How does society determine what is harmful enough to be illegal and what is not? Defining what is and is not a criminal offense is often subject to interpretation, cultural norms, and values, as well as the historical context in which the actions occur. Many behaviors we consider commonplace today were once criminalized, while others were not. Understanding the process by which some actions are declared criminal and others are not provides the foundation for investigating the controversies surrounding "victimless" crimes. This article reviews the social construction of crime and sociological research on victimless crime. It also touches on the broader study of crime and deviance and theories regarding the social construction of crime and criminology.
Keywords Consensual Behavior; Criminalization Theories; Decriminalization; Drug Addiction; Drug Use; Gambling; Prostitution; Social Construction; Status Offense; Vice; Victimless Crime
In the United States, what actions are criminalized? Should only actions that are truly harmful be illegal? What about drugs? Should some drugs be legal because they seem to be harmless? How about polygamy? Gambling? Pornography? If nobody gets hurt, why should these activities be criminal? Moreover, what is the process of criminalization? How does society determine what is harmful enough to be illegal and what is not? Are laws created to protect people or control people? Is determining what is and is not a crime a political act?
You may have thought about these very issues, or even just simply wondered why the driving age is set at 16 in some states and 15 in others, or why the drinking age is 21 and not 18, or why tobacco is legal and marijuana is not. Questions like these fit into the broader study of crime and deviance and theories regarding the social construction of crime and criminology (Vago, 2000).
The concept that binds these questions together and relates to the study and analysis of victimless crime is the notion that crime is a social construct. That is to say, no one behavior is inherently criminal or illegal; rather, through a process in which members of society come to agree that certain actions are worthy of regulation, laws are passed that make certain behaviors criminal.
Many scholars who study the social construction of crime and deviance use questions like these as a starting point for investigating the politics and controversies surrounding the criminalization or decriminalization of victimless crimes. Wertheimer (1977) describes how advocates of decriminalizing victimless crime, once thought of as a controversial issue, advanced their position on the grounds of what has been described as the philosophy of law and function of the criminal justice system. These scholars contend that the purpose of criminal law should be limited to pursuing those who victimize others and that the criminal justice system should not be involved in matters where there is no victim or no harm is done.
On the other side of the debate are those who argue that it is the government's responsibility to ensure an orderly community and supervise moral conduct through legislation. Such proponents argue that nearly every crime causes some harm, either directly to an individual or to society at large.
There is still much debate in sociology, criminology, law, and criminal justice about what should and should not be criminal and how victimless crimes are to be handled, if at all, by the criminal justice system.
Victimless Crime: A Definitional Issue
Understanding what constitutes a victimless crime is a complex issue. Many sociologists who study crime and victimization suggest that it is imperative to have a clear and concise definition of the criminal event from the perspectives of both law enforcement and the victim (Mosher, Miethe, & Phillips, 2002). However, many also recognize that what is criminal is not universally understood and agreed upon. For example, some people who are thought to be victimized do not think of themselves as victims. This is often the case with drug use and prostitution. In such examples, while a crime may have occurred, it is difficult to distinguish who is the criminal and who is the victim.
One of the most widely accepted definitions of a victimless crime was first proposed by Schur in 1965. He maintained that a victimless crime is any illegal action that is largely consensual between two parties and lacks a complaining participant (Schur, 1965). While we may be able to think of dozens of behaviors that fit into this category, the most commonly studied are prostitution, gambling, drug use, and pornography (Veneziano & Veneziano, 1993).
While this definition provides scholarly guidance, it is still ambiguous in practice. For example, law enforcement officials and the judiciary are faced with the difficult decision of what to do with individuals who engage in victimless crimes as the pressure from society regarding these types of offenses changes over time and across communities. In some cases, such as drug addiction and gambling, those who engage in behaviors that lead to problems with the law are thought to need special attention and help. Some communities even offer treatment and counseling. In other cases, such as prostitution, individuals are chastised for engaging in behaviors that are far from what is considered normal by members of a society. People who engage in such behaviors are often thought to deserve punishment, or at least to be taken off the streets.
The notion of what constitutes a victimless crime is ever changing (Conklin, 1982), as it varies in the eyes of the public, political officials, and the police. Practically speaking, when law enforcement officials are investigating victimless crimes, these crimes tend to be drug use, prostitution, illegal gambling activities, public drunkenness, and/or vagrancy (Hagan, 2008).
However, these activities have not always been criminalized. In fact, many drugs that are currently illegal have previously been prescribed or recommended by doctors for legitimate medical issues (Inciardi, 1992). For example, cocaine and amphetamines were routinely prescribed for allergies and sinus-related ailments. Drugs such as cocaine were given to soldiers to fight fatigue and improve concentration during World War II. It was only when society became concerned with the social and political ramifications of drug use and abuse that such drugs became outlawed.
In addition to the definition of victimless crime changing over time, it also varies based on geography. In many countries, having more than one wife is considered legal and even encouraged by religious and government officials. Prostitution is not illegal in certain countries and some cities in the United States; in these places, it is highly regulated, taxed, and viewed as a legitimate occupation. Gambling, public intoxication, and vagrancy are viewed by many as symptoms of social problems and not themselves criminal offenses. Consequently, rehabilitation and treatment are often prescribed to help individuals in dire situations, rather than sending them off to prison or jail.
Issues like these, buttressed against the absence of an identifiable victim, beg the question of why such behaviors and activities are criminal. Should the government decriminalize victimless crime? The answer is inherently political (Dombrink, 1993).
As a society, it is arguably important to have a shared set of values and beliefs to help regulate undesirable behavior, whether through formal pressures such as laws and...
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