The term ‘‘victimless crime’’ is one that occurs more frequently in the rhetoric of civil and economic libertarianism than in the doctrine or theory of the criminal law. That is, there are no specific legal consequences that follow from a crime’s being classified as ‘‘victimless,’’ and criminal law theorists have for the most part eschewed the term. Nevertheless, the suggestion that certain crimes are victimless, and should therefore be repealed or limited, raises profound questions about the proper limits of the criminal law. Although there is no consensus on exactly which crimes should be regarded as victimless, the category has, over time, been thought to include some or all of the following offenses: vagrancy, public drunkenness, drug possession, obscenity, public nudity, contraception, abortion, suicide, gambling, failing to wear a seatbelt or motorcycle helmet, and various consensual sexual activities such as adultery, bigamy, incest, prostitution, and homosexuality.
To understand what it is about the criminalization of victimless offenses that has provoked challenge, we need to recognize the importance of what theorists refer to as the ‘‘harm principle.’’ Under this principle, which is associated most famously with the philosophers John Stuart Mill and Joel Feinberg, governmental power may be used only to prevent harm to others. A corollary of this is that the criminal law, the most serious kind of sanctions we have in a civil society, should be used only to prevent harms that are serious. Thus, assuming that we accept the premise of the harm principle, we can frame the problem presented by the criminalization of victimless offenses as that, which is raised by the criminalization of offenses that do not involve serious harms to others.
There are several ways in which supposedly victimless crimes might be thought to fail to satisfy the harm principle. First, although offenses such as suicide involve the potential for serious harm, such harm is caused to self rather than to others. Put another way, although suicide is not literally ‘‘victimless,’’ it involves a victim who consents to the harm and in fact brings it on himself. Second, offenses such as vagrancy and public drunkenness involve harms that are diffuse and attenuated, and it is difficult to identify any particular victim or group of victims who are affected. Such crimes are better characterized as involving the risk of harm to others, rather than any actual harm. Third, offenses such as obscenity and nudity seem to involve not harm per se but rather something like ‘‘insult’’ or ‘‘offense’’ to sensibilities. In addition, some offenses may involve genuine harm to victims who are either unaware that they have been harmed or who are insufficiently motivated to swear out a complaint.
So what exactly is wrong with criminalizing acts that fail to satisfy the harm principle in such ways? As a matter of principle, the argument is that, in a liberal society like ours, people should be free to pursue their life paths with minimal coercive control by the government. Under such a view, the only circumstances in which the government should be permitted to interfere with an individual’s personal autonomy, particularly by means as intrusive as the criminal law, are when the individual causes or threatens to cause harm to other citizens.
Victimless crime statutes also pose a number of practical problems, many of which have been cited by civil libertarians seeking to challenge the validity of such laws. First, criminalizing conduct that is not harmful may result in an overuse of limited prosecutorial, judicial, and penal resources, and a consequent diversion of such resources from more important law enforcement priorities. Second, much victimless crime is private in nature and hard to detect. Its investigation may involve neighbors spying on neighbors, intrusive forms of surveillance, and the possibility of entrapment. Third, because the price of goods or services involved in supposedly victimless offenses such as drug possession and prostitution will be higher than it would be in a legal market, people who buy and sell such goods and services may engage in other, more serious forms of criminality to pay for a habit or protect turf. Fourth, because victimless crimes frequently occur without being observed publicly, there is more potential for official corruption and discriminatory enforcement (particularly against members of politically unpopular groups). Fifth, in some cases, such legislation may encourage societal intolerance for, and unfair stigmatization of, behaviors associated with certain minorities or other powerless groups. Finally, as a result of most or all these problems, the enactment and enforcement of victimless crime statutes is likely to lead to diminished respect for both the rule of law and the authorities that enforce the law.
STUART P. GREEN
References and Further Reading
See also Abortion; Bowers v. Hardwick, 478 U.S. 186 (1986); Lawrence v. Texas, 539 U.S. 558 (2003); Mill, John Stuart; Obscenity; Sodomy Laws; Vagrancy Laws