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Victimless Crime Laws Evelyn Cheverie North Carolina Central Law Review Volume 6 Article 11 Number 2 Volume 6, Number 2 4-1-1975 Victimless Crime Laws Evelyn Cheverie Follow this and additional works at: https://archives.law.nccu.edu/ncclr Part of the Civil Rights and Discrimination Commons, and the Criminal Law Commons Recommended Citation Cheverie, Evelyn (1975) "Victimless Crime Laws," North Carolina Central Law Review: Vol. 6 : No. 2 , Article 11. Available at: https://archives.law.nccu.edu/ncclr/vol6/iss2/11 This Comment is brought to you for free and open access by History and Scholarship Digital Archives. It has been accepted for inclusion in North Carolina Central Law Review by an authorized editor of History and Scholarship Digital Archives. For more information, please contact [email protected]. Cheverie: Victimless Crime Laws 258 NORTH CAROLINA CENTRAL LAW JOURNAL CONCLUSION It should never be the policy of the law to antagonize the relationship of husband and wife. The law should promote harmony within the marital unit, and the rules of law should have as their goal the mitiga- tion of discord within that unit. Sadly, the Fulp decision creates a pro- found pressure upon marriage. It is a complete and utter disservice to the institution. It has caused and will continue to cause dissension in North Carolina homes. Yet, the most confounding part of the Fulp rule is that there seems to be no good reason why it should exist. Its only redeeming quality is that it prevents the litigation of stale claims. But this purpose shrinks to insignificance when compared to the potential consequences of forcing one spouse to sue the other. There are already sufficient pressures upon the institution of marriage without the Supreme Court adding another. North Carolinians deserve a rule of law that will foster domestic harmony, not sabotage it. WILLIAM W. RESPESS, JR. Victinless Crime Laws Victimless crime laws have been criticized by many people as mis- guided and unnecessary. Others have defended these laws as serving an important role in our society. In evaluating our victimless crime laws, one should first consider what the:aim and purpose of the criminal law is, and whether such laws are within the scope of the criminal law. The basic function of the criminal law is to protect one's person and property, and to safeguard the young and the incompetent from exploi- tation. Crimes of violence against the person are generally recognized as harmful to society. These mala in se offenses are defined as those crimes which are wrong in themselves. By their very nature, they are illegal. Crimes classified mala prohibita on the contrary are those crimes which are forbidden by statute, but do not in and of themselves violate the social order. This category of crime tends to change with the social attitudes of the time. Victimless crimes are not mala in se but rather mala prohibita and thus subject to change according to the times.1 They fall within that category of crime that varies from country to country, and from era to 1. Samuels, Legalization of Gambling on Sports Events, 18 N.Y.L.F. 897 (1973) [hereinafter cited as Samuels, Sports Events]. Published by History and Scholarship Digital Archives, 1975 1 North Carolina Central Law Review, Vol. 6, No. 2 [1975], Art. 11 VICTIMLESS CRIME LAWS 259 era. The question then is whether our current prohibition against these crimes is warranted in the context of our society. Generally, victimless crimes are "those nonforceful offenses where the conduct subjected to control is committed by adult participants who are not willing to complain about their participation in the conduct, and where no direct injury is inflicted upon other persons not participating in the proscribed conduct." 2 The acts involved in these crimes are much different from those crimes committed against the person. These crimes usually do not involve any injury to others beyond a pos- sible affront to the moral convictions of some. The only real harm done is to the individual himself. If one considers that the function of the criminal law .is to protect others, then these acts really have no place in the criminal law. Victimless crimes include prostitution, homosexuality, drunkenness, use of narcotics, vagrancy, disorderly conduct and gambling. These laws are frequently disobeyed, and are hard to enforce. What enforce- ment there is has proved both ineffective and costly. The present pro- hibitions against this behavior seem ridiculous when one compares the cost. of preventing this behavior through the criminal law. Beyond this, a large segment of society does not consider this behavior to be very harmful, and does not feel it should fall within the scope of the criminal law.' This comment will discuss the relative detriments and benefits of the victimless crime laws to society. Drunkenness, prostitution, and gam- bling will be examined in depth, as well as several alternatives to the present criminal sanctions. LEGISLATION OF MORALITY In America, "we have a highly moralistic criminal law, and a long tradition of using it as an instrument for coercing men toward virtue • ..based on an exaggerated conception of the capacity of the criminal law to influence men."4 Not only is it questionable whether such legis- lation is effective, but also whether the legislature has a right to attempt proscription of such behavior. John Stuart Mill is frequently quoted as saying: "The only purpose for which power. can be rightfully exercised over any member of a civilized community against his will, 2. Decker, The Case for Recognition of an Absolute Defense or Mitigation in Crimes Without Victims, 5 ST. MARY'S L.J. 40, 41 (1973) [hereinafter cited as Decker]. 