Victimless crime

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A victimless crime is an illegal act that typically either directly involves only the perpetrator or occurs between consenting adults; because it is consensual in nature, there is arguably no true victim. Examples of these types of crimes include possession of illegal contraband and atypical sexual behavior.^[1]

In most countries, current victimless crimes include recreational drug use, while some also include prostitution. However, there is controversy surrounding this.^[2] Edwin Schur and Hugo Bedau state in their book Victimless Crimes: Two Sides of a Controversy that "some of these laws produce secondary crime, and all create new 'criminals,' many of whom are otherwise law-abiding citizens and people in authority."

In politics, a lobbyist or an activist might use this phrase with the implication that the law in question should be abolished.^[3]

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.^[4]

Definition

Three characteristics can be used to identify whether a crime is victimless crime – if the act is excessive, is indicative of a distinct pattern of behavior, and its adverse effects impact only the person who has engaged in it – according to the University of Chicago's vice scholar, Jim Leitzel.^[5]

In theory, each polity determines for itself the laws it wants to have, so as to maximize the happiness of its citizens. As knowledge progresses and behavior changes, and values change as well, laws in most countries lag badly behind social changes. Once it is obvious to a vast majority that the law is unnecessary at best, the law, until it is repealed, will be prohibiting a victimless crime.

Many victimless crimes begin because of a desire to obtain illegal products or services that are in high demand. Criminal penalties thus tend to limit the supply more than 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.^[6]

The War on Drugs is a commonly cited example of prosecution of victimless crime. The reasoning behind this is that drug use does not directly harm other people. It is argued that the criminalization of drugs leads to highly inflated prices for drugs. For example, Bedau and Schur found in 1974 that "In England the pharmacy cost of heroin [was] 0.06 cents per grain. In the United States street price [was] $30-90 per grain." This inflation in price is believed to drive addicts to commit crimes such as theft and robbery, which are thought to be inherently damaging to society, in order to be able to purchase the drugs on which they are dependent.

In addition to the creation of a black market for drugs, the War on Drugs is argued by proponents of legalization to reduce the workforce by damaging the ability of those convicted to find work. It is reasoned that this reduction of the workforce is ultimately harmful to an economy reliant on labor. 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."^[7]

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.

Two large categories of victimless crimes are sexual pleasure and recreational drug use (drug pleasure). On the first,

• Homosexuality was legalized in Russia after the 1917 Bolshevik Revolution, led by Vladimir Lenin and Leon Trotsky.^[8] Legalization occurred when the Bolsheviks decriminalized consensual sodomy by omitting it from their list of illegal sexual acts in the 1922 Bolshevik legal code, likely because they wanted to simplify their dealings with sexual crime.^[9] Joseph Stalin later persecuted the existence of homosexuality under his regime by undermining Bolshevik law, though the exact extent of his ruthlessness and policing of those with same-sex attraction is unclear.^[10]
• In the UK in the 1950s, the Wolfenden report recommended the legalization of "homosexual behaviour between consenting adults in private", for these reasons.
• Almost fifty years later, Lawrence v. Texas struck down U.S. sodomy laws. As of 2015, sale of sex toys remains illegal in Alabama.

Marijuana use is forbidden by law in Australia but is the most “widely used illicit drug” in the country, just as it is in countries such as the United States, Canada, and New Zealand.^[11] Prohibition of alcohol in the United States, repealed in 1933, is considered a failed "social experiment" because many citizens ignored what it stipulated, turning to home-made spirits in lieu of licensed alcoholic drinks and resultantly making problems worse.^[12] In the United States today, tension over marijuana legalization is in response the current marijuana prohibition in most states,^[13] but there are efforts to legalize cannabis in many countries such as the United States and Australia, as its legalization has the potential to greatly increase revenue.^[11][14]

Prostitution is legal in many countries, though usually restricted. The Netherlands legalized prostitution in 1999, and was one of the first countries to do so. As of 2012, however, it has been considering policy changes to severely restrict it.^[15]

Adultery (sexual acts between a married person and a person other than the spouse) and fornication (sexual acts between unmarried people) have not been prosecuted in the United States for over 50 years, although the laws against them, like those against sodomy, are still on the books in several states. However, because sodomy laws were struck down as unconstitutional by the U.S. Supreme Court in Lawrence, the laws against fornication would also be unconstitutional as was recognized by the Supreme Court of Virginia in Martin v. Ziherl.

Controversy

The degradation of societal moral standards is a major concern among those who oppose the legalization of victimless crime. However, punishing citizens solely for their choice to engage in victimless, immoral acts is a difficult task. While the United States' typical response to crimes is retroactive, the illegality of victimless crimes is a more preventative approach to justice and is highly controversial.^[16]

Controversies over victimless crime deal mostly with the question of whether a crime can ever actually be victimless. With relation to drugs and their pathway to consumption, the impact of the drug trade and liability laws on drug dealers, their families, and other unforeseen actors may end in victimization.^[17] The possession of both adult and child pornography is also often considered to be a victimless crime, but the victimization that adults and children often undergo during its production is typically unacknowledged.^[18]

In contrast, the argument that legal powers must be restrained to allow citizen autonomy, free from impediments in making voluntary, victimless choices that may or may not be perceived as morally wrong, also exists.^[16] With the incorporation of preventative law, such as sex offender registries and anti-social behavior orders, comes a loss of distinction between criminal and civil law because victimless crime is typically difficult to categorize and criminalize. This is problematic because it causes a distortion of traditional procedures found within the criminal and civil of aspects of United States law by enabling confusion and procedural interchangeability.^[16]

See also

• Anti-homelessness legislation
• Illegal drug trade
• Illegalism
• Jury nullification
• Malum prohibitum
• Public-order crime
• Status offence

References

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.