconduct, then your criteria should ideally include all serious cases and nothing but serious cases. Nicholas Steneck (2006, p. 54) notes that it is commonly assumed that fabrication, falsiication, and plagiarism are “the worst behaviors” in the area of scientiic misconduct and deviations from good research practice. These are not the only forms of misconduct in research, of course. However, even though the deinition of scientiic misconduct varies between diferent jurisdictions, and in some cases even between universities (Resnik et al. 2015a, b), fabrication, falsiication and plagiarism are indeed considered the paradigmatic examples of serious forms of misconduct. In line with this, some proponents of criminalizing scientiic misconduct, such as Sovacool (2005), explicitly limit the concern to fabrication, falsiication and plagiarism, while excluding other types of behavior. Sovacool holds that criminalization should only cover those who “purposely, knowingly, or recklessly commit acts of misconduct” (2005, p. 4). At the same time Sovacool explicitly states that these “would not include the comparatively minor ofenses such as selective publishing of results, sins of omissions, sloppiness, inappropriate use of statistics, and dual submission of the same article to diferent journals” (ibid., p. 4). In what follows we criticize this proposal on the grounds that it includes too much, but also that it is too exclusive. Incorrect inclusions? Our irst criticism regarding equalizing FFP with serious scientiic misconduct is that too much is included; that is, FFP contains cases that are not cases of serious scientiic misconduct, or at least not obviously so. Some forms of plagiarism are an obvious case in point. Let us recall that plagiarism can be deined as “someone using someone else’s intellectual product (such as texts, ideas, or results), thereby implying that it is their own” (Helgesson and Eriksson 2015, p. 94). Plagiarizing groundbreaking ideas or large chunks of other researchers’ results are obvious examples of serious scientiic misconduct while, at the opposite end of the scale, free-riding on the phrasing of a couple of sentences by copying and pasting from a fairly standard background Criminalization of scientiic misconduct or methods section is not—what harm does it do, apart from upsetting those emotionally engaged in battling plagiarism? (Helgesson 2015) In other words, plagiarism in research seems to vary considerably in terms of seriousness, ranging from clear cases of scientiic misconduct to fairly insigniicant deviations from good research practice. Falsiication is a very broad category. While it contains cases of extensive manipulation of data, it may also contain less serious cases. For instance, consider a study where four outliers have been eliminated when analyzing data; while it is argued in the paper that this is done based on speciic theoretical considerations, mentioned in the paper, these as a matter of fact apply only to three of the four deleted measurement points, while there is no clear support for eliminating the fourth one. Another example of a less serious case could be that the research methods are described in a way that is not entirely correct, but the diference between what is described and what actually happened is slight and only makes limited diference to the outcome of the experiment. Even fabrication could be argued to contain less serious cases, depending on what the judgment regarding seriousness is based on. If interpreted as serious deviation from good research practice—i.e., serious from a scientiic perspective—then all fabrication is very serious. Arguably this should be enough as a basis for criminalization of scientiic misconduct, if such criminalization is justiied at all. But looking at societal consequences, the seriousness might be diferent. For instance, if someone fabricates data regarding the chemical composition of a comet passing at a safe distance from Earth, this may have little consequence outside academia (apart from the risk of contributing to the loss of trust in research if attracting a lot of media attention). What this discussion clearly suggests is that it has to be settled whether seriousness as a basis for criminalization of scientiic misconduct should strictly concern the degree of deviation from good scientiic practice or if impact on health, wellbeing, safety, or social stability, or ecological or other environmental efects, should also be considered, and in that case how. Given how many of those arguing in favor of criminalization of scientiic misconduct both consider FFP to be serious instances of misconduct while at the same appeal to the harm it may cause to the health and wellbeing of people as a reason for criminalization (see e.g., Redman and Caplan 2005; Sovacool 2005; Bhutta and Crane 2014), the fact that the connection between FFP and these sorts of harm is far from