I have studiously attended to the debates between those who would permit—nay, even encourage—the promiscuous use of pharmaceutical agents such as marihuana and LSD throughout the social order and those of us who demand that all Americans face up to their decent responsibility to live cleanly, with neither their bodies nor their minds contaminated by artificial exhilarants. The recent public pronouncement by the director of the Food and Drug Administration that he would as soon have his daughter smoke cannabis sativa ("pot") as drink ethyl hydroxide ("booze")—the one legally proscribed, the other, however meretricious, legally sanctioned—only underscores the imperative necessity to outlaw equivalently all forms of self-indulgent and intolerable behavior. Fairness and justice demand no less.
To this end, I am proposing that a new criminal offense be created during the next sessions of the state legislatures and the federal Congress. The new crime will be overweightedness, and it shall be divided into two classes—first-degree obesity and second-degree obesity.
Unlike the narcotic laws, enforcement of the obesity statutes should provide only a minimum number of difficulties. The offender will carry his offense with him, as it were, and he cannot expeditiously shed the telltale signs of his culpability in the manner that the narcotic addict flushes away his heroin or disposes of his hypodermic needle.
The degrees of the crime of obesity will also readily yield to precise determination. Persons 10 to 20% over the normal weight for their height and sex will be guilty of the crime in the second degree. Those 20% or more above that weight maintained by normal, law abiding citizens will be guilty of obesity in the first degree. Juries, if they wish, may regard such factors as bone structure and metabolism rate as mitigating circumstances when they come to recommend dispositions. Certainly factors of temptation, such as those relating to notorious proximity to products of great culinary skill, should provide no legally-acceptable excuse for violation.
As Justice Holmes once sagely observed: "Laws do not merely require that every man should get as near as he can to the best conduct possible for him. They require him at his own peril to come up to a certain height. They take no account of incapacities, unless the weakness is so marked as to fall into the well-known exceptions, such as infancy and madness."
Nevertheless, traditional legal standards of mens rea, requiring a guilty mind and a culpable intent, must be scrupulously observed. Normally, it may be assumed that the criminal intent inheres in consequences that reasonable persons might ordinarily anticipate. He or she who consumes items of high caloric content, without compensating energy output, should appreciate that sooner or later the limits of legal tolerance will be transgressed. On occasion, however, an accused may be able to demonstrate satisfactorily that coercion or duress—say a form of force-feeding—precipitated the violation. It is not beyond belief that the intravenous introduction of food substances into an unconscious or otherwise helpless person could adequately excuse the violation. Care should be exercised, however, to see that the defense of irresistible impulse is not abused. It has been widely noted that no impulse is apt to go unresisted if a policeman is standing behind the potential offender. In addition, morphine addicts clearly are preempted from effectively allegating that prior medical experience with the drug created an overwhelming impulse to repeat the experience. The same may be said about fortuitous introduction to cheese cake, mashed potatoes, and similar items all of which, it might be noted, are lethal if taken in overdoses. From the viewpoint of law students, it may be hoped that a benign history will protect them from a case in which an offense of first-degree obesity is the product of cannibalism, committed on a raft afloat the high seas by men in fear of imminent death unless they ingest on of their fellows. Of cases such as this it is truly said, "hard cases make bad law."
The preeminent necessity for new legislation outlawing obesity is so self-evident that it hardly needs detailed exposition. It has been clearly shown that the overweight person represents a serious health threat, with a potentially shortened life span. The crime may seemingly be one without a "real" victim, but all of us are the victims of the overweight man or women who prematurely deprives us of his company and his talents, not to mention his taxes. Overweightedness is a crime of epidemic proportions, its perpetrators characteristically are persons of quick, irresponsible pleasure. Families suffer from overwight members just as surely as they suffer from members who are gamblers, adulterers, or narcotic addicts. There is the terrible tension of the super table. All persons intent upon seeing whether the offender has learned or whether he is slipping irretrievably into recidivism.
National consideration amply support the call for creation of the new criminal offense and forceful federal and state action against those violators undercutting the virility and vitality of the Nation. Obese persons detract from the war effort. They tend to be sluggish, to indulge in self-satisfied after-meal naps, and more passive pursuits. Research indicates that the obese spend approximately 4% more time at each meal than normal individuals—a finding which, if multiplied out, provides a staggering loss of constructive investment of time and energy. The obese are readily diverted from a task at hand by the nearness of times set aside for food ingestion. Their habits make them particularly vulnerable to enemy blackmail, since they demonstrably lack the will-power and internal strength necessary or self-control so that, tortured by promises of surcease, they will, if permitted to gain positions of trust, divulge those secrets vital to the preservation of our free society.
