Consensual crime: Difference between revisions

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{{Short description|Crime to which all parties consent}}

{{merge|Victimless crime}}

{{refimprove|date=April 2010}}

A '''consensual''' or '''[[victimless crime]]''' is behavior that is considered a [[crime]], even though all of those involved in the act give consent, and no third parties suffer as a direct result.

{{Criminology and penology|crimes}}

A '''consensual crime''' is a [[public-order crime]] that involves more than one participant, all of whom give their [[Consent (criminal law)|consent]] as willing participants in an activity that is unlawful. Legislative bodies and interest groups sometimes rationalize the criminalization of consensual activity because they feel it offends [[Norm (sociology)|cultural norm]]s, or because one of the parties to the activity is considered a "victim" despite their [[informed consent]].<ref>{{cite book|author-first=Dennis J. |author-last=Baker |url=http://www.ashgate.com/isbn/9781409427650 |title=The Right Not to be Criminalized: Demarcating Criminal Law's Authority |archive-url=https://web.archive.org/web/20111013102024/http://www.ashgate.com/isbn/9781409427650 |archive-date=13 October 2011 |publisher=Ashgate |date=2011 |chapter=5}}</ref>

Political leaders may justify criminalizing such behavior because of indirect effects on third parties, or because of offense to [[cultural norm]]s, or because the law assumes that one of the parties to the action is a "victim" despite his or her [[informed consent]].

Consensual crimes are often described as crimes in which the victim is the [[state]], the juridical system, or [[society]] at large. These crimes are therefore forbidden behaviours that do not imply damage to third persons, but only affect general (sometimes [[ideology|ideological]] or cultural) interests of the system, such as common [[sexual morality]].

Some, particularly [[libertarian]]s, consider the term ''victimless crime'' to be an [[oxymoron]], the concept to be [[inconsistent]] or [[hypocritical]], and begging the rhetorical question: ''if there is no victim, where is the crime''?

Consensual crimes can be described as crimes in which the victim is the [[State (polity)|state]], the judicial system, or [[society]] at large and so affect the general (sometimes [[Ideology|ideological]] or cultural) interests of the system, such as common [[sexual morality]]. [[Victimless crime]]s, while similar, typically involve acts that do not involve multiple persons. Drug use is typically considered a victimless crime whereas the sale of drugs between two or more persons would be a consensual crime. The fact that no persons come forward to claim injury has essentially made the two terms interchangeable in common use.

== Giving consent ==

{{main|Informed consent}}

When discussing consensual crimescrime, one issue is whether all the participants are capable of giving genuine [[legal consent]]. This may not be the case if theyone or more of the participants are:

* Animals

* [[Child]]ren (normally measured as being under the legal [[age of consent]])

* Severely [[mentally illdisabled]]

* Severely [[mentally ill]]

* Not fully informed about the issues involved

* Suffering from [[mood swing]]s

* Acting under [[duress]]

* [[Substance use disorder|Addicted]]

* [[Substance intoxication|Intoxicated]]

* [[Unconsciousness|Unconscious]]

Thus, for example, sex with a child is a crime but not a consensual crime, because even if there is consensus, it is not valid.

== Examples ==

The generally accepted definition of a consensual crime is a criminal act committed by two or more people, who consent to involvement, and does not involve any nonconsenting individuals. The following is a list of criminal acts in various societies at various times and in different societies, where the issue of liability hinges on consent or the lack of it:

* Unlicensed prize fights and other criminal activities of a sporting nature where the players consent and the audience actively approves of what they see (in [[English law]], see ''[[R v Coney]]'').

People often debate which crimes are consensual, arguing either that those involved are not in fact consenting adults, or that the crimes are not victimless. The following is a list of criminal acts in various societies at various times, that some people regard as consensual crimes, arranged into three broad categories:

