Trickery and Deception
The concepts of trickery and deception are also important to our definition of crime. As we have noted, sale tactics sometimes involve physical or psychological intimidation. However, these sales efforts may also involve trickery and deception. One could argue that there is no real harm when the consumer buys a commodity or product at a fair price and the item is delivered and is not adulterated or defective. However, sales may involve trickery and deception when the sale includes the possibility of harm to the customer. This may occur, for example, when “bait and switch” tactics are employed, when false advertising is used to sell and/or misrepresent a product, when services are sold and undelivered, and when unsubstantiated claims about the effectiveness and safety of a product are made. There are numerous examples of these kinds of behaviors and they occur routinely. Orthodox criminologists might respond that such practices are treated as violations of law in noncriminal ways. For the orthodox criminologist, these kinds of deceptive behaviors are different from criminal behaviors, since the law says they are different. Here, we can see the weakness of the orthodox argument concerning the definition of crime as a violation of the criminal law. The counterargument made by the orthodox criminologist points to the fact that the behavior in question may be a violation of law that produces harm but is not a problem under the criminal law, and therefore the behavior is not properly called a crime. Nothing that the orthodox criminologist has to say in this respect has to do with the nature of the behavior but has everything to do with the differential response of law to the behavior. As the orthodox criminologist would point out, if a corporation is organized to sell products and uses trickery and deception to do so, these acts are violations of business laws and regulations, not criminal law. But that response does not address the nature of the behavior. For example, that same behavior may be employed by an individual outside sales and the corporate world and be classified as a crime under the criminal law. Thus we have a situation where the same behavior results in two different outcomes. The definition of the behavior as a crime or as a regulatory violation is not based on the nature of the act but rather is wholly a product of the nature of the law. This allows the nature of the law to determine which acts are or are not crimes, and that decision is not based on the nature of the offense, but the context in which the crime is committed. The elements of both behaviors are the same—both involve the use of trickery and deception and both produce harm. Yet one is excused from being counted as a crime and the other is not.
The difference between behaviors that are and are not counted as crimes should not be so arbitrarily determined if criminology wants to be described as the scientific study of crime. In this example, the behaviors are the same, they involve the same tactics, and they may even be caused by the same set of factors. As we have suggested, this kind of decision making in the definition and counting of crime has serious implications related to the testing of explanations of crime and whether those tests of explanations of crime ought to be considered valid. In the present case, the criminal law accepts the trickery and deception of the individual as a crime and rejects the trickery and deception of the corporation as a crime. Consequently, when the criminologist tests an explanation of crime, the counting of crime is biased by the exclusion of similar behaviors that the criminal law does not count as crimes but that are essentially the same as the acts it does count as crime. We cannot say exactly how excluding some offenses from the count of crime affects the test of any given explanation of crime, but clearly it is entirely possible that the way in which crime is counted can change the results of such a test. In this case, corporate behaviors are excluded, so the counting of crime only represents the commission of crimes by individuals and excludes the count of crimes by corporations. Moreover, since the data are only about individuals, the explanation that is tested will only include variables applicable to individuals. The exclusion of other factors outside of individual-level influence, as well as omitted cases and omitted variables, will change the results of such an analysis. The counting of crime itself, in this case, precludes any effort to identify the structural or organizational factors that may lead to crime and ends up reinforcing the individual-level assumptions that orthodox criminology prefers.
In the present example, the orthodox assumptions about the causes of crime can be directly challenged if the criminal-law definition of crime was rejected as the best way to define crime because of the validity issues it imposes on the measurement of crime. By making reference to the nature of the acts that should be identified as crime rather than the content and nature of the criminal law, those validity issues are removed. In doing so, we are able to justify the inclusion of corporate and white-collar crimes within the definition and count of crime.
Our point in this section is that crimes should be defined by their character, not the criminal law, and that one dimension of the character of crime can be the use of trickery and deception. Using these concepts to define the character of crime would allow criminologists to include corporations and corporate crime within criminology and allow criminologists to recognize that behaviors that involve trickery and deception are often criminal acts. Trickery and deception are not the only characteristics of criminal acts, however, and in recognition of that point, our definition makes reference to other characteristics of crime as well. Some of those characteristics are included specifically to create an objective definition of crime that is not constrained by the biases of the criminal law, and its tendency to exclude the crimes of the powerful from consideration.