Victimless crimes?

A year or so ago I stumbled across the LibertariaNZ policies page. I disgree with them on several points, but one in particular caught my attention.

All laws against victimless ‘crimes’ involving consenting adults will be repealed, in order that real crimes with genuine victims like rape, robbery, murder, theft and fraud can be vigorously pursued and the rights of these victims enforced and upheld. All people currently incarcerated for victimless ‘crimes’ will be immediately released. Life sentences for real crimes will mean life. The NZ Bill of Rights will be amended to uphold your right to self-defence and the right to possess the means of self-defence.

The English Bill of Rights 1689 did not so much recognise a right of self-defence but assumed a duty of self-defence. It is an empirical question whether a society of heavily-armed robust individualists or a society which values common defence and supports specialist provision of that service (i.e., the Police) is more effective at defending people, so the question ‘do I meet my duty of delf-defence best by buying a gun or by paying the policeman’ is not to my mind one that should be settled on ideological grounds. I believe that the duty of self-defence includes medical and dental care. We do not insist on drilling our own teeth, removing our own appendices, or grinding our own spectacles. So it is not a priori obvious that carrying our own guns is optimal. It is also not obvious that it isn't. I used to have a gun licence. (‘The right to possess the means of self-defence’ is not talking about a right to free Judo lessons or a right to have a powerful punch or a right to have a personal bodyguard.) The more I study the question of gun control, the less I am certain what the answer is, and the more I think anyone who claims to know for sure what the answer is has their head stuck firmly inside some fantasy world.

It's also doubtful whether there is one answer that is optimal for the whole of any society. Someone living in an isolated district, who is effectively bereft of the protection of the police, may indeed need to handle their own defence. That does not imply that a city-dweller has the same need.

But this is a digression from ‘victimless crimes’. Who are these people languishing in our gaols for having committed ‘victimless crimes’? And what are the laws to be repealed?

A “Ranting Monkey” video on YouTube reminded me that in some countries prostitution is just such a victimless crime. While I am prepared to argue that prostitution is not victimless, it's irrelevant, because in this country, prostitution is legal.

The most recent prison statistics I found were for 1995.

The ‘Violent’ and ‘Property’ categories are not victimless in anyone's book. You have to do something pretty bad to be imprisoned for a traffic offence, so I imagine that the LibertariaNZ would agree that those were not victimless crimes. (Unless they would argue that recklessly and needlessly putting other people at risk is victimless, in which case we must agree to differ.) ‘Other” includes things like resisting arrest, escaping custody, failure to comply with bail conditions, and trespass.

One fairly major issue here is whether someone has to be singled out as a clear victim in order for a crime to have a victim, or whether people harmed in the aggregate count. Suppose for example, that someone is out on bail, and goes on the run for several months. Is that a victimless crime? Suppose that during this flight nobody is physically assaulted, and no property is stolen or damaged. Is the flight in itself a victimless crime?

I say that the police time expended chasing the fugitive reduces the ability of the police to do other things and in itself costs money that comes out of the taxpayers' pockets, so that all of the police involved in the effort to re-catch the miscreant and each and every tax-payer has been harmed. There are literally millions of victims.

So who is left in our prisons?

Ah hah! ‘Victimless crime’ turns out to mean drugs.

What proportion of people who are convicted of drug offences actually go to prison? The 1995 figures:
Do what Rate Sentence in months
Use cannabis 2.7%1.5
Deal cannabis 11.2%12.8
Use other drugs 6.8%3.4
Deal other drugs65.4%31.3

In 1995, if you were caught with cannabis for your own use and convicted, you were extremely unlikely to be gaoled, and if you were gaoled, your sentence was likely to be short. The folk theory behind these numbers seems to be that people who use drugs have less volition and do less harm than people who sell drugs, and that cannabis is less harmful than other drugs.

Now we must deal with a question based on a real case: if you know that a drunk has bet that he will cut his own head off, and you sell him a chainsaw (but don't start it or wield it yourself), and he does cut his head off, have you done anything wrong? After all, you didn't just have the consent of the drunk but his insistence. Whether it is right or wrong, does society have a legitimate interest in preventing such incidents, so that it may legitimately punish you?