3. Kaplan, Non-Victim Criminal Offenses, in Quest for Justice, A Report of the Commission of a National Institute of Justice 89 (1973) [hereinafter cited as Kaplan]. 4. N. MORRIs & G. HAWKINS, THE HONEST POLITICIAN'S GuiDE TO CRIME CONTROL 5 (1969) [hereinafter cited as MORRIS]. https://archives.law.nccu.edu/ncclr/vol6/iss2/11 2 Cheverie: Victimless Crime Laws 260 NORTH CAROLINA CENTRAL LAW JOURNAL is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." 5 Thus, while the drunk may be jeopardi- zing his own physical health, and the prostitute may in the eyes of others be harming her own moral health, it is questionable whether we have the right to legislate against their behavior. Besides a possible affront to the sensibilities of some, this behavior does no real harm to others. The laws against victimless crime unnecessarily involve the govern- ment in citizen's private lives. The law can. rightfully regulate and pro- scribe behavior which causes harm to others or to society as a whole. However, once the law attempts to regulate one's private morality, it may be overstepping its legitimate function. It would seem that one's private morality would fall under the Griswold 6 penumbra "where privacy is protected from governmental intrusion." Such intrusion into one's privacy becomes a threat to civil liberties. DISCRIMINATORY LEGISLATION AND ENFORCEMENT Besides being an unwarranted attempt at controlling morality, victim- less crime laws and their application tend to be used as a means of con- trolling and harassing minorities and the poor. Ours is a pluralistic society composed of many social, ethnic, and oc- cupational classes, each of which has its own set of norms. As some of these classes are not represented on the legislative level, their views are not reflected in the laws created by the legislative body. The moral and legal norms set out by the legislature are necessarily a reflection of the beliefs of those composing the ruling minority. Therefore, some persons are subjected to criminal sanctions for behavior which may not be considered either illegal or immoral by their subculture. The laws may be inconsistent with their own views and "when the criminal law runs counter to the traditions of minorities, administration of justice becomes entangled in the difficulties of coercing substantial numbers of respectable citizens to conform to rules they regard as unnatural and unreasonable."17 While victimless crime laws arise out of the middle class morality, they are-nevertheless enforced in urban ghettos." Not only do the lower classes find the middle class morality imposed upon them, but the laws are enforced in a discriminatory manner. While police would deny any discriminatory enforcement, "how the law 5. J.S. MILL, ON LIBERTY (1859). 6. Griswold v. Connecticut, 381 U.S. 479 (1965). 7. E.H. JOHNSON, CRIME, CORRECTION AND SOCIETY 122 (rev. ed. 1968) [herein- after cited as JOHNSON]. 8. NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, THE RULE OF LAW, AND ALTERNATIVE TO VIOLENCE 556 (1970). Published by History and Scholarship Digital Archives, 1975 3 North Carolina Central Law Review, Vol. 6, No. 2 [1975], Art. 11 VICTIMLESS CRIME LAWS is enforced is largely a matter of discretion."9 Realistically, the laws are not enforced against all those who violate them. "Ideological. orien- tations or values of policement" have been cited as circumstances which lead to a selective enforcement of the law.' ° "While the activities of the police are governed officially by procedural law, their actual behavior conforms to their own occupational code."" This occupa- tional code would by necessity include any personal values and biases the policeman might have. Personal expectations of the policeman will influence how he reacts in encounters with others. This subjectivity in enforcement may result in racial discrimination. "Considerable evidence suggests that the police have long had differen- tial arrest policies in regard to race. It is apparent that police have tended to arrest Negroes on slight evidence in comparison to the amount of evidence required to arrest whites.' 2 While discriminatory enforcement is found throughout the criminal law, victimless crimes in particular are enforced in such a way as to sug- gest discrimination along racial and class lines.'" This selective enforcement is closely related to the discriminatory legislation.
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