Legal Issues

Victimless Crime: Fact or Fiction?

 In 1687, the physicist Isaac Newton revealed three fundamental natural laws in hisPhilosophiae Naturalis Principa Mathematica, commonly referred to as the laws of motion.  Among these laws, perhaps the third is the most well-known: for every action, there is an equal and opposite reaction.  In principle, this law rings of the general idea behind modern criminal law; that is, for every crime committed, there should be a victim or, at the very least, a potential victim.  Yet, unlike Newton’s infallible natural laws, the laws of humanity are far from perfect, as the long history of unjust laws – from the race laws of Nazi Germany to the recently overturned laws defining marriage – might attest.    Given this fallibility, then, the question must be raised: are there any laws on the books in Utah which penalize victimless crimes?

THE RULE

               

                It might be reliably assumed that the general definition of that which constitutes a victim is common knowledge today, but for the sake of uniformity, the definition as given by the Oxford Dictionary is listed here: a victim is “a person harmed, injured, or killed as a result of a crime, accident, or other event or action.”  While this is of course an extraordinarily broad definition, it does provide three definitive elements for “victim” which will henceforth be the focus of this article: harm, injury, and death.  In this examination of the Utah Laws, then, any action which does not result in – or otherwise have the potential to cause – harm, injury, or the death of an individual, but is as yet criminalized by Utah law, will be considered a victimless crime.

THE EXCEPTION

                As with most rules, it is necessary to observe at least one exception: for the purposes of this article, voluntary victims will not themselves be considered victims, for the simple reason that they elect to become involved in the given activity of their own free will.  To do otherwise would be to ignore the accountability an individual must accept for the consequences of their own actions – a notion which would, incidentally, undermine the entire foundation of law.

Notably, this category of voluntary victims also encompasses the state (i.e. persons within state agencies who participate in the enforcement and prosecution of the law), who also will not, for the most part, be considered victims in this article.  While the state admittedly suffers “harm” from any illegal activity – in that it must expend resources in order to enforce the law and prosecute illegal activity – the state does so of its own volition.  That is to say, like a person who voluntarily places their hand in a flame and suffers a burn as a result, the state freely chooses – some might say too freely – to get involved in a situation which may cause it harm. 

To the extent that it is a voluntary victim, then, the state will not be considered a victim at all, nor will any other party who can be deemed to be voluntarily involved in a given crime.

THE CRIMES

                With the parameters of this examination established, an inquiry – however brief – into crimes defined by Utah law is now warranted.  The examples of victimless crimes will fall into two general categories: those crimes which are overtly victimless and those which are potentially victimless.

                Overtly Victimless Crimes

               

While it might seem that Utah laws against obviously victimless crimes are few and far between, they are in fact quite prevalent.  Consisting primarily of those laws which regulate the activities of voluntary victims, this category includes the crimes of possession and/or personal use of recreational drugs (not to be confused with DUI or possession with the intent to distribute), intimate activities between consenting individuals, gambling and suicide, to name but a few.  In cases like these, the immediate victims/perpetrators of the crime can reliably be assumed to be quite willing to suffer whatever consequences might arise from their indulgences and, therefore, are to be considered voluntary victims.

Constituting the bulk of this category today, the possession and/or personal use of recreational drugs is perhaps the most definitive of the overtly victimless crimes.  According to the Utah Departmentof Public Safety, some 13,110 arrests took place in 2014 for the personal possession of illicit substances – about 11.2% of the total number of arrests carried out during that year.  While the use of these drugs might indeed cause harm, injury or death to the victim/perpetrator, because the victims are using the drugs of their own volition, our examination renders such crimes victimless.

Of course, controversy rages over whether or not these types of crimes are truly victimless, in that they might distress, to one degree or another, relatives, friends and associates of the immediate and voluntary victim/perpetrator.  While a thorough examination of the subject of indirect victims of criminal activity is beyond the scope of this article, suffice it to say that, for the moment, Utah law does not generally construe the general instigation of emotional or psychological distress as a criminal activity.  Were it to do so, everything from firing an employee to conducting a tax audit must surely be criminalized, an impractical prospect at best.  Consequently, indirect victims who suffer from emotional or psychological distress as a result of these crimes must be excluded from this category of victimless crimes.

 Potentially Victimless Crimes 

A more complex question involves those crimes which have the potential to be either victimless or to cause undeserved harm, injury or death to genuine victims.  Such a category includes relatively superfluous crimes such as loitering and illegal protesting, but also more serious crimes, such as the abuse of a vulnerable adult or threatening with a dangerous weapon.  In such instances, it often falls to the defense to prove that there was no actual victim and thereby ideally obtain a lighter sentence; it remains unlikely, however, that the state will simply decline to file charges on the grounds that a given crime was victimless.

To take a hypothetical example, suppose a defendant is charged with mismanaging the funds of a vulnerable adult under their care; such a case might entail charges ranging from the unlawful dealing of property by a fiduciary, to the abuse, neglect or exploitation of a vulnerable adult (both potential felony charges).  Suppose further that the defendant so charged did not mismanage funds at all, but in fact was simply a poor record keeper, and the vulnerable adults under the defendant’s care were in fact being well treated and openly expressed a desire to remain under the defendant’s care.  Such a situation might still constitute criminal activity under the letter of the law, but would in fact be without victims; nevertheless, the state might very well prosecute the matter just as though the vulnerable adults were victimized by the defendant.  Whether or not the absence of actual victims might be proved in court and/or taken into account by a judge or jury at sentencing would, of course, depend largely on the strength of the defense.

Such an example is but a single possibility among a nearly infinite number of situations where criminal activity might be entirely without victims, but prosecuted no differently, simply because the activity has the potential to involve victims.  That the prosecution of such cases might itself make victims out of the defendant (or, in the example above, the vulnerable adults under the defendant’s care), is something the state frequently and conveniently chooses to overlook.

THE CONCLUSION

                If the definitions and suggestions above are accepted, there can be no other conclusion except that laws which penalize victimless crimes are indeed alive and in force in the State of Utah.  Whether or not one agrees with those laws, it should always be remembered that criminalizing victimless acts often opens a dangerous door for laws founded in bias, bigotry and hate.  The state, more than any single individual, has the potential to cause overwhelming harm, injury and death.

Photo Courtesy of: Stuart Miles@freedigitalphotos.net

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