It is perhaps not altogether necessary to take cognizance of reports, most of which have not as yet been fully de-classified, that foreign powers may stand behind the flood of high caloric poisons entering out cities and sapping the strength of youth and adult alike. We would urge the creation of a new agency to work alongside the United States Customs Service and the Federal Bureau of Narcotics, an agency which would be charged with the surveillance of imports; among other items, Israeli halvah, Swiss chocolate and Italian spaghetti must be turned aside at the borders, and all conceivable efforts must be undertaken to see that a flourishing underworld traffic in these and similar items does not become established. It goes without saying that it will take the concerted efforts of all federal and local to see that spaghetti, in particular, is kept under tight control, for organizations already exist with a special expertise in the handling of such noxious substances.
Standard police practices should prove adequate for apprehending most food addicts. A core of informers will obviously come forward to help identify and ferret out those violators, who secrete themselves rather than submit to the procedures society will set up for its own protection. Such informers may reasonably be rewarded by being allowed a certain leeway in their own weight, perhaps a percent or two, and they might on occasion be permitted to keep goods that form part of the underworld commerce in black market food. A newly-created internal cadre of enforcement agents, called the S.S (for Supermarket Surveillance), could monitor grocery outlets and confectionary stores, places where there is the greatest likelihood of criminal activity occurring.
It may be anticipated that the courts will come to declare that obesity is not really a crime, and that imprisonment of obese persons is violative of the eighth amendment stipulation concerning "cruel and unusual punishment." Precedent exists in the case of narcotics for such a stand. In the Robinson case, Justice Stewart noted that "A state might determine that the general health and welfare required "that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of the contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment."
There is always the possibility that the minority opinion in Robinson might come to prevail in the manner that dissenting views have so often in Supreme Court history proven over the course of time to be superior to transient responses to immediate problems. The minority stand of Justice Clark is clearly applicable to the obese: "Even if interpreted as penal," Clark said, "the sanction of incarceration for three to 12 months is not unreasonable when applied to a person who has voluntarily placed himself in a condition posing a serious threat to the state."
If the courts are determined to declare obesity a "sickness" rather than a crime, the legislative response is clear. Civil commitment programs can be established at once to treat the obese. Since craving for illegal nourishment is one of the obvious characteristics of this type of offender, it will be necessary for the civil commitment hospitals to be fenced, preferably with barbed wire, and carefully guarded. Commitment to the program will follow the testimony of two duly-registered physicians that the felon is indeed beyond the tolerable weight. The accused may, of course, cross-examine all witnesses, and scrupulous care will be taken to see that he is not deprived of this or other of his inalienable rights under the constitution.
Once institutionalized, the patient will at once be detoxified; that is, various dietic substances will be given to him in place of his habitual fare. This therapeutic regime will be supplemented by intensive group therapy, which will concentrate upon intrapsychic conditions which have led to the failure to control his emotional dependence. Studies already point to the fact that oedipal complexities, sibling rivalry, oral and anal fixations—particularly these—as well as similar aberrant syndromes are typical of the obese when contrasted to a normal sample of the American population.
It is hardly to be expected that efforts to enact the necessary legislation will go unopposed. But it seems evident that there exists a widespread foundation from which support may be expected. Theological doctrines have traditionally inveighed against self-indulgence and over-indulgence. Military authorities, beleaguered by the Vietnam campaign, can be expected to see in the new law a return to those fundamental principles which will revitalize our fighting capacities. Opposition may be expected to arise from diverse sources, and to be sizeable. It will undoubtedly have the support of our enemies abroad, who desire to undermine our resolution.
Given the obvious good sense of the law, however, there should be only a slim chance of its defeat. The experience and the depth of conviction of those forces behind the present narcotic laws, all of which will undoubtedly be in the forefront of the new campaign, should be more than enough to assure early success.
Gilbert Geis is a visiting professor in the program of social ecology at University of California, Irvine. He is the author of several books and edited White-Collar Criminal, published by Atherton Press in 1968. This article originally appeared in the Spring, 1968 (Vol. 3, No 2), issue of Issues in Criminology, published at the School of Criminology of the University of California at Berkeley and is reprinted here by permission.