Consensual crime
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A consensual or victimless crime is a crime where all of those involved in the act give consent, and no third parties suffer as a direct result.
Governments may justify making these acts into crimes because of indirect effects on third parties, or because of offense to cultural norms, or because the law assumes that one of the parties to the action is a "victim" despite his or her informed consent.
Consensual crimes are often described as crimes in which the victim is the state, the juridical system, or society at large. These crimes are therefore forbidden behaviours that do not imply damage to third persons, but only affect general (sometimes ideological or cultural) interests of the system, such as common sexual morality.
Some, particularly libertarians, consider the term victimless crime an oxymoron, and the idea of such inconsistent or hypocritical.
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Giving consent
When discussing consensual crimes, one issue is whether the participants are capable of giving genuine consent. This may not be the case if they are:
- Animals
- Children (normally measured as being under the legal age of consent)
- Severely mentally ill
- Not fully informed about the issues involved
- Suffering from mood swings
- Acting under duress
- Addicted
Thus, for example, sex with a child is a crime but not a consensual crime, because even if there is consensus, it is not valid.
Examples
People often debate which crimes are consensual, arguing either that those involved are not in fact consenting adults, or that the crimes are not victimless. The following is a list of criminal acts in various societies at various times, that some people regard as consensual crimes, arranged into three broad categories:
Sex crimes and crimes related to reproduction:
- Adultery and, in general, sex outside marriage where all persons involved give consent (though violation of a marriage contract may involve a direct victim).
- Polygamy and other non-traditional marital and family practices.
- Prostitution, other sex work, and related acts (though poverty or drug addiction raises issues of consent)
- Incest between legal adults where offspring cannot result from the sexual activity; for example homosexual acts or where at least one partner is sterile. (In some countries forbidden only when causing public scandal).
- Homosexuality, BDSM, or other sexual activities not strictly related with biological reproduction (see, for example, sodomy law).
- Statutory rape where the "underage" participant(s) give consent (this raises the question: at what age are people capable of giving informed consent?).
- Pornography (production, trade, possession, watching) and other obscenity, when produced involving consenting adult participants, and distributed to consenting adult purchasers.
- Human reproduction outside ordinary methods, such as chemical or genetic interventions, birth control (illegal in many places), human cloning and other non-approved reproductive technologies.
Religion:
- Practice of religions or cults or superstitions other than those locally sanctioned.
- Blasphemy (slander against God).
Self-preservation and public safety:
- Many forms of gambling.
- Suicide and self-injury.
- Violation of laws requiring the use of safety devices such as seat belts and motorcycle helmets.
- Use of illegal drugs, including alcohol in some jurisdictions (though sale of drugs to addicted persons clearly raises issues of capacity to consent).
- The black market, or trade in general in such things as unapproved products or unlicensed services (to willing and fully informed buyers).
- Simple possession of certain dangerous objects, such as fireworks, or substances, such as plutonium or nerve gas.
- Possession of devices that may be used in committing crimes, such as weapons, unauthorised cable TV decoders, or cryptographic products.
- Sedition and unlicensed publishing.
- Subverting the national culture, e.g. by using certain foreign or minority languages.
- Infringement of the copyright in an orphan work.
In the systems that have laws on these matters, jurists commonly consider that the general interests of the state can originate laws that have to be respected only because of their existence (until eventual abrogation), since the respect for the entire juridical system is a duty of every citizen that has to be expressed in the respect of any formal law or rule (juridical public order). Obviously some laws eminently reflect a dominant (or prevalent) cultural position and therefore impose the respect for the cultural preferences of the majority of citizens. Sexually-related crimes frequently appear to belong to this kind of legislation and in fact they are in some cases prosecuted only if from the fact a public scandal is effectively originated; in these cases the avoidance of scandals might then be the goal of the law. Note that while the definition here bears some superficial resemblance to the legal concept malum prohibitum ("bad because prohibited", as opposed to malum in se, "inherently bad"), these crimes are legally considered malum in se, because it is expected that all members of the culture correlating with the state know that these acts are forbidden in that culture.
About the personal use of drugs, which is varyingly considered by different systems (some allow it, others don't), it has to be recalled that a concrete interest of the state is sometimes found in the damage that related criminality could cause, or for merely economical schemes. The personal use is then sometimes forbidden because it indirectly enforces related traffic (and mafia-like activities) and more serious crimes. Not differently, prostitution is forbidden in some countries because of the other criminal interests that usually surround the phenomenon, with an additional interest for the general public health (due to the risk of sexual diseases).
About the crimes against one's own person, like suicide or self-injury, again the interest of the state in fighting them is commonly individuated in the consideration of the opposite convenience of a general public health, and the matter is deeply discussed also depending on the juridical consideration of the acceptable extent of a man's free will. An argument that is similarly discussed regards euthanasia, differently evaluated as a help for suicide or as a true murder.
On an opposite situation, 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 cultural position of the establishment; in some countries commissions for bio-ethics have been created in order to define the prevalent position and consequently adjust laws on it.
In most western cultures, arguments are produced in favour of or against a legal provision of mentioned behaviours. These arguments are often expression of political positions, but not only, not necessarily and not uniformly.
Arguments for banning some consensual acts
In general, social conservatives tend to defend the existence of laws banning consensual acts.
- Advocates of laws against victimless crimes often assert that they are essential for the preservation of the greater good of society. For instance, 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, if only for the reason that 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 argue that some laws on victimless crimes are needed to preserve morality or the prevention of an offence against God. Such arguments are often disputed in secular societies.
- Advocates may consider the side-effects of the forbidden consensual activity on those close to the individuals concerned to be so harmful that they may be considered victims of the crime. A common example is laws restricting gambling, on the basis that gambling addicts can severely harm their family's well-being.
- In the same vein as the previous reason, some argue that while perhaps the activity in question in an ideal, theoretical state may indeed be victimless, most or all of its practical incarnations have generated situations in which many are victimized. For example, prostitution is in theory a simple transaction where money is traded for sex, however, in its many real-world incarnations there is a history of coercion and violence within the trade.
- They may consider that the direct harm of the activity in question is so great that the people involved need to be protected against their own actions, regardless of their desires. This is a common argument for the maintenance of laws against illegal drugs.
Arguments against banning some consensual acts
In general, social libertarians believe that laws banning consensual acts should be abolished, as there is no rational or moral reason for them to exist, and they reduce freedom.
- They also assert that the harm caused by the prevention of these activities is often far greater than any harm caused by the activities themselves, and would justify repeal of these laws on the same harm reduction grounds that supposedly justify them.
- They assert that laws against consensual 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 prevent the activities it was intended to prevent. Many cite the history of the Prohibition era in the United States as an example of a similar failed battle against an illegal drug.
- 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.
Legalization of consensual acts
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 US sodomy laws. Over the same period, abortion was legalised in most countries (although the 'victimless' nature of abortion is a subject of great controversy and debate).
Prohibition of alcohol was repealed in the United States, and there are efforts to legalize cannabis in many countries, and some reformers advocate the legalization of all currently illegal drugs (although they generally also recommend legal regulation of the supply of drugs).
Further reading
- Ain't Nobody's Business If You Do (ISBN 0931580587) is a book by Peter McWilliams criticising the existence of laws against consensual crimes. See http://www.mcwilliams.com/books/books/aint/toc.htm.de:Opferlose Straftat