The term victimless crime refers to infractions of criminal law without any identifiable corpus delicti, or evidence of an individual that has suffered damage in the infraction (a victim). Typically included are traffic citations and violations of laws concerning public decency, and include public drunkenness, illicit drug use, vagrancy and public nudity.
The term is not used in jurisprudence. It is rather a political term, used by lobbyists with the implication that the law in question should be abolished. In a constitutional state, the legislature, a body in turn elected by the sovereign, defines criminal law. A crime (as opposed to a civil wrong or tort) is an infraction of a law, and will not always have an identifiable individual or group of individuals as its victims, but may also, for example, consist of the preparations that did not result in any damage (mens rea in the absence of actus reus), such as attempted murder, offenses against legal persons as opposed to individuals or natural persons, or directed against communal goods such as social order or a social contract or the state itself, as in tax avoidance and tax evasion, treason, or, in non-secular systems, the supernatural (infractions of religious law).
Victimless crimes are a proposition of liberalism and anarchism, as in the harm principle of John Stuart Mill, "victimless" from a position that considers the individual as the sole sovereign, to the exclusion of more abstract bodies such as a community or a state against which criminal offenses may be directed.
In a democratic society, wide agreement on a given law as punishing a "victimless crime" will eventually lead to that law's abolishment, as has been the case with most laws regarding homosexuality or sodomy law, abolished in most democratic countries in the later 20th century, and to a lesser extent prostitution (see regulated prostitution). More limited are legalizations of euthanasia (legal in Japan, the Netherlands, Belgium, Switzerland and Albania) and cannabis use (see legality of cannabis by country).
The victim in "victimless" is inherently controversial. Laws are generally intended to protect people, so a criminal act is likely to have some victim, however abstract. There are four distinct possible meanings for "victimless."
First, consensual crimes with (arguably) no material harm, such as consensual homosexual sex where illegal, can be considered victimless, as no one is harmed.
Second, crimes in which the damage caused is overwhelmingly borne by the perpetrator, such as suicide or drug use. As the perpetrator has chosen to suffer the effects of these crimes, they are not a "victim" in the normal sense.
Third, crimes in which the cost is borne by an abstract society or group of people, without a clear, direct victim. This could be applied to driving without auto insurance (where mandated by law).
Fourth are crimes against non-"victims", non-human entities, like governments. These are victimless not because no harm occurs, but because the recipient of the harm is not properly considered a "victim." This is thus a question of the definition of victim, rather than a question of the effects of the crime.
An essential part of most victimless crimes is that the participating parties consent to the act, meaning they have the cognitive faculties and necessary information to make a proper decision. Children and the mentally disabled may be incapable of consenting to certain acts, as they may lack the cognitive ability to understand their effects and implications, but this is not universally accepted. Different jurisdictions have different interpretations and requirements for informed consent.
Advocates for the removal of victimless crime laws believe in the inherent freedom of individuals. According to this principle, individuals have the right to partake in any actions they choose, as long as these actions do not impede on the rights of others, even if the actions could be considered detrimental to that person. In this case, the government should not be allowed to regulate the actions of people unless they affect other people as well. These views are based on libertarian philosophies such as self-ownership, the Zero Aggression Principle, and individualist anarchism.
They also claim that laws against these crimes may have unintended consequences that are the reverse of that intended: for example, the War on Drugs puts the distribution of illegal drugs into the hands of criminals, and creates artificial scarcity, making their distribution highly profitable. At the same time, it fails to completely prevent the activities it was intended to prevent. The criminal underworlds often created by laws against consensual crimes mean that a subculture comes into existence for whom police are an enemy, who cannot rely on law, and who often adhere to a violent code of honor. These traits discourage respect for property, encourage violence and revenge, and depress the economy of the areas in which they operate .
Proponents of the prohibition of "victimless crimes" can offer one or more of these justifications.
Another, similar argument, is that anyone who had full information and sufficient mental faculties would decide not to do the action. Thus, it is not a victimless crime because the person committing it is incompetent to consent to it. For example, one could argue that methamphetamine use is so destructive that no sane person, knowing the consequences, would do it. Thus, the law is justified in preventing anyone from using it, as people who do use it must not know what they are doing. This view is extremely paternalistic.
For example, addictive behavior, such as drug use or gambling, may cause a person to be less effective in the workplace, increase insurance costs, or may have adverse effects on relationships with family or friends, which could be effected harmful enough to be considered victims. Similarly, laws mandating the use of seat belts are argued to save considerable amounts of death and serious injury, thus offering a net benefit to society, since treating the injured and supporting the families of the injured or dead has a cost for insurance or social security systems paid for by the general population.