* [[Murder]] or [[incitement]] to murder where one person actively solicits others to terminate their life, or the life of another. For example, a driver may be trapped in a burning tanker full of gasoline and beg a passing armed police officer to shoot him rather than let him burn to death. These situations are distinguishable from soliciting the cessation of life-sustaining treatment so that the injured person may die a natural death, or leaving instructions not to resuscitate in the event of death. Note that, in English law under the [[Suicide Act 1961]], [[suicide]] is not a crime committed by a person who fails to die. Thus, those who assist in a suicide attempt would be participants in a victimless crime because the would-be suicide cannot be tried. If the suicide succeeds, the legal issue is whether the assistants actively facilitated the death, or as doctors, nurses or carers, [[omission (criminal law)|omitted]] to prevent natural death in circumstances where society believes they have no legal duty to take that preventive action. Some countries have characterised some of the possible situations as [[assisted suicide]], while others make no judgment by imposing a separate label on conduct within the field of homicide. The issues may more generally relate to [[euthanasia]] where society debates whether, and in what circumstances, to terminate the lives of its citizens. Whichever philosophical route is followed, the laws will either criminalize any situation in which death results or permit death to be caused under controlled circumstances.

* Sexual and non-sexual [[assault]]s involving the use or threatened use of violence which causes injuries and which would be criminal in all other situations (e.g. [[sadism and masochism]]). In cases of [[Consensual non-consent|consensual nonconsent]] where a [[rape fantasy]] may be enacted by prior agreement, the offence of rape will not be committed because the "victim" has actually consented to sexual intercourse. The issue of consent in fact, or belief in the existence of consent, is fundamental to determining whether a rape has, or has not, been committed. In English law, for example, s. 74 Sexual Offences Act 2003 provides that consent is present "if he agrees by choice, and has the freedom and capacity to make that choice". If the "victim" is unconscious when penetration occurs, he would not be consenting, but this might not be rape if there is a subsisting sexual relationship, e.g. an agreement of consent for this scenario has been agreed upon by all parties beforehand. Note that, if the "victim" is physically injured, the causing of those injuries can still be charged as an assault whether there is actual consent or not. As a defense, offenders may plead that the other consented to the acts, and argue that any injuries sustained were accidental rather than intentional, leaving it to the jury to make a decision on their truthfulness.

''[[Sex crime]]s and crimes related to reproduction:''

** See more fully the discussion in Dennis J. Baker, ''The Right Not to be Criminalized: Demarcating Criminal Law's Authority'' (Ashgate, 2011) where Dr Baker argues (in chapter 5) that there is a limit to consensual harm doing—but that the threshold of harm has to be reasonably high. Baker also asserts that it is only the harm-doer who should be criminalized; not the harm-receiver. He also points out there is a difference between risking harm to others (as those who engage in casual sex do when they know that there is a chance they might have HIV), and deliberately exposing another to the risk of HIV, for example, where a person has been told he or she is a carrier and fails to inform his or her sexual partner.

* [[Adultery]] and, in general, [[sex]] outside marriage where all persons involved give consent (though violation of a marriage contract may involve a direct victim).

* [[Pornography]], which can be illegal to produce, distribute or possess in some countries, even if the participants consented to the acts, and the acts themselves are legal (see [[List of pornography laws by country]]).

* [[Polygamy]] and other non-traditional marital and family practices.

* [[Censorship]] laws, such as [[obscenity]] laws, may criminalise distribution of material even if it is only viewed by those who consent to viewing it.

* [[Prostitution]], other [[sex worker|sex work]], and related acts (though poverty or drug addiction raises issues of consent)

* [[Statutory rape]] where the underage participant(s) give actual consent, but the law-makers of the relevant jurisdiction have determined that people of that age are not legally capable of giving informed consent (not informed adequately about the activity).

* [[Incest]] between legal adults where offspring cannot result from the sexual activity; for example homosexual acts or where at least one partner is sterile. (In some countries forbidden only when causing public [[scandal]]).

* [[Criminal transmission of HIV]] through consensual sexual activity.

* [[Homosexuality]], [[BDSM]], or other sexual activities not strictly related with biological [[reproduction]] (see, for example, [[sodomy law]]).

* [[Adultery]] and, in general, [[fornication|sex outside marriage]] or other established relationships where all persons immediately involved give consent.

* [[Statutory rape]] where the "underage" participant(s) give consent (this raises the question: at what age are people capable of giving informed consent?).

* [[Pornography]] (production, trade, possession, watching) and other [[obscenity]], when produced involving consenting adult participants, and distributed to consenting adult purchasers.

* Human reproduction outside ordinary methods, such as chemical or genetic interventions, [[birth control]] (illegal in many places), [[human cloning]] and other non-approved [[reproductive technology|reproductive technologies]].

