THE VULNERABLE ART MARKET

The art market is vulnerable to fraud in part because of its unusual commercial practices.^{Footnote 16} The subjective nature of art, first, renders it difficult for consumers to ascertain a reasonable price. Intangible values such as trends, personal tastes, status of the artist, rarity of the artwork, and aesthetic or sentimental value to particular collectors influence the price of works.^{Footnote 17} As a result, buyers lack objective reference points to approximate an artwork’s value since they cannot evaluate the piece’s component parts. Additionally, data from past sales are of limited quantity and value because most pieces of artwork are unique, singular objects.^{Footnote 18} Therefore, there is currently no standardized art valuation methodology or quantitative analysis to determine the fair price of an artwork.^{Footnote 19} Instead, buyers primarily decide an artwork’s market value through an expert’s subjective evaluation and the reputation of the artist. Scholars, therefore, describe the art market as economically inefficient,^{Footnote 20} which contributes to soaring prices for art. For instance, art collector Ronald Perelman sued Gagosian Gallery in 2012, alleging that art dealer Larry Gagosian overvalued a Cy Twombly painting he purchased and undervalued works Perelman traded into the gallery in exchange for the piece. Over the course of two months, the price for the Cy Twombly painting jumped from $8 million to $11.5 million after Gagosian sold it to another buyer in the interim. Relying on an earlier case, the court held that statements about the value of art constitute “nonactionable opinion that provide[s] no basis for a fraud claim” and so dismissed the case.^{Footnote 21} Nevertheless, the case demonstrates the speed and opacity in which prices can fluctuate and appearance of near arbitrage in the market.

Artificial intelligence startup companies are beginning to provide quantitative analyses to support valuation in art market transactions. Online art advisor Artsy acquired ArtAdvisor in 2017, which uses artificial intelligence to suggest works for buyers to purchase and “see if machine learning could paint a more holistic picture of art valuation.”^{Footnote 22} Sotheby’s recently purchased the startup Thread Genius, which similarly aims to provide recommendations for art buyers and predict the best time to consign objects.^{Footnote 23} ArtRank determines the future value of artists by “calculat[ing] intrinsic value” by studying presence, auction results, market saturation, market support, representation, and social mapping.^{Footnote 24} However, little information is publicly available about these platforms’ success and impact on sales thus far. The Art Market 2019, an annual global art market analysis that highlights the developments of the previous year, discusses these technologies exclusively in relation to their marketing capabilities, and concludes that they have limited applicability to the art industry.^{Footnote 25} It is thus not yet clear whether these platforms will meaningfully address valuation concerns.

Second, scholars write that art market transactions usually involve anonymity. Dealers and auction houses will frequently not disclose the identities of the sellers to the buyers^{Footnote 26} or the identities of the buyers to the public.^{Footnote 27} Even in million dollar sales, buyers are often discouraged from asking sellers questions about a work’s provenance, prior owners, and place of origin.^{Footnote 28} Instead, buyers rely on the reputation and legitimacy of the dealer or auction house.^{Footnote 29} Buyers can additionally maintain anonymity through purchasing art through shell corporations and storing works confidentially in freeports.^{Footnote 30} These practices formed the heart of the Panama Papers scandal, 11.5 million files leaked in 2015 from the Panamanian law firm Mossack Fonseca, that detailed how offshore companies are used to conceal the ownership of art.^{Footnote 31}

Sellers often remark, however, that clients themselves are the ones requesting this anonymity. Sellers may request anonymity to protect personal privacy, quietly sell items the institution no longer needs in its collections, hide the embarrassment of financial struggles, and avoid family conflicts over the fate of inherited assets.^{Footnote 32} Buyers may similarly request anonymity and store their works in confidential freeports to protect their collections from theft.^{Footnote 33} The client can have his or her name disclosed, as evidenced by estate sales where the consignor’s name is widely publicized.^{Footnote 34} Moreover, Christie’s became the first major auction house to use blockchain technology to address this issue. Christie’s partnered with Artory to encrypt the provenance and sales records of the Barney A. Ebsworth collection in a pilot program in November 2018. The blockchain registration recorded the artwork title, description, final price, and date as well as created a digital certificate of the transaction. Moving forward, the Artory Registry will track the sales, appraisals, conservation, and exhibition histories of those works.^{Footnote 35} The goal is to improve record preservation, while still allowing buyers and sellers to remain anonymous.^{Footnote 36} As of publication, however, the author could not find any publicly available information on whether Christie’s has applied or will apply this technology to all of their sales. Similarly, the author could not find any publicly available information indicating that other major auction houses or dealers have applied blockchain to their sales. While the various technologies discussed herein may sound promising, there is yet little indication that they are tangibly altering the opacity of the art market.

