Sex Offenses - Prosecution Of Non-forcible Sex Offenses

Some non-forcible sex offenses have been called victimless crimes, because the victim has been difficult to identify. For example, in the case of prostitution, it is argued that neither the prostitute nor the customer is a victim because they each willingly enter into the agreement. However, some argue that society itself is the victim of such crimes. Others argue that the prostitute is in fact the victim, even though she willingly commits the act, and that statutes should protect the individual from herself.

Society's responsibility to protect individuals from themselves is the rationale accepted for non-forcible sex offenses involving minors. These statutes simply assume that minors are not able to make sound judgments for themselves. Similar theories support statutes prohibiting sexual conduct with mentally impaired individuals.

For other non-forcible sex offenses such as adultery or bigamy, statutes are based on the premise that society strives to protect families and their stability. However, such justifications are not as easily applied to the sex offenses of fornication and consensual sodomy.

Prosecuting attorneys have some discretion to choose which non-forcible sex offenses to prosecute. Where the constitutionality of a statute is at issue, such as statutes forbidding consensual sodomy, prosecutors generally choose not to enforce those statutes through prosecution. Adultery and fornication are other non-forcible sex offenses that are rarely prosecuted.

Private individuals who are not the victims of the particular sex offense, whether forcible or non-forcible, do not have a legal right of action against the offender. Prosecuting attorneys carry out the public function of pursuing criminal complaints against sex offenders on behalf of the people of the state.