Victimless Crimes

Carol A. Veneziano, Ph.D., Professor, Southeast Missouri State University, cveneziano@semo.edu

 

A victimless crime is an illegal act that involves consenting adults and lacks a complaining participant (Schur, 1965).  Such acts have been defined as illegal, but there is no victim that claims to have been harmed; either no harm has occurred, or if harm has occurred to those involved, it is negated because its willing participants have given informed consent to the activity (Stitt, 1988).  Victimless crimes are also sometimes referred to as public order offenses.  Although there has been some disagreement over which crimes are victimless, five of the most commonly identified victimless crimes are gambling, drug use, pornography, prostitution, and homosexuality.  Additionally, abortion is sometimes referred to as a victimless crime, although this classification has been highly controversial (Brown, Esbensen and Geis, 2010).  Adultery and fornication might formerly be referred to as victimless crimes, but in most states these acts are no longer crimes (Harcourt, 1999).

Victimless crimes have been the topic of heated debate, primarily centering on the question as to whether these acts ought to be crimes at all. The arguments take several forms.  One of the controversies involves the importance of personal freedom versus society’s imperative to uphold moral standards.  A second issue addresses the problem of the concept of harm.   Concerns are raised as to whether victimless crimes are harmful not only to the participants but to others in society, and whether such acts result in negative consequences that might not be immediately apparent.  In addition, a final issue is whether attempts to control victimless crimes are helpful or detrimental to the criminal justice system and society in terms of cost effectiveness.

The oldest argument concerning victimless crimes concerns personal freedom.  If the individuals involved are consenting adults, they should be free in a democratic society to engage in these behaviors, even if that conduct should be unwise for the individual (Feinberg, 1984).  According to this perspective, the government should not be involved in enforcing morality and coercing its citizens to follow particular standards of behavior, thus interfering with their liberty.  On the other hand, some scholars have argued that it is important to uphold moral standards in society.  Such acts should be against the law because they are wrong (sometimes referred to as legal moralism).  If a society does not have standards, there will be chaos.   There are acts that are generally regarded as immoral in a culture; a policy that allows such acts would weaken the social cohesion and consensus about appropriate behavior and ultimately lead to the collapse of society (Devlin, 1965).

The second argument against victimless crimes is that they harm no one else, except possibly the individuals involved, who are free to do as they please.  Some scholars, however, have argued that participants in these crimes do not hurt only themselves.  The offenders’ families may be hurt, and victimless crimes could even lead to other problems where there are unwilling victims (Meier and Geis, 1997).  For example, prostitution and homosexuality might lead to the spread of AIDS.  Drug abusers might commit crimes to obtain drugs; pornography, it is argued, leads to the degradation not only of the participants but of women in general.  In response, critics of victimless crime laws point out that families are often hurt by many acts a family member could commit, and people generally may engage in acts that are indirectly harmful to others, such as investing unwisely in the stock market, eating fast food that results in medical bills which increase insurance costs, and other practices that are not illegal.  The law cannot begin to prohibit so many potentially harmful practices, so it should not forbid other practices that are less socially acceptable.

However, some researchers have indicated that victimless crimes are harmful in ways that do argue for their control and criminalization.  The broken windows argument of crime prevention (Wilson and Kelling, 1982) has altered the harm argument significantly.  This theory states that if such phenomena as minor disorderly conduct, prostitution, liquor shops, illicit drugs and the sale of pornography go unattended, serious crime will increase in a neighborhood.  An area that appears disorderly, (broken windows), is vulnerable to invasion by criminals, thus affecting the quality of lives of its residents and with potentially devastating economic effects.  Neighborhoods whose residents believe that they can regulate public behavior by informal controls tend to be areas which discourage potential offenders.  On the other hand, areas which appear to tolerate disorder, where no one seems to care or to control the physical environment, tend to encourage other more serious types of crime.  Thus disorder and victimless acts should be discouraged so as to protect neighborhoods and residents.  