Additionally, it is not uncommon for dealers to represent both the buyer and seller in a transaction without revealing their dual status to both parties. For instance, lawsuits brought against Gagosian in 2012 accused him of inflating prices when he had a greater stake in selling and undervaluing when he could make more money from purchasing. ^{Footnote 37} In a deposition, Gagosian stated that he frequently represented both sides in a deal without disclosing to the other and that the “question hardly ever gets asked.”^{Footnote 38} While it would seem reasonable, in some situations, to require dealers to reveal such a relationship—as is currently the case with real estate, for example—courts have not yet required this disclosure.^{Footnote 39} Finally, substantial art transactions often involve fewer contracts than similarly priced goods.^{Footnote 40} Economists write that these practices collectively create an informational asymmetry in which sellers have access to quality evaluative information but profit by withholding it.^{Footnote 41}

Regardless of one’s perspective on these practices, they are seemingly unique to the art world and do not exist, at least in this extreme, in other high-end markets.^{Footnote 42} Sociologist Olav Velthius argues that this culture stems from the art market’s unique ideological approach to commercialism, which is rooted in sociologist Viviana Zelizer’s “Hostile Worlds” theory.^{Footnote 43} Zelizer argues that the market sphere must be separate from the intimate sphere of personal relationships, otherwise the intimate domain loses its value and importance. Applying this reasoning, Velthius argues that the art market is governed by the competing logics of art and capitalist markets that are fundamentally opposed to each other. The former is qualitative in nature and rooted in the creation of meaningful goods whose value cannot be measured; the latter is quantitative and focused on the commodification and commensuration of human activity. Velthius describes interviews with art dealers, in which he documents their self-stated missions as almost exclusively rooted in the artistic, rather than commercial, aspects of the position: advancing artistic movements, allowing visitors to engage in dialogue with the artist, and developing artists’ careers. He concludes that the tension between the logics of art and capitalist markets produces the earlier-mentioned practices because sellers earn money through sales but simultaneously diminish the commercial aspect of their work.^{Footnote 44} Ultimately, commercialism, technology, and law have significantly evolved since the creation of this market. As a result, these practices lead to criminal externalities in the art market, such as money laundering, tax fraud, insurance fraud, and forgeries.

LOW REPORTING AMONGST ART FRAUD VICTIMS

Little data exists on the reporting rates of art fraud. The category “art fraud” (or even “art crime”) does not exist in the law enforcement and criminal justice systems of most countries. Therefore, if an art fraud case in the criminal justice system receives any statistical label, it would most likely be simply “fraud.” As a result, many scholars describe art fraud as “dark figure” crime, in which the crime’s prevalence is not accurately reflected in official statistics and, thus, is more widespread than the data would suggest.^{Footnote 45} Case reviews suggest art fraud reporting is virtually non-existent. In Australia as of 2013, for instance, only three criminal^{Footnote 46} and two civil art fraud cases had been adjudicated.^{Footnote 47} These statistics suggest that art fraud is not a problem there, but this is likely not the case. The Australian press has regularly reported on suspected forgeries since 1974.^{Footnote 48} These journalists, moreover, frequently have written about, or cited, experts who say that forgeries are common in Australia.^{Footnote 49} None of the articles, however, state that the victim reported the incident to the police or described any legal action, even where money or paintings were exchanged as a result of the discovery.^{Footnote 50} One article even explicitly states: “Dealers now say they don’t bother to inform the police when they come across a fake.”^{Footnote 51}