obvious in many cases should be acknowledged. One might respond to our argument so far that although there are instances of FFP that arguably are not serious enough to warrant criminal punishment, the claim is not that all instances of FFP must be punished. Instead, by targeting FFP one will capture the most serious forms of fraud, although not all instances of FFP will therefore be punishable, if they are negligible. However, the claim that FFP is what ought to be criminalized is problematic also for the reason that drawing the line here excludes equally serious forms of misconduct. Incorrect exclusions? Our second criticism regarding equalizing FFP with serious scientiic misconduct is that important cases get excluded. There are other cases of deviation from good research practice that are as serious as FFP. We propose that withholding results may be as serious, in some cases. One example we have in mind is withholding results showing that a new medical drug, about to become accepted by national medical agencies such as the Food and Drug Administration (FDA) in the U.S. or Läkemedelsverket in Sweden, in fact has severe negative side efects potentially leading to death or substantial loss of health and wellbeing for those treated with it. Scientiically, selective publication may promote a highly misleading impression of the efects and eicacy of introducing a new drug, thus constituting a severely biased set of information upon which to base health care decisions. It has also been pointed out that selective publication may be an even more worrisome factor for the possibility to reproduce scientiic studies when compared to instances of falsiication and fabrication (Pickett and Roche 2018). After having investigated public opinion on data fraud and selective publishing in the US, Pickett and Roche (2018) concluded that “there is a strong consensus among community members that both data fraud and selective reporting are morally wrong and deserving of serious sanctions.” Thus, contra Sovacool (2005), their results suggest that selective publishing of results is not conceived of as a minor ofense. Given how it gives rise to similar problems of publications being misleading as falsiication and fabrication, this is perhaps not so surprising. We suggest that selective publication is wrongful when misleading and sometimes threatens to cause non-trivial harm. Focusing only on the impact on research integrity, there are other examples of deviations from good scientiic practice that are as bad as or on par with FFP. For example, exaggerating the relevance and importance of one’s scientiic results or presenting speculations as facts all have negative impact on the integrity of research and may be deeply misleading (Redman and Caplan 2005). To make things even more complicated, another kind of case can be made for the position that criminalization of FFP alone would involve an unfortunate and mistaken exclusion of cases that actually should be included. The idea is that if the point of criminalizing scientiic misconduct is to eliminate or reduce harm stemming from scientiic research, whether internal to science or external to society, then it can be debated whether “serious harm” should be restricted 13 W. Bülow, G. Helgesson to cases involving serious harm in the individual case or if focus should be on the kinds of cases that bring the greatest overall harm. Although most universities have their own cases of fabrication, falsiication and plagiarism to feel ashamed of, evidence suggests that the prevalence is nevertheless fairly low, although numbers vary (Fanelli 2009; George 2016). In contrast, there may be other deviations from good research practice, perhaps harmless enough not even to be considered instances of scientiic misconduct by some, but that are much more frequent and therefore likely to involve a greater amount of harm overall (Eriksson and Helgesson 2013; Zigmond and Fischer 2002). It may be the case that the widespread tendency to make one’s research results look a little bit better than they in fact are on the collective level leads to overconidence in present beliefs and trends in results, thereby making it take longer before present positions and beliefs are questioned, thus slowing down progress in science. We suggest that this aspect is relevant to the ongoing debate on the diiculties to replicate results (Schmidt 2009; Francis 2012; Open Science Collaboration 2015; Anderson et al. 2016). As Zigmond and Fischer (2002) argue, the results section is “a prime area for misdemeanors” (p. 232). For example, common phrases such as “data not shown” or “unpublished observations” may be part of an efort to conserve space, but it could also be an attempt to inluence the reader with data that could not stand up for scrutiny (Zigmond and Fischer 2002). Although it is arguably not on par with falsiication or fabrication, this is a form of scientiic