''Religion:''

* Practice of [[religion]]s or [[cult]]s or [[superstition]]s other than those locally sanctioned.

* [[Blasphemy]] ([[slander]] against God).

''Self-preservation and public safety:''

* Many forms of [[gambling]].

* [[Suicide]] and [[self-injury]].

* Violation of laws requiring the use of safety devices such as [[seat_belt_legislation | seat belt]]s and [[motorcycle helmet]]s.

* Use of illegal [[drug]]s, including [[alcohol]] in some jurisdictions (though ''sale'' of drugs to addicted persons clearly raises issues of capacity to consent).

* The [[black market]], or trade in general in such things as unapproved products or unlicensed services (to willing and fully informed buyers).

* Simple possession of certain dangerous objects, such as [[fireworks]], or substances, such as [[plutonium]] or [[nerve gas]].

* Possession of devices that may be used in committing crimes, such as [[weapons]], unauthorised [[cable TV]] decoders, or [[cryptographic]] products.

* [[Sedition]] and unlicensed publishing.

* Subverting the national [[culture]], e.g. by using certain foreign or [[minority language]]s.

* Infringement of the copyright in an [[orphan work]].

In the systems that have laws on these matters, [[jurist]]s commonly consider that the general interests of the state can originate laws that have to be respected only because of their existence (until eventual [[Wiktionary:abrogation|abrogation]]), since the respect for the entire juridical system is a duty of every [[citizen]] that has to be expressed in the respect of any formal [[law]] or rule (''juridical public order''). Obviously some laws eminently reflect a dominant (or prevalent) cultural position and therefore impose the respect for the cultural preferences of the majority of citizens. Sexually-related crimes frequently appear to belong to this kind of [[legislation]] and in fact they are in some cases prosecuted only if from the fact a public scandal is effectively originated; in these cases the avoidance of scandals might then be the goal of the law. Note that while the definition here bears some superficial resemblance to the legal concept ''[[malum prohibitum]]'' ("bad because prohibited", as opposed to ''[[malum in se]]'', "inherently bad"), these crimes are legally considered ''malum in se'', because it is expected that all members of the culture correlating with the state know that these acts are forbidden in that culture.

About the personal use of drugs, which is varyingly considered by different systems (some allow it, others don't), it has to be recalled that a concrete interest of the state is sometimes found in the damage that related [[criminality]] could cause, or for merely economical schemes. The personal use is then sometimes forbidden because it indirectly enforces related traffic (and [[mafia]]-like activities) and more serious crimes. Not differently, prostitution is forbidden in some countries because of the other criminal interests that usually surround the phenomenon, with an additional interest for the general public health (due to the risk of sexual diseases).

About the crimes against one's own person, like suicide or self-injury, again the interest of the state in fighting them is commonly individuated in the consideration of the opposite convenience of a general public health, and the matter is deeply discussed also depending on the juridical consideration of the acceptable extent of a man's [[free will]]. An argument that is similarly discussed regards [[euthanasia]], differently evaluated as a help for suicide or as a true [[murder]].

On an opposite situation, [[artificial insemination]], [[in-vitro fertilization]], [[human cloning]] and other medical or chemical interventions on the processes of human reproduction can be forbidden due to a general interest of the state in protecting the cultural position of the establishment; in some countries commissions for [[bio-ethics]] have been created in order to define the prevalent position and consequently adjust laws on it.

In most western cultures, arguments are produced in favour of or against a legal provision of mentioned behaviours. These arguments are often expression of political positions, but not only, not necessarily and not uniformly.

== Arguments for banning some consensual acts ==

In general, social [[conservative]]s tend to defend the existence of laws banning consensual acts.

* Advocates of [[law]]s against [[victimless crime]]s often assert that they are essential for the preservation of the greater good of [[society]]. For instance, laws mandating the use of [[seat belt]]s are argued to save considerable amounts of death and serious injury, thus offering a net benefit to society, if only for the reason that 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 argue that some laws on victimless crimes are needed to preserve [[morality]] or the prevention of an offence against [[God]]. Such arguments are often disputed in [[secular]] societies.

* Advocates may consider the side-effects of the forbidden consensual activity on those close to the individuals concerned to be so harmful that they may be considered victims of the crime. A common example is laws restricting gambling, on the basis that gambling addicts can severely harm their family's well-being.