The scarcity of legal action relative to its presence in the media is similarly evidenced in Canada. A study that analyzed the media coverage of art fraud from 1978 to 2012 identified 386 articles in this 34-year span that discussed suspected art fraud. However, less than 5 percent of these articles even mentioned a lawsuit, whether threatened, launched, or adjudicated. This percentage, moreover, is muddied by multiple articles on one particular case of a single celebrity filing a lawsuit against a gallery owner. ^{Footnote 52} As a detective who specialized in Toronto art crimes from 1991 to 1994 stated: “I think there are all sorts of people out there who know they’ve been hoodwinked with forgeries and fakes but don’t want anyone to know, so they don’t say a thing.”^{Footnote 53}

A French case study perhaps best exemplifies the extreme unwillingness of victims to participate in legal proceedings. After many years of suspicion about the activities of Gert Jan Jansen, French authorities arrested him in May 1994. They discovered approximately 1,600 fraudulent works in his home attributed to the likes of Pablo Picasso, Raoul Dufy, Matisse, and Joan Miró. The French authorities, however, could not coax victims to report and testify against Jansen to establish his intent to deceive, even after appeals in the media. As a result, the police could not proceed with the case. The French authorities ultimately could not prove Jansen’s involvement in art fraud and, instead, charged him with fraud related to false passports. By the time the trial started in September 2000, the police had identified over 2,000 fraudulent works but still could not persuade victims to testify. He was sentenced to six months in prison, with five years of suspended sentence.^{Footnote 54}

In contrast, far more data is available about the reporting rates of fraud as a general category, which demonstrates that some fraud victims do come forward to law enforcement. In 2000, the US government facilitated a research project entitled the National Public Survey on White Collar Crime in order to understand the prevalence and reporting of fraud. The study initially found that 95 percent of participants stated that they would report a white-collar offence if it was committed against them. When subsequently asked about their actual victimization history, only 41 percent of those who had been victims of fraud in the last year reported the crime to law enforcement.^{Footnote 55} The actual reporting rate not only belies the participants’ stated willingness to inform law enforcement but is also substantially lower than those of traditional street crimes. For instance, household burglary, personal robbery, and motor vehicle theft have respective reporting rates of 50, 55, and 78 percent respectively.^{Footnote 56}

Many scholars have explained the low reporting rate among fraud victims by examining their personal characteristics and attitudes,^{Footnote 57} with contradictory results that require further research. However, two trends emerge in the literature. First, the more money the victims have lost, the more likely they are to report the crime. In a survey about fraud victimization history, for instance, Kent Kerley and Heith Copes found that the strongest predictor for reporting a first and second victimization was the amount of money lost.^{Footnote 58} Victims who reported a first victimization lost an average of $476 more than those who did not inform law enforcement; those who reported a second victimization lost an average of $668 more than those who did not report. Second, those with higher educational backgrounds and socioeconomic statuses are more likely to report their victimization than their counterparts.^{Footnote 59} In a survey to predict fraud-reporting patterns, for example, Andrea Schoepfer and Nicole Piquero found that those with some college education or who held a bachelor’s degree were more likely than those with less education to report their victimization.^{Footnote 60} Moreover, education was one of several variables studied in this survey, along with age, sex, and various risk-taking measures, but it was the only factor to attain statistical significance.

This extremely brief literature review shows that while fraud victims do typically report at lower rates compared to street crimes, a sizable percentage do come forward. Since art fraud victims typically lose substantial sums of money in such schemes and have a high socioeconomic status,^{Footnote 61} one would expect them to report their victimization at similar rates to the composite category of fraud victims.

NIELS CHRISTIE: THE IDEAL VICTIM

In 1986, sociologist and criminologist Niels Christie published a seminal article where he coined the phrase “ideal victim.” He defined such as people as “individuals who—when hit by crime—most readily are given the complete and legitimate status of being a victim.”^{Footnote 62} He proposed the following scenario as the paradigmatic example: “The little old lady on her way home in the middle of the day after having cared for her sick sister. If she is hit on the head by a big man who thereafter grabs her bag and uses the money for liquor or drugs—in that case, we come, in my country, close to the ideal victim.”^{Footnote 63} Christie writes that the ideal victim has six attributes. First, the victim is weak; the sick, old, and very young are well suited. Second, the victim is engaging in a respectable project. Third, the victim cannot be blamed for his or her victimization. Fourth, the offender is “big and bad.” Fifth, the offender is unknown. The more foreign the offender seems—a stranger to the victim as well as having alien customs, culture, and appearance—the more likely his or her target will obtain the victim status. Finally, the victim is capable of obtaining the victim status and making their case known to others.^{Footnote 64} Over the course of the article, Christie creates a flawless victim whose characteristics are antithetical to those of the offender.

