What ethical and legal actions can you take when you are forced to bribe?

THE JOURNAL OF PRACTICAL BUSINESS ETHICS 

JANUARY/ 

FEBRUARY 2018 

Vol. 32 | No. 1 

A PUBLICATION FROM THE SOCIETY OF CORPORATE COMPLIANCE AND ETHICS 

What happens 

when advances in 

technology raise 

the ethical bar? 

page 7 

What ethical and 

legal action can you 

take when you are 

forced to bribe? 

page 1 

corporatecompliance.org/ethikos

What ethical and legal action can you 

take when you are forced to bribe? 

BY ROBIN SINGH 

Have you ever been forced to pay a bribe in return for 

certain services? Well, if you have, you could have very 

well committed a crime. If you haven’t and are being 

forced to, don’t do it. You will be prosecuted for aiding and abetting 

a crime. 

Bribery is a menace that leads to corruption and several other 

consequences. In this article, we’ll be exploring bribery, the legal 

aspects of it, and how to respond when asked for a bribe. 

However, the perspective differs from continent to continent 

and culture and culture. What would be viewed as cronyism in the 

West is seen as sharing the gain resulting from the help of others 

in other parts of the world. Some see this conduct as unethical, but 

when viewed from a cultural perspective of some other continents, 

it is regarded as not only ethical, but also morally required. Gifts 

in the Middle East are considered as a gesture of goodwill for the 

other person. Most probably, giving a gift is viewed as a bribe in 

the West. Giving gifts is an integral part of conducting business in 

Confucian cultures, where relationships are everything and, trust 

me, for some cultures, relationships are everything. 

This article appears with permission from the Society of Corporate Compliance & Ethics. Call +1 952 933 4977 or 888 277 4977 with reprint requests. 

ethikos January/February 2018 1

The legal definition of a bribe 

A bribe is legally defined as the corrupt practice 

of accepting, soliciting, and transferring 

a thing of value in return for an action. The 

action here can refer to anything that is 

official or legal. For example, if you have to 

pay someone at the Department of Motor 

Vehicles to provide you with a license, you’re 

paying a bribe. 

• 

THE PROBLEM WITH BRIBERY IS 

THAT IT RESULTS IN OBJECTIVE 

DUTIES BEING CARRIED OUT 

IN FAVOR OF AN INDIVIDUAL’S 

SUBJECTIVE INTERESTS. 

Bribery aims to influence the actions of a 

person who carries out duties in the legal or 

public sector. The problem with bribery is that 

it results in objective duties being carried out 

in favor of an individual’s subjective interests. 

It is, therefore, a crime and both the recipient 

of the bribe and the one offering it are punishable 

by law. 

However, like all legal matters, an offering 

of value must be first proven to be a bribe. 

For this to happen, a “quid pro quo” relationship 

must first be established (i.e., it must be 

proven that the recipient has purposely carried 

out a duty with the intention of providing the 

offeror with specific benefits). This is exactly 

why campaign donations do not fall under the 

category of bribes. A quid pro quo relationship 

cannot be established in these exchanges. 

Proving a bribe also requires that there 

must be intent to influence the recipient’s 

official actions. In some cases, both the recipient 

and the offeror are required to have shown 

an agreement to the exchange. For instance, if 

the recipient or offeror has not agreed to the 

arrangement, the exchange is not necessarily 

seen as a bribe. 

The attempt to bribe falls under common 

law and is assessed according to the Model 

Penal Code. 1 The punishment for bribery, 

whether attempted or completed, is the same. 

In fact, solicitation is also a crime as far as US 

laws are concerned. Whether or not the solicitation 

results in the bribe being completed 

has no effect, and the solicitation is still seen 

as a crime. 

Apart from the fact that crimes interfere 

with the regular functioning of public or legal 

systems, they also have an impact on the economy. 

Economists state that it leads to what is 

known as “rent-seeking behavior.” 2 This refers 

to the practice of increasing one’s wealth without 

contributing to the creation of wealth. 

A good example of this would be the 

illegal attempts made by corporations to 

influence the open market in order to expand 

their own wealth disproportionately. When 

this happens, it leads to the improper allocation 

of resources, eventually causing an 

economic crash or depression. Those who are 

charged with attempting to bribe or bribing 

are prosecuted under the federal statute 

18 U.S.C. 201 – Bribery. 3 

Just say “No” 

Is it possible to stop someone in the act of 

giving gifts/bribes or should one stop it 

indirectly? If you are ever caught in such a situation, 

people will always say and the court of 

2 January/February 2018 ethikos 

This article appears with permission from the Society of Corporate Compliance & Ethics. Call +1 952 933 4977 or 888 277 4977 with reprint requests.

law will always question, “Why didn’t you stop 

or say no on the face of it”? But humans and 

cultures differ in a multicultural environment, 

and it is not easy to say no on the face of it. 

