Victimless crime

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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,[citation needed] 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 phrase with the implication that the law in question should be abolished.[2]

Low-level victimless crime[edit]

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 been abolished in many democratic countries in the later 20th and early 21st centuries. More limited are legalization 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[edit]

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 three widely acknowledged meanings of "victimless."

First, offenses with arguably no material harm in which all parties are consenting adults such as prostitution, pornography, and gambling.

Second, crimes in which the damage caused is overwhelmingly borne by the perpetrator, such as suicide, truancy, 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.

Third, activities which are unsafe and could result in damage but in the specific instance do not. Traffic citations are frequently victimless, as are trespassing and failing to follow health and safety laws.

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[edit]

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 of a child or person who is mentally disabled in some jurisdictions. Different jurisdictions have different interpretations and requirements for informed consent.

A byproduct of consent is that of awareness. If no harm is caused to the subject of a crime, until the point of becoming aware of the crime, that crime could be victimless. A person who trespasses through a neighbor's yard, without being observed or causing damage, is committing a victimless crime.

Proponents for reform[edit]

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[edit]

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[edit]

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[edit]

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 lead 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 inferred to drive addicts to commit crimes such as theft and robbery, which are thought to be inherently damaging of the economy, 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.” [5]

Specific arguments[edit]

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[edit]

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

Group rights[edit]

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[edit]

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[edit]

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.

Good of the individual[edit]

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 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[edit]

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 the Netherlands, 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[edit]

References[edit]

  1. ^ Entire world - Prison Population Rates per 100,000 of the national population. Highest to Lowest Rates. For more details about the figures of any country, click on the name of that country. World Prison Brief. International Centre for Prison Studies. See this page for breakdowns by region, whole world, prison population total, prison population rate, percentage of pre-trial detainees / remand prisoners, percentage of female prisoners, percentage of foreign prisoners, and occupancy rate.
  2. ^ Schur, Edwin (1973). Victimless Crimes: Two Sides of a Controversy. The New York Times Company. 
  3. ^ "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. Retrieved 2008-02-27. 
  4. ^ Frase, Richard. "Encyclopedia of Crime and Justice". Retrieved 3 October 2011. 
  5. ^ Snyder, Howard. "Arrests in The United States". Office of Justice Programs. 
  6. ^ "operation spanner". Retrieved 3 October 2011. 
  7. ^ Diez detenidos por portación ilegal de armas, droga y estafa
  8. ^ "100 Countries and Their Prostitution Policies". Retrieved 3 October 2011. 
  9. ^ Edwards, john. "Marijauna laws". 

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

Further reading[edit]