victimless crimes

Mark Moncrieff makes some interesting points about victimless crimes in his counter-post to my recent post.

I think it is true that what are usually thought of as victimless crimes are not necessarily really victimless. It depends a lot on what victimless crimes you’re talking about. He’s certainly correct that adultery is not exactly a victimless crime.

My view is that it’s necessary to consider carefully the exact nature of the possible harm done. I would divide the harm into three categories – actual physical harm, psychological harm and social harm. Actual physical harm can be regarded as something objective. With psychological harm and social harm we’re generally veering into the realms of the subjective which to me is a real problem.

Psychological harm is obviously immensely difficult to quantify. It can also be deceptive because you cannot always be sure you’re correctly distinguishing between results and causes. Take marijuana. There seems to be an association between marijuana and schizophrenia, but does that mean that marijuana causes schizophrenia or does it mean that schizophrenics are more likely to become marijuana users? Or if it doesn’t cause schizophrenia maybe it exacerbates it (which is what I’m inclined to believe). And I’ve had a lesbian say to me that the problem is not that lesbianism causes mental illness but rather that women with mental health issues are more likely to become lesbians. It is also of course possible that the lesbian lifestyle exacerbates those issues (a position my lesbian friend is inclined to accept).

What about social harm? That’s even more subjective and entirely impossible to quantify. In fact if you agree with Margaret Thatcher that there’s no such thing as society you’d have to argue that there’s no such thing as a crime that does social harm. Even if you don’t agree with Thatcher (and I certainly don’t) the concept of social harm is rather nebulous.

So let’s look at some victimless crimes. Take adultery. There’s no physical harm done to any party. It’s pretty obvious there’s the potential for psychological harm to the non-adulterous spouse. But the extent of that psychological harm no doubt varies enormously. Some spouses seem to just shrug the matter off. Others are devastated. The difficulty is that it’s still rather subjective. It’s obviously real, but difficult to quantify. Does adultery do social harm? My view is that it would be a challenge to prove such a view.

What about fornication? Obviously there’s no question of physical harm. Psychological harm? I’m sceptical. Social harm? Again I’m very sceptical. What if it’s taken to the extreme of promiscuity? I think it’s possible that promiscuity is very bad for some people, but then it is also possible that it’s good for some people. For some people it might fulfil a deep psychological need. It’s also possible that some people might cause more social problems if deprived of the opportunity to be promiscuous (they might for example commit sexual assaults).

What about homosexuality? For me the key here is sodomy, since it is well established that sodomy can and does do actual direct physical harm as well as enormously increasing the chances of contracting a sexually transmitted disease. But what’s important to bear in mind here is that heterosexual sodomy carries exactly the same risks.  A very strong argument could be made that it’s a practice that should be discouraged. Lesbianism on the other hand involves zero risk of physical harm. As for social harm, it seems self-evident that spreading homosexual propaganda to children or encouraging others to adopt a homosexual lifestyle does extreme social harm. But the social harm in these cases comes from associated social behaviours rather than the sexual behaviour itself. You could argue that when homosexuals practised their lifestyle discreetly and in private the social harm done was minimal or even non-existent.

With drugs the risks of physical harm are obvious in some cases, not so obvious in others. The psychological harm is difficult to assess since the evidence seems to be all over the place. As for social harm, I’d argue that the drug culture has done devastating damage. But again when such habits were practised discreetly and in private the social harm was clearly very much less.

Of course even when you can establish that harm is being done the question of what to do about it remains. Do you criminalise the behaviour? Encourage people to seek therapy? Make the behaviour legal but strongly discourage it? The example of Prohibition suggests that legal bans can be risky and can be a two-edged sword.

The fact that something might be considered unwise or unhealthy or morally repugnant or recklessly dangerous does not necessarily imply that we should apply legal sanctions against it. I think mountain-climbing is recklessly dangerous but I don’t want to ban it. I think that drinking a bottle of Scotch a day is a very very bad idea but I don’t want to ban Scotch Whisky. On the other hand I don’t want people to be encouraged to drink a bottle of Scotch a day and I can see an argument that people should be strongly discouraged from doing so.

With most “victimless crimes” it’s difficult to make a strong case for prohibition but in some cases it is possible to mount a very strong argument for vigorous action to prohibit any attempt to encourage such activities.