However, it may be an operations person 

or a compliance officer who knows that “ignorance 

of the law is not an excuse” and will 

be held against that standard and prosecuted 

with that objective in mind. The bottom line 

is that ethics does not always jive with the 

law. No matter the training that compliance 

people might conduct, when you are caught up 

in a practical situation, more often than not, 

the pressures will not allow you to make an 

immediate correct decision. Certain thoughts 

would always come to mind, such as the pressure 

that, “Mr. X is an important vendor to 

my company. Mr. X is in good terms with my 

boss. What will my superiors think if I reject 

this ‘gift’?” 

These are the exact aspects of the Fraud 

Triangle (i.e., pressure, opportunity, and 

rationalization). Together, these three components 

lead to fraudulent workplace behavior. 

However, I see it as the same question as “Can 

someone be killed without intent?” The answer 

is yes. Imagine a pedestrian crossing a street. 

A hot coffee spills on a driver, and the distracted 

driver does not notice the traffic signal 

and hits the poor pedestrian. I know it would 

be considered a host of things, including negligence, 

but not intent. 

So what are the ethical steps one can take, 

and are only operations people responsible for 

facing the brunt of it? Well, I believe no. The 

second line of defense is risk management and 

compliance is the third line of defense, and 

both are equally responsible. This brings us to 

an aspect of how can people be trained, role 

play, etc. to help employees safeguard themselves 

from such situations? 

It’s easier to say no to a parallel person 

or a junior employee; however, it’s not easy 

to say no to an ambassador, or a person very 



high in stature and, at the end of the day, 

that person will have nothing to do with you 

either. But a framework can be put in place 

by the Compliance function to safeguard in 

situations of ethical dilemmas. 

Now, bear in mind that this is different 

from being forced or asking someone to do 

something in response to a gift (or bribe)—an 

innocent mind. On the other hand, if someone 

is trying to force you, there is something that 

can help more than law and that is courage to 

report. Most of the compliance trainings fail 

to build courage/open lines of commutation 

to report, and thus people—the first line of 

defense—get caught up under a paramount 

pressure of the unknown. Not everyone has 

the courage to be a whistleblower and take on 

corporations by filing a case with government 

authorities. Again that courage is an aspect 

which requires a cumulative training from 

HR and Compliance to report, to help people 

build an understanding that they can report, 

and that tone at the top is just not another 

word in the standard of conduct, as it was in 

Enron’s case. 

However, the other part of this article 

concentrates on the visible aspect of bribery, 

that is, if someone is faced with an intentional 

bribe, what can a courageous employee do? 

Anti-bribing laws in the U.S. 

In general, statutes such as federal prosecutions 

of public corruption under the Hobbs 

Act (enacted 1934), the mail and wire fraud 

statutes (enacted 1872), the honest services 

fraud provision, the Travel Act (enacted 1961), 

and the Racketeer Influenced and Corrupt 

Organizations Act (RICO) (enacted 1970), all 

codified under Title 18 of the United States 

Code, were never set out to prosecute official 

corruption; each has been interpreted to 

provide a means to do so. 

Over due course of time, the federal official 

bribery and gratuity statute, 18 U.S.C. 

§ 201 (enacted 1962), the Foreign Corrupt 

Practices Act (FCPA) (enacted 1977), and 

the federal program bribery statute, 18 U.S.C. 

§ 666 (enacted 1984) directly address public 

corruption. 

All of the aforementioned statutes differ in: 

•§ 

their jurisdictional elements, 

•§ 

the mens rea (intent) that they require 

(e.g., a quid pro quo or a nexus), 

•§ 

the species of official actions that are 

cognizable, and 

•§ 

whether or not non-public official 

defendants can be prosecuted. 

Specifically, the federal official bribery and 

gratuity statute defines that whoever indirectly 

or directly offers an item of value (usually 

money) to a public official with the intent 

of influencing their actions will be required 

to pay a fine. The fine as an amount is three 

times more than the value of the item offered 

as a bribe. Or, the offender (recipient and 

offeror) will receive up to a 15-year prison sentence. 

Depending on the case, the punishment 

could include both the fine and the prison 

sentence. The recipient of the bribe, who is 

usually a public official, will also be dismissed 

from his/her role as a public official and will 



not be eligible to hold any official U.S. government 

post from there on. 

Commercial bribery, which is defined 

as bribing an official working for a private 

agency, is also punished under statute. 

How are whistleblowers protected by law? 

Whistleblowers, in bribery-related scenarios, 

are those who are aware (i.e., personally witnessed) 

the act and would like to inform the 

authorities. 

