NCJ Number
43577
Journal
NOTRE DAME LAWYER Volume: 52 Issue: 5 Dated: (JUNE 1977) Pages: 995-1014
Date Published
1977
Length
20 pages
Annotation
ISSUES SURROUNDING THE RATIONALE AND CONSTITUTIONALITY OF VICTIMLESS CRIME STATUTES ARE EXAMINED.
Abstract
THE 'HARM TO OTHERS' VIEW OF THE PROPER CONNECTION BETWEEN LAW AND MORALS IS A BASIC CONCEPT IN THE CRITICISM OF VICTIMLESS CRIMES. THE DEBATE BETWEEN MORALIST AND UTILITARIAN CONCEPTS OF THE APPROPRIATENESS OF CRIMINAL SANCTIONS RAISES CRITERIA WITH WHICH TO EXAMINE VICTIMLESS CRIMES, FORCING AN INQUIRY INTO PRECISELY WHAT BAD EFFECTS ARE FEARED, FOCUSING ATTENTION ON THE EFFECTS OF SUBJECTING THE CONDUCT IN QUESTION TO CRIMINAL PROHIBITION, AND RAISING THE QUESTION OF THE LIMITS OF PUBLIC POLICY AS DEFINED BY THE CONSTITUTION. THE ANALYSIS SUGGESTS THAT VICTIMLESS CRIME LAWS ACTUALLY CREATE VICTIMS BY FORCING CERTAIN ACTIVITIES TO BE CONDUCTED IN AN ATMOSPHERE CONDUCIVE TO SECONDARY CRIME. FURTHER OBJECTIONS TO VICTIMLESS CRIMES RELATE TO THEIR HIGH COST, I.E., TO THE FINANCIAL AND JUDICIAL BURDENS THEY IMPOSE, THE LOGISTICAL AND CONSTITUTIONAL PROBLEMS OF ENFORCEMENT, AND THE NATURE OF THE LAWS THEMSELVES. QUESTIONS RELATED TO THE LIMITS OF PUBLIC POLICY, THE RIGHT TO PRIVACY, ASPECTS OF CRUEL AND UNUSUAL PUNISHMENT, AND THE RIGHT TO TREATMENT GO BEYOND THE WISDOM OF VICTIMLESS CRIME STATUTES TO THE CONSTITUTIONALITY OF THE LAWS. IT IS CONCLUDED THAT VICTIMLESS CRIMES ARE, AT BEST, EXAMPLES OF THE 'OVERREACH' OF CRIMINAL LAW AND ARE, IN MANY RESPECTS, CONSTITUTIONALLY SUSPECT. EXAMPLES OF ALTERNATIVES TO CRIMINALIZATION ARE CITED.