misconduct which misleads the reader and may have a negative impact on research integrity. Yet, it cannot be excluded that these and other examples have a greater overall efect on scientiic development than the total number of occurrences of fabrication, falsiication and plagiarism. We don’t have the evidence saying that it does, but we here want to point at the diiculty in estimating what is worse: a widespread occurrence of minor deviations from good research practice or a limited set of occurrences of a much more serious kind. More importantly, as we discuss in greater detail below, this is something that will not be solved merely by criminalizing the most serious forms of scientiic misconduct—this may even make the situation worse. not count”. This efect of stressing some unethical aspects of scientiic practice and disregarding others occurs, or may occur, any time when there is legal regulation of an area of ethical signiicance. Hence, legally regulated ethical review focuses on some ethical aspects of studies, because the law says it should, and disregards others, because they are legally insigniicant. Without further measures in order to counter less serious forms of scientiic misconduct, this may be worrisome. As Zigmond and Fischer (2002) point out, inattention to minor and less serious misdemeanors “may communicate the wrong message about the value of responsible conduct to our community (i.e., the scientiic community) and to the public-at-large” (p. 233). Unlike our arguments so far, this concern is not necessarily limited to the case of criminalizing merely or primarily FFP. Rather, it is problematic at any point where there is a law which only targets a limited, yet serious set of scientiic misconduct. With regards to the aims that a criminalization of scientiic misconduct is held to serve, perceptual efects of this kind may be worrisome both for those who wish to increase integrity in research, but also for those who hold that criminalization is required for the sake of expressing appropriate moral blame or public disapproval, since the message that follows from punishing only certain types of misconduct will be a misdirected or perhaps even an dishonest message, especially if cases that are just as bad as FFP are excluded. Further complications from criminalizing scientiic misconduct Above we have highlighted a number of problems relating to criminalization of scientiic misconduct with exclusive or primary focus on FFP. In this section, we argue that there are more general problems regarding criminalization of scientiic misconduct. In particular, there will be demarcation issues as long as not all deviations from good research practice are criminalized. This, in turn, will be relevant to issues of eiciency, due process, and fairness. How should we draw the line? Perceptual efects of drawing the line at FFP (or elsewhere) One risk associated with criminalizing FFP, and leaving other deviations from good research practice outside the legal domain, is that such a choice may inluence the perception of the instances falling outside the law. For instance, those already reluctant to see that there is anything wrong with practices deviating from proper scientiic standards but falling outside FFP may draw the conclusion that one is now free to continue with these practices since they “clearly do 13 One beneit with the suggestion that nothing but FFP should be criminalized is how it clearly indicates what should fall within the law and what should not. But since “serious misconduct” is not to be conlated with FFP, as we have argued, the challenge remains how to demarcate and how deine the types of misconduct that should be criminal. How to do this exactly is beyond the scope of this paper, and partly something that should be left to legal expertise, namely the transferal of the normative position on scientiic misconduct to the fabric of national or international law. One thing worth Criminalization of scientiic misconduct mentioning, however, is that when addressing this challenge it is not enough to simply claim that criminalization should be limited to deliberate fraud and misconduct, as proponents of criminalizing scientiic misconduct sometimes argue (see e.g., Bhutta and Crane 2014). After all, there are forms of misconduct that, even if deliberate, are arguably not serious enough to be criminal. Similarly, grave negligence may also render some forms of misconduct serious enough to be appropriate targets of the law. The question therefore remains how to decide what ought to be considered serious enough, and what should not. The practical problem for the universities to a large extent remain Unless the perceptual efects of drawing the line between criminal and non-criminal deviations from good research practice are that practices falling outside the legal regulation become perceived as unimportant and therefore are disregarded, the