Saturday, September 3, 2016

Thoughts on Victimless Crimes

Note:  Attorney friends will no doubt consider this basic Law 101, but here goes anyway.

The subject of victimless crimes came up the other day.  I said there were no such things.  Curiously, sometimes the criminals are the victims.  What I mean is that society has often passed laws that make certain behaviors a crime, but repeal those laws when times change.  The victims in such cases are those who had been labeled as criminals but are no longer.  Society is seldom honest enough to admit that it was wrong to have once made a criminal out of someone, but now recognizes that they are no longer, nor should they ever have been.

Obvious examples are old laws that criminalized homosexual acts, and even some acts between legally married heterosexuals.  They are obvious only because anything to do with sex always titillates our imaginations.  We prefer to pay scant attention to others, including the entire barrage of Jim Crow laws that maintained segregation, and not only in the South.  The covenant attached to the original deed to my house in Walla Walla prohibited  its sale to blacks.  The Pacific Northwest was home to several 19th century laws restricting or prohibiting Asian immigrants from ownership or employment.  I’m sure you can add others.  The point is that societies throughout history, and in every part of the world, have criminalized behaviors  that were inconsistent with the social norms of those in power, or disadvantageous to their economic and political status.  The victims of those crimes were the criminals.  

I have a young friend who rises up in righteous indignation over such injustices, but it isn’t as simple as he would like.  What makes something a crime?  The law, of course, makes something a crime, but where did the law come from?  Laws are stitched together to protect the pattern of society, and each society has a different pattern.  There are some things we can almost agree on.  After that it gets fuzzy.  Acts that cause unjustifiable harm to persons and property are criminal: theft, assault, and murder come to mind.  It seems clear enough, but what level of taking something, assaulting somebody, or killing another is unjustifiable?  Are there some acts too insignificant to be counted?  Are there some acts perpetrated by those in power that are deemed justifiable when the same acts committed by someone without power are deemed criminal?  What makes the difference?  How much deviance from the norm is tolerable?  Western democracies tend to tolerate a wide range of behaviors before they reach the level of crime, and even then there is flexibility about when and how to exercise enforcement.  Our tolerance makes things messy, but we cant give it up without losing our freedoms.

More complicated yet are crimes against society, which, as far as I can tell, is the attempt by societies to preserve a set of social or cultural values by criminalizing deviant behavior.  It has little to do with danger to persons or property.  It’s swampy territory because social and cultural values are always changing.  Moreover, I’m not so sure it’s the values that are being protected.  It’s the institution that has been created in the name of values.  I’ve been rereading an anthology of early New England Puritan writings, and their harsh punishment of behavior that challenged the theological orthodoxy upon which their societies were built was clearly an attempt to fend off that which they believed would undermine the whole endeavor.  Ann Hutchinson had the temerity to be educated, teach other women, and challenge obscure aspects of Calvinist doctrine as understood by separatist Puritans.  For that she was a criminal.  Core moral and social values can be more important to people than the safety of property or the dignity of persons.  The viciousness with which people will act to protect them knows few boundaries, especially when position, privilege, and power may be threatened.  Where  does justice lie in that swamp?  It’’s there, but our ability to discover it with confidence leaves much to be desired. 

I’m not so certain that the Puritans were protecting core moral values as much as they were protecting an institution they had adorned with moral values.  They used the moral values as an excuse for defending the institution.  They would never have admitted to that, nor do we when we make criminals out of those who challenge our institutions that we decorate with our moral values.  An example: for a long time we relied on laws to protect the integrity of marriage.  The thing is, we were not much interested in the integrity of the the relationship, or the well being of the persons in it, only in the institution itself as defined by law.  Behavior within the context of a legal marriage such as assault and rape were not crimes as long as they were kept inside the house.  What was so important about the institution as institution?  In part it was a social structure that established and maintained the power of one person, the husband, over the powerlessness of the other person, the wife.  The governing authorities, almost all men, wanted to keep it that way.

Well, Ann Hutchinson has a statue honoring her in the nation’s Capitol, and we are slowly making criminals out of the domestic assaulters, rather than protecting their position of power.  So there we are.  There are no victimless crimes.  Sometimes we get it right, and sometimes we don’t.  In either case, whenever we pass a law making something a crime, it recognize victims, or it creates them.  I find libertarian politics to be naively superficial, but it does have one point.  We should be cautious about criminalizing behavior, especially social behavior, because we don’t have a reliable track record on which to build.  Behaviors that cause physical and emotional harm to people and their property, without prejudice, are the rightful subjects of criminal law.  Behaviors that challenge the social fabric without presenting an obvious threat to the safety of persons and property need to be examined very carefully before any action is taken.

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