Victimless crimes

Definition: Legally prohibited activities or exchanges among willing parties that do not directly harm anyone except, possibly, the parties willingly involved; typical examples include gambling, prostitution, and drug use

Significance: The concept of victimless crimes—also called consensual crimes or public order offenses—is frequently applied to debates about decriminalization and the advisability of attempting to legislate morality.

Although the concept of victimless crime was suggested in the work of criminologists in the 1950s, it first found explicit statement in a 1965 study by Edwin Schur that was published under the title Crimes without Victims. Schur identified and discussed three types of behavior as examples of victimless crimes: abortion, drug use, and homosexuality. As he stated, “In each case the offending behavior involves a willing and private exchange of strongly demanded yet officially proscribed goods and services: this element of consent precludes the existence of a victim—in the usual sense.”

Other scholars who have made use of the concept of victimless crimes include criminologist Jerome Skolnick, who applied it to offenses such as gambling, marijuana use, and prostitution, and jurist Herbert Packer, who cited fornication and narcotic use as crimes without victims. A number of other offenses, including drinking in public, vagrancy, and selling or viewing pornography, have also been called victimless crimes.

At issue is the debate over whether the law should forbid activities for which it is difficult or impossible to determine precisely who is being harmed and how. It has been argued that the law should not forbid activities if they harm no one except, perhaps, the people willingly involved in them. Some legal scholars argue that the United States has become an “overcriminalized” society. On the other hand, others point out that some supposedly “victimless” crimes indeed generate harm (for example, drug addiction leads to theft and robbery as addicts try to support their habit). There is also a widespread belief that certain activities should be prohibited because they are harmful to society at large—this is essentially a moral and philosophical position and is therefore difficult to evaluate empirically.

The concept of victimless crime has been used in efforts to reform criminal law by reducing the kinds of conduct subject to criminal penalties. Some argue that criminal offenses that lack victims in the traditional sense are good candidates for decriminalization. Decriminalization frequently entails reducing punishments from possible jail time to a fine; public drunkenness and the possession of small amounts of marijuana are offenses that have been decriminalized in some states.

Schur points out that victimless crimes often involve conduct about which there is a lack of public consensus that the conduct is seriously wrong. Moreover, the fact that many such offenses cause no measurable harm (except for possible harm to the participating individuals) gives rise to serious difficulties with enforceability. If there is no clear harm to another, there is no complainant (a crime victim who requests that an alleged criminal be prosecuted). Law-enforcement officials therefore have difficulty detecting such crimes and gathering evidence to establish the guilty parties. Thus, efforts to control more serious crimes may suffer because of the time-consuming distractions of investigating victimless crimes. Two further undesirable effects are often cited. One is that criminalizing such conduct often gives rise to illicit traffic in the goods and services legally proscribed. The conduct is not actually discouraged, and law enforcement faces the additional problem of dealing with a thriving black market. The second unwelcome consequence is that otherwise law-abiding persons are stigmatized as criminals and are thus degraded.

Despite its apparent utility, the appeal of the notion of victimless crimes has declined; by the early 1990s, criminologists were more likely to talk of consensual crimes or public-order offenses. An early manifestation of difficulty with the concept of victimless crime was that different authors provided different lists of such crimes, suggesting that the concept lacked clarity and focus. An underlying difficulty is the fact that defining “victim” or “victimization” is a complex and controversial undertaking. Being physically injured or deprived of a possession are clear-cut cases of victimization. It is also arguable, however, that damaging another person’s reputation or esteem or causing mental distress or anguish through one’s actions or insults should be considered as victimizing that person. Feminist critiques of pornography and prostitution, for example, condemn such practices as degrading and demeaning to the women involved. Even if meaningful consent were present, they contend, there would still be real victims of these practices.

Bibliography

Farley, Melissa, and Victor Malarek. "The Myth of the Victimless Crime." New York Times. New York Times, 12 Mar. 2008. Web. 31 May 2016.

Fernandez, Justin. Victimless Crimes: Crime, Justice, and Punishment. Philadelphia: Chelsea House, 2002. Print.

Hardaway, Robert M. No Price Too High: Victimless Crimes and the Ninth Amendment. New York: Praeger, 2003. Print.

McWilliams, Peter. Ain't Nobody's Business If You Do: The Absurdity of Consensual Crimes in a Free Society. Los Angeles: Prelude, 1993. Print.

Meier, Robert F., and Gilbert Geis. Victimless Crime? Prostitution, Drugs, Homosexuality, and Abortion. Los Angeles: Roxbury, 1997. Print.

O’Donnell, Tim. American Holocaust: The Price of Victimless Crime Laws. Lincoln: Writer’s Showcase, 2000. Print.

Schur, Edwin M., and Hugo Adam Bedau. Victimless Crimes: Two Sides of a Controversy. Englewood Cliffs: Prentice-Hall, 1974. Print.