While some argue that victimology has moved away from Christie’s stereotypes of vulnerability and victimization and toward a more nuanced approach to crime,^{Footnote 65} others have powerfully demonstrated the continuing preference for the ideal victim in their respective fields. The scholarly literature on sexual violence, for instance, abounds with Christie’s reasoning. Scholars have found that the more careless or cooperative the victim’s behavior in the attack,^{Footnote 66} the less willing law enforcement is to acknowledge her victimization and investigate the alleged crime.^{Footnote 67} Similarly, in the academic literature on transitional justice, scholars write that those seeking reparations need to be “deserving” victims and entirely innocent of any wrongdoing and violence themselves.^{Footnote 68} The application of the ideal victim theory to both sexual violence and transitional justice cases creates a hierarchy of victims, in which certain victims are more worthy of justice, social services, and public sympathy than others based on how well they align with Christie’s principles. Eamonn Carrabine and colleagues describe the implications well:

THE NON-IDEAL VICTIM OF ART FRAUD: PERCEIVED PERSONAL SHORTCOMINGS

Art fraud victims generally rank low on the hierarchy of victims for two reasons: they do not align well with Christie’s principles and they are thought to have engaged in the unusual practices of the art market above. Art fraud victims do not fit Christie’s ideal victim primarily for three reasons: they are not considered weak, they are not considered blameless in their victimization, and they cannot easily claim the victim status. Art fraud victims are not considered weak because those engaging in the art market are typically wealthy professionals.^{Footnote 70} Unlike Christie’s little old lady who was physically outmatched in a modern, ill-fated David and Goliath scenario, these individuals have the intellectual capability to be reasonably matched against swindlers.

A Canadian study that analyzed the media coverage of art fraud victims from 1978 to 2012 found that the public does not consider art fraud victims blameless.^{Footnote 71} While the “public” can be defined in many ways, it is understood here as those who are not art market professionals. Some articles portrayed victims as being too credulous, to the point of stupidity.^{Footnote 72} Victims were described as “quite gullible”^{Footnote 73} and as “credulous buyers with a bit of spare cash who know little about art and whose knees go weak at the prospect of owning a genuine [artwork] … by modern masters.”^{Footnote 74} Other articles portrayed art fraud victims as deserving of the loss because of their insatiable greed. One article described art fraud victims as “almost blinded by their own desire for icons of affluence, for wall power”^{Footnote 75} and as “rich, culture-hungry individuals with newly acquired wealth” who were “too rich or too gullible to know good art from bad art”^{Footnote 76} and whose interests in art were “reflections of social climbing and romanticism about names.”^{Footnote 77} Victims were “grinning sugar daddies” searching for a “socially acceptable outlet for showing off, for proving they’re in the same league as covetous popes and rapacious robber barons.”^{Footnote 78} Ultimately, some of the articles presented these victims’ behavior as so naive and greedy that they were nearly complicit in the fraud itself.^{Footnote 79} In the public’s perception, in other words, these people can be blamed for their victimization because their naiveté or greed enabled others to deceive them.

Finally, art fraud victims are not perceived as people who could easily claim the victim status because the fraudulent act is more entertaining than criminal. By discussing in the articles museum exhibits of notorious fakes—such as the Fake/Not Fake exhibit in Bruges and the Authentic Fakes exhibit in Sienna, both in 2004—the media affirmed the construction of art fraud as a victimless crime by presenting the act as more entertaining than harmful to society. Articles similarly included quotes from prominent museum directors describing fraudulent art as “quite delightful” and “hilarious.” As a result, many of these articles were in the entertainment sections of their respective newspapers.^{Footnote 80} The placement and derision evident in these articles suggests that the media does not view art fraud as true, “serious” crime and implicitly communicates this view to its readers—a popular outlook that exists well beyond Canada and the articles in this study.^{Footnote 81} Due to the placement of these articles, the media demonstrates a degree of schadenfreude (pleasure at the suffering of others) at the expense of these victims. According to Wilco van Dijk and colleagues, those with high achievements who are responsible for their misfortune are seen as deserving of the resulting negative events and are viewed with greater schadenfreude than those with lesser achievements who are not responsible for their misfortunes.^{Footnote 82} As a result, many of the articles analyzed in this study suggest that art fraud victims should not be awarded the victim status—ideal or otherwise—due to the amusing nature of the crime itself. Moreover, if art fraud is not a “serious” crime, then its victims are not people who have genuinely suffered a true harm and deserve the social benefits of the victim status.

