Victimless crime

A victimless crime is a term used to refer to actions that have been ruled illegal but do not directly violate or threaten the rights of another individual. It often involves consensual acts in which two or more persons agree to commit a criminal offence in which no other person is involved. For example, in the United States current victimless crimes include prostitution, gambling, and illicit drug use. Edwin Schur and Hugo Bedau in their book titled Victimless Crimes: Two sides of a Controversy state that “some of these laws produce secondary crime, and all create new ‘criminals’ many of whom are otherwise law abiding citizens.” This is an issue in the United States where prison rates keep increasing even though it already has the highest prison population^{[citation needed]}out of any country. The term "victimless crime" is not used in jurisprudence^{[citation needed]}, but is rather used to cast doubt onto the efficacy of existing and proposed legislation; or to highlight the unintended consequences of the same. In politics, for example, a lobbyist might use this word with the implication that the law in question should be abolished.^[1]

Low Level Victimless Crime

Victimless crimes are not always so weighty. Some examples of low level victimless activities that may be criminalised include:

Riding a motorcycle or bicycle without a helmet, BASE jumping from city buildings, individual purchase and consumption of recreational drugs (provided one does not hurt anyone else due to the effects), driving a motor vehicle without a seat belt, prostitution and/or soliciting for prostitution, public nudity and fornication, and the consumption of pornography (not involving coercion)

In a constitutional state, the legislature, a body in turn elected by the sovereign, defines criminal law. A crime (as opposed to a civil wrong or tort) is an infraction of a law, and will not always have an identifiable individual or group of individuals as its victims, but may also, for example, consist of the preparations that did not result in any damage (mens rea in the absence of actus reus), such as attempted murder, offenses against legal persons as opposed to individuals or natural persons, or directed against communal goods such as social order or a social contract or the state itself, as in tax avoidance and tax evasion, treason, or, in non-secular systems, the supernatural (infractions of religious law).

Victimless crimes are in the harm principle of John Stuart Mill, "victimless" from a position that considers the individual as the sole sovereign, to the exclusion of more abstract bodies such as a community or a state against which criminal offenses may be directed.^[2]

In a democratic society, wide agreement on a given law as punishing a "victimless crime" will eventually lead to that law's abolishment, as has been the case with most laws regarding homosexuality or sodomy law, abolished in most democratic countries in the later 20th century. More limited are legalizations of some forms of assisted suicide (legal in Japan, the Netherlands, Belgium, Switzerland, Albania, Oregon and Washington) and cannabis use (see legality of cannabis by country).

Determining a victim

The victim in "victimless" is inherently controversial. Laws are often purportedly intended to protect at least some people, so a criminal act is usually claimed by someone to cause someone or a group of people to be adversely affected to some degree, however abstract. There are four widely acknowledged distinct possible meanings of the term "victimless".

First, consensual crimes with (arguably) no material harm (such as sodomy laws in the United States, prior to Lawrence v. Texas).

Second, crimes in which the damage caused is overwhelmingly borne by the perpetrator, such as suicide or drug use. As the perpetrator has chosen to suffer the effects of these crimes, they are not a "victim" in the normal sense.

Third, crimes in which the cost is borne by an abstract society or group of people, without a clear, direct victim. This could be applied to driving without auto insurance (where mandated by law).

Fourth are crimes against non-"victims," or non-human entities, such as governments. These are victimless not because no harm occurs, but because the recipient of the harm is not properly considered a "victim." This is thus a question of the definition of victim, rather than a question of the effects of the crime.

Consent

An essential part of most victimless crimes is that the participating parties consent to the act, meaning they have the cognitive faculties and necessary information to make a proper decision. Children and the mentally disabled may be incapable of consenting to certain acts, as they may lack the cognitive ability to understand their effects and implications, but this is not universally accepted. The legal guardian of a ward may be able to give informed consent on behalf a child or person who is mentally disabled in some jurisdictions. Different jurisdictions have different interpretations and requirements for informed consent. With the requirement of consent, the fourth type of interpretation above would usually not fall under the definition of "victimless crime".

Proponents for reform

In general, social libertarianism maintains that laws banning victimless acts have no rational or moral reason for existing, so they should be abolished. It also asserts that the harm caused by the prevention or prosecution 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 were originally used to justify them.

Individual freedom

Advocates for the removal of victimless crime laws believe in the inherent freedom of individuals. According to this principle, individuals have the right to partake in any actions they choose, as long as these actions do not impede the rights of others, even if the actions could be considered detrimental to that person. In this case, the government should not be allowed to regulate the actions of people unless they affect other people as well. These views are built on libertarian philosophies such as self-ownership and the non-aggression principle.

Many victimless crimes begin because of a desire to obtain illegal products or services that are in high demand. Criminal penalties thus tends to limit the supply more than and increase the demand, driving up the black-market price and creating monopoly profits for those criminals who remain in business. This "crime tariff" encourages the growth of sophisticated and well-organized criminal groups. Organized crime in turn tends to diversify into other areas of crime. Large profits provide ample funds for bribery of public officials, as well as capital for diversification.^[3]

Economic effects

Proponents of reform argue that removal of these laws would be a profit to the economy, citing figures in excess of $200 billion. They also argue that fewer people in prison for these crimes would boost the workforce, as well as reduce the reliance on correctional facilities and allow police the opportunity to focus on the remaining crimes.

