Victimless crime (political philosophy)
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A victimless crime is behavior of an individual which is forbidden by law, but which does not violate nor significantly threaten the rights of other individuals. Controversy about the applicability of the term usually surrounds the issue of whether a victim exists (some argue that "victimless" crimes affect society as a whole, thus making society a "victim"). All consensual crime is by nature victimless, as no rights can be violated or threatened of an individual who has consented to the behavior in question.
This class of crime typically applies to adults, and specifically not to minors who have not yet reached the age of consent, where age of consent is relevant. For example, an adult selling drugs or sex to another adult may be seen as a victimless crime, but selling drugs or sex to a minor is not victimless, as the minor is not legally able to consent.
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[edit] Examples
The majority of victimless crimes fall under three main headings either where the defendant(s) is/are the victim, or where there is no victim at all in the conventional sense:
Sex crimes and crimes related to reproduction:
- Adultery and, in general, sex outside marriage where all those involved, including spouses, give consent. Adultery without the spouse's consent is arguably not victimless, as it violates the spouse's marriage contract rights, but it is equally arguable that the non-consenting spouse is the victim of a civil wrong, not a criminal wrong.
- Bigamy and other non-traditional marital and family practices.
- Prostitution, other sex work, and related acts. According to some people, prostitutes are "victims" of economic circumstances; others point out that that many strippers and ditch diggers are "victims" of economic circumstances, and arguably so is anyone who performs a service only for the money, but that doesn't mean stripping, ditch digging or performing any other services solely for the money is or should be a crime.
- Incest between legal adults where offspring cannot result from the sexual activity. For example, homosexual acts or where at least one partner is sterile and/or a relative; however, in some countries it is forbidden only when causing public scandal.
- Homosexuality, or other sexual activities not strictly related with biological reproduction (see, for example, sodomy law).
- Pornography (production, trade, possession, consumption) and other obscenity, when produced involving consenting adult participants, and distributed to consenting adult purchasers; some also include pornography that doesn't feature consenting adults (such as in the case of child pornography), as that while the act may harm, the picture doesn't.
- Human reproduction which lies outside of ordinary methods: chemical or genetic interventions; birth control, which is illegal in many places; human cloning and other reproductive technologies.
Religion:
- Practice of religions or cults or superstitions other than those locally sanctioned.
- Blasphemy
Patriotism:
Self-preservation and public safety:
- Many forms of gambling.
- Suicide, attempted suicide and self-injury.
- Violation of laws requiring the use of safety devices such as seat belts and motorcycle helmets. Some argue that since acquiring the privilege to operate a motor vehicle on public roadways includes consent to obey the rules of the road, such violations are technically breach of contract, and not victimless. Others would argue that violating such laws can only lead to the injury of the violator, who has consented to the possibility of such injury by the very act of violation, and thus such violations do not endanger others.
- Driving a car without state-mandated auto insurance.
- Use of illegal drugs, including alcohol in some jurisdictions (though sale of drugs to addicted persons clearly raises issues of capacity to consent).
- The black market, or trade in general in such things as unapproved products or unlicensed services (to willing and fully informed buyers).
- Simple possession of certain dangerous objects/substances, such as fireworks.
- Possession of devices that may be used in committing crimes, such as weapons, unauthorised cable TV decoders, or cryptographic products (the reasonable likelihood that the device will be used to harm others is relevant in determining whether possession constitutes a significant threat to the rights of others or not; an extreme example is possession of a nuclear weapon by a civilian - arguably not a victimless crime).
- Sedition
- Subverting the national culture, e.g. by using certain foreign or minority languages.
Intellectual Property and Trade:
- Grey market transactions that do not involve copyright/trademark infringement. (i.e. Importing a videogame console vs. decrypting a foreign satellite signal without permission)
- Bypassing region encoding on DVDs and other media.
- Copying goods that will never legally be sold in one's market.
