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Consensual crime

A consensual or victimless crime is a crime where all of those involved in the act are consenting adult participants, and no third parties suffer as a direct result. Governments may justify making these acts into crimes because of indirect effects on third parties, or because of offense to cultural norms, or because the law assumes that one of the parties to the action is a "victim" despite his or her informed consent.

It is often described as the crime in which the passive subject (commonly speaking, the victim) is the juridical system in itself only. Related crimes are therefore forbidden behaviours that do not imply damage to third persons, but only affect general (sometimes ideological or cultural) interests of the system, and often common sexual morality.

Examples of consensual crimes in various societies at various times:

  • Adultery and, in general, sex outside marriage where all persons involved give consent (though violation of a marriage contract may involve a direct victim).
  • Polygamy and other non-traditional marital and family practices.
  • Prostitution, other sex work, and related acts.
  • 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).
  • Use of illegal drugs, including alcohol in some jurisdictions (though sale of drugs to addicted persons clearly raises issues of capacity to consent).
  • Homosexuality, BDSM, or other sexual activities not strictly related with biological reproduction (see, for example, sodomy law).
  • Statutory rape where the "underage" participant is clearly well-informed and capable of meaningful consent, and gives clear consent, particularly when the age difference between participants is slight.
  • Pornography (production, trade, possession, watching) and other obscenity, when produced involving consenting adult participants, and distributed to consenting adult purchasers.
  • Belief in religions or cults or superstitions other than those locally sanctioned.
  • Blasphemy (slander against God).
  • Many forms of gambling.
  • Suicide and self-injury.
  • Laws requiring the use of safety devices such as seat belts and motorcycle helmets.
  • Human reproduction outside ordinary methods, such as chemical or genetic interventions, birth control (illegal in many places), human cloning.
  • 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 inanimate objects, such as guns, or substances such as plutonium or nerve gas.

In the systems that have laws on these matters, jurists commonly consider that the general interests of the state can originate laws that have to be respected only because of their existence (until eventual 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 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, artificial fertilisation[?], 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 majority; 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 prevision of mentioned behaviours. These arguments are often expression of political positions, but not only, not necessarily and not uniformly.

Table of contents

Arguments for laws against consensual crimes

In general, social conservatives tend to defend the existence of laws against consensual crimes.

  • Advocates of laws against victimless crimes often assert that they are essential for the preservation of morality, the greater good of society or the prevention of an offence against God. For instance, laws mandating the use of seat belts are argued to save considerable amounts of death and serious injury, thus offering a net benefit to society.
  • They 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.
  • 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 laws against consensual crimes

In general, social libertarians believe that laws against consensual crimes 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 themsemlves, 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 the reverse of the consequence 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 underworlds 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 economy of the areas in which they operate.

Legalization of consensual crimes

Many activities that were once considered crimes are no longer illegal in some societies, at least in part because 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. Many US states are in the process of reviewing or repealing their sodomy laws.

Prohibition of alcohol was repealed in the United States, and there are efforts to legalize cannabis is many countries, and some radical reformers advocate the legalization of all currently illegal drugs (although they generally also recommend legal regulation of the supply of drugs).

Legislation against new consensual crimes

Some countries have studied, or have already issued laws against the newer methods for artificially assisted reproduction including human cloning.

See also:

Further reading

Further Discussion

  • LibertyForums (http://www.libertyforums.com/) - Classical Liberal, Libertarian & Objectivist Discussion Board



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