Art fraud victims, therefore, typically cannot be characterized as ideal victims because the public perceives their greed and gullibility as personal shortcomings that have caused their victimization. Such reasoning, however, could easily be applied to victims of many kinds of fraud as most of the above complaints stem from an animosity toward the wealthy, who are generally perceived as unsympathetic victims. Their losses are dismissed as the “rich defrauding the rich”^{Footnote 83} or the swindlers celebrated as harmless Robin Hood figures.^{Footnote 84} Since victims of other kinds of fraud can be similarly wealthy, art fraud victims’ financial and quasi-victim status fail to fully account for their low reporting rate.

THE NON-IDEAL VICTIM OF ART FRAUD: ENGAGING IN AN OPAQUE MARKET

While art and other types of fraud victims may not align with Christie’s principles, art fraud victims are differentiable because the interested public (non-art market professionals) overwhelmingly reads that they participate in the opaque—and, importantly, institutionalized—practices of the art market discussed above. A significant amount of the publicly available literature on the art market consists of pieces by academics, lawyers, and journalists—seemingly more so than by art market professionals, undoubtedly due to confidentiality agreements and the general culture of nondisclosure. As a result, the literature on the art market often describes its practices in terms of subjective pricing and secrecy rather than data-driven methods of valuation and respecting clients’ confidentiality. Based on this well-circulated viewpoint, the mere participation in such a market—even mundane, legal sales where there are limited or no suspicions of fraud—can attract a degree of public disdain.

The recent sales of certain high-end paintings have invited journalists and readers to comment on the foolishness of subjective pricing. For instance, the sale of Leonardo da Vinci’s Salvator Mundi ^{Footnote 85} for $450 million in November 2017 invited one New York Times reader to comment: “Someone paid 450 million for a mediocre painting?”^{Footnote 86} The Canadian Globe and Mail reported that “some [art experts] saw the auction price as marketing triumphing over clear-eyed art appreciation” and “[i]n the past, the Canadian art market invariably tended to be described as separate from the sanguine excesses of the international market.”^{Footnote 87} The sale of Paul Cezanne’s The Card Players in 2011 invoked similar skepticism, as Vanity Fair asked: “Is this painting, created at the cusp of the 20th century, worth it?”^{Footnote 88} When reporting the 2013 sale of Francis Bacon’s Three Studies of Lucian Freud, The Week stated: “Unlike gold or real estate, the value of art is far more subjective,” and “[t]he fact that street artist Banksy, whose works have sold for up to $1.1 million, sold his paintings anonymously in Central Park for $60 says a lot about the shifting value of art.”^{Footnote 89} USA Today similarly wrote: “But hardly anybody was willing or able to explain the actual process of creating astronomical value where otherwise none might exist, and how, over many years, prices with no underlying logic have not only been sustained but have inevitably headed even higher.”^{Footnote 90} Writing about how influential prior owners can increase an object’s value, the Australian Financial Review stated: “The same back story factor applies to art, even more so because the intrinsic value of an art work is harder to quantify than that of a piece of jewellery.”^{Footnote 91}

The perception that participation in legal sales in the art market is inherently foolish because of its astronomical prices exists beyond journalism. For example, the greater fool theory is an economic principle that states that the price of an object can be determined not by intrinsic value but, rather, by the irrational beliefs and expectations of the market participants. In other words, one can foolishly pay a price for an object or stock that seems unreasonably high out of the expectation that one can resell it to a greater fool later.^{Footnote 92} The Wikipedia page for this pejorative law cites the art market as the prime example.^{Footnote 93} As a public knowledge forum, Wikipedia demonstrates this public perception of the foolishness of engaging in the art market because of the subjective pricing. Thus, information on, and criticism of, subjective pricing is prevalent in the public discourse on the art market.