They also claim 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 completely prevent the activities it was intended to prevent. 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^{[verification needed]}.

Economic Drawbacks of the War on Drugs

The war on drugs is a typical example of victimless crimes. Opponents may argue that the drug user is a victim of their own addiction. However their acts do not harm other people until they can’t keep enough money in their pockets to afford the high price of drugs, inflated in price, only because they are deemed illegal. For example Bedau and Schur found in 1974 that “In England the pharmacy cost of heroin [was] .06 cents per grain. In the Unite d States street price [was] $30 and $90 per grain.” This creates a huge profit margin for organized crimes and anyone else who is willing to break the law in order to get ahead financially. If these drugs were legal and sold In a fair competitive market it would drive the price of these drugs down which would result in less “secondary” crimes from drug addicts. If the drugs were more affordable these people would not need to commit these “secondary” crimes such as burglary and theft, nor would it be as profitable for large criminal organizations. Many criminal originations depend largely on their huge amounts of profit from selling illegal substances; putting these substances on a fair and regulated market could be a significant blow to the economics of these corrupt organizations.^[4]

Not only does this create an allusive lucrative industry in the black market, but we are imprisoning a huge portion of society for acts that only hurt themselves and who could otherwise make contributions to society through working and paying taxes. The number of drug arrests increases every year. In a poll taken by the Bureau of Justice Statistics between 1980 and 2009, “[over a] 30-year period...[arrest] rates for drug possession or use doubled for whites and tripled for blacks.” ^[5]

Land of The Not so Free

The United States values are based on liberty and freedom, but it still has the highest prison population of any other country^{[citation needed]}. The New York Times reports, “The United States has, for instance, 2.3 million criminals behind bars, more than any other nation, according to data maintained by the International Center for Prison Studies at King's College London.” This means that 2.3 million people could be working and putting more money into a slumping economy but are instead putting the burden on the average tax payer. It is estimated that “[our] governments will spend more than $50 billion in punishing people for ‘crimes’ that do not physically harm the person or property of another.” ^[6]

Proponents of the status quo

Opponents of the prohibition of "victimless crimes" can offer one or more of these justifications.

Group rights

One view of government power allows the government to do whatever it wishes so long as it respects the rights and wishes of the majority. Thus, according to this view, if an act offends the majority of the population, even if is consensual, victimless, etc., then it is rightful to force them to stop for the benefit of the group. Individual rights thus only apply when the group wants them to.

Fundamental inability to consent

One stance is that no individual can legally consent to certain acts. For example, in the Operation Spanner case, UK courts have ruled that individuals cannot legally consent to actual bodily harm in sadomasochistic sexual acts. Furthermore, few countries allow anyone to consent to being murdered.^[7]

Another similar argument is that anyone who had full information and sufficient mental faculties would decide not to do the action. Thus, it is not a victimless crime because the person committing it is incompetent to consent to it. For example, one could argue that methamphetamine use is so destructive that no sane person, knowing the consequences, would do it. Thus, the law would be justified in preventing anyone from using it, as people who do use it must not know what they are doing.

Good of society

Much legislation is carried out on the principle that it will benefit 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, addictive behavior, such as drug use or gambling, may cause a person to be less effective in the workplace, increase insurance costs, or may have adverse effects on relationships with family or friends, who could be harmed enough to be considered victims. 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, since 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 behaviour can be argued to damage the social fabric or social customs, even if it does not harm anyone who does not consent, or even if its victims are not persons. For example, torturing animals may be banned not because animals have rights, but because taking pleasure in the infliction of pain is viewed as a serious social problem, and thus should be suppressed. The aforementioned Operation Spanner is another example of this in which British courts determined that it is wrong to take pleasure in sexual sadism and thus the government can rightly outlaw the act. Similarly, Ireland has deemed blasphemy illegal.

Restriction of these acts can be linked to preserving morality in the community at large or to preventing an offense against God through so-called licentious or blasphemous acts. This is rooted in the custom of a religion, moral code or social code being used as the basis for laws. Such arguments are often disputed in secular societies.

Similarly, an action may be banned because it is extremely conducive to non-victimless crime. Drug use and gambling have similar problems. Regulation short of criminalization has been used as an alternative method of dealing with this sort of issue.

One problem with these arguments is that these laws might restrict the ability of individuals to engage in actions without an identified victim and actually harm a larger society. For example, organizations such as DRCnet, NORML and other pro-legalization of drug and prostitution groups argue that these laws cause greater harm for society then they prevent by creating an unregulated market.

Good of the individual

Laws stemming from the good of the individual are based on the principle that an individual should not be involved in certain activities that are potentially harmful to them. They argue that because the harm done to a person by some activities is so great, it is better to simply make these activities illegal.

