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When To Draw The Line Over “Victimless Crimes”
by Daniel M. Ryan
03 November 2003

So-called victimless crimes make a formerly upright man or woman a kind of enemy within, because their capacity to behave in a law-abiding way is eroded.

There’s an eternal tension in the post-modern Right which should be familiar to most of you. On the one side of the family dinner, we have the conservatives; on the other side, the libertarians. It’s not unlike a marriage between an Anglican and a Roman Catholic in terms of the chilliness which frequently shows up at these “reunions.” Had a medieval thinker been allowed to gaze through his or her crystal ball at an all-party meeting of the Canadian Alliance, he would conclude that there would have had to have been a dynastic marriage behind the sight of two factions so unalike belonging to the same organization.

The points of division are well known. One of them involves what the libertarians characterize as “victimless crimes.”

Perhaps the reason behind the libertarians’ known social liberalism is because the more tradition-minded conservatives tend to use quasi-socialistic language when justifying laws that restrain certain kinds of behavior which, though consensual, are treated as acts of violence. Drug use, underage intercourse, and other acts judged illegal -- largely confined nowadays to mind-altering substances and sexual behaviour deemed perverse. There used to be censorship laws included in this category, but they are almost gone, and those that are left tend to be thought of as quaint. (Here’s the relevant section in Canada’s Criminal Code.)

I should note that the Party that is trying to reformulate the standards of public decency deemed normal in the past is the Liberals. Instead of judging acts of sexual deviance and of illicit substance use as an outrage against the community, they’re using the standard of exploitation: pedophilia is no longer the defilement of girls, but is now sexual exploitation of them. Drugs are no longer a rip in the fabric of a decent society, but are now in place to save the victimized youth from the exploitation of nefarious gougers selling addictive products. And incest is now the most serious form of sexual harassment.

How did the conservatives lose the ball on this one? Is it because of the overtolerance for libertarians’ verbal cleverness? Or is it because of a failure of scholarship?

A Juris Doctor I am not, so I cannot claim any expertise in the philosophy of jurisprudence. Nor much knowledge of the field, either. But I can bring what I know of political science to the task.

The reason why libertarianism is an easy sell theoretically is that a lot of our existing laws have the libertarian philosophy as their bedrock, and the others are justified as a more sophisticated add-on to that philosophy to grapple with changing times. That’s why libertarianism is such a hard sell in the political marketplace, because it’s an easy model to dismiss out of hand, as if it was a long-discarded tricycle.

The crack in the mortar between the bricks that sealed libertarianism in came, not just as a result of the economic thought that’s a primal part of the package, but also because libertarians largely agreed with the goals of the permissive society, if not the means to implement them. Early libertarians were on the side of those who regarded the blue laws as an embarrassment and the sight of Chuck Berry being arrested for violation of the Mann Act a humiliation. This is why writers such as Buckley consider libertarianism to be a sort of refined libertinism, even if National Review did swing over to a qualified support of the libertarian case for abolition of the drug laws on the grounds that competition from legitimate business would administer a case of financial hemophilia to organized crime. As a matter of increasing public order in the Hood by whacking the drug lords’ pocketbooks and giving far less incentive for youngsters to join them.

Lost in the shift is a justification for drawing the line that doesn’t sound either old-fashioned or health-fascist. A case for complete abandonment or repeal that requires neither the therapeutic state nor an invocation of “the morals of the community” as its justification.

Here it is -- the common sense conclusion, based upon the wisdom derived from centuries of observing human nature, that certain acts of self-abuse are destructive in this specific way: they make a formerly upright man or woman a kind of enemy within because their capacity to behave in a law-abiding way is eroded. Or: a person engaging in such behavior is “an accident waiting to happen.”

Let’s start with LSD, because the original criminalization of it is still a matter of controversy. There is a mountain of evidence that chronic LSD use leads to a case of schizo-affective disorder, whose symptoms are uncannily similar to a psychological dissection of Bill Clinton by Edith Efron. If chronic LSD use is the reason behind Clinton’s seeming inability to understand the meaning of the words “criminal act,” let alone match his behavior to the laws of the land, then he is a perfect poster boy for the continued criminalization of the substance.

Note that the above argument would not change at all had LSD remained legal.

Undoubtedly, the analogy of the “demon rum” would be brought in by a person wanting LSD to be decriminalized, as well as the mis-aimed Reefer Madness film. Both would be cited as evidence that I’m seeing ghosts and goblins.

I partially agree with that objection -- but the risk of burning out that part of the brain which enables one to be law-abiding is a serious enough risk to at least demand a thorough study of that substance’s long-term effect on later criminal behavior, including skill in covering it up. Done before building a legalize-LSD bandwagon.

As far as narcotics are concerned, they tend to be used as “love drugs” -- hence their continual presence in the model circuit. A counselor sort would conclude that they’re taken as solace by those who see themselves as unlovable.

From this, a libertarian would conclude that narcotics are not a releaser of future criminal behavior. All of the crimes directly associated with narcotics users are simply the furtive behavior of people who are merely stigmatized as criminal, people who would be just be pathetic had narcotics been legal. As far as the crimes associated with the narcotics trade is concerned, that can be explained by invoking Prohibition and the rise of organized crime under the Nineteenth Amendment.

But let’s stop a minute. Being loved and unloved, being liked and disliked, are emotions that result from interactions with, primarily, other people. The person who “feels no dislike” might be as reckless as the person who “feels no pain.” What if such a person is capable of punching someone? What if the interaction between the distorted perception due to the drug and non-co-operative reality leads to the kind of jealousy resulting from love betrayed without any objective reason for this explosion? What if heroin is a drug of abusive narcissism?