In the 1960s and 1970s, victimless crimes were being decriminalized in many states.  As a consequence of the broken windows concept, some places, particularly large cities such as Chicago and New York, have made more aggressive efforts to apprehend those involved in victimless crimes.   The rationale for this change in policy has been on the basis that victimless crimes lead to more crime which tends to discourage economic enterprises such as business and tourism, and to interfere with the quality of life of its residents (Harcourt, 1999). 

The impact of victimless offenses on other crimes and on community economy has not been well researched.  One empirical study was conducted concerning gambling, which has been made legal in many communities as a result of casinos.  Analysis found few consistent findings.  Crime rates increased significantly in some casino communities, remained relatively stable in others, and decreased in some communities.  It was concluded that crime does not inevitably increase when legalized gambling is available, but that the effects of casinos on crime appear to be related to a variety of variables that are not yet well understood (Stitt, Nichols and Giacopassi, 2003).  In order to examine the effects of legalization of gambling, as well as other victimless crimes, more empirical studies are clearly needed.

A further issue that has been the focus of considerable debate concerns the impact of victimless crime laws on the criminal justice system.  The enforcement of victimless crime laws has been associated with police discretion and increased police corruption, and may also be associated with the violation of civil liberties against citizens (Acuri, Gunn and Lester, 1987).  The enforcement of victimless crime laws might also lead its perpetrators to commit other crimes that they would not commit if these victimless acts were legal (for example, if drug use was legal, some perpetrators would not commit property or other crimes to obtain money for their drugs).  Additionally the enforcement of victimless crime leads to increased jail populations at considerable cost (Taylor, 2001).  Furthermore, there is concern that enforcement of victimless crime laws may divert time and funds for the criminal justice system from other more serious crime and more important issues.  Since it is not even the case that police can be particularly effective at enforcing these law, some scholars argue that it is not worthwhile, since there are so many other pressing crime issues (Skolnick, 1978; Barkan, 1997). 

Yet another problem is that victimless crime provides revenue for organized crime.  Victimless crimes often provide goods and services (such gambling, prostitution, and drugs) for which there is considerable demand.  Organized crime has been able to provide these desired commodities, and victimless crimes serve to fund these groups, creating a lucrative market and keeping such groups in business.  The argument has been made that organized crime contributes to corruption of criminal justice officials; however, the counterargument has been that there would still be opportunities for corruption even if victimless crimes were legal.   Yet, although the goods and services provided might not involve a complaining victim, it is the case that members of organized crime engage in other corrupt and dangerous criminal practices such as loansharking and extortion, thus contributing to the serious and violent crime rates.  There are thus arguments both for and against legalization of victimless crimes with respect to the role of organized crime (Kenney and Finckenauer, 1995).

More subtly, the enforcement of victimless crime laws might lead to public disrespect for the law.  If citizens believe that such laws are overreaching and interfere with their liberties, this perception might affect their general views of the criminal justice system.  These laws are difficult to enforce, since they are usually not even reported, and provide goods and services that are in demand.  As such, the laws are likely to be violated, weakening law abiding behaviors.  If they are associated with police corruption and organized crime enterprises, negative views of the police and the law again seem likely to result (Skolnick, 1978; Kenney and Finckenauer, 1995). 

Furthermore, it has been pointed out that victimless crimes tend to reflect the moral beliefs of the powerful, and as such reflect social inequality. Those citizens who influence lawmaking have tended to be white middle and upper class Protestants, and the laws tend to affect the poor and minorities.  There are numerous examples.  The temperance movement of the late 1800s and early 1900s was led by white Protestants who considered alcohol a sin and disliked Catholics, immigrants and the poor who used alcohol (Kenney and Finkenauer, 1995).  When prostitution laws are enforced, poor streetwalkers are much more likely to be arrested than call girls who cater to richer clients, and prostitutes in general are legally more at risk than their male customers.   Gambling by the poor, such as “running the numbers” has been illegal, but gambling on the stock market or in the casinos is legal (Barkan, 1997).  Some drugs, such as tobacco and alcohol, are legal even though they cause harm.  Recently drug laws have been criticized as racist, because the penalties have disproportionately affected African Americans, as their incarceration rates have risen dramatically relative to white drug users (Bobo and Thompson, 2006).  The homeless tend to be arrested for victimless crimes for acts which actually involve maintaining survival without housing (Fischer, 1988).  Given the inconsistencies, the perception can be created that the laws apply only to the powerless, and that victimless crimes are used as surrogates for other political issues concerning class and race (Dombrink, 1993).