For example, while prostitution is often considered a victimless crime, some countries are classifying it as a form of exploitation of women. Such views are held in Sweden, Norway and Iceland, where it is illegal to pay for sex, but not to be a prostitute (the client commits a crime, but not the prostitute).^[8]

Some laws arise ostensibly to protect minors, such as statutory rape, restrictions on violent and obscene content in the media, and limitations on tobacco and alcohol use. 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, even if those prohibitions create a hindrance for adults as well.

^[9]

Specific arguments

See also: Public order crime case law in the United States

It has been argued that suicide, euthanasia, or taking mentally-debilitating drugs should not be against the law. This view holds that if people do not physically harm others or their property they should legally be able to do whatever they want, even harm themselves. According to this view, as long as an action is not coercive or fraudulent, it is immoral to use force to stop it.

If a person takes drugs (like cocaine or cannabis) but does not directly harm another, it is often argued that this action has no victim and thus should be legalized. Some also suggest that driving a car while intoxicated should not be a crime unless it can be shown that the vehicle operator's skills were impaired to the detriment of others. Some governments have legislated blood alcohol levels beyond which a person is considered to be driving while impaired. Disagreement arises over whether a risk of harm is legally equivalent to harm itself.

In some cases, the illegality of an act may itself be the greatest cause of harm. Proponents of drug legalization argue that the criminal activities associated with this crime (violence, theft etc.) occur principally because the activity is illegal, and that in time there would be few crimes associated with this activity if it were legalized. The example of alcohol prohibition in the US, which led to huge bootlegging profits for the likes of Al Capone, is often cited. One may also point to the success of the decriminalization of possession of all drugs in Portugal in terms of drug-related death and crime as a reason to legalize drugs.

Most states in the United States have managed to retain laws forbidding riding a motorcycle without a helmet or driving without seat belts, 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, in particular those that regard riding a motorcycle as an expression of personal freedom, as opposed to riding around in a car.

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 Texas sodomy laws. Marijauna is legalized in Amsterdam and other Dutch countries to residents of that country. Australia only tickets for possession under 50 grams, Portugal also has this policy.^[10] Prohibition of alcohol was repealed in the United States, and there are efforts to legalize cannabis and other illegal drugs in many countries including the United States. Prostitution is legal in many countries including Argentina, Australia, Brazil, Canada, Colombia, Costa Rica, France, Germany, Greece, Mexico, Ireland, Italy, Israel and others in one form or another.

United States Victimless Crimes Facts

• More than 350,000 people are currently in US jails for consensual crimes.
• An additional 1,500,000 are on parole or probation for such crimes.
• More than 4 million will be arrested in any year for committing such crimes.
• The US governments spends more than $50 billion in punishing people for ‘crimes’ that do not physically harm the person or property of another.
• An additional $150 billion will be lost in tax revenue, in the United States for Victimless crimes.^[11]

See also

• Consensual crime
• Euthanasia
• Fully Informed Jury Association
• Harm principle
• Illegal drug trade
• Jury Nullification
• Malum prohibitum
• Marc Stevens
• Voluntaryism

References

1. ^ Schur, Edwin (1973). Victimless Crimes: Two Sides of a Contraversy. The New York Times Company. 
2. ^ "The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign." John Stuart Mill (1859). On Liberty. Oxford University. pp. 21–22. http://books.google.com/books?id=qCQCAAAAQAAJ&dq=on+liberty&pg=PP1&ots=mj9Q-etlOn&sig=axRYnLMf4-lmq_ltKaCmAtWgz8g&hl=en&prev=http://www.google.com/search?hl=en&rlz=&q=On+Liberty&btnG=Google+Search&sa=X&oi=print&ct=title&cad=one-book-with-thumbnail#PPA21,M1. Retrieved 2008-02-27. 
3. ^ Frase, Richard. "Encylopedia of Crime and Justice". http://www.encyclopedia.com/topic/Victimless_Crime.aspx#1-1G2:3403000270-full. Retrieved 3 October 2011. 
4. ^ Schur, Edwin (1973). Victimless Crimes:Two Sides of a Controversy. The New York Times Company. 
5. ^ Snyder, Howard. "Arrests in The United States". Office of Justice Programs. http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2203. 
6. ^ Liptak, Adam. "U.S. prison population dwarfs that of other nations". The New York Tines. http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html. 
7. ^ [enotes.com "operation spanner"]. enotes.com. Retrieved 3 October 2011. 
8. ^ For more information, see Prostitution in Sweden.
9. ^ [procon.org ""100 Countries and Their Prostitution Policies.""]. procon.org. Retrieved 3 October 2011. 
10. ^ Edwards, john. [listafterlist.com "Marijauna laws"]. listafterlist.com. 
11. ^ McWilliams, Peter (1996). Ain't Nobody's Business if You Do. 

http://www.ldp.org.au/federal/policies/victimlessCrimes.html

Further reading

• Ain't Nobody's Business If You Do (ISBN 0-931580-58-7) is a book by Peter McWilliams criticizing the existence of laws against consensual crimes. See mcwilliams.com