Victimless Crime (sociology)

Abstract

How does society determine what is harmful enough to be illegal and what is not? Defining what is and is not a criminal offense is often subject to interpretation, cultural norms, and values, as well as the historical context in which the actions occur. Many behaviors we consider commonplace today were once criminalized, while others were not. Understanding the process by which some actions are declared criminal and others are not provides the foundation for investigating the controversies surrounding "victimless" crimes. This article reviews the social construction of crime and sociological research on victimless crime. It also touches on the broader study of crime and deviance and theories regarding the social construction of crime and criminology.

Keywords Consensual Behavior; Criminalization Theories; Decriminalization; Drug Addiction; Drug Use; Gambling; Prostitution; Social Construction; Status Offense; Vice; Victimless Crime

Victimless Crime

Overview

In the United States, what actions are criminalized? Should only actions that are truly harmful be illegal? What about drugs? Should some drugs be legal because they are relatively harmless? How about polygamy? Gambling? Pornography? If nobody gets hurt, why should these activities be criminal? Moreover, what is the process of criminalization? How does society determine what is harmful enough to be illegal and what is not? Are laws created to protect people or control people? Is determining what is and is not a crime a political act?

You may have thought about these very issues, or even just simply wondered why the driving age is set at sixteen in some states and fifteen in others, or why the drinking age is twenty-one and not eighteen, or why tobacco is legal and marijuana is not. Questions like these fit into the broader study of crime and deviance and theories regarding the social construction of crime and criminology (Vago, 2000).

The concept that binds these questions together and relates to the study and analysis of victimless crime is the notion that crime is a social construct. That is to say, no one behavior is inherently criminal or illegal; rather, through a process in which members of society come to agree that certain actions are worthy of regulation, laws are passed that make certain behaviors criminal.

Many scholars who study the social construction of crime and deviance use questions like these as a starting point for investigating the politics and controversies surrounding the criminalization or decriminalization of victimless crimes. Wertheimer (1977) describes how advocates of decriminalizing victimless crime, once thought of as a controversial issue, advanced their position on the grounds of what has been described as the philosophy of law and function of the criminal justice system. These scholars contend that the purpose of criminal law should be limited to pursuing those who victimize others and that the criminal justice system should not be involved in matters where there is no victim or no harm is done.

On the other side of the debate are those who argue that it is the government's responsibility to ensure an orderly community and supervise moral conduct through legislation. Such proponents argue that nearly every crime causes some harm, either directly to an individual or to society at large.

There is still much debate in sociology, criminology, law, and criminal justice about what should and should not be criminal and how victimless crimes are to be handled, if at all, by the criminal justice system.

Further Insights

Victimless Crime: A Definitional Issue

Understanding what constitutes a victimless crime is a complex issue. Many sociologists who study crime and victimization suggest that it is imperative to have a clear and concise definition of the criminal event from the perspectives of both law enforcement and the victim (Mosher, Miethe, & Phillips, 2002). However, many also recognize that what is criminal is not universally understood and agreed upon. For example, some people who are thought to be victimized do not think of themselves as victims. This is often the case with drug use, surrogacy, and prostitution. In such examples, while a crime may have occurred, it is difficult to distinguish who is the criminal and who is the victim.

One of the most widely accepted definitions of a victimless crime was first proposed by Edwin M. Schur in 1965. He maintained that a victimless crime is any illegal action that is largely consensual between two parties and lacks a complaining participant (Schur, 1965). While we may be able to think of dozens of behaviors that fit into this category, the most commonly studied are prostitution, gambling, drug use, and pornography (Veneziano & Veneziano, 1993).

While this definition provides scholarly guidance, it is still ambiguous in practice. For example, law enforcement officials and the judiciary are faced with the difficult decision of what to do with individuals who engage in victimless crimes as the pressure from society regarding these types of offenses changes over time and across communities. In some cases, such as drug addiction and gambling, those who engage in behaviors that lead to problems with the law are thought to need special attention and help. Some communities even offer treatment and counseling. In other cases, such as prostitution, individuals are chastised for engaging in behaviors that are far from what is considered normal by members of a society. People who engage in such behaviors are often thought to deserve punishment, or at least to be taken off the streets.

Victimless Crime and Changing Times

The notion of what constitutes a victimless crime is ever changing (Conklin, 1982), as it varies in the eyes of the public, political officials, and the police. Practically speaking, when law enforcement officials are investigating victimless crimes, these crimes tend to be drug use, prostitution, illegal gambling activities, public drunkenness, and/or vagrancy (Hagan, 2008).

However, these activities have not always been criminalized. In fact, many drugs that are currently illegal have previously been prescribed or recommended by doctors for legitimate medical issues (Inciardi, 1992). For example, cocaine and amphetamines were routinely prescribed for allergies and sinus-related ailments. Drugs such as cocaine were given to soldiers to fight fatigue and improve concentration during World War II. It was only when society became concerned with the social and political ramifications of drug use and abuse that such drugs became outlawed.