The position that the art market is secretive, rather than committed to respecting the privacy of its clients, is similarly prevalent in public sources. In a recent survey conducted by the professional services company Deloitte, 75 percent of its wealth managers were disturbed by the lack of transparency in the art market.^{Footnote 94} Moreover, many works analyzing the art market can be quite damning in their depiction, such as one article from the New York Times: “This sort of discretion … is not only quaint but also reckless when art is traded like a commodity and increasingly suspected in money laundering.”^{Footnote 95} Sharon Cohen Levin, chief of asset forfeiture of the US Attorney’s Office said to the Honolulu Star: “It is hard to imagine a business more custom made for money laundering, with million dollar sales conducted in secrecy and with virtually no oversight.”^{Footnote 96} When describing the arrest of Yves Bouvier, the London-based Financial Times wrote: “It raises questions about whether the obscurity of many art deals and the lack of transparency on ownership and buyers and sellers, leaves the market vulnerable to manipulation.”^{Footnote 97}

Inherent in these comments that question the prudence of engaging in a market with subjective pricing and a culture of nondisclosure are elements of judgment and criticism. Other high-end markets, in contrast, are not treated with comparable suspicion.^{Footnote 98} To varying degrees, participation in the art market usually involves accepting or engaging in the subjective pricing and culture of nondisclosure because these practices are so foundational to the market. Thus, by degrading these practices, the above commentators were explicitly or implicitly judging the buyers for participating in this system, even absent suspicions of fraudulent activity. In cases of fraudulent artwork, therefore, art victims may be perceived as doubly blameworthy: both for participating in this opaque business model as well as for perceived personal shortcomings for actually being duped.

PUBLIC OPINION INFLUENCING RESOURCE ALLOCATION IN COMMUNITY POLICING

Public antipathy toward art fraud together with the low reporting rate of victims in the art community are problematic for ensuring effective law enforcement support because crime prevalence and public interests influence police resource allocation. On a theoretical level, the law is derived from human and social values and generally aims to reflect such standards.^{Footnote 99} The purpose of law enforcement is to enforce society’s laws and, by extension, social values.^{Footnote 100} While scholars write of the benefits of the police sharing the community’s values,^{Footnote 101} police forces emphasize its necessity. Since police rely on communities to provide information about crime in their neighborhoods, strong relationships are critical to maintaining public safety and effective policing.^{Footnote 102} Effective reporting is a form of communication that influences available legal support; police resources are often allocated based on crime prevalence.^{Footnote 103} As stated above, police can only determine crime prevalence if the community informs them of individual crimes. Crime prevalence is statistically determined based on the analysis of these individual crimes. In the United States^{Footnote 104} and the United Kingdom,^{Footnote 105} in particular, crime hotspots are identified through spatial analysis programs; consequently, greater police resources are allocated to those units or areas. Scholars have recognized this method as an effective technique toward fighting crime.^{Footnote 106}

Similarly, direct communication with the police about communal needs is influential in allocating future resources. Beginning in the 1980s, a movement called community policing started to gain momentum. Originating in North America, community policing features empowered residents who collaborate with the police to maintain public safety by communicating neighborhood concerns and providing useful feedback.^{Footnote 107} Community policing was a major paradigm shift that many police organizations around the world have since adopted, and it has become “the new orthodoxy in policing styles.”^{Footnote 108} Countries such as the United States,^{Footnote 109} the United Kingdom,^{Footnote 110} Canada,^{Footnote 111} and Australia,^{Footnote 112} for instance, have adopted this model to varying degrees.

