A teen-ager puffs on a marihuana cigarette as he sits in a theater balcony, quietly watching the make-believe on the screen.…Two homosexuals, both in their thirties, meet in a "gay" bar and then by common consent engage in an act of oral copulation in the apartment of one of them.…A woman with two children, two month's pregnant, slips into the house of an abortionist in order to get rid of an unwanted fetus.…A slum deliveryman takes a few moments to enter a tobacco store, indicate the number he favors that day, and puts a fifty cent bet on it.…
All of these persons are criminals, though they have committed crimes without victims. Neither homosexual is apt to complain to the authorities, the marihuana smoker is without pain, both the abortionist and his client have voluntarily chosen to do what they are doing, and the man placing his bet on the numbers hopes only that this will be his lucky day.
Why then, given the voluntary and consensual nature of these acts, does the criminal code, which has quite enough to keep it busy, attend to them?
The answer is far from simple. To some extent, though probably a limited one, various crimes without victims are outlawed in the sincere belief that American society will no longer be "safe" if homosexuals, abortionists, marihuana smokers, and numbers players are allowed to go their way unmolested. Such a view is, at very best, arguable. Population experts, for example, indicate in deep Cassandra tones that the gravest threats to life in the United States and, indeed, in the world, is overpopulation, and it may be that the act of abortion or the spread of homosexuality, for example, contribute more toward the possible alleviation of our potential ills than their elimination.
To some extent, crimes without victims are outlawed because of a benevolent interest in protecting an individual "from himself." The difficulties here are acute. For one thing, in a democracy, freedom of an individual to determine what is best for himself, as long as he does not interfere with a similar freedom of others, is a prime ingredient. For another, it is dubious that the force of the criminal law upon marihuana smokers, abortion-seeking women, homosexuals, and numbers players adds to the sum of their happiness and makes them better persons. Stanley Yelles, a leading figure in the National Institute of Mental Health, recently told a Senate subcommittee that he thought the legal consequences visited upon youths smoking marihuana were considerably more devastating than the consequences of smoking marihuana. He seems quite correct.
In addition, of course, very little concern is shown about protecting persons from predilections which appear to be considerably more dangerous to their well-being than things such as marihuana or homosexuality. The odds for self-destruction are much higher for each race driver lined up at the starting gate in Riverside during the season than for any protagonist in a victimless crime. So too the dangers of overeating appear much more self-evident than those of marihuana use. Yet we have no S.S. troops (for Supermarket Surveillance), no crimes of first-and second-degree obesity, no blockade at the border against Israeli halvah, Italian spaghetti, and Swiss chocolate, no civil commitment program directed at providing group therapy to deal with the oral fixation of the chronically self-destructive overweight person.
There is, perhaps, the issue of general deterrence. Failure to punish a homosexual, it may be argued, will encourage untold numbers of other Libidinal fence-sitters to flop over onto the same-sex playing field. Such a view has within it the implicit assumption that homosexuality is a more attractive route than heterosexuality, and that only the criminal law is preventing a veritable orgy of gay living, a puzzling, but clinically interesting, assessment of things. This view also fails to appreciate that outlawing a behavior adds an element to it that often is determinant in eliciting the behavior. Homosexuality, Oscar Wilde gloated, was like "feasting with panthers," because one never knew what consequences the risk would bring. So, too, marihuana use undoubtedly is greatly increased by the predictable yelps of outrage that it produces.
Besides, even if the criminal law did deter untold numbers of persons from participating in victimless crimes, all the original objections to using the law against behavior producing no clear-cut social harm and no deprivation of the property or injury to the person of a victim remain in force.
There are other sources for continuing sanctions against crimes without victims. One is pure inertia, a second is the nature of our political system, a third is the hold of the theological orthodoxy. Then, of course, there is self-righteousness, that powerful force that compels the good and decent among us to insist that their standards be followed by the aberrant…or else.
Let's look at self-righteousness for a moment. All of us, I imagine, like a certain reassurance that the commitments we have made, the lives we are leading, are fine ones. Unfortunately, God is notoriously casual and capricious in his seeming manifestation or high regard for the goodly—indeed, sometimes the wicked seem to thrive disproportionately. Lacking divine reassurance, we try to create our own heavenly scorecard, by seeing to it that alien ways result in hurt and deprivation being visited upon those who follow them.
The best illustration of this theme that I know comes from a barrage of letters I once had the opportunity to read. They were produced by an ugly situation in which a mentally defective Indian girl in a rural Oklahoma town, given the care of a nephew while his parents were away, decided that the child had been invaded by evil spirits. To ward these off, she held the child against a hot stove, inflicting serious burns over a large part of its body. Then, convinced that the genitals were somehow responsible for his badness, she tied a string around his penis, causing an infection that ultimately turned into gangrene. The child lingered for weeks in a hospital, while the newspapers made the most of the story, until the child died.
The Indian girl was illiterate, so it was pointless to write to her, but nonetheless hundreds of persons throughout the country did so. The district attorney allowed me to read the letters. They represented the vilest and most indecent stream of vituperations that I have ever seen. Invariably they entered with exquisite detail into the inventive kinds of tortures the writers would like to inflict on the girl as retribution for her deed. Invariably, the writers, mostly women, included panegyrics about themselves as mothers and wives, indicating their tender and comforting love for their children.
The letter writers were a nasty crew, and I have always regarded them as epitomizing the vulgarity and viciousness of the self-righteous, masking their fright and their own contradictory impulses in an outburst of hatred and vengeance.
It would be unforgivably unfair to suggest that so intense and ferocious a feeling underlies very much of the support of prosecution of crimes without victims, or that proponents of such laws are wild-eyed sadists. The truth is undoubtedly a much milder thing. There is amongst us all a considerable reluctance to see change and its resultant uncertainty, especially amongst those of us with power, who know what they now have and are uneasy about what they might otherwise end up with. So they try to hold the line. There is also a reluctance to become overly identified with minority causes, particularly causes such as homosexuality, because a suspicion of personal involvement inevitably arises. There are few friends to be made, and these of little social force and strength, while powerful enemies can be aroused.
But what are the consequences of continuing to label as criminal a number of acts which involve no real victims and produce no clearly discernible social harm—or certainly no social harm equivalent to the abuse of traditional American principles of fairness and justice involved in their enunciation and enforcement? It seems obvious that to the extent that a society thrusts from its core non-conformists who see no sense in what is being done to them and then takes punitive measures to repress them, to that extent will it create a resistant force in its midst. Obviously, the repressive measures will have a certain success, particularly with the weaker elements of the deviating group. But those with some strength will, of necessity, grow stronger, needing the added vitality to survive persecution. In addition, of course, by its counteracting measures the major society will come to label and to define elements of itself as different and undesirable—and such elements will so define themselves and the path of return to the mainstream will for them become irrevocably foreclosed.
I think that the best method for dealing with acts we find personally offensive, but otherwise relatively harmless, is to ignore them. Such a response may be predicated on the assumption that there exists in our society a core of values and commitments which are inherently attractive and which exert enough of an appeal to win over those we find behaviorally resistant, providing they have not been shut off so completely that it is no longer possible for them to participate in a common endeavor.
Besides, there is always the considerable possibility that our present policies may be based on politically, morally, and factually wrong ideas. It is understandable and forgivable to hold biased views, but vicious to insist that on the basis of such views others should suffer cruelly.
Gilbert Geis is a visiting professor in the program of social ecology at the University of California, Irvine. He has authored several books and articles, including "Fable of a Fatty" in the May 1972 issue of REASON.