Immorality & Illegality:Hard Time For a Victimless Crime?

PREFACE

The purpose of this essay is to demonstrate that a derivative of John Stuart Mill's Harm Principle is a necessary factor in creating just laws.

I begin by showing that paternalism is philosophically indefensible and therefore the criminalization of harmless acts is usually unjust. Next, through examples, I show that legalizing and regulating most victimless "crimes" would increase individual liberty without substantially decreasing the rights or interests of others. The final part of this essay deals with logical conclusions developed from the first two parts.

In a diverse society, with a plethora of religious and moral views, what is a legitimate basis for making laws? My support for a modified Harm Principle is due to a belief that it fulfills the need for a secular alternative to religion-based law, in a manner that maximizes individual liberty and respects fundamental human rights.

There are two points I would like the reader to keep in mind while examining this essay. First, any reasonably intelligent individual can come up with instances where applying the Harm Principle leads to results inconsistent with our moral intuitions--that is to be expected. However, because a theory has some weak points does not prove that it is not a valid theory. The Harm Principle (as presented here) is not intended to be a bottom-line rule, applied regardless of consequences. Instead, it's meant to be an overarching guideline when making laws. I intend to show that for a law to justly violate the Harm Principle, an extremely compelling reason must exist.

Second, J.S. Mill, like many philosophers, created a strong formulation of liberty and then retreated from the position somewhat when effects seemed outrageous. Much as John Locke was instrumental in developing ideas of religious liberty, and then stated that no intelligent creature could believe in atheism, Mill, in the latter parts of On Liberty, states that harmless acts could still be restricted if they violate "good manners" or are "offenses against decency" (Wootton, p. 661). In effect, this dilutes the effect of the Harm Principle and makes it an impotent declaration. We must remember that many acts we consider expressions of liberty ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 48--------------------------------------- (such as gay men holding hands), were morally incomprehensible and outrageous to persons who lived centuries ago. Thus, they often weakened strong essays because of an inability to distance themselves from a religious heritage.

Therefore, the argument I make in support of a modified Harm Principle is based on some of the arguments of J.S. Mill, but not dependent on agreeing with all of his beliefs. In particular, I see no reason why the Harm Principle cannot be used in conjunction with a strong Rights-based philosophy, independent of conceptions of Utilitarianism.

I would like to thank Kitty Bottom and Matt Egging for proof-reading and suggestions.

"The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgment in things which concern himself, the same reason which show that opinion should be free, prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost."

--John Stuart Mill, On Liberty

INTRODUCTION

Embodied in that short paragraph, J.S. Mill expressed what should be considered a fundamental principle of liberty, which he called the Harm Principle: a person should be allowed to do whatever he desires until he reasonably and substantially harms another or intentionally creates a situation with a reasonable likelihood of harming another. It follows then that laws should regulate only acts that infringe upon another's rights or liberties. Why then do police spend 80% of their time regulating private morals (Simon, p. 211)?

The answer lies in society's inability to separate what they consider immoral from what they want to be illegal. How do they justify this? By assuming that their morals and their religious beliefs are correct and need to be imposed on others. This belief that society as a whole (acting through government) should provide for its citizen's moral well-being regardless of their wishes is called paternalism. Paternalism leads to the criminalization of innocuous activities like homosexuality, pornography, gambling, or even the purchase of liquor on a Sunday.

JUSTIFICATIONS FOR PATERNALISM

A portion of society will defend these laws on religious grounds. "If it says so in the Bible, it must be true." There is nothing wrong with being a devout Christian (or Buddhist, Muslim, etc....) as long as you realize that not everyone believes in the religion that you do and not everyone should be expected to follow its tenets.

Precisely because of the preponderance of different religions, it is unfair to expect society to bend knee to just one religion. Freedom of religion (or lack thereof) is exactly why the doctrine of separation of church and state was created...to allow one religion to dominate government infringes upon the rights of others to practice their religion. Law should not be a tool of forcing religious doctrine upon a people.

A more intellectually defensible, and therefore dangerous, justification of paternalism is called Positive Freedom. Drugs, we are told, make men slaves to their passions. Gambling leads to economic failure. Prostitution might make it hard for you to have ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 49--------------------------------------- meaningful relationships. Under this doctrine these activities are illegal because it is "bad" for you...in effect, we force you to act in your best interest (from our point of view) and to be "free".

"[Positive Freedom is]....to coerce men in the name of some goal (let us say, justice or public health) which they would, if they were more enlightened, themselves pursue, but do not, because they are blind or ignorant or corrupt. This renders it easy for me to conceive of myself as coercing others for their own sake, in their, not my, interest. I am then claiming that I know what they need better than they know it themselves."

--Isaiah Berlin, Four Essays on Liberty

(p. 133)

The dangers of this point of view are many. If we believe in it, we then must also believe (to stay consistent) that man is irrational, does not know his life better than we do, and is simply incapable of making good decisions...yet our faith in democracy rests on the necessary belief that man has rational free-will and is capable of making sound judgments.

