Photo illustration by John Lyman



Beware the New Victimless Crimes

Any discussion regarding victimless crimes needs clear definitions; otherwise, discussants often talk right past one another.

Historically, the definition concentrated on criminalizing what some deemed sins. Rev. John Leland (1754–1841), an ally of Thomas Jefferson, warned victimless crimes entailed a combination of church and state as the latter was enforcing religious dogma. But he argued that individuals “may be infected with moral evils and yet be guilty of no crime punishable by law.” He said the power of law should “extend no further…than to punish the man who works ill to his neighbour.”

Archbishop of Canterbury Geoffrey Fisher (1887–1972) pointed out that while “In a civilized society, all crimes are likely to be sins, but most sins are not and ought not to be treated as crimes.” Perhaps the best definition of vices as victimless crimes was made in 1875 by Lysander Spooner. In his essay Vices Are Not Crimes: A Vindication of Moral Liberty, he opened with this definition: “VICES are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another. Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property. In vices, the very essence of crime—that is, the design to injure the person or property of another—is wanting.”

With the rise of classical liberal values and the desire to increase human liberty as much as possible, those laws changed — only to be replaced, as we shall see shortly — by similar victimless crimes in new categories.

Many of the original victimless crimes Leland or Spooner wrote about are now removed from statute books, at least in the more advanced liberal societies. Most economically prosperous nations, due to their emphasis on individual freedom, no longer imprison those who had sex outside marriage, in interracial relationships, or who are gay.

Experiments in enforcing victimless crimes, such as Prohibition in the United States, replaced normal alcohol with “rot gut gin” and turned the distribution of alcohol into a criminal opportunity, which increased violent crime and created organized crime that previously did not exist. It failed miserably. In addition to not changing consumption patterns, they made it more dangerous to drink and turned millions of consumers into criminals. What was imposed in 1920, to the shouting of Hallelujahs, was repealed in 1933 to vast sighs of relief.

The results from the increase in individual freedom have been profound and often more impressive than anyone anticipated. The Brookings Institute published a study, “Technology and Tolerance: Diversity and High Tech Growth,” which found one of the unanticipated benefits of equality of rights for the LGBT community. They found: “[O]ur most striking finding is that a leading indicator of a metropolitan area’s high-technology success is a large gay population…The five metro areas with the highest concentration of gay residents — San Francisco, Washington, Austin, Atlanta, and San Diego — are all among the nation’s top 15 high-tech areas. In our statistical analyses, the gay index does better than other individual measures of social and cultural diversity as a predictor of high-tech location.”

But as freer, more prosperous nations have been enjoying the benefits of reducing the number of victimless crimes, a second form of this fallacy remains widely practiced.

For a couple of centuries, the debate has been on the differences between crimes and sins, or, as Spooner put it, vices are not crimes. A vice was an action done to the detriment of the actor involved but did not violate the rights of others.

But we have a newer version of victimless crimes where no vice is involved. In fact, regulations frequently inhibit or prevent actions beneficial to the individual and to others. This is a form of petty regulation that, at least to individuals or small businesses, is costly and difficult, if not impossible, to navigate.

Take a street vendor selling fresh apples. For her, the sale of an apple is beneficial and helps her take care of herself and her family. For the customer, they only buy if they want and value an apple more than the cost. If both consent to the transaction, both benefit. Yet, in many places, this simple act is deemed illegal. It isn’t a victimless crime in the moralistic sense, but it is still legally a crime but without victims.

The Regulatory State has continued to create victimless crimes, just of a different variety from the past. Often this is justified by the claim that it is to help people in some way. But as C.S. Lewis warned, “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive.”