By Madeleine Conlin*
From the editors: Who would do such a thing?! Stage a dated scene to create provenance for a forged painting? Donate forgeries to museums under a false name? Consign and sell art without true or correct ownership history? Art and cultural property theft as well as production of fakes and forgeries may be time consuming, but they often take less time and require less resources than than policing the art market and culling fakes and stolen property. The author of this article looks to psychology as a potential tool to explain human behaviors resulting in art crimes.
Since the end of the twentieth century, psychology has been incorporated into many parts of the criminal and civil justice systems in the United States. But few have explored the ways in which psychological research could be applied to cases in art law. At the root of any human profession are human minds. Psychology can offer insight to the many different parts of art law, whether it be from the perspective of the artists, the offenders, or the investigators and litigators. While the role of psychology has not yet officially entered the field of art law, it could prove to be a valuable tool in understanding different aspects of art-related offenses (e.g. making, donating and selling forgeries). Some have begun to recognize its merits in criminal profiling, in understanding the validity of witness testimonies, in who should be punished — and how severely — and more. Psychological research might be useful to art law as well.
However, law and psychology’s intersectionality is fundamentally problematic in some ways, and both take different approaches to understanding or resolving human behaviors. Psychology tends to be descriptive, and law prescriptive. Law handles cases on an individual, case-by-case basis, while psychology uses research to explain behaviors on a broad scale for all of humankind. Psychology is democratic in its process, and researchers, no matter how novice or how experienced, can publish findings that are valid, and change the direction of research for the entire field. Law is hierarchical, and the processes for changes and decisions are determined by judges and juries with designated roles. Despite all of these differences, can psychology and law compliment each other and enable progress within the judicial system and U.S. society? And where might art come into this picture?
Historically, offender profiling has been mainly used in the case of violent, serial crimes, such as rape or murder. Nonetheless, criminal investigative analysis and offender profiling (both colloquially referred to as criminal profiling) could potentially be useful in dealing with white collar art crime, and even art-related civil cases. Profiling alleged wrongdoers can help investigators find identifying features of any unknown perpetrators. It can also be used to find patterns in a certain individual’s behavior or actions that might predict future recidivism. Unfortunately, popular culture has skewed perceptions of how frequent — and how useful — offender profiling can be. While still used by the FBI in violent crime, the true benefit of profiling offenders in cases of art forgery or theft, tax evasion, vandalism, or illicit trade in antiquities has not been determined, as it has not been widely used.
The FBI has used psychology in the form of “offender profiling” since the early 1970s. Psychological profiles might also be drawn up by criminals or their loved ones, as a pseudo public character-rehabilitation, taking the form of articles, memoirs, or autobiographies that explain why he or she committed a crime. Additionally, the concept of mental health has influenced the process of litigation, as the law has been adjusted to approach cases of individuals with severe psychiatric disorders and other disabilities that may inhibit mens rea. The Brandeis brief in Muller v. Oregon (1908), was the first social science-driven brief submitted to and accepted by the U.S. Supreme Court. Other examples of expert witnesses in the form of psychologists or psychiatrists have provided valuable knowledge to many jurors since then. The relationship between psychology and law is a young one, and still leaves much to be decided in terms of how and when the two might successfully work together.
Criminal investigative analysis, as used by the FBI, is based on the premise that “behavior reflects personality.” Investigators must collate all available details to make assumptions about a suspect, including socioeconomic status, family, social networks, location, age, beliefs, possible psychopathology, and anything else that could help officials determine who they are and what their criminal motives might be. The FBI generally uses the following structure to put together a profile for an unknown subject:
- Inputs. These include autopsy reports, details from the scene of the crime, and anything indicating where, when, or how the crime happened..
- Decision Processing. FBI agents use the inputs to come up with possible behavioral classifications for their suspect, which are listed in a reference manual of classifications. This is where you might see adjectives such as “organized” or “power assertive.”
- Crime Assessment. Stage three attempts to organize the timeline of the crime’s events from the perspective of the victim, and the perpetrator.
- The Criminal Profile. This is what one might imagine when they hear the term criminal profile. It uses all of the data gathered by FBI agents and with the help of experts in psychology or behavioral sciences to describe the suspect’s sex, age, race, occupation, intelligence quotient, social interests, mental health status, and family background.
- Investigative Use. The criminal profile has two major functions within an investigation. First, it narrows the search and allows agents to focus on only the important details in finding their criminal, decreasing the time and energy expended in this process. Second,, investigators can use the profiles to come up with the best possible strategies when questioning and interviewing the suspect or their relations.