* In the same vein as the previous reason, some argue that while perhaps the activity in question in an ideal, theoretical state may indeed be victimless, most or all of its practical incarnations have generated situations in which many are victimized. For example, prostitution is in theory a simple transaction where money is traded for sex, however, in its many real-world incarnations there is a history of coercion and violence within the trade.

* 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. This is a common argument for the maintenance of laws against illegal drugs.

== Arguments against banning some consensual acts ==

In general, social [[libertarianism|libertarian]]s believe that laws banning consensual acts should be abolished, as there is no rational or moral reason for them to exist, and they reduce [[freedom]].

* They also assert 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 supposedly justify them.

* They assert that laws against consensual crimes may have [[unintended consequence]]s 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 prevent the activities it was intended to prevent. Many cite the history of the [[Prohibition]] era in the [[United States]] as an example of a similar failed battle against an illegal drug.

* The criminal [[organized crime|underworld]]s 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 [[Economics|economy]] of the areas in which they operate.

== Legalization of consensual 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 US [[sodomy law]]s. Over the same period, [[abortion]] was legalised in most countries (although the 'victimless' nature of abortion is a subject of great controversy and debate in the [[United States]] and some other <!-- Poland, Ireland - though the debate there is by far not so noisy as in the US, perhaps because it is easier to go to other country with less restrictive laws --> countries).

[[Prohibition]] of [[alcohol]] was repealed in the United States, and there are efforts to legalize [[cannabis]] in many countries, and some reformers

advocate the legalization of all currently illegal drugs (although they generally also recommend legal [[regulation]] of the supply of drugs).

== Further reading ==

* ''[[Ain't Nobody's Business If You Do]]'' (ISBN 0931580587) is a book by [[Peter McWilliams]] criticising the existence of laws against consensual crimes. See http://www.mcwilliams.com/books/books/aint/toc.htm.

==See also==

* ''[[People v. Jovanovic]]''

* [[Operation Spanner]]

* [[Consensual homicide]]

* [[Physical abuse#Consensual physical abuse|Consensual physical abuse]]

==Notes==

*[[Euthanasia]]

{{reflist}}

*[[Historical pederastic couples]]

*[[Illegal drug trade]]

*[[Polygamy]]

[[Category:Ethics]]

[[Category:Criminology]]

[[de:Opferlose Straftat]]

A victimless or consensual crime is behavior which is forbidden by law, yet which is argued does not hurt, harm nor violate the rights of anyone, except perhaps the consensual participants themselves.

Examples include:

* Consuming or selling alcohol (Prohibition)

* Consuming or selling marijuana and other banned substances (Illegal drugs)

* Engaging in sex for money (Prostitution)

* Engaging in certain types of sexual acts (Sodomy law)

* Consuming, selling or producing pornography

* Betting on games of chance (Gambling)

* Doctor-Assisted suicide

* Operating a motor vehicle without seatbelt/helmet

Note that the concept typically applies to adults, and specifically not to minors who have not yet reached the age of consent. For example, an adult selling drugs or sex to another adult may be seen as a victimless crime, but selling drugs or sex to a minor may be considered not victimless, since the minor is not old enough to consent.

Contents

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* 1 Proponents for Reform

o 1.1 Freedom

o 1.2 Economy

* 2 Proponents of Status Quo

o 2.1 Good of Society

o 2.2 Good of the Individual

* 3 Specific Arguments

* 4 Links

o 4.1 Pro-reform

o 4.2 Pro-status-quo

[edit]

Proponents for Reform

Advocates for reform of "victimless crime" statutes often argue that people ought to be allowed to do whatever they wish, except for those cases in which it can be proven that their act is likely to violate the rights of another person. These advocates often believe that the government should not be allowed to restrict a person's rights, even if the person's actions could be considered detrimental to themselves. Most advocates for reform agree that an action should be made illegal in situations where the action may harm another person. Many Libertarians hold these views.

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Freedom

Many advocates for the removal of victimless crime laws believe in the inherent freedom of individuals, and do not believe the government should be allowed to regulate the actions of people without their consent. Laws that they believe should be removed under this cause include loitering and the ability for minors to drink, smoke, and vote. Advocates of freedom also argue that enforcement of these laws restricts the privacy of many individuals, in violations of the Fourth Amendment.