Due to the emphasis on communication with the public, the allocation of police resources in community policing is influenced by public concerns. On a purely theoretical level, this is logical. Police aim to enforce the law, which stems from social values; concerns reflect feared violations of such norms. Not only police enforcement but also police priorities, then, should reflect aggregate public values. The United Kingdom, for instance, has a program called Police and Communities Together (PACT) that requires police units to have public meetings to provide a forum to discuss the community’s safety concerns and obtain feedback. During these meetings, police learn the community’s priorities and receive feedback on existing community engagement programs and practices, all of which enable them to direct resources accordingly.^{Footnote 113} Due to such meetings, low-level issues on a national scale—such as speeding, parking violations, and dog fouling—are addressed. Similar special interest issues have become more visible since the inception of these programs.^{Footnote 114} The United States has comparable programs. New York City police units, for instance, host monthly meetings to discuss community needs. After receiving many complaints about the dangers of bicyclists committing traffic violations, the 10th precinct of the New York City Police Department increased their enforcement and issued 139 court summonses in the course of a 30-day period.^{Footnote 115}

Crime prevalence and public interest, therefore, impact police resources and priorities. As a result, the realities that art fraud victims rarely report their victimization combined with public antipathy toward its victims do not bode well for the investigation of art fraud.

IMPACT OF THE HIERARCHY OF VICTIMS ON ART FRAUD INVESTIGATIONS

Since art fraud victims cannot generally be characterized as ideal victims and occupy a low position on the hierarchy of victims, they may receive less law enforcement support compared to victims of “serious” crimes who better communicate with law enforcement. Scholars write that art crime victims in market countries commonly complain about law enforcement not taking their claims seriously.^{Footnote 116} This can occur in countries both with and without specialist art crime police units. Australia, for instance, lacks a specialized art crime unit, most likely because there are too few reported cases to justify the expense.^{Footnote 117} A survey of art gallery directors in Australia in 2001 explored professionals’ opinions on law enforcement support. The survey found that 53 percent of respondents felt police response to art fraud was inadequate in part because they were not “treat[ing] art fraud as seriously as other fraud.”^{Footnote 118} For instance, in the 2010 dispute between artists Charles Blackman and Robert Dickinson with dealer Peter Gant, the artists brought a civil, rather than criminal, suit because neither could obtain sufficient cooperation from the police. Similarly, when previously unknown paintings by Brett Whiteley emerged in 2010, influential figures in the Australian art world were furious that the police were not investigating what they viewed as unequivocally false works because an alleged victim had dropped his complaint.^{Footnote 119} The police did not charge the defendants until nearly six years after the tip in part because for five of those years only one officer worked on the case and “struggle[ed] to get anyone interested.”^{Footnote 120} According to Christine Alder, Duncan Chappell, and Kenneth Polk, the Australian police’s unresponsiveness could be because “the victims may not seem by the police to be as ‘worthy’ as other victims [and] such offenses may not be viewed as ‘real crime’ and thereby given any priority by police leadership.”^{Footnote 121} In other words, the victims’ low rank on the hierarchy of victims and the nature of the crime as not “serious” has impeded them from successfully claiming victim status.

Art crimes can present significant challenges to the police, judges, and prosecutors in countries or areas without specialized units because the relevant expertise is not often present.^{Footnote 122} Anecdotally, this inevitably influences sentencing and outcomes. Officers must learn on the job and have a lower likelihood of preserving acquired skills; research into art crime is limited and this is an area worthy of further study. But, unlike other offences, art crime is not the type of work any officer can perform with a little training.^{Footnote 123} Knowledge about the subject matter is needed because, first, officers who cannot describe artwork in more detail than that they are mere “paintings” would not know how or where to begin their investigations. In contrast, officers can likely learn to spot drug crimes or robberies more easily^{Footnote 124} presumably because of behaviors and signs typically associated with those crimes. Second, the art market’s culture of nondisclosure requires connections with dealers, collectors, and curators to obtain the needed information to conduct an effective investigation. Not only does this system favor repeat players, but officers also have difficulty obtaining these individuals’ trust and establishing themselves as like-minded professionals if they cannot engage in the subject matter.^{Footnote 125}

Numerous countries today have art crime units, but even those appear to focus more on art theft than art fraud.^{Footnote 126} Greater London’s Metropolitan Police Service, first, has a dedicated art crime squad called the Art and Antiques Unit. The numerous closings and budget cuts over its history, however, raises questions about its internal priority. The unit was formed in 1969 as primarily a philatelic squad. It closed in 1984 for budgetary reasons,^{Footnote 127} when its fourteen officers were redeployed to fight street crime.^{Footnote 128} It reopened in 1989 after pressure from international forces and the art market.^{Footnote 129} In 2007, the unit’s funding was halved, forcing the group to seek private funds to complete its £300,000 budget.^{Footnote 130} After the Grenfell Tower fire in June 2017, the Art and Antiques Unit was temporarily disbanded so its officers could assist with this crisis. Due to budgetary pressures, the Metropolitan Police seriously considered permanently closing the unit. Ultimately, the unit reopened in December 2017.^{Footnote 131}