I say that a drunk has dimished capacity for judgement and the chainsaw vendor's action does have a victim.

If there is such a thing as drug addiction, then someone in the grip of it has a diminished capacity for making judgements about whether to purchase and use the drug or not, so that their ‘consent’ counts for less than it normally would.

So I do not hold cigarette vendors guiltless, and would vote for a policy of imprisoning them, while simultaneously voting to allow people to grow their own tobacco, provided they lived on their own.

Of course the problem with imprisoning drug dealers is that prisons are notoriously permeable to drugs, so you might say that this makes as much sense as locking homosexuals up with a lot of ... men. (Something we haven't done for a long time.) That doesn't mean that drug dealing is not a crime, or that it should not be punished, just that prison might not be the best means.

Examining a list

The Education Portal web site has a page offering the following list.
The meme of ‘victimless crimes’ used to refer to sex. And the top two example were prostitution and male/male sex. Both of those are now legal; indeed people of he same sex may legally marry. Those laws have already been repealed, so the LibertariaNZ cannot possibly be referring to those.
Drug use
We have already looked at this. The obvious question is whether it is true that drug use has no victim, or would have no victim if society did not punish it.

It is often forgotten that drug use wasn't a crime. In the 19th century, opium, morphine, heroin, cocaine, and marijuana were completely legal. LSD did not become illegal until the mid-1960s. Drugs were not made illegal until they were perceived as causing problems for society. Let me stress this: drug laws are not a matter of someone saying “is someone having fun somewhere? let's stop it!”. What was it? Well, New Zealand used to have “Legal Highs”. As put it,

A regulated market for synthetic cannabis was established here in July last year. Substances marketed as legal alternatives to cannabis were licensed for sale but authorities had the power to remove anything deemed unsafe. The scheme prompted international interest but was abandoned this year after widespread concern about the dangerous effect of some substances. ... It was estimated that the risk of seeking emergency medical treatment after using synthetic cannabis was at least 30 times higher than with natural cannabis ...

A True Believer in the concept of “victimless crimes” would say “so what? People have a right to expose themselves to risk if they want”. In this country, emergency medical treatment is paid for by the taxpayer. If you take a drug that puts you in Accident and Emergency, you have taken money from me just as if you had stolen it. For people who just get sick or have a workplace accident, that's a price I gladly pay for living in a civilised society. Going to A&E because you were stupid about drugs? Every taxpayer is a victim.

Worse, everyone else who needed A&E that night is disadvantaged. Recently my wife had to go to A&E because of severe abdominal pain. The staff were unable to spend much time looking after her because they were having to deal with the young lady in the next bed, who had drunk herself unconscious and had a serious fall. Once my wife did get pain relief, she still could not get any sleep because of this young lady ranting on and on. Do I think my wife was a victim that night? Youbetcha. Heck, sitting beside her, I thought I was a victim. And the medical staff exhibiting superhuman levels of patience and enduring underserved abuse, they were victims too.

OK, suppose your use of drugs does not land you in A&E. What then? Well, you'd better not have any friends or close relatives, and you'd definitely better not have any dependents. Or employers. From again,

Getting high before work is common for a wide range of Kiwis — and employers are increasingly doing their own drug testing.
The Global Drug Survey 2014, conducted in partnership with Fairfax Media, found that, of the 5646 New Zealand participants, 13.7 per cent of respondents had in the past year taken drugs, including alcohol, less than two hours before starting work.
A further 13.8 per cent had done so, but not in the past year.
One industry where illicit drug use was reported to be common was farming.

Surprise surprise: farming is the industry with the worst accident record.

If your capacity to work is diminished by drugs, you are ripping your employer off. If you are a student and your capacity to study and learn is diminished by drugs, you are ripping off the taxpayers funding your educational institute and keeping someone who might be more diligent out of a place. Victimless?

So, drug use might be victimless if you have no friends, no family, no job, no studies. In that case, who would wonder at it if you took drugs? But you would still have to ensure that you came to no harm or paid for your medical treatment in full if you wanted to be counted as “victimless”.

Just to make it clear: when I deny that drug use is victimless, I do not imply that prison is the best or even an appropriate response or that it is worse than say malicious gossip.

Let's find out what trespassing is. The obvious place to look is the Trespass Act, 1980.