In the courtroom, criminal profiles have a limited function under the eyes of most judges, and in general, are used as submissions of expert testimony. To determine the admissibility of expert testimony, the Supreme Court has held, in Frye v. United States (1923), that scientific expert testimony is only admissible when the science behind the expert testimony has “gained general acceptance in the particular field in which it belongs.” For criminal profiling, the relevant scientific field would typically be psychology. However, psychology’s role as a social science, rather than a natural science, has led to the categorization of criminal profiling as an area of “specialized knowledge,” meaning it only has a quasi-scientific status under the law. Criminal profiles that are submitted as evidence for uniqueness analysis, assessing dangerousness, linkage analysis, or support for a search warrant have, for the most part, been ruled inadmissible. Additionally, criminal profiling can run the risk of stereotyping or racial profiling. This was the case in State v. Roquemore (1993), in which the Ohio Court of Appeals ruled that a criminal profiler’s expert testimony did not offer any specific fact, and would likely cause the jury to become prejudiced. The testimony was thrown out, and the conviction was reversed.
While psychology has begun to show some use in violent or serial crimes, what about art crime? This author has yet to find examples of art criminal profiles being used in the courtroom, though this technique may have the potential to help investigators find forgers, thieves, or any number of art world offenders.
Psychology of Art Offenses
Another kind of “profiling” might also be useful to understanding art-related civil and criminal offenses. Books, articles, speeches, and public announcements by the individual who commits a certain crime or offense, or by someone close to them, can help both lawyers and the general public understand the nature of these illicit acts. Essentially, these “profiles,” often in the form of biographies, essays, or memoirs, can act as a public explanation of why someone did what they did, after having been punished (or after the the statute of limitations expires, in some luckier instances!). However, this kind of profile is not the same thing as a criminal profile in a legal or investigative sense, as they are more personal narratives in which the psychology or behaviors of the offender are justified retrospectively. Furthermore, the use of the previously explained “offender profiles” for art related offenses has existed within popular culture, and used in crime television or novels, but currently these types of profiles do not actually have an established presence in art law. That being said, they may still be useful in understanding the psychology and motives of an individual’s illegal actions.
In his autobiography Caveat Emptor: The Secret Life of an American Forger, Ken Perenyi illustrates his beginnings as a young artist. He emphasizes that he did not wake up one day and decide to become one of the world’s greatest forgers, nor was he forced into the profession by beguiling crime rings or mobsters. In fact, Perenyi created several original works at first, and many times over the course of his lifetime. However, for him, the act of forgery and the process of selling forged masterpieces — the risk, the thrill, deception, and arguably most importantly, the financial rewards — kept him coming back, even when he had opportunities to pursue other career paths. In considering cases like Perenyi’s, psychologists have attempted to explain the personality factors that might account for his fraudulent behavior, such as lack of integrity or honesty, but many individuals can have these traits and never forge a piece of art in their lives.
Some art enthusiasts and psychologists have postulated that there is an element of power, status, or pride in creating a work of art that is attributed to widely known masters. Art forgeries like Perenyi’s take an impressive amount of talent; at times, perhaps more talent than was required by the original artist, as they did not need to know about the science of how canvas ages or who owned their artwork or when it might have been lost and forgotten as trends in the art world shift. Passing off fake work as real can boost the forger’s belief in their superiority over other artists. The challenges of passing off a forged work as the real-deal are numerous, and for some forgery artists who believe that they have done this successfully, they can experience a deep sense of gratification or reward. Additionally, the thrilling aspect of selling the art or of convincing museums, galleries, or auction houses that the work is real can trigger reward-processing centers in the brain. Much like gambling or other behavioral addictions such as social media use, extended activation of the risk-seeking and reward-processing parts of the brain can lead to clinical addiction, which might explain why a forger could continue making and passing of fake works despite the risks. More likely than not, forgers will have more than one reason for committing their crimes.
Similar dynamics might be seen in theft cases as well. The risk followed by financial rewards, the prestige and fame for having stolen a major work of art — these seem to play a role in cases such as the 1994 and 2004 thefts of Edward Munch’s The Scream or the infamous Garnder Museum Heist. Understanding the psychology behind a theft can help investigators not only locate the criminal, but also to link related crimes to each other, or even what that individual might have done with the lost artwork. If they wish to profit from the theft in high-profile cases, they might need a wealthy private buyer. Perhaps some only want to have the art for themselves, while others only want the fame of having stolen the art, and do not care for the piece’s inherent aesthetic or cultural value. Understanding the thieves’ position from a psychological point of view might lead to a more efficient recovery of lost art.
While many individuals might have personality traits that would make them more inclined to steal or forge art, not all individuals seeking power, or looking for the risk-reward sensation, or trying to pay off substantial financial obligations will end up committing art crimes or offenses to solve those problems. Psychology should not be used as a way to explain away crimes, or to instigate that crimes and offenses are done by certain types of individuals. Instead, it can be a tool that helps investigators, judges, lawyers, and the public better understand the nature of the wrongdoing from beginning to end. And ultimately, colorful characters, and their profiling may seem to read as nothing more than a good piece of fictional writing, but this need not be the only function of psychology in art and law.
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About the Author: Madeleine Conlin is a Junior undergraduate at Yale University studying Psychology. She spent the summer of 2017 as an intern at the Center for Art Law. She can be contacted at firstname.lastname@example.org.