Victimless Crime: an Operational Definition

Victimless crime: what a loaded term! It sounds like a sneaky libertarian rhetorical trick to end the debate before it starts. “What? You favor laws against crimes which have no victim?? You totalitarian #($%#^?” And yes, libertarians do use it as a rhetorical device. But the term also has valid meaning, both morally and operationally. Even if you reject the moral implications, or simply consider them insufficient to justify legalizing certain vices, you would do well to pay attention to the operational implications. That is, you should if you want vice laws that do more good than harm. The operational implications explain why the War on Drugs continues to fail, but studied carefully also reveal quite a few special cases where anti-drug legislation can work.

Who Will Call the Police?

Someone steals your purse, keys your car, or allows their big dog to poop on your lawn. If these actions annoy you, you are a victim. You have an incentive to call the police, cooperate with the investigation and testify in court. We don’t need a system of video cameras, sting operations or paid informants to enforce laws against these crimes because they have a victim. The victimization level can be trivial. It just has to be sufficient to inspire informing the authorities that a crime has occurred.

The logic applies to indirect victims as well. If you find a dead body, it is in your interest to report it even if the body is that of a stranger or even someone you disliked. Letting murderers go unpunished is a danger to you, so you have incentive to report that the crime has been committed. Since it is very hard to cover up the fact that someone has died/disappeared, most deaths do get reported and the authorities receive cooperation to determine whether a crime has occurred. Citizens initiate action; the police follow up.

Compare these acts with a victimless crime: responsible drug use. Fred wants some marijuana to fully appreciate the subtle flavors of a peanut butter and jelly on Wonder Bread sandwich. Shaggy has some extra pot in his stash. They get together privately. Money is exchanged for the flavor-enhancing herb. Fred goes home, smokes a joint, and relishes his sandwich while enjoying an episode of Gilligan’s Island. Who is going to call the police? You may shudder in horror at the thought of potentially productive citizens wasting time watching television and smoking weed, but how are you going to detect when these horrible crimes are happening without spying?

Or let us consider George, a wealthy software engineer cursed with pimply face and poor social skills. George is lonely and looking for love. Betty is beautiful and broke. She meets George in a bar, is turned on by his bulging wallet and an exchange of cuddles for cash is arranged. Who shall call the police? Without listening in on the details of their conversation, we have no way to distinguish prostitution from recreational promiscuity.

The Consequences of Victimless Crime Laws

You may consider society to be a victim of the acts above. So what? Society is not looking, unless you create a police state. You may consider the perpetrators themselves to be the victims, and you may be correct in some cases. But the perpetrators disagree, and this has practical implications. Legislate laws against acts which have no victim and you are left with a combination of three options:

  1. Resort to police state tactics. Place video cameras, tap phone lines, pay informants, do sting operations, perform no-knock searches, and/or prosecute on flimsy evidence.
  2. Resort to excessive punishment. If a crime has a 0.1% chance of detection, make the punishment a thousand times worse than the benefit of doing the crime.
  3. Obey the Bill of Rights but keep the victimless crime law on the books. Make a statement and leave it at that.

You might think police state tactics are OK against drug dealers or prostitutes, but keep in mind the Pandora’s Box that you open. Those same tactics can be turned against an activity you like. For example, legal guns and police states don’t go together so well. If you value the Second Amendment, beware of vigorous enforcement of victimless crimes.

Excessive punishment can backfire as well. Fill up the jails with dope dealers and you don’t have room for the child molesters. Assess outrageous penalties for mild crimes, and you put people into a sunk cost mode. If the sentence for shooting a cop is little higher than for possessing crack cocaine, then a crack dealer has little disincentive to resort to violence to avoid arrest.

Leaving poorly enforced laws on the books reduces respect for the rule of law. People become effective anarchists, choosing which laws to obey. Criminals see the authorities as weak, and punishment more a matter of bad luck than of guilt. Crimes with victims increases. This of this as a variation on the Broken Window Theory.

You may decide that vice law enactment/enforcement is worth the price, and in some cases it might be. But make sure you weigh these considerations in your mind. If you believe that society pays a price for vice, keep in mind that society also pays a price for lawlessness and/or a police state. You may consider the partakers of vice to be victims, and we need laws for their own good. But how much good does it do a soul to spend time in jail? Weigh the trade-offs, but before you give up on a more moral society know this also: sometimes vices have victims.

The Victims of Vice

Responsible drug use is a victimless crime. Irresponsible drug abuse is not! Abuse can be made illegal to good effect. I’m not quibbling about a moral distinction, I’m pointing out a practical distinction: drug abuse almost by definition is measurable without spying.

  • Fred from our previous story decides he enjoys sitting on the couch getting stoned and watching Gilligan’s Island so much he quits his day job and works only when he truly “needs” to. He fails to take child support payments into account for his needs budget. Do we have a victim, now?
  • George from our earlier story is not quite a lonely as he let on. Actually, he is married, albeit not to a trophy wife. Do we have a victim?
  • Ralph takes a hot date to a fancy restaurant. Alas, the mood is marred by a stoned waiter who won’t shut up. Do we have a victim?
  • Bill likes to gamble, and often runs out of money. Bill is married. Do we have a victim?
  • The local gentlemen’s club likes to advertise. Sleazy billboards dot the highways, fliers featuring barely clad ladies show up in public locations. Children and preachers can see these pictures. Do we have a victim?

I leave it to the reader to decide if the victims above deserve redress and how much. And redress/punishment need not be through the criminal courts in all cases. The waiter above might merit reprimand from the restaurant manager, the customer a free meal. The aggrieved wives might go through civil courts. The vice abusers who neglect their families might do better with forcible rehab vs. prison. You decide.

The key lesson is that in all the scenarios above we have parties annoyed enough to initiate action by the proper authorities. We don’t need a police state to make vice abuse illegal. It is blanket prohibition that gets us in trouble.

The last example shows that we do not need to turn every neighborhood into the Las Vegas Strip in order to do away with victimless crime laws. We can drive drug dens, gentlemen’s clubs and gambling joints underground. If it’s observable, we can do something about it. I merely suggest that we drive such activities only partially underground: to appropriate neighborhoods vs. all the way down into the underground economy. Illegal vice begets serious crime because we have significant money in the hands of people who cannot call the police. Legal, but contained, is a more viable policy.

In future articles I plan to go into more detail for each of the major currently illegal vices and suggest harm reduction measures which are enforceable under the Bill of Rights. For now, I invite you to try to come up with some applications of your own.