practical problem for the universities of handling cases of unethical scientiic practice remains. While the law will handle some cases, many other cases will not be so handled and will therefore need to be taken care of by the universities themselves. This aspect is important to consider, especially given how criminalization of scientiic misconduct is held to promote non-punitive ends as well. As we have pointed out previously, some of those defending criminalization of scientiic misconduct have argued that the basic due process that would follow from criminalization is necessary in order to ensure a fair and balanced misconduct investigation (Sovacool 2005; Redman and Caplan 2005). It can also take away the burden associated with such investigations from the universities, and can help increase the eiciency of such investigations (Sovacool 2005). To what extent it really would grant balanced investigations, ensure fairness and increase eiciency, and as a result lower the burdens for the universities, would depend on what proportion of instances fall outside the legal regulation, and, for eiciency and relief of burden, on how time-consuming the sorting of cases to either category would be. If the law only targets the most serious examples of unethical research practices (regardless of if it only includes serious instances of FFP or is more inclusive) one can suspect that the majority of cases will still be handled by the universities and not by criminal courts. If so, it can be questioned whether such a system would be clearly more eicient, or fair, than one where universities handle all investigations into scientiic misconduct. In response, one should recognize that the criminalization still unburdens the universities in the sense that it makes it possible for them to focus more of their attention on the (individually) less serious types of misconduct. It would indeed be valuable if universities could focus more on the minor misdemeanors, which, as we have argued here, may be as problematic for research integrity overall as the most serious forms of scientiic fraud. Taking minor misdemeanors seriously is important also in order to avoid the aforementioned perceptual efects that non-criminalized acts are unimportant. Part of the work needed to be done regards prevention, by looking at research environment and culture, i.e., the breeding ground for unhealthy research practices. What are the research practices developed and maintained in diferent research groups and departments, and how do they relate to inancial and other incentives? Are there ways to change incentives in ways that better align with the overall aims of research while fostering a more healthy research climate? The present stress on competition and achievements to the beneit of the individual researcher over teamwork and collective achievements to the beneit of mankind is problematic (Casadevall and Fang 2012), but not easily overcome. Although this discussion is brief, it suggests that criminalization will not be the solution to the problems facing universities with regards to the prevalence of scientiic misconduct, nor will it necessarily increase integrity in research. To this end, far more is required. The urge for criminalization, as it has been defended in the bioethics literature, is an indication of how hard it is to create an environment with clear incentives for individual researchers to also abide with good scientiic conduct—as the need for criminalization is defended on the grounds that it will act as a deterrent where there currently are no or few disincentives. However, unlike those overly optimistic about the anticipated efects of criminalization, we believe that criminalization will not in itself bring about all the efects that proponents have expected. Concluding remarks This paper has discussed criminalization of scientiic misconduct, as it has been discussed and defended in the bioethics literature. It has been argued that one can make a case in favor of criminalizing scientiic misconduct, the most obvious beneits being ofensive measures to combat harmful wrongdoing in research and promotion of due and fair process in investigations into suspected misconduct. However, the beneits may not be as great as criminalization proponents seem to have hoped for, since criminalization of some acts of scientiic misconduct will leave many other acts to still be dealt with by individual universities. Without further measures one is at risk of giving the false impression that dubious practices falling outside the legal regulation “do not count”, which can have negative impact on research integrity. We have also argued that restricting criminalization to fabrication, falsiication, and plagiarism would be a mistake since FFP does not identify the relevant 13 W. Bülow, G. Helgesson set of serious cases of scientiic misconduct—it fails both in terms of incorrect inclusions and incorrect exclusions. Also, as long as not all deviations from good research practice are criminalized there will be important demarcation issues which proponents of criminalization sometimes overlook. Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativeco mmons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made. References Anderson, Christopher J., Štěpán Bahník, Michael Barnett-Cowan, Frank A. Bosco, Jesse Chandler, and Cristopher R. Chartier, et al. 2016. Response to comment on “Estimating the reproducibility of psychological science”. Science 351: 1037. Bhutta, Zuliqar A., and Crane, Julian. 2014. Should research fraud be a crime? BMJ. https://doi.org/10.1136/bmj.g4532. Casadevall, Arturo, and Ferric C. Fang. 2012. Winner takes all. Scientiic American 307: 13–17. Duf, Antony. 2014. Towards a modest legal moralism. Criminal Law and Philosophy 8: 217–235. Eriksson, Stefan and Gert Helgesson. 2013. Publiceringsetik [Publication ethics]. Lund: Studentlitteratur. Fanelli, Daniele. 2009. How many scientists fabricate and falsify research? A systematic review and meta-analysis of survey data. PLoS ONE. https://doi.org/10.1371/journal.pone.0005738. Feinberg, Joel. 1984. The moral limits of the criminal law. Vol. 1, Harm to others. New York: Oxford University Press. Forsman, Birgitta. 2009. Tandlöst förslag mot forskningsfusk [Lame proposal against scientiic misconduct]. Forskning & framsteg. http://www.fof.se/tidning/2009/1/tandlost-forslag-mot-forsknings fusk. Accessed 15 June 2018. Francis, Gregory. 2012. Publication bias and the failure of replication in experimental psychology. Psychonomic Bulletin & Review 19: 975–991. George, Stephen L. 2016. Research misconduct and data fraud in clinical trials: prevalence and causal factors. International Journal of Clinical Oncology 21: 15–21. Hansson, Sven Ove. 2011. Do we need a special ethics for research? Science and Engineering Ethics 17: 21–29. Helgesson, Gert. 2015. Plagiarism. In Encyclopedia of global bioethics, ed. Henk Ten Have. Dordrecht: Springer. https ://doi. org/10.1007/978-3-319-05544-2_340-1 Helgesson, Gert, and Stefan Eriksson. 2015. Plagiarism in research. Medicine, Health Care and Philosophy 18: 91–101. 13 Husak, Douglas. 2008. Overcriminalization: the limits of the criminal law. Oxford: Oxford University Press. Husak, Douglas. 2009. The costs to criminal theory of supposing that intentions are irrelevant to permissibility. Criminal Law and Philosophy 3: 51–70. Mill, John Stuart. 1977. The collected works of John Stuart Mill, volume XVIII—essays on politics and society part I. ed. John M. Robson. Toronto: University of Toronto Press. Moore, Michael S. 2009. A tale of two theories. Criminal Justice Ethics 28: 27–48. Open Science Collaboration. 2015. Estimating the reproducibility of psychological science. Science 349: aac4716. Pickett, Justin T., and Sean Patrick Roche. 2018. Questionable, objectionable or criminal? Public opinion on data fraud and selective reporting in science. Science and Engineering Ethics 24: 151–171. Redman, Barbara K., and Arthur L. Caplan. 2005. Of with their heads: the need to criminalize some forms of scientiic misconduct. The Journal of Law, Medicine & Ethics 33: 345–346. Redman, Barbara K., and Arthur L. Caplan. 2015. No one likes a snitch. Science and Engineering Ethics 21: 813–819. Resnik, David. 2014. Data fabrication and falsiication and empiricist philosophy of science. Science and Engineering Ethics 20: 423–431. Resnik, David B., Lisa M. Rasmussen, and Grace E. Kissling. 2015a. An international study of research misconduct policies. Accountability in Research 22: 249–266. Resnik, David B., Talicia Neal, Austin Raymond, and Grace E. Kissling. 2015b. Research misconduct deinitions adopted by U.S. research institutions. Accountability in Research 22: 14–21. Schmidt, Stefan. 2009. Shall we really do it again? The powerful concept of replication is neglected in the social sciences. Review of General Psychology 13: 90–100. Segev, Re’em. 2017. Should law track morality? Criminal Justice Ethics 36: 205–223. Shamoo, Adil E., and David Resnik. 2009. Responsible conduct of research (2nd ed.). Oxford: Oxford University Press. Sovacool, Benjamin K. 2005. Using criminalization and cue process to reduce scientiic misconduct. The American Journal of Bioethics 5: W1–W7. Steneck, Nicholas H. 2006. Fostering integrity in research: Deinitions, current knowledge, and future directions. Science and Engineering Ethics 12: 53–74. Walen, Alec. 2016. Retributive justice. The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), ed. Edward N. Zalta. https:// plato.stanford.edu/archives/win2016/entries/justice-retributive/. Wringe, Bill. 2016. An expressive theory of punishment. London: Palgrave Macmillan. Zigmond, Michael J., and Beth A. Fischer. 2002. Beyond fabrication and plagiarism: The little murders of everyday science. Science and Engineering Ethics 8: 229–234.