A small number of studies of public perceptions of victimless crimes have indicated that the public finds these acts less serious than other types of crimes, ranking them relatively low in terms of crime seriousness (Miethe, 1982; Veneziano and Veneziano, 1993).  A religious affiliation and a higher level of religiosity are associated with a stronger condemnation of victimless crime (Koster and Heike, 2009).  However, victimless crimes are perceived to be harmful in a number of studies, to self, family and society (Veneziano and Veneziano, 1993; Harcourt, 1999).  Other perceptual research has focused on the police.  A survey found that police officers differ greatly in their use of discretion and that discretion is most often used for traffic violations and victimless crimes.    Another study indicated that police did not view such crimes as a serious problem, and tended to believe that it is futile to attempt to control such acts (Wilson, Cullen, Latessa and Wills, 1985).   Research with sheriffs found that they tended to believe that attempts to police public order offenses had a detrimental effect on their departments, but that they were unwilling to decriminalize such these acts (Kincade and Leone, 1993).  More research in the area of perceptions would appear to be indicated.

Policies and prosecution of victimless crimes have changed significantly.  Despite the debates that have conducted for decades, the trend has been that most victimless crimes have gradually been decriminalized, sometimes referred to as “decriminalization drift” (Brown, Esbensen and Geis, 2010).  Adultery and fornication have been removed from state statutes.  Abortion, although still a matter of great controversy, is legal under certain conditions.  Gambling, once permitted only in Nevada, is legal today in almost all jurisdictions through lotteries and casinos.  Homosexuality, while illegal in some states, is seldom prosecuted; the major issues in recent years have concerned gay marriage and policies concerning military service.  Only streetwalker prostitutes, largely powerless and catering to the marginal client, continue to be prosecuted (sporadically) by the criminal justice system (Harcourt, 1999; Brown, Esbensen, and Geis, 2010).  On the other hand, drug use, once allowed and even socially acceptable, is now punished much more severely, and increases in prison populations reflect this change in policy.    Therefore, the prosecution of victimless crimes also reflects changes in attitudes and moral standards, as well as political factors and social forces, complicating the debate even further.

Victimless crimes highlight a significant number of issues concerning crime, morality and the criminal justice system.  More research needs to be conducted in a number of areas, including:  (1) perceptions of the public and police concerning various victimless crimes, including perceived seriousness and harm; (2) the impact of victimless crimes on other members of society, including quality of life issues; (3) the potential economic impact of the various victimless acts (both positive and negative), and the community factors that affect economic impact; and (4) further study of the effect of specific acts on police, other members of the criminal justice system, and on organized crime. 

It seems unlikely that the debates concerning such acts as homosexuality, prostitution, drug use, gambling and pornography will be resolved.  There are not clearly accepted definitions of “consensus” or “harm” or “offender” or” victim” concerning such acts (de Haan. 1990).  The issue of harm is a major point of contention in the debate.  It is not clear whether the concept of harm should be confined to the actions of the individuals involved, or whether potential harm to others or society should be a factor, and to what degree.  Even then, the question is whether ignoring victimless crime does more harm than good versus prosecuting such acts, as either policy potentially appears to have both positive and negative consequences, for both citizens and the criminal justice system.    

 

SEE ALSO:  Prostitution, Gambling, Pornography, Drug Crimes, Homosexuality, Public Order Crimes, Abortion, Crime and Morality, Broken Windows, Decriminalization

 

References

Arcuri, A., Gunn, M. & Lester, D. (1987). Measuring police discretion.  Perceptual and Motor Skills, 64 (3), 774–785.

Barkan, S.E. (1997).  Criminology:  A sociological understanding.  Upper Saddle River N.J.:  Prentice-Hall.

Bobo, L.D. & Thompson, V. (2006).  Unfair by design:  The war on drugs, race and the legitimacy of the criminal justice system.  Social Research, 73 (2), 445-474.