Once again, a careful look at the psychological effects of narcotics would seem to be the admission price for any decriminalization effort to be even taken seriously.

Stimulants such as amphetamines and cocaine tend to lead to paranoid schizophrenia. I’ll confine myself at this point to noting that paranoid schizophrenics are frequently committed or at least hospitalized because they’re an unpredictable physical threat to other people.

As long as the law of the land includes measures to prevent future crimes, the drug laws seem unimpeachable. A legalization drive would probably spill over into a battle against other laws of this sort, such as possession of burglar’s tools and of concealed weapons. Or, for that matter, of brandishing weapons openly.

Imagine a young Jim Jones type under that kind of regime: “What are you scared for? I’m not going to shoot you with this thing, I’m just pointing it at you. Why would I be committing a crime if there’s no intent to harm on my part?”

With this point made, let’s examine sex crimes, focusing on pedophilia and incest.

The former I’ll focus on first because it looks like the ramparts are being breached with respect to this crime. Despite its illegality, child pornography is available all over the Internet, and it’s not hard to get your hands on pictures featuring explicit sex of that sort. Some convicted possessors of child porn might be folk heroes, and there exists at least one society established for legalization of pedophilia proper -- the notorious Réné Guyon society.

The conventional argument revolves around sexual exploitation, as I noted above. But this might be the time to drag out the older argument involving the defilement of girls.

What might bring girls in willingly to this kind of sexual behavior is the chance of making a grown man her husband or perhaps controlling him (this latter desire was illustrated in Nabakov’s Lolita) -- or perhaps controlling him as a means of making the “big boy” marry her.

I need hardly spell out the consequences of this. The concept of common law marriage is based upon the association of a long-term sexual relationship with a partnership that has legal rights and obligations, provided the partners live in the same household. This is precisely the argument made to justify the legalization of homosexual marriage.

So here’s the scenario. A twenty-seven-year-old man and a twelve-year-old girl begin sleeping together. (This is the same age as the lesbian couple in The Vagina Monologues.) After a few months of regular intercourse, the girl suggests that it might be more convenient for both if she moves in. So the man invites her to be his live-in.

What legal status does this girl now possess? What status will she have in twelve or eighteen months?

Let’s assume they live together for two years; she’s now fourteen. The law in all jurisdictions in North America would say that she is his common-law wife now, and entitled to the rights that the law allows her to give. Such as co-ownership of property.

How is it possible for a minor -- who (in Canadian law) is entitled to make voidable any contract he or she willingly entered into -- to be fitted into the legal status of common-law wife? Even if I omit the birth of a child – or perhaps the tainting of love with opportunism to avoid the above legal entanglements. This sounds a lot like the reason behind those girls being jilted now!

I also need to bring up something else. A girl that learns to be a successful coquette as a tween might stay a tween psychologically for the rest of her life. That would tend to make her irresponsible throughout the course of her life -- and this includes any time when she gets her hands on some real responsibility.

Finally, I turn to incest. Here, the usual counselor’s stereotypes get twisted up.

Building on the definition of pedophilia as the sexual exploitation of children, the counselor type sees incest as the exploitation of the son or daughter by the parent they’re sleeping with. This stereotype, though useful in clinical psychology, has a real blind spot: ignorance of the cuckolded parent as the prime victim of incest. This blindness sets loose a blame-the-victim dynamic.

Let’s change the usual scenario to one where, for the purpose of discussion, the cuckold is the victim. Here is the case of a parent who took care of a son or daughter from birth, raising them, protecting them, even teaching them about the birds and the bees so they can land a future mate. And then, they find out that this human being that they raised and protected, and taught about sex, has used this nurturing to steal their mate right under their own roof.

I don’t know how the typical cuckolded mother would react. But I have a damned good idea of how the cuckolded father would take this.

The point behind the shift of perspective just above is to show how the child would react to the opportunity of turning an authority figure into a sexual partner. Think of how easy it would be to get out of any kind of parental discipline at all: just treat any such discipline as nothing more than a desire for sex -- or, in the case of the cuckolded parent, an outburst of nothing more than sexual jealousy. Intercourse does tend to turn what would otherwise be seen as verbal aggression into either plain nagging or plain envy, so what used to be orders can now effectively be dismissed out of hand.

Consider how an unknowing cuckold would react to the loss of their parental authority. One likely response is to take out their dwindling control of their family on others. This turns what otherwise would be a basically upstanding man or woman into a bully. There is also the risk of them entertaining the idea that the division point between winners and losers in society is marked by presence or absence of contempt for authority -- that winners show it by treating legitimate authority figures with disdain. What if this attitude departs from the privacy of the family home by the same man or woman that sees evidence of its success inside that private home?

And as far as the parent screwing his or her kid -- I need not explain why this is a blatant abuse of authority that could be carried outside of the private home too. The sexual exploitation theorist is absolutely correct concerning this point.

What all the above crimes, with the possible exception of pedophilia, have in common are: the abuse of the brain in such a way that it lends serious doubts about the abuser/sufferer’s ability to function as a law-abiding citizen even after the abuse stops. And the resultant damage to the brain seems to be biologically based.

This should give real pause to anyone that seriously considers any one of these activities to be “victimless crimes,” especially when the logical course of invocations of such repeals as precedents for other legal actions is considered. “Crimes that breed future crimes” might be a more accurate label.

Daniel M. Ryan is a thirtysomething intellectual whose "slacker" phases were spent (almost literally) bivouacked in the library. He was born and raised in Toronto, Canada, and considers himself to have been "raised right."