Some behaviour can be argued to damage the social fabric or social customs, even if it does not harm anyone who does not consent, or even if its victims are not persons. For example, torturing animals may be banned not because animals have rights, but because taking pleasure in the infliction of pain is viewed as a serious social problem, and thus should be suppressed. The aforementioned Operation Spanner is another example of this in which British courts determined that it is wrong to take pleasure in sexual sadism and thus the government can rightly outlaw the act.
Restriction of these acts can be linked to preserving morality in the community at large or to preventing an offense against God through so-called licentious or blasphemous acts. This is rooted in the custom of a religion, moral code or social code being used as the basis for laws. Such arguments are often disputed in secular societies.
Similarly, an action may be banned because it is extremely conducive to non-victimless crime. For example, prostitution is in theory a victimless crime where two consenting adults trade money for sex; however, the history of prostitution involves countless accounts of coercion and violence within the trade. Drug use and gambling have similar problems. Regulation short of criminalization has been used as an alternative method of dealing with this sort of issue.
Laws stemming from the good of the individual are based on the principle that an individual should never be involved in certain activities that are potentially harmful to them. They argue that because the harm done to a person by some activities is so great, it is better to simply make these activities illegal. For instance, a person's health and economic well-being can be harmed by using an illegal substance so much as to destroy any potential that person had and render them dead to the world, compelling caring individuals to spend so many resources attempting to help them, that it is better to make the usage of it illegal.
From a religious standpoint, the viewing of pornography or use of prostitutes are sins and immoral. Therefore, in an attempt to save the souls of persons that would commit these sins, these acts could be made illegal.
Some laws arise (ostensibly) to protect minors, such as statutory rape, restrictions on violent and obscene content in the media, and limitations on tobacco and alcohol use. These laws argue that youth do not have the reasoning capabilities to fully understand their actions and should therefore be prohibited from these actions until a certain age, even if those prohibitions create a hindrance for adults as well.
It has been argued that suicide, euthanasia, or taking mentally-debilitating drugs should not be against the law. This view holds that if the death or the drug-induced incapacity of a person works to the detriment of others then the act should still be a crime because it affects others adversely. Banning these acts excuses an "exit" from life entirely, or from one's responsibilities, which is believed to be immoral. For example, if a subway motorman commits suicide while on duty, and lets the train crash, resulting in injuries or deaths to others, then such an act should be made illegal. This act might not just be considered suicide, but also dereliction of duty.
If a person takes drugs (like cocaine or cannabis) but does not directly harm another, it is often argued that this action has no victim and thus should be legalized. Some also suggest that driving a car while intoxicated should not be a crime unless it can be shown that the vehicle operator's skills were impaired to the detriment of others. Some governments have legislated blood alcohol levels beyond which a person is considered to be driving while impaired. Disagreement arises over whether a risk of harm is legally equivalent to harm itself.
In some cases, the illegality of an act may itself be the greatest cause of harm. Proponents of drug legalization and legalizing prostitution argue that the criminal activities associated with those crimes (violence and theft, abuse and exploitation, respectively) occur principally because the activities are illegal, and that in time there would be few crimes associated with these activities were they legalized. The example of alcohol prohibition in the US, which led to huge bootlegging profits for the likes of Al Capone, is often cited.
Most states in the United States have managed to retain laws forbidding riding a motorcycle without a helmet or driving without seat belts, on the grounds that accidents cost the entire society in the form of publicly-provided health care costs. These laws are resented among certain segments of the motorcycle-riding public, in particular those that regard riding a motorcycle as an expression of personal freedom, as opposed to riding around in a car.
Some laws eminently reflect a dominant or prevalent cultural position and therefore impose conformity with the cultural preferences of the majority of citizens. Sexually-related crimes frequently belong to this kind of legislation, and are in some cases prosecuted only if a public scandal is effectively originated; in these cases the avoidance of scandals that offend politically-influential segments of society might then be the goal of the law.
Artificial insemination, in-vitro fertilization, human cloning and other medical or chemical interventions on the processes of human reproduction can be forbidden due to a general interest of the state in protecting the biological integrity of the species. In some countries commissions for bioethics have been created in order to define the prevalent position and consequently adjust legislation to their consensus.
Many activities that were once considered crimes are no longer illegal in some countries, at least in part because of their status as victimless crimes. For example, in the United Kingdom in the 1950s, the Wolfenden report recommended the legalization of homosexuality for these reasons. Almost fifty years later, Lawrence v. Texas struck down U.S. sodomy laws. Over the same period, abortion was legalized in most countries (although the victimless nature of abortion is still a subject of controversy).
Prohibition of alcohol was repealed in the United States, and there are efforts to legalize cannabis in many countries. Also, some reformers advocate the legalization of all currently illegal drugs and generally recommend legal regulation of the supply of drugs.
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