"Paternalism is despotic....because it is an insult to my conception of myself as a human being, determined to make my own life in accordance with my own (not necessarily rational or benevolent) purposes, and, above all, entitled to be recognized as such by others. For if I am not so recognized, then I may fail to recognize, I may doubt, my own claim to be a fully independent human being."

--Isaiah Berlin, Four Essays on Liberty

(p. 157)

I've established a starting point for refuting the doctrine of paternalism and shown how the justifications of religious law and positive freedom are dangerous to our conceptions of individual liberty. Next, I'll cover the practical aspects of victimless crimes. These examples will show that we spend a majority of our scarce law enforcement and corrections resources to carry out unneeded laws.

EXAMPLES OF VICTIMLESS "CRI MES"

Gambling-- Gambling was once a tightly controlled activity, but in many places is becoming commonplace. Contrary to some predictions, cities that have legalized gambling have not been swallowed by a crack in the earth and sent straight to hell. In other words, crime rates and lawlessness have not increased as expected.

The tax money from gambling and profits from state lotteries help finance schools and other socially beneficial institutions. It is true that some people do become addicted and some people do lose all their money. According to USA TODAY Magazine, almost 5.4 percent of Iowans are pathological or problem gamblers (Horn, p. 35). Gambling is a good example of where people might say a so-called "victimless" crime certainly does harm others, such as spouses and children of the penniless gambler.

Therefore, a corollary of the Harm Principle is in order: The harm must be unjust. If I fire an employee for poor work-results, it could certainly be argued that I harmed him (economically, emotionally)--however, what is important is that he was justly harmed.

The answer to problem-gamblers is treatment and education. Because a minority (1 in 20) have probl ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 50--------------------------------------- ems with gambling, is not a sufficient reason to ban it for the vast majority of society who can gamble responsibly. Reductio ad absurdum, because some people still drop the blow-dryer in the bathtub is not sufficient reason to ban either blow-dryers or bathtubs. An example of how education could reduce gambling:

"...physicians have mounted a public campaign urging problem gamblers to seek help from physicians. Doctors should advocate low-risk behavior such as gambling with a buddy or with a predetermined loss limit...." (Waugh, p. 692)

Homosexuality-- Although rarely enforced, in many states sex between consenting adults of the same gender is still a felony.

The most common rationale for these laws stem from a Biblical notion that homosexuality is unnatural. I've already discussed the problems inherent with mixing religion and law. Furthermore, the argument of many Christian fundamentalists shows internal inconsistencies. A brief digression then, to demonstrate how many religious arguments of morality are illogical.

First, homosexuality is common in nature, as seen in a variety of animals. Second, the general scientific community has accepted that homosexuality is caused by genetics with some influence from environment. Third, (assuming homosexuality is unnatural, for the sake of argument) is everything that is artificial (i.e. "unnatural") evil? Marriage is a man-made institution, as is our insistence on monogamy...in effect, they are just as "unnatural" as homosexuality.

The same part of the Bible that forbids homosexuality (Leviticus 18:22) also prohibits gossiping (19:16), clipping the edges of a beard (19:27), and wearing clothes of half wool and half linen (19:19). Yet these prohibitions are completely ignored. In fact, a major theme of the Bible is to avoid greed and help your fellow man, yet rarely do we see the Church denounce wealthy businessmen who have more money than they need.

There is also a fear that homosexuality contributes to a breakdown of the family. Has reliable proof of this assertion ever been presented? From a common-sense examination it seems false as well. Straight couples will not be adversely affected by the existence of homosexuals and will definitely not avoid getting married just because some gay men live next door. In reality, a more logical and consistent position would be to encourage same-sex marriage, for marriage is the very institution most conducive to long-term monogamous relationships.

Drugs-- Many countries have less stringent drug laws than the United States. In England, for instance, heroin is dispensed to addicts through government controlled clinics, and in Denmark, marijuana is sold in small quantities at street-cafes.

Much of American society vehemently opposes legalization of drugs. If they would heed the experiences of England and Denmark, they would realize that at least a partial legalization of drugs would lift a tremendous burden from the shoulders of our criminal justice system.

In most cases, drug users are not harmful to others until they must rob to pay for their habit. We'll use heroin as our example drug.

First, the criminalization of heroin may reduce its use but causes drastic price increases. One out of six state prison inmates reported that they committed their offense to obtain money for drugs, according to a Bureau of Justice Report (Reiman, p. 35). A habit that now costs a heroin addict $100 a day or more could be provided legally for pennies a day in a government clinic.

Second, there is little hard evidence that heroin is a dangerous drug at all. Even James Q. Wilson, a defender of the prohibition on drugs, admits that "there are apparently no specific pathologies--serious illnesses or physiological deterioration--that are known to result from heroin use per se" (Reiman, p. 34).

Third, even if heroin or other drugs are harmful, it would make more sense to treat them like alcohol or tobacco. According to Jeffrey Reiman, author of The Rich Get Richer, the Poor Get Prison, cigarettes appear to be more addicting than heroin, contribute to cancer and heart disease (unlike heroin), and are more difficult to quit than heroin once addicted (p. 34). Heroin then, if treated like cigarettes and alcohol, would be legalized, its sale taxed, and the public educated of its hazards. Government regulated heroin production would ensure a safe product, instead of the impure street heroin, often "cut" with toxic chemicals like bleach or battery acid.