So you definitely will not go to prison just for straying onto someone's land and leaving when they tell you to. And even if you wander onto someone's land waving a gun and making a nuisance of yourself, you won't go to prison long.

What about someone who needs to seek shelter? Covered by section 3(2); that's perfectly OK.

Realistically, you have to be pretty obnoxious in order to be charged with trespass, to the point where no reasonable person would say “victimless”. Certainly our prisons are not bulging with people convicted only for trespass.

Ultimately, though, the claim that trespass is ever “victimless” is a claim that private property does not or should not exist and/or that there is not or should not be any right to privacy. If people can just wander onto your land any time they feel like, how can that not interfere with your quiet enjoyment of your property? Remember section 3(2).

Traffic citations
I've had traffic tickets for unsafe backing (the person whose car I backed into was clearly a victim), speeding (clearly risky, my only defence is that I didn't mean to, which changes the offence to stupidity), and having an expired warrant of fitness. Now the last one is interesting. That might be seen as victimless. Who is hurt by a mere procedural offence?

It could have been me and my family, because the vehicle in question turned out to need repairs. The punishment was a small fine, not a prison sentence.

As for failing to stop at a stop sign, I had reduced my speed to about 1cm/minute and genuinely thought I had stopped. That is a case where I'm prepared to argue the only victim was me, but stop signs are there for a reason, that one in particular, and it's just a matter of where you draw the line.

People do go to prison for traffic offences, but you have to try pretty hard. Such people often have previous serious traffic convictions: “16% of traffic offenders in prison had more than 50 previous convictions” — NZ Justice Department. But “a number of minor traffic offences” have already been decriminalised. There seem to be no victimless traffic offenders for the Libertarianz to free.

Public drunkenness
As the Wikipedia article puts it, “Public intoxication laws vary widely from country to country, but usually require some obvious display of intoxicated incompetence or behavior disruptive/obnoxious to public order before the charge is levied.” Continuing from that article, “In New Zealand, drinking in public is not a crime and instead, local governments must specify that alcohol is banned in an area before it is considered a crime to drink in that location. Being drunk in public is not specifically an offense unless the person who is intoxicated is a public nuisance, in which case they may be dealt with for 'disturbing the peace'. This will usually result in being taken home, or otherwise taken to a police cell until sober.”

We see that nobody is gaoled for being drunk in public as such. Even people who are bugging the stuffing out of everyone around are kept for safety until they sober up, not really imprisoned.

Oddly enough, told us in 2012 that “Hospitality NZ [bar owners] [were] calling for legal sanctions or fines for anyone caught drunk in public, which would require a law change. Public drunkenness was removed from the statute books in 1981.”. They felt that it was bad for their businesses, which is to say that the bar owners felt that they were victims of public drunkenness. In fact, they're quoted as saying “This is not a game to us bar owners, it's our livelihoods. Maybe we need to put responsibility equally back on patrons instead of just the bar owner. If actions have no consequences for the person becoming intoxicated, how can we expect them to behave responsibly?”.

Repealed in 1981? Just how far behind the times are the Libertarianz?

My older daughter was present when a friend of hers attempted suicide. Another one came close. Anyone who claims that suicide has no victims needs to get real. Family and friends are left hurting for the rest of their lives. The people who have to clean up afterwards; do they suffer nothing? Now if you have no family, no friends, no pets, no job, and can arrange things so that nobody even notices that you've gone, then you can call your suicide “victimless” but not otherwise.

Actions with victims may still be justifiable. There may be cases where suicide is justifiable despite the consequences for others. That doesn't make the consequences go away.

Nobody goes to prison in this country for gambling. It's still worth pointing out that it is “your” money to gamble with only if nobody has a legitimate call on your aid. If you have minor children and gamble, you have victims.

Lorna Dyall, writing from a Māori perspective, wrote in her Social Policy Journal article Gambling: a Social Hazard that “Gambling needs to be reframed as a social hazard rather than a harmless leisure pursuit.” Read the article for her reasons. The summary is that whatever might be said of a small bet between two friends, the gambling industry is by no means victimless.

So what's left?

There really do not seem to be any people incarcerated for victimless crimes in New Zealand.