More importantly, the Art and Antiques Unit is limited to Greater London, with art crime investigations in the rest of the country left to unspecialized units in local forces. The police themselves proposed establishing a national unit in the Heritage and Cultural Property Crime National Strategic Assessment in 2013.^{Footnote 132} Overall, some scholars write that compared to France and Italy, the United Kingdom has not prioritized national heritage and cultural property crimes to the same degree.^{Footnote 133} Riah Pryor writes that, in law enforcement in the United Kingdom, “[l]ack of understanding and appreciation of cultural property is often deemed to be the reason for the perceived paucity of official attention and resources dedicated to art crime … law enforcement can, at times, be fairly accused of dismissing the art world as a lesser priority.”^{Footnote 134}

The US Federal Bureau of Investigation’s Art Crime team has 13 dedicated agents, supported by special trial attorneys for prosecution.^{Footnote 135} According to the 2011 book by founder Robert Wittman, the specialist team was often a low priority during his tenure and was eclipsed by the agency’s more traditional duties.^{Footnote 136} France has a robust art crimes unit called the Central Office for the Fight against Trafficking in Cultural Goods (Office central de lutte contre le traffic des biens culturels [OCBC]), which has 25 staff members and 34 liaison officers throughout the country.^{Footnote 137} Even though the OCBC is one of the largest art crime units in the world, an interviewed member stated that it had to work hard to “legitimize its existence” because heritage and cultural property have not been a “high priority.”^{Footnote 138} Nevertheless, the OCBC has established heritage and cultural property crime as a problem in France.^{Footnote 139} The Italian Carabinieri, the most robust art crime unit in the world with over 250 staff members, has clearly done the same. Austria, Germany, Ireland, Lithuania, Norway, the Netherlands, Quebec, Spain, and Sweden have art crime units with at least one officer, with their resources and personnel varying significantly.^{Footnote 140} In the European Union, as of 2010, however, only Italy, Spain, France, and the United Kingdom have the capability of dedicated investigation in their art crime units. Many other units only contain a few officers who conduct occasional investigations and otherwise act as a repository for information.^{Footnote 141} Overall, even countries with dedicated art crime units appear to struggle to establish their necessity and obtain the needed resources to effectively pursue their investigations.

Not only can police officers interested in pursuing art crime cases struggle due to its lesser priority, but they also can encounter particular difficulties meeting their evidential requirements for prosecution due to the opaque nature of the art market described above. For instance, the subjectivity in determining authenticity creates difficulty in proving that a crime has even occurred—a tough task that often stumps experts in the field—independent of identifying and convicting the perpetrator.^{Footnote 142} Law enforcement must then once again rely on fundamentally subjective measures to prove their case: the buyer’s knowledge of the property, the buyer’s experience in the market, and the seller displaying any suspicious practices in the sale (such as an unusually low price).^{Footnote 143} Similarly, the culture of nondisclosure complicates the police’s ability to collect information from the community to bolster its case, such as in the French investigation of Gert Jan Jansen discussed above. Since the subjectivity and culture of nondisclosure in the art market complicates the police’s assignment, the nature of the art market is partially responsible for the difficulty in creating and advancing police investigations. Therefore, the nature of the market contributes to the difficulty in art fraud victims successfully obtaining victim status.

The status of art crime enforcement in the countries discussed above demonstrates the complex position of art fraud in the priorities of their respective law enforcement systems. This may be because of the personal shortcomings of the victims, the absence of “serious” crime, and the evidential challenges due to the nature of the art market. These factors may contribute to art fraud victims’ inability to successfully claim ideal victim status—and, at times, even victim status—which, in turn, may result in fewer resources from law enforcement. Victims of other kinds of fraud may similarly be mocked for personal shortcomings, but the absence of “serious” crime and the evidential challenges of the art market may render art fraud victims still lower on the hierarchy of victims. The resulting public and legal treatment could account for the significant discrepancy in the reporting rates.