Since President Reagan began the "War on Drugs", police have devoted much of their time to identifying and arresting possibly harmless drug abusers. Because of the focus on drugs, American now incarcerates a higher percentage of its population than any other country in the world--over 1 out of every 100 adults. 60% of Federal prisoners were incarcerated for drug offenses (Reiman, p. 20, 39). Legalization would free the police to concentrate on real crimes like assault, rape, and murder.

CONCLUSIONS

It is indisputable that we arrest and incarcerate a vast number of persons for "crimes" that do not harm anyone but the "offender". This seems to occur either due to a religious majority forcing its views on a non-believing minority or because of a genuine belief that it is appropriate for government to force people to live "healthy" lifestyles.

Mill's Harm Principle gives us a moral authority to create and enforce legislation that is not based on paternalism, positive freedom, or religious law. In a diverse society replete with a thousand different religions and moral codes, a principle that decides what is worthy of legislation in a secular manner is truly admirable.

Our society seems to be at the point of accepting some victimless crimes, such as homosexuality and pornography, that do not harm the person who participates in them. Yet the next step is to accept behavior that does harm the participant, such as drug-use or assisted suicide.

This move seems unlikely. It is very difficult for a person to see another in pain (or slavery to drugs, for example) without an urge to help. Rousseau believed this urge to help others is part of what makes us human--"men would never have been anything but monsters, if nature had not given them pity to aid their reason" (Wootton, p. 427).

For the Harm Principle to work people must be willing to swallow their pity and their urge to help others to some degree. Persuasion through appeals to morality or reason are still legitimate methods of trying to stop someone from making a bad decision, but the use of force (either by an individual or the state) to stop someone from making a bad decision for himself is tyrannical and unjust.

"Considerations to aid his judgment, exhortations to strengthen his will, may be offered to him, even obtruded on him, by others, but he himself is the final judge. All errors which he is likely to commit against advice and warning, are far outweighed by the ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 52--------------------------------------- evil of allowing others to constrain him to what they deem his good." --John Stuart Mill, On Liberty. (Wootton, p. 649)

The Harm Principle is difficult to accept because it offends our moral sensibilities. It seems tremendously cruel to tell a mother that we won't stop her son from wasting his life as a drug addict because it would infringe upon his freedom or to explain to a wife that it was philosophically justifiable to allow her husband to blow their kid's college fund at the roulette tables.

However, we do something similar everyday as well people that their loved ones are dead because of a lifetime of cigarette smoking, alcohol addiction, or even driving a car (40,000 to 50,000 deaths per year). We simply should not make everything that is harmful illegal. It is demeaning to our concept of a human being. The answer lies not in making self-harmful activities illegal, but in educating people of their dangers.

As mentioned previously, the Harm Principle developed here is not intended as a hard and fast rule. It is meant to be a guiding principle when formulating law. This is the version of the Harm Principle that should become a legislative guideline:

If an act (or failure to act) does not:

a) substantially harm another person OR;

b) create a reasonable likelihood of harming another person OR;

c) infringe upon another's human or civil rights THEN

d) An extremely compelling and nearly indisputable reason must exist for the act to be justly prohibited

An example of an act violating the first provision would be murder--killing someone substantially harms another person. Drunk driving is a perfect example of the second provision, and trespassing is an example of the third provision (violation of right to property and privacy). There are good examples of acts that pass all three provisions but are still justly restricted under the final provision. For example, tax evasion does not substantially harm another, does not create a likelihood of harm, and does not violate anyone's rights...however, a compelling reason for its criminalization is the fact that the government would be insolvent if people were allowed to cheat on their taxes without penalty. Another good example is draft evasion in times of war where national security and public order are at stake.

In closing, if we truly believe that all people have an equal right to liberty, that man possesses reason, and that man has free-will and can make decisions, then it is a grave injustice to use force to keep him from committing acts that do not harm others.

REFERENCES

Berlin, Isaiah. 1969. Four Essays on Liberty. New York: Oxford University Press.

Feinberg, Joel. 1984. The Moral Limits of the Criminal Law: Volume 1, Harm to Others. Oxford University Press.

Horn, Bernard P. 1997. "Is There a Cure for America's Gambling Addiction?" USA TODAY Magazine. Vol. 125, Issue 2624, P. 34. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 53---------------------------------------

Reiman, Jeffrey. 1998. The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice. Allyn & Bacon

Simon, David R. 1996. Elite Deviance. Allyn & Bacon.

Waugh, Douglas R. 1996. "The Die is Cast". Canadian Medical Association Journal. Vol. 156, Issue 5, p. 692.

Wootton, David ed. 1996. Modern Political Thought: Readings from Machiavelli to Nietzsche. Indianapolis: Hackett Publishing Co.

p. 427 Rousseau, Jean-Jacques. Discourse on the Origin and Foundations of Inequality Among Men.

p. 649, 661 Mill, John Stuart. On Liberty.

The Children's Living Bible. 1971. Wheaton, IL: Tyndale House Publishers.