In addition to the definition of victimless crime changing over time, it also varies based on geography. In many countries, having more than one wife is considered legal and even encouraged by religious and government officials. Prostitution is not illegal in certain countries; in these places, it is highly regulated, taxed, and viewed as a legitimate occupation. In the twenty-first century, surrogacy has come under fire and been made illegal in several countries in an effort to protect women who had previously turned to surrogacy as a way to earn income. Gambling, public intoxication, and vagrancy are viewed by many as symptoms of social problems and not themselves criminal offenses in certain locales. Consequently, rehabilitation and treatment are often prescribed to help individuals in dire situations, rather than sending them off to prison or jail.

Issues like these, buttressed against the absence of an identifiable victim, beg the question of why such behaviors and activities are criminal. Should the government decriminalize victimless crime? The answer is inherently political (Dombrink, 1993).

As a society, it is arguably important to have a shared set of values and beliefs to help regulate undesirable behavior, whether through formal pressures such as laws and city ordinances or by informal mechanisms such as social pressure. The pressure to conform is rooted in institutional ideologies about appropriate behavior and grounded in political theories about social control and domination. Some scholars have argued that the process of criminalizing behavior and victimless crime is a political move to control some segments of the population at the expense of others. Karl Marx, for example, while never explicitly theorizing about crime, has been widely cited for his belief that the government has a vested interest in maintaining a working class and uses its power to force people into the labor pool through the use of laws and moral codes.

The following section will provide concrete examples of how scholars from both sides of the debate on victimless crime describe the construction of crime as a social problem and how they suggest society should respond though policies, procedures, and legislative change.

Viewpoints: The Debate over Victimless Crime

There are two major factions in the debate over victimless crime and the need to regulate it. There are those who advocate for the decriminalization of crimes in which no formal complaint is leveled and harm is unlikely to have occurred. These scholars and activists point to the role of the government and the capacity of the criminal justice system, which, they argue, is critically understaffed and frequently inconvenienced by focusing on victimless crimes when there are more serious offenses and offenders to be pursuing.

In contrast, there are those who reject the notion that the government should not attempt to protect the people even in the absence of a complaint. These scholars and activists argue that allegedly victimless crimes do in fact have victims and that ignoring such offenses does cause harm. Central to these arguments is the notion that it is the state's responsibility to legislate morality.

Decriminalization and Victimless Crime

Two victimless crimes that have received the most attention from advocates, scholars, and the media are gambling and the use of marijuana. Central to the arguments for decriminalizing each offense is the notion that prosecuting these activities is draining resources that could otherwise be put to better use in controlling violent crime. Proponents for the decriminalization of marijuana and gambling also point to changing values and norms regarding these behaviors. Much has been made of marijuana's medicinal value. As for gambling, it offers the opportunity for states suffering from deficits to increase their tax base. These issues came to the forefront of political debate in the wake of Proposition 215, which in 1996 decriminalized marijuana in the state of California for medicinal purposes, and in the aftermath of Hurricane Katrina, when Mississippi legislation allowing damaged offshore casinos to rebuild on land played a fundamental role in bringing money to the state, provided jobs to local residents, and assisted in rebuilding efforts.

Marijuana

Grassroots organizer Dennis Peron advocated extensively for the decriminalization of marijuana. His efforts, which ultimately led to the passage of California's Proposition 215 in 1996, originated in San Francisco, where Peron campaigned to permit the use of marijuana by terminally ill AIDS patients. The law decriminalized using, growing, and distributing marijuana for those who had a doctor's prescription for its use. Opponents of Proposition 215 included many members of law enforcement, drug prevention groups, and elected officials, who thought that the decriminalization of marijuana would ultimately lead to other, more dangerous drugs being decriminalized and an overall breakdown in the obligation of the government and law enforcement to protect the community.

After much debate, the electorate of California passed Proposition 215. The final legislation provided legal protection for patients, caregivers, and physicians who possess or grow marijuana for medical purposes. This shift in legislation illustrates how a behavior that was once criminalized and fit the definition of victimless crime has been decriminalized in a carefully crafted way based on changes in values and norms among the majority of Californians, as expressed in their support for legislative change. As opinions on marijuana began to shift, legislation also changed elsewhere in the country: over the following two decades, twenty-three states and the territory of Guam legalized marijuana for medical use, and Washington, Colorado, Oregon, Alaska, and the District of Columbia legalized recreational use. In 2015, the Pew Research Center reported that 53 percent of Americans supported legalization.

