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Victimless crimes

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Victimless crimes

A victimless crime is a term used to refer to actions that have been ruled illegal but which are argued not to directly violate or threaten the rights of any other individual. It often involves consensual acts in which one or more persons 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 state in their book Victimless Crimes: Two sides of a Controversy “some of these laws produce secondary crime, and all create new ‘criminals’ many of whom are otherwise law-abiding citizens and people in authority.” This is an issue in many countries, for example in the United States where prison rates keep increasing even though it already has the highest prison population[1] out of any country. The term "victimless crime" is not used in jurisprudence, but is rather used to cast doubt onto the efficacy of past, existing and proposed legislation; or to highlight the unintended consequences of the same. In politics, for example, a lobbyist or an activist might use this word with the implication that the law in question should be abolished.[2]

Low-level victimless crime

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

  • individual purchase and consumption of recreational drugs (provided one does not hurt anyone else due to the effects)
  • prostitution and/or soliciting for prostitution
  • public nudity or fornication (providing there are no witnesses that have not consented; see dogging)
  • individual possession of guns (provided one does not hurt anyone with that gun)
  • not using a seatbelt in a car (could arguably, potentially, harm another individual, but almost irrelevantly so)
  • disobeying evacuation or curfew orders issued for natural disasters (such as a hurricane)
  • gambling with one's own money
  • engaging in same-sex activity

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.[3]

In a democratic society, wide agreement on a given law as punishing a "victimless crime" has in certain circumstances eventually led to that law's abolishment, for example many laws regarding homosexuality or sodomy law have abolished in many democratic countries in the later 20th and early 21st centuries. 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).

There is debate over the question "whether possession of child pornographic material should be considered as a victimless crime" as the alleged possessor would only be using them for his/her personal pleasure. It could be argued that purchasing such material is a contribution to the producers (and encourages them as well) of such material and therefore it should be punishable. However, whether this is applicable to cases where someone finds them freely (most probably over internet) and stores in his/her personal computer or digital media, remains a question.

Determining a victim

The victim in "victimless" is somewhat controversial. Laws often purport 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 only two widely acknowledged meanings of "victimless."

First, offenses with arguably no material harm in which both parties are consenting adults (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 offenses, he or she is not a "victim" in the normal sense.

Offenses against institutions are sometimes referred to as victimless crimes, but experts generally reject this classification. The consensus among criminologists is that a government or private enterprise, even though not human, is still a bona fide victim.

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 lack the cognitive ability to understand their effects and implications. 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 often 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 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.[4]

Economic effects

Proponents of reform argue that removal of these laws would be a profit to the 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. Drug use does not directly harm other people, although addicts facing prices inflated by prohibition may turn to crime. 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 creates a huge profit margin for organized crime.

If these drugs were legal and sold in a fair, competitive market and not heavily taxed this would drive the price of these drugs down, which would result in fewer 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 rely on their huge profits from selling illegal substances; decriminalization would be a significant blow to the economics of these corrupt or desperate organizations.[2]

Criminal penalties for victimless crimes not only create a lucrative black market, but also imprison millions for acts that harm no one else, while destroying their employability and feeding a vicious and politically entrenched prison industry. 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]

Specific arguments

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 not be illegal. Most 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 in the 1920s and early 1930s, 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.

In many parts of the world there are laws forbidding riding a motorcycle without a helmet or driving without seat belts. In a country like the United Kingdom there is an argument that accidents cost the entire society in the form of the National Health Service.

Proponents of the status quo

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

Group rights

The pure democratic view of government endorses the majority's right to overrule any minority. According to this view, if an act offends the majority of the population, even if the act is victimless, then the representatives of the majority have the right to prohibit and punish it. In this view there are no inalienable or personal rights, only the absolute collective right of the majority.

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 killed.[6]

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.

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 be said to 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 an external cost for insurance or social security systems paid for by the general population.

In some countries, such as Honduras, drug possession is determined to be damaging to the health of the state itself.[7]

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 NORML and other pro-legalization of drug and prostitution groups argue that these laws cause greater harm for society than 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 alleged to be potentially harmful to them. They argue that because the alleged harm done to a person by some activities is so great it is better to simply make these activities illegal.

Prostitution, when not separately prosecuted as a non-consensual violent offense, such as sexual slavery or the actual rape of a prostitute, is often considered a victimless crime. However, even in such circumstances, prostitution is sometimes considered by some as a form of victimization, based on the prostitute's alleged situation as an object of exploitation; for example, countries such as Sweden, Norway and Iceland have passed legislation outlawing the buying but not selling of sex.

Other laws regarding sexual offenses 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.[8]

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. Following the 1917 Bolshevik Revolution led by V.I. Lenin and Leon Trotsky, Russia became the first nation to legalize homosexuality. The new Bolshevik legal code contained within it the concept that if there was no victim, there was no crime. When Joseph Stalin came to power these changes were reversed bit by bit until homosexuality was effectively made illegal again by the bureaucratic regime. Another 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. Marijuana is legalized in Amsterdam and other Dutch countries to residents of that country. Australia only tickets for possession over 50 grams, Portugal also has this policy.[9] 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, Italy, Israel and others in one form or another.

See also

References

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

Further reading

  • mcwilliams.com

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