Victimless Crime

Although often agreeing that specific crimes should be repealed, critics of the victimless crime criterion have pointed out that the concept lacks a clear definition, fails to cover some of the offenses to which it has been applied, and applies equally well to other offenses that have not been proposed for repeal. Thus, critics argue, the term is only a cover for subjective value judgments about the wisdom of specific criminal statutes, and fails to provide an objective criminalization standard that could be easily applied and would be deserving of broad acceptance.

Beginning with the term itself, it has been argued that there is no such thing as a victimless crime, because most so-called victimless crimes have victims, or at least potential victims, such as the taxpayers who must eventually pay the cost of rehabilitating the drug addict and supporting his dependents (Oaks). It has also been argued that prostitution and antifemale pornography harm all women, and that "hate speech" harms all members of the target group, by increasing the risk of future violence, causing fear and anxiety of such harms, and reinforcing entrenched social inequalities (Roach). If it is conceded that the criminal law may properly prohibit conduct that involves a risk of harm to the protected interests of others, one is faced with a continuum—a range of behaviors involving varying degrees of actual or potential victimization—with no clear answers about where to draw the line between criminal and noncriminal behavior (Dripps; Packer).

In response to the problems noted above, it might be argued that victimless crimes should be defined as those that lack direct, identifiable victims. However, there are several problems with this formulation. First, some of the offenses on the list of victimless crimes do have direct victims, such as citizens offended or harassed by public drunks or disorderly persons; the spouse of the adulterer, bigamist, or prostitution client; or the spouse, parent, or child of a drug addict. Refusal to recognize the latter forms of victimization requires problematic distinction (for instance, between mere mental distress and physical harm) (Wertheimer). Moreover, in many cases it is quite reasonable to argue that one or more of the participants in a victimless crime is, or will in the future become, a victim of serious harm, such as the sporadic heroin user who becomes addicted (Schur and Bedau), or the young person who becomes a prostitute; moreover, the victims of these harms, who are often members of socially disadvantaged groups, may not freely "consent" to either the prohibited acts or the ensuing harms. Finally, a "no direct victim" definition might include many offenses not proposed to be repealed—for example, inchoate offenses such as possession of burglary tools, drunk driving, and counterfeiting.

It has also been argued that victimless crimes "lack victims in the sense of complainants asking for the protection of the criminal law" (Morris and Hawkins, p. 6). Of course, people can be victimized, or at least put at risk of harm, without knowing it, and much of the absence of complainants is due to the secretive nature of these crimes (Wertheimer). Moreover, the "complaintless" criterion excludes some supposedly victimless crimes, such as pornography, and includes many offenses never proposed for repeal. For example, in bribery, receiving stolen property, possession of unregistered weapons, most traffic law violations, and innumerable health, safety, environmental, and regulatory offenses, the complainant is generally a police officer or paid informant, not a crime victim seeking protection. To argue that the latter offenses are significantly different from the victimless (or complaintless) crimes which should be repealed is to admit that the proposed criterion does not, by itself, make the crucial distinction between what should be criminal and what should not.

Victimless crimes have also been defined as those involving "the willing exchange, among adults, of strongly demanded but legally proscribed goods and services" (Schur, p. 169). The consensual nature of such transactions, and the fact that they are strongly desired, create many of the problems of detection and enforcement previously noted (Schur and Bedau). This definition is still inadequate, however, because it clearly does not apply to some victimless crimes, such as public drunkenness, and applies in only the broadest sense to others, such as incest. On the other hand, it does include weapons and stolen property offenses, which are not usually proposed for repeal.

Finally, proponents of the victimless crime criterion argue that even if this concept is not a definitive test of what should be criminal, it is still useful because it identifies a group of statutes most of which should be repealed because "they produce more social harm than good" (Schur and Bedau, p. 112). This sort of cost-benefit approach does provide a useful set of objective criteria for defining the scope of the criminal law. However, such an approach is inevitably very complex, and the victimless crime criterion contributes little to the resolution of these complexities. For example, offenses involving the possession or carrying of weapons are victimless in almost every sense in which drug offenses are, and impose very similar costs of enforcement (Wertheimer; Kessler), yet most proponents of the victimless crime criterion do not apply the criterion to current and proposed gun laws. In addition, the victimless crime concept says very little about the difficult choices between alternatives to current criminal laws: partial decriminalization, regulation by various civil or administrative processes, or total deregulation.

Ultimately, the victimless crime criterion—or any other simple formula—is mostly rhetoric that obscures, rather than contributes to, analysis. The relative victimlessness of an offense is closely related to several important practical issues in the criminalization decision, but labeling a crime as victimless only begins what is, in most cases, a very difficult process of assessing complex empirical facts and fundamental value choices.