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Victimless Crime - Rationale

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The arguments for the repeal of laws against victimless crimes fall into two categories. Some proponents of the victimless crime concept argue that, as a matter of principle, society may not legitimately prohibit conduct that harms only the actor or actors (Morris and Hawkins). However, most proponents of the criterion go on to argue that even if it might be legitimate to punish victimless crimes, there are certain practical reasons why it is unwise to do so (Schur and Bedau). The practical arguments against victimless crimes appear to derive from three attributes of these offenses: (1) most involve no complaining parties other than police officers; (2) many involve the exchange of prohibited goods or services that are strongly desired by the participants; and (3) all seek to prevent individual or social harms that are widely believed to be less serious and/or less likely to occur than the harms involved in crimes with victims.

Victimless crimes tend to have no complaining parties other than the police because the immediate participants in these crimes do not see themselves as victims, have no desire to complain to the police, and would fear criminal liability if they did complain. Moreover, since such illegal acts usually take place in private and do not directly victimize any third party, other citizens are unlikely to observe the acts or to have sufficient incentive to complain to the police. As a result, it is argued, victimless crimes are harder to detect and prosecute than crimes with victims, and the police are therefore forced to engage in a number of practices that are subject to serious abuse. These include surveillance and entrapment by undercover agents; the use of unreliable informants from the criminal milieu; various forms of intrusive electronic and physical surveillance (wiretapping, bugging, peering through holes in the ceilings of public washrooms, and the like); and widespread searches of the person, motor vehicles, houses, and other nonpublic places for contraband and evidence. Such techniques tend to bring law enforcement into disrepute, causing lowered public respect for the law and for criminal penalties in general.

The fact that victimless crimes frequently take place without being observed by other citizens also means that certain forms of official misconduct are much more likely to occur: discriminatory enforcement of the law against unpopular groups or individuals; attempts to bribe law enforcement officers; and attempts by law enforcement officers to extort money or other favors from suspects in return for nonenforcement. Such misbehavior further reduces public respect for, and cooperation with, the institutions of criminal justice, particularly among social groups already alienated from society—the poor, ethnic minorities, and the young (Schur and Bedau).

Many victimless crimes involve goods and services that are in great demand, the most extreme example being the drugs craved by addicts. Criminal penalties thus tend 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" reduces consumption possibilities for legal goods and 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. Although higher prices tend to discourage some would-be participants in victimless crimes, the fact that these goods and services are greatly desired (and are not seen as truly immoral) ensures a strong demand that, combined with a restricted supply, maintains both high prices and high crime rates. In extreme cases, such as heroin or cocaine addiction, high prices force participants to commit other crimes, for example, drug sales and theft, to pay for the illegal goods. Finally, because of the strong demand, a large number of otherwise law-abiding citizens are driven into association with the criminal elements who supply these goods and services. There is a danger that such citizens will come to view themselves as criminals, since society has labeled them as such; they will thus cooperate less with law enforcement generally, and are more likely to be drawn into other forms of crime.

Victimless crimes are also seen as being measurably less serious than most offenses with victims—the prohibited behavior causes individual or social harms that are either less serious, less likely to occur, or the result of prohibition itself (for example, the adverse health effects caused by ingestion of impure or unexpectedly potent drugs). It is argued that the lack of complaining witnesses to some of these crimes (e.g., illegal gambling) is, in part, a reflection of a societal consensus that the behavior is less serious. The high demand for many of these illegal goods and services, noted above, is further evidence of widespread tolerance of the behavior. Under such conditions, prohibition only serves to reduce respect for law on the part of citizens who believe that their prohibited acts are not wrong. Moreover, the prosecution of these less serious offenses is seen as a waste of scarce criminal justice resources and an unjustifiable burden on the criminal justice system. The amount of police effort required to detect these hard-to-enforce laws might be better spent on more serious offenses, which are easier to detect. It is also argued that the courts are so overburdened with trivial offenses that there are insufficient resources to process more serious offenses adequately. In addition, the enforcement of victimless crime puts great stress on overcrowded pretrial detention and correctional facilities, and increases the cost of replacement facilities.

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