Ain't Nobody's Business:
the absurdity of consensual crimes in a free society
By Peter McWilliams
(Adapted from the book "Ain't Nobody's Business
If You Do," by Peter McWilliams.)
Reprinted from Playboy, September 1993.
(italics are represented with _underscores_, all typos are mine)
It is the best of times for the worst of crimes. And consensual
crimes are the worst of crimes, not for the usual reasons, but
because they have no business being crimes. Simply put, you should
be allowed to do whatever you want with your own person and property,
so long as you don't physically harm the person or the property of
another. Today's laws make many of those basic consensual acts
illegal. Here are a few examples:
* In Michigan alone, more than 135 people are currently serving
life sentences without possibility of parole for the mere possession
of illegal drugs.
* In nine states, unmarried sex between consenting heterosexual
adults is illegal.
* Oral sex (giving and receiving) is illegal in 20 states for
heterosexuals and 27 states for homosexuals.
* The U.S. Supreme Court ruled that, contrary to centuries of
tradition, members of the Native American Church may not legally
use peyote in their religious ceremonies.
* In 1992 a woman was stopped when entering the country with RU
486 abortion pills that she intended to use to terminate her
pregnancy, and the pills were confiscated.
The laws prevailing in these cases and many others like them would
appear to run counter to the freedoms intended and guaranteed by
the Bill of Rights.
Thomas Jefferson explained in his first inaugural address in 1801:
"A wise and frugal government, which shall restrain men from injuring
one another, shall leave them otherwise free to regulate their own
pursuits of industry and improvement." How far have we strayed
from this ideal?
Far.
Roughly half the arrests and court cases in the U.S. each year
involve consensual crimes. More than 350,000 people are in jail
right now because of something they did -- something that did not
physically harm another's person or property. In addition, more
than 1.5 million people are on parole or probation for consensual
crimes. And more than 4 million people are arrested each year for
doing something that hurts no one except, potentially, themselves.
The injustice does not end there, of course. Throwing people in
jail is the extreme. Imagine how easily they could be fired,
evicted, expelled, denied credit, have their property confiscated,
their civil rights stripped away and their lives destroyed.
Yes, if we harm ourselves, it may harm others emotionally. That's
unfortunate, but not grounds for putting us in jail. If that were
the case, every time person A stopped dating person B in order to
date person C, persona A would run the risk of going to jail for
hurting person B. If person C were hurt by person A's being put
in jail, person B could be put in jail for causing person C to be
hurt. This would, of course, hurt person B's mother, who would
see to it that person C would go to jail. Eventually, we'd all
end up in jail. As silly as this sounds, it is precisely the logic
used by some to protect the idea of consensual crimes.
No one should be able to put us in jail, no matter what we do to
ourselves or our property -- even physically harming them. Consensual
crimes are not without risk, but nothing in life is without risk.
The sad or happy fact -- depending on how you feel about life --
is that we're all going to die. We don't like to face that reality;
it's one of our fundamental cultural taboos. We like to think that
if we can only keep ourselves and our loved ones safe, non of us
will ever die. Obviously, it doesn't work that way. Life is a
sexually transmitted terminal disease.
Sometimes we land on the sunny side of the risk and get the reward.
Sometimes we land on the dark side and get the consequences. Either
way, as responsible adults, we accept the results (sometimes kicking
and screaming, but we accept them nonetheless). The self-appointed
moralists of our society have decided, however, that some activities
are just too risky, and that the people who consent to take part
in them should be put in jail -- for their own good and for the
good of all. Such paternalism creates consensual crimes.
Consensual crimes are sometimes referred to as victimless crimes.
But the label "victimless crime" has been so misused in the past
few years that it has become almost meaningless. Every scoundrel
committing a real crime has declared it a victimless crime, attempting
to argue that a crime without physical violence is also a crime
without a victim. Anyone who has been threatened, black-mailed,
or robbed at the point of a fountain pen instead of a gun knows
that's not true. Another group claiming protection under the
victimless-crime umbrella includes those, such as drunk drivers,
who recklessly endanger innocent (nonconsenting) others. Because
they didn't actually hit someone, they argue, it was OK that they
were going 70 mph the wrong way on a one-way street. Meanwhile,
every intolerance-monger attacking a consensual crime maintains
that the crime did have a victim. ("We're all victims" is a favorite
phrase.) Besides, it's hard to