Harm principle
From The Art and Popular Culture Encyclopedia
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The term victimless crime refers to infractions of criminal law without any identifiable evidence of an individual that has suffered damage in the infraction. Typically included are traffic citations and violations of laws concerning public decency, and include public drunkenness, illicit drug use, vagrancy, speeding and public nudity. These laws (concerning public decency) are based on the Offence principle, as opposed to laws based on the Harm principle.
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. More limited are legalizations of euthanasia (legal in Japan, the Netherlands, Belgium, Switzerland, Albania, Oregon and Washington) and cannabis use (see legality of cannabis by country).
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Determining a victim
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.
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.
Consent
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. With the requirement of consent, the fourth type of interpretation above would usually not fall under the definition of "victimless crime".
Proponents for reform
In general, social libertarianism maintains that laws banning victimless acts have no rational or moral reason for existing, so they should be abolished. It also asserts 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 were originally used to justify them.
Individual freedom
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 built on in libertarian philosophies such as self-ownership and the non-aggression principle.
Economic effects
Proponents of reform argue that removal of these laws would be a profit to the economy, citing figures in excess of $200 billion. They also argue that fewer people in prison for these crimes would boost the workforce, as well as reduce the reliance on correctional facilities and allow police the opportunity to focus on the remaining crimes.
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 Template:Verify source.
Proponents of the status quo
Proponents of the prohibition of "victimless crimes" can offer one or more of these justifications.
Group Rights
One view of government power allows the government to do whatever it wishes so long as it respects the rights and wishes of the majority. Thus, according to this view, if an act offends the majority of the population, even if is consensual, victimless, etc., then it is rightful to force them to stop for the benefit of the group. Individual rights thus only apply when the group wants them to.
Fundamental Inability to Consent
One stance is that no individual can legally consent to certain acts. For example, in the Operation Spanner case, UK courts have ruled that individuals cannot legally consent to actual bodily harm in sadomasochistic sexual acts. Furthermore, few countries allow anyone to consent to being murdered.
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 would be justified in preventing anyone from using it, as people who do use it must not know what they are doing.Template:Citation needed
Good of society
Much legislation is carried out on the principle that it will benefit the community as a whole. 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.
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. Similarly, Ireland has deemed blasphemy illegal.
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. 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.
Good of the individual
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 example, while historically prostitution was considered a victimless crime, today more and more countries are classifying it as a form of exploitation of women, a form of violence against women. Such views are held in Sweden, Norway and Iceland, where it is illegal to pay for sex, but not to be a prostitute (the client commits a crime, but not the prostitute). See Prostitution in Sweden.
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.
Specific arguments
It has been argued that suicide, euthanasia, or taking mentally-debilitating drugs should not be against the law. This view holds that if people do not physically harm others or their property they should legally be able to do whatever they want, even harm themselves. According to this view, as long as an action is not coercive or fraudulent, it is immoral to use force to stop it.
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 argue that the criminal activities associated with this crime (violence, theft etc) occur principally because the activity is illegal, and that in time there would be few crimes associated with this activity if it was 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.
Legalization of victimless 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 Texas sodomy laws.
Prohibition of alcohol was repealed in the United States, and there are efforts to legalize cannabis and other illegal drugs in many countries.
See also
- Euthanasia
- Harm principle
- Illegal drug trade
- Sumptuary
- Consensual crime
- Fully Informed Jury Association
- Jury Nullification
- Voluntaryism
- Marc Stevens
Further reading
- Ain't Nobody's Business If You Do (ISBN 0-931580-58-7) is a book by Peter McWilliams criticizing the existence of laws against consensual crimes.