[edit] Proponents for reform
In general, social libertarians believe that laws banning victimless acts should be abolished, as there is no rational or moral reason for them to exist, and they reduce freedom. They argue that people ought to be allowed to do whatever they wish, except for those cases in which an act violates the rights of another person. These advocates often believe that the government should not be allowed to restrict a person's rights, even if the person's actions could be considered detrimental to themselves. They also assert that the harm caused by the prevention of these activities is often far greater than any harm caused by the activities themselves, and would justify repeal of these laws on the same harm reduction grounds that supposedly justify them. They assert that laws against these crimes may have unintended consequences that are the reverse of that intended: for example, the War on Drugs puts the distribution of illegal drugs into the hands of criminals, and creates artificial scarcity, making their distribution highly profitable. At the same time, it fails to prevent the activities it was intended to prevent. Many cite the history of the Prohibition era in the United States as an example of a similar failed battle against an illegal drug. The criminal underworlds often created by laws against consensual crimes mean that a subculture comes into existence for whom police are an enemy, who cannot rely on law, and who often adhere to a violent code of honor. These traits discourage respect for property, encourage violence and revenge, and depress the economy of the areas in which they operate.
[edit] Freedom
Many advocates for the removal of victimless crime laws believe in the inherent freedom of individuals, and do not believe the government should be allowed to regulate actions of people unless those actions impede on the rights of others.
[edit] Economy
Many proponents of reform argue that removal of these laws would be a boon to the economy. These proponents cite figures in excess of $200 billion [1]. They also argue that fewer people in prison for these crimes would boost the workforce, as well as reducing the need for correctional facilities and allowing police the opportunity to focus on the remaining crimes.
[edit] Proponents of status quo
Advocates for the retention of victimless crime laws believe in keeping these laws for the good of society as well as for the good of the perpetrator of the crime.
[edit] Good of society
Advocates for the good of society claim that keeping these laws on the books will better the community as a whole. They may consider that the direct harm of the activity in question is so great that the people involved need to be protected against their own actions, regardless of their desires.
For example, drug use or other addictive behavior such as gambling may cause a person to be less effective in the workplace, or may have adverse effects on his family. Drug use may also cause an increase in insurance costs as drug users are believed to be in generally poor health. So, to the extent that drug prohibition actually reduces drug use that is debilitating (a controversial issue in and of itself), legalising drugs might decrease workplace effectivity and increase insurance costs. Interestingly, one of the very arguments used by proponents of drug legalisation is a reason why drugs are kept illegal, though advocates of tougher drug laws rarely admit it: By keeping a large number of drug users behind bars, they are kept out of the workforce, artificially lowering the unemployment rate. Prohibition of drugs also creates jobs in law enforcement, especially in small towns near prisons, where a large percentage of the population may be employed as guards. Advocates of legal controls consider the side-effects of the forbidden activity on those close to the individuals concerned to be so harmful that they may be considered victims of the crime. Hence, addictive gambling can severely harm the family's emotional and economic well-being.
Similarly, laws mandating the use of seat belts are argued to save considerable amounts of death and serious injury, thus offering a net benefit to society, if only for the reason that treating the injured and supporting the families of the injured or dead has a cost for insurance or social security systems paid for by the general population.
Some of these advocates also believe that restriction of these acts preserves morality in the community at large or prevents an offence against God through licentious or blasphemous acts. These proponents usually believe that many laws should be rooted in the customs of their religion. Such arguments are often disputed in secular societies. In the same vein, some argue that while perhaps the activity in question in an ideal, theoretical state may indeed be victimless, most or all of its practical incarnations have generated situations in which many are victimized. For example, prostitution is in theory a simple transaction where money is traded for sex, however, in its many real-world incarnations there is a history of coercion and violence within the trade.
[edit] Good of the individual
Some proponents of these laws argue on the cause of morality. They believe that the viewing of pornography or use of prostitutes are sins forbidden by their religion. They therefore believe that these acts should be made illegal in an attempt to save the souls of persons that would otherwise commit these sins.
Other reasons given for these laws are for the protection of minors. Proponents of these laws argue that youth do not have the reasoning capabilities to fully understand their actions and should therefore be prohibited from these actions until a certain age. Examples of these laws are statutory rape and limitations on tobacco and alcohol use.