Gambling

The notion that gambling is a victimless crime has been around for a long time. However, most scholars would argue that gambling has also long been tied to organized crime and corruption. Once the action of gambling is isolated from the organization of gaming, it is easer to see how some advocates have come to view it as a victimless crime. Gambling, broadly defined, involves an individual making a bet or wager based on the probability that a game or a sporting event could result in a payoff or prize. Proponents of decriminalizing gambling argue that individuals are capable of making their own decisions about potential risks and benefits and that it is not the government's responsibility to legislate such decisions (Hagan, 2008).

The issue of gambling gained more attention in the media and among political officials after the devastation to the Gulf Coast due to Hurricane Katrina. Gambling had long been a contentious issue in Mississippi; supporters of legalized gambling wanted their historically poor state to gain access to jobs and tax revenue that casinos provide, while many conservative religious leaders believed that gambling is a sin, harmful to the individual, the family, and the community. Others argue that casino gambling inherently favors the house, allowing the casino operators and state to benefit financially primarily off of individuals with gambling addictions, and that gambling's social and economic costs do not outweigh the economic gain in the form of additional tax revenue. In order to compromise, the state of Mississippi decided to allow some highly regulated gaming facilities to open, but only on barges located offshore. This provided an enormous amount of tax revenue while at the same time preserving the state's anti-gaming image. Over time, the locals shifted their attitudes toward the facilities, and new laws were proposed to expand the gaming facilities. Much of this legislation stagnated in the state legislature until Hurricane Katrina destroyed or heavily damaged all of the gaming barges. In an attempt to help bring money and jobs back to the state, Senator Trent Lott facilitated a legislative change that allowed casinos to build on land with the assistance of federal funds. This change is yet another example of the process of decriminalizing victimless crimes in the wake of political necessity and changing attitudes (Veneziano & Veneziano, 1993).

All Crimes Have Victims

While the previous section illustrates how some crimes have been decriminalized in some US states, the following section will highlight areas around the United States where the same activities have met with far more resistance. Opponents of decriminalization in these states argue that all crimes have victims, regardless of whether or not they voice a complaint. In order to see the real harm that drug use and gambling cause, they argue, we need to look beyond the individual and consider the harm such actions cause the family and community. Moreover, scholars who look at these issues have also noted that when asked if victimless crimes are harmful, most people say yes, which is proof that Americans support the notion that the government should regulate such behavior.

Drugs and Addiction

Many people who advocate for the strict enforcement of drug laws point to the multitude of victims affected by drugs. They contend that drug use leads to social isolation and a removal of oneself as an active participant in society. Moreover, many advocates of enforcement suggest that drug use can lead to criminal activity such as theft and robbery, or even child neglect and marital problems that cause harm to both children and families and eventually lead to the deterioration of morals and commitment to the community. Accordingly, those who oppose the notion of victimless crimes, particularly with respect to drug use, assert that such behaviors do not fit the definition of a victimless crime, as there clearly is harm—if not specifically to the individual drug user, then certainly to family members and the community. There is a place for a complaint to be leveled on behalf of children and those who are directly and indirectly affected by the drug user's behavior.

Compulsive Gambling

In response to those who advocate for the decriminalization of gambling, proponents of banning it often see the actions of gamblers and the organizations that facilitate gaming as part of a larger social problem that undermines gamblers' work ethic, destroys local businesses, perpetuates addiction, invites fraud, and propagates social decay. Similar to the example of drug use, those who oppose the decriminalization of gambling believe that both harm and victims can be identified, and therefore this activity does not meet the criteria of a victimless crime.

Victims in the case of gambling are often the gamblers themselves, who are often viewed has having an addiction or compulsion that interferes with their ability to appropriately assess the risks of participating and the likelihood of winning (Bloch, 1951). The harm that scholars often point to when discussing gambling can be limited to the individual, or it can be applied more globally. For the individual, gambling can result in the loss of a substantial amount of money and, in extreme cases, the need for public assistance or charity to provide the basics of survival. On a global level, gambling affects society insofar as it arguably attracts a deeper criminal element, in the form of loan sharks and corruption. Additionally, opponents to the legalization of gambling also contend that the presence of casinos impedes the formation of social bonds in a community and prohibits individuals from establishing a sense of community with their neighbors.

Conclusion

Understanding the scholarly arguments about victimless crime requires one to first understand that crime is a social construct, subject to change over time, between individuals, and across communities. Theories on the social construction of crime suggest that social norms and values play a central part in determining what actions are criminalized and what are not. There is much debate over how to define victimless crime and what role the criminal justice system should have in regulating behavior and legislating morality. Future research in this area will continue to look at the factors that contribute to individual perceptions of what should and should not be criminalized and how these views affect social policy.

Terms and Concepts

Consensual Behavior: Behavior that is agreed upon by two or more willing, capable, and reasonable adults.