The U.S. has established several legal 

precedents to protect whistleblowers. There 

are multiple legislative acts that offer protection 

to whistleblowers. A couple of examples 

would be the No-FEAR Act 4 and the 

Sarbanes-Oxley Act. 5 These acts outlaw any 

form of retaliation against whistleblowers. 

However, these are some of the newer acts 

that have actually been founded upon older 

laws. Even the Lloyd-La Follette Act of 1912 6 

and the Whistleblower Protection Act of 

1989 7 have contributed greatly to protecting 

whistleblowers from retaliation. 

For example, securities whistleblowers 

are protected via wide-ranging legislation 

and they are even encouraged through several 

incentives. The Dodd-Frank Wall Street 

Reform and the Consumer Protection Act of 

2010 8 has had the greatest impact in this case, 

especially with regard to Section 922. 

In 2013, the Dodd-Frank Act allowed the 

Securities & Exchange Commission (SEC) to 

pay a bounty of $14 million to a whistleblower 

whose testimony allowed the recovery 

of defrauded funds worth $147 million. 9 

Under the Act, the SEC is allowed to offer 

whistleblowers up to 30% of the recovered 

amount as an incentive. This kind of an 

incentive-based whistleblower program has 

led to more people coming forward with 

information. 

Apart from financial incentives, Section 

922 of the Act also provides protection to 

whistleblowers. A whistleblower will receive 

protections against the retaliation that is 

likely to arise from the actions brought on by 

the SEC in such cases. In fact, the SEC is 



dedicated to enforcing the provisions that protect 

whistleblowers. In some cases, the SEC 

has even taken action against companies that 

have forced employees to sign non-disclosure 

agreements that bar them from whistleblowing 

in the future. These agreements are 

actually violations of the Dodd-Frank Act, 

which clearly prohibits action that would 

impede the freedom of an employee to function 

as a whistleblower when needed. 

those messages. If you can see the number 6, 

a person on the opposite side of the table will 

see it as number 9. 

However, these serious matters need to be 

addressed promptly and action must be taken. 

Filing bribery cases on time is of critical 

importance. Also, be prepared for the negative 

consequences of whistleblowing. It is a serious 

matter that can have an impact on your 

life and also the lives of your loved ones. This 

matter should be managed internally first, 

and then the Compliance department should 

always live by their words on retaliation policy. 

Some countries, such as the U.S., have 

strong laws that help people and provide 

adequate support and enough protection to 

whistleblowers. • 

Robin Singh (robinsingh002@yahoo.com), Ms.(Law), 

MBA, CFE, CFAP, is a Compliance & Ethics Lead 

Officer at Abu Dhabi Health Services Company in 

Abu Dhabi, UAE. 

How to take action against bribery 

If you are forced to pay or receive a bribe, the 

best approach would be to report it to the 

Compliance/Fraud Control department first. 

If they take no action, you have the option 

of reporting it to the appropriate authorities. 

Never delay the issues. The delay will 

incriminate a person. This is as simple as a 

joke about Mr. Y that is sent in a WhatsApp 

message to a person who “liked” it and wrote 

LOL. Now, if these texts and devices are later 

seized by the authorities and investigated, the 

same text/WhatsApp message will be seen 

as making a mockery of Mr. Y. You never 

know what conclusion may be drawn from 

ENDNOTES 

1 Paul H. Robinson and Markus Dirk Dubber: An Introduction to the 

Modern Penal Code. https://www.law.upenn.edu/fac/phrobins/ 

intromodpencode.pdf 

2 Investopedia: Rent-seeking. http://www.investopedia.com/terms/r/ 

rentseeking.asp 

3 18 U.S.C. § 201 Title 18 (Bribery of public officials and witnesses) 

4 Public Law 107-174 (Notification and Federal Employee Antidiscrimination 

and Retaliation Act of 2002, known as the No FEAR Act). https://www.gao. 

gov/about/workforce/nofear.html 

5 Sarbanes-Oxley Act Anti-Retaliation Provisions. Information at 

https://www.gao.gov/about/workforce/nofear.html 

6 Lloyd-La Follette Act of 1912. http://www.encyclopedia.com/history/ 

encyclopedias-almanacs-transcripts-and-maps/lloyd-la-follette-act 

7 Public Law 101-12: The Whistleblower Protection Act of 1989. 

https://www.gpo.gov/fdsys/pkg/STATUTE-103/pdf/STATUTE-103-Pg16.pdf 

8 Public Law 111-203: Dodd-Frank Wall Street Reform and Consumer 

Protection Act. https://www.congress.gov/bill/111th-congress/housebill/4173/text 

9 SEC press release: “SEC Awards More Than $14 Million to Whistleblower” 

October 1, 2013. https://www.sec.gov/news/press-release/2013-209

What ethical and legal actions can you take when you are forced to bribe?

Create successful ePaper yourself

Delete template?

Save as template?