Advocates also point out that native societies (such as native Americans, Aborigines, etc.) have few or no victimless crimes in their laws. For example, nudity, smoking, and drugs are legal among natives, for both adults and children. This is the most natural way for people and has stood the test of time, lasting for thousands of years without problems, so advocates argue.

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Economy

Many proponents of reform argue that removal of these laws would be a boon to the economy. These proponents cite figures in excess of $200 billion [1]. They also argue that fewer people in prison for these crimes would boost the workforce, as well as reducing the need for correctional facilities and allowing police the opportunity to focus on the remaining crimes.

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Proponents of Status Quo

Advocates for the retention of victimless crime laws believe in keeping these laws for the good of society as well as for the good of the perpetrator of the crime.

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Good of Society

Advocates for the good of society claim that keeping these laws on the books will better the community as a whole.

For example, drug use may cause a person to be less effective in the workplace, or may have adverse effects on his family. Drug use may also cause an increase in insurance costs as drug users are believed to be in generally poor health. So, to the extent that drug prohibition actually reduces drug use that is debilitating (a controversial issue in and of itself), legalising drugs might decrease workplace effectivity and increase insurance costs.

Similarly, it's argued that mandatory helmet and seat belt laws also reduce insurance needs for victims of traffic accidents, thereby reducing insurance costs for the population as a whole.

Some of these advocates also believe that restriction of the acts would also degrade the community, possibly through licentious or blasphemous acts. These proponents usually believe that many laws should be rooted in the customs of their religion.

Interestingly, one of the very arguments used by proponents of drug legalisation is a reason why drugs are kept illegal, though advocates of tougher drug laws rarely admit it: By keeping a large number of drug users behind bars, they are kept out of the workforce, artificially lowering the unemployment rate.

Prohibition of drugs also creates jobs in law enforcement, especially in small towns near prisons, where a large percentage of the population may be employed as guards.

[edit]

Good of the Individual

Some proponents of these laws argue on the cause of morality. They believe that the viewing of pornography or use of prostitutes are sins forbidden by their religion. They therefore believe that these acts should be made illegal in an attempt to save the souls of persons that would otherwise commit these sins.

Other reasons given for these laws are for the protection of minors. Proponents of 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. Examples of these laws are statutory rape and limitations on tobacco and alcohol use.

[edit]

Specific Arguments

It has been argued that suicide or taking drugs should not be against the law. This view holds that if the death or the drug-induced incapacity of a person works to the detriment of others then the act should still be a crime - because it affects others adversely. Proponents of laws banning these acts argue that this view excuses an "exit" from life entirely, or from one's responsibilities, which they believe to be immoral.

That is, if a subway motorman commits suicide while on duty, and this lets the train crash and injures or kills others, then such an act should be made illegal. Ironically, there would be no way to enforce the law; you can't punish the dead. Alternately, the act might not be considered suicide per se, but dereliction of duty.

If a person takes drugs (like cocaine or marijuana) - but does not do any direct harm to another, it is often argued that this "crime" has no victim and thus should be legalized. Some also suggest that driving a car while high should not be a crime - unless it can be shown that the vehicle operator's skills were impaired to the detriment of others. Some states in America have legislated blood alcohol levels beyond which a person is considered to be driving while impaired. The controversy here is between those saying that a risk of harm is legally equivalent to harm itself.

Most of the United States have managed to retain laws forbidding riding a motorcycle without a helmet or driving without seat belts, mostly 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 - particular that segment which regards riding a motorcycle as an expression of personal freedom, as opposed to riding around in a "cage" (slang expression for car).

Compare: consensual crime

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Links

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Pro-reform

* http://www.halexandria.org/dward267.htm

* http://www.contrib.andrew.cmu.edu/~nifty/victimless.html

* http://www.privacilla.org/government/victimlesscrimes.html

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==Further reading==

Pro-status-quo

* Baker, Dennis J., Glanville Williams: Textbook of Criminal Law, (2012, Sweet & Maxwell, London) chapter 23; Peter McWilliams - "Aint Nobody's Business If you Do: The Absurdity of Consensual Crimes in Our Free Country" https://web.archive.org/web/20060116024556/http://www.mcwilliams.com/books/books/aint/toc.htm

[[Category:Criminal justice]]

* http://crime.about.com/od/prostitution/a/prostitution.htm

[[Category:Consent]]