Brown, S.E. & Esbensen, F. & Geis, G. (2010).  Criminology:  Explaining crime and its context.  New Providence, NJ:  Matthew Bender & Company.

De Haan, W. (1990).  The Politics of Redress:  Crime, punishment and penal abolition.  Boston:  Unwin Hyman.

Devlin, P. (1965). The Enforcement of Morals.  London:  Oxford University Press.

Dombrink, J. (1993). Victimless Crimes and the ‘Culture Wars’ of the 1990s.  Journal of Contemporary Criminal Justice 9 (1), 30- 40.

Feinberg, J. (1984).  Harm to Self:  The moral limits of the Criminal law.  New York:  Oxford University Press.

Fischer, P. J.  (1988). Criminal activity among the homeless:  A study of arrests in Baltimore. Hospital & Community Psychiatry, 39 (1), 46-51.

Harcourt , B. (1999).  The collapse of the harm principle.  Journal of Criminal Law & Criminology, 90 (1), 109-194.

Kenney, D.J. & Finchenauer, J.O. (1995).  Organized Crime in America.  Belmont, CA:  Wadsworth Publishing Co.

Kincade, P. & Leone, M.  (1993). Victimizing the system:  The sheriffs’ perspective on public order criminality and criminal justice.  Journal of Contemporary Criminal Justice, 9 (1), 15–29.

Koster, F., & Heike, G. (2009). Shame and Punishment:  An International Comparative Study on the Effects of Religious Affiliation and Religiosity on Attitudes to Offending.  European Journal of Criminology, 6 (6), 481–495.

Meier, R.F. & Geis, G. (1997).  Victimless crime?  Prostitution, Drugs, Homosexuality, Abortion.   Los Angeles:  Roxbury Press.

Miethe, T. (1982).  Public consensus on crime seriousness.  Criminology, 20 (1), 515-526.

Schur, E. (1965).  Crimes without Victims:  Deviant behavior and public policy.  Englewood Cliffs NJ:  Prentice-Hall.

Skolnick, J. H.  (1978). The legalization of deviance. Criminology, 16 (2), 193–208.

Stitt, B. G.  (1988). Victimless crime:  A definitional issue.  Journal of Crime and Justice, 11 (2), 87–102.

Stitt, B.G., Nichols, M., & Giacopassi, D.  (2003). Does the presence of casinos increase crime?  An examination of casino and control communities.  Crime and Delinquency, 49 (2), 253-284.

Taylor, R. (2001).  Getting tough on crime:  What does it mean?  Free Inquiry, 21 (3), 32–33.

Veneziano, L. & Veneziano, C.A. (1993).  Are Victimless Crimes Actually Harmful?  Journal of Contemporary Criminal Justice, 9 (1), 1–14.

Wilson, G., Cullen, F., Latessa, E., & Wills, J. (1985). State Intervention and Victimless Crimes:  A Study of Police Attitudes.  Journal of Police Science & Administration, 13 (1), 22–29.

Wilson, J.Q. & Kelling, G.L. (1982).  Broken windows:  The police and neighborhood safety.  Atlantic 256, 29-38.

Further Readings

Chilton, R. & DeAmicis, J. (1975). Overcriminalization and the measurement of consensus. Sociology & Social Research, 59 (4), 318–329.

Cohn, A. (1984). Drugs, crime and criminal justice:  State-of-the-art and future directions.  Federal Probation, 48 (3), 13–24.

Farabee, D, Joshi, V.  & Anglin, D. (2001). Addiction careers and criminal specialization.  Crime & Delinquency, 47 (2), 196–220.

Newman, G. & Trilling, C. (1975). Public Perceptions of Criminal Behavior:  A Review of the Literature.  Criminal Justice and Behavior, 2 (3), 217–236.

Hart, H.L.A. (1963).  Law, Liberty, and Morality.  Palo Alto:  Stanford University Press. 

Mill, J.S. (1859).  On Liberty.  Indianapolis:  Library of Liberal Arts.

Suggs, D., Leisure. D., Newton & Irvine (1981). A Qualitative and Quantitative Analysis of the Impact of Nebraska’s Decriminalization of Marijuana. Law & Human Behavior, 5 (1), 45-71.