[edit] Specific arguments
It has been argued that suicide or taking drugs should not be against the law. This view holds that if the death or the drug-induced incapacity of a person works to the detriment of others then the act should still be a crime - because it affects others adversely. Proponents of laws banning these acts argue that this view excuses an "exit" from life entirely, or from one's responsibilities, which they believe to be immoral.
That is, if a subway motorman commits suicide while on duty, and this lets the train crash and injures or kills others, then such an act should be made illegal. Ironically, there would be no way to enforce the law; you can't punish the dead. Alternately, the act might not be considered suicide per se, but dereliction of duty.
If a person takes drugs (like cocaine or marijuana) - but does not do any direct harm to another, it is often argued that this "crime" has no victim and thus should be legalized. Some also suggest that driving a car while high should not be a crime - unless it can be shown that the vehicle operator's skills were impaired to the detriment of others. Some states in America have legislated blood alcohol levels beyond which a person is considered to be driving while impaired. The controversy here is between those saying that a risk of harm is legally equivalent to harm itself.
Most of the United States have managed to retain laws forbidding riding a motorcycle without a helmet or driving without seat belts, mostly on the grounds that accidents cost the entire society, in the form of publicly provided health care costs. These laws are resented among certain segments of the motorcycle-riding public - particular that segment which regards riding a motorcycle as an expression of personal freedom, as opposed to riding around in a "cage" (slang expression for car).
In the systems that have laws on these matters, jurists commonly consider that the general interests of the state can originate laws that have to be respected only because of their existence (until eventual abrogation), since the respect for the entire juridical system is a duty of every citizen that has to be expressed in the respect of any formal law or rule (juridical public order). Obviously some laws eminently reflect a dominant (or prevalent) cultural position and therefore impose the respect for the cultural preferences of the majority of citizens. Sexually-related crimes frequently appear to belong to this kind of legislation and in fact they are in some cases prosecuted only if from the fact a public scandal is effectively originated; in these cases the avoidance of scandals might then be the goal of the law.
About the personal use of drugs, which is varyingly considered by different systems (some allow it, others don't), it has to be recalled that a concrete interest of the state is sometimes found in the damage that related criminality could cause, or for merely economical schemes. The personal use is then sometimes forbidden because it indirectly enforces related traffic (and mafia-like activities) and more serious crimes. Not differently, prostitution is forbidden in some countries because of the other criminal interests that usually surround the phenomenon, with an additional interest for the general public health (due to the risk of sexual diseases).
About the crimes against one's own person, like suicide or self-injury, again the interest of the state in fighting them is commonly individuated in the consideration of the opposite convenience of a general public health, and the matter is deeply discussed also depending on the juridical consideration of the acceptable extent of a man's free will. An argument that is similarly discussed regards euthanasia, differently evaluated as a help for suicide or as a true murder.
On an opposite situation, artificial insemination, in-vitro fertilization, human cloning and other medical or chemical interventions on the processes of human reproduction can be forbidden due to a general interest of the state in protecting the cultural position of the establishment; in some countries commissions for bio-ethics have been created in order to define the prevalent position and consequently adjust laws on it.
In most western cultures, arguments are produced in favour of or against a legal provision of mentioned behaviours. These arguments are often expression of political positions, but not only, not necessarily and not uniformly.
[edit] Legalization of victimless acts
Many activities that were once considered crimes are no longer illegal in some countries, at least in part because of their status as victimless crimes. For example, in the United Kingdom in the 1950s the Wolfenden report recommended the legalization of homosexuality for these reasons. Almost fifty years later, Lawrence v. Texas struck down US sodomy laws. Over the same period, abortion was legalised in most countries (although the victimless nature of abortion is a subject of great controversy and debate in the United States and some other countries).
Prohibition of alcohol was repealed in the United States, and there are efforts to legalize cannabis in many countries, and some reformers advocate the legalization of all currently illegal drugs (although they generally also recommend legal regulation of the supply of drugs).
[edit] Further reading
- Ain't Nobody's Business If You Do (ISBN 0-931580-58-7) is a book by Peter McWilliams criticising the existence of laws against consensual crimes. See http://www.mcwilliams.com/books/books/aint/toc.htm.
