CRIMES WITHOUT VICTIMS
The United States invests enormous resources to control victimless crimes, in which harm occurs primarily to the participating individuals themselves. In 2015, there were about 10.8 million arrests recorded in the latest Federal Bureau of Investigation (FBI) Uniform Crime Report. Many of these arrests involved crimes without (unwilling) victims. For example, about 42,000 arrests were made for prostitution; 670,000 for drunkenness and violation of liquor laws (not including driving under the influence of alcohol); 1.5 million for drug abuse violations; and 4,800 for gambling (Federal Bureau of Investigation, 2016).
The criminalization of some acts that have no unwilling victims reflects the view that individuals should be deterred from engaging in acts deemed morally repugnant and/or socially or individually harmful. Many of those arrested for victimless crimes are never prosecuted: Arrest and overnight lockup are used simply as a means of exerting social control over prostitutes and intoxicated persons without going through the bothersome lengths of creating a convincing prosecution case. For example, habitual drunks may build up formidable “criminal” records by being repeatedly arrested, even though they may never have harmed anyone except, possibly, themselves. One study found that two-thirds of repeatedly arrested alcoholics had been charged only for public intoxication, vagrancy, and other related offenses (Landsman, 1973).
There is an extensive victimless crime literature dealing with drug addiction, prostitution, gambling, abortion, homosexuality, suicide, alcoholism, certain sexual behaviors, pornography, and such lewd “offenses” as women going topless on public beaches or breast-feeding in public. To use a legal term, these are crimes mala prohibita (that is, behaviors made criminal by statute but without consensus as to whether these acts are criminal in and of themselves). They are acts against public interest or morality and appear in criminal codes as crimes against public decency, order, or justice. Crimes like rape or murder are mala in se (that is, evils in themselves with public agreement on the dangers they pose).
Victimless crimes are distinguished from other crimes by three additional factors: (1) the element of consensual transaction or exchange, (2) the lack of apparent direct harm to others, and (3) the difficulty in enforcing the laws against them as a result of low visibility and the absence of complainants. In other words, victimless crimes are plaintiffless crimes—that is, those involved are willing participants who, as a rule, do not complain to the police that a crime has been committed. Although many people do not consider these activities “criminal,” the police and the courts continue to apply laws against such groups as drug users, prostitutes, gamblers, homosexuals, and pornography distributors—laws that large sections of the community do not recognize as legitimate and simply refuse to obey. This situation is further compounded (and muddied) by technological breakthroughs in the computer and Internet age. Is there a line between “fake” pornography, where digital simulations are used to create images, and “real” pornography with “live” subjects? The two are virtually indistinguishable from each other, and the criminalization of foul figments of cyber technology that does not involve human subjects raises some interesting First Amendment questions (Liptak, 2001).
The formal controls exerted on victimless crimes are expensive and generally ineffective. Still, they serve certain functions. Robert M. Rich (1978:28) noted that persons who are labeled as criminals serve as an example to community members. When the laws are enforced against lower-class and minority-group members, it allows the ones in power (middle- and upper-class people) to feel that the law is serving a useful purpose because it preserves and reinforces the myth that low-status individuals account for most of the deviance in society. Finally, the control of victimless crimes, in the forms of arrests and convictions, strengthens the notion in the community that the police and the criminal justice system are doing a good job in protecting community moral standards. Let us now consider law as a means of social control for certain victimless crimes such as drug use, prostitution, and gambling.