Criminalization Theories: Theories that pertain to the process of understanding why some actions are determined to be criminal and others are not.

Decriminalization: The process of abolishing criminal penalties for an action that was at one time illegal.

Social Construction: The Durkheimian notion that any phenomenon that is agreed upon by participants in a particular culture or society exists and therefore becomes embedded into the institutional fabric and structure of society, subject to the rules and regulation thereof.

Status Offense: A crime that can only be committed by people occupying a particular status.

Vice: A practice, behavior, or habit that is considered immoral by society.

Victimless Crime: An infraction of criminal law that occurs without causing damage or harm to any identifiable individual (victim).

Bibliography

Bloch, H. (1951). The sociology of gambling. The American Journal of Sociology, 57 215–221.

Conklin, J. (1992). Criminology (4th ed). New York, NY: MacMillan.

Dombrink, J. (1993). Victimless crimes and the "culture wars" of the 1990s. Journal of Contemporary Criminal Justice, 9 31–40.

Dysart, T. L. (2014). Child, victim, or prostitute? Justice through immunity for prostituted children. Duke Journal of Gender Law & Policy, 21, 255–288. Retrieved January 14, 2015, from EBSCO online database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=97067701&site=ehost-live&scope=site

Hagan, F. (2008) Introduction to criminology: Theories, methods, and criminal behavior (6th ed). Thousand Oaks, CA: Sage.

Hughes, B. T. (2015). Strictly taboo: Cultural anthropology's insights into mass incarceration and victimless crime. New England Journal on Criminal and Civil Confinement, 41(1), 49–84. Retrieved from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=101605803&site=ehost-live&scope=site

Huisman, W., & Nelen, H. (2014). The lost art of regulated tolerance? Fifteen years of regulating vices in Amsterdam. Journal of Law & Society, 41, 604–626. Retrieved January 14, 2015, from EBSCO online database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=99707749&site=ehost-live&scope=site

Inciardi, J. (2000). The war on drugs II: The continuing epic of heroin, cocaine, crank, crime, AIDS, and public policy. Woodland Hills, CA: Mayfield.

Lowman, J., & Louie, C. (2012). Public opinion on prostitution law reform in Canada. Canadian Journal of Criminology & Criminal Justice, 54, 245–260. Retrieved October 31, 2013, from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=73958910&site=ehost-live

Luna, E. (2012). Prosecutorial decriminalization. Journal of Criminal Law & Criminology, 102, 785–819. Retrieved October 31, 2013, from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=84700601&site=ehost-live

Mosher, C., Miethe, T. & Phillips, D. (2002). The mismeasure of crime. Thousand Oaks, CA: Sage.

Mostyn, B., Gibbon, H., & Cowdery, N. (2012). The criminalisation of drugs and the search for alternative approaches. Current Issues in Criminal Justice, 24, 261–272. Retrieved October 31, 2013, from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=84312194&site=ehost-live

Pöysti, V. (2014). Comparing the attitudes of recreational gamblers from Finland and France toward national gambling policies: A qualitative analysis. Journal of Gambling Issues, 29, 1–24. Retrieved January 14, 2015, from EBSCO online database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=99085936&site=ehost-live&scope=site

Schur, E. (1956). Crimes without victims: Deviant behavior and public policy. Upper Saddle River, NJ: Prentice Hall.

Schur, E. & Bedau, H. (1974). Victimless crimes, two sides of a controversy. Upper Saddle River, NJ: Prentice Hall.

Vago, S. (2000). Law and society (6th ed). Upper Saddle River, NJ: Prentice Hall.

Veneziano, L & Veneziano C. (1993). Are victimless crimes actually harmful? Journal of Contemporary Criminal Justice, 9 1–14.

Wertheimer, A. (1977). Victimless crimes. Ethics, 87, 302–318.

Suggested Reading

Braasch, P. (2012). Margin of appreciation or a victimless crime? The European Court of Human Rights on consensual incest of adult siblings. German Yearbook of International Law, 55, 613–623. Retrieved October 30, 2013, from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=89755605&site=ehost-live

Miethe, T. (1982). Public consensus on crime seriousness. Criminology, 20(3/4), 515–526. Retrieved August 14, 2008 from EBSCO online database, SocINDEX with Full Text, http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=16731793&site=ehost-live

Orrick, E., & Vieraitis, L. (2015). The cost of incarceration in Texas: Estimating the benefits of reducing the prison population. American Journal of Criminal Justice, 40(2), 399–415. Retrieved from EBSCO Online Database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=102426629&site=ehost-live&scope=site

Schur, E. & Bedau, H. (1974). Victimless crimes two sides of a controversy. Upper Saddle River, NJ: Prentice Hall.

Weitzer, R. (2003). Current controversies in criminology. Upper Saddle River, NJ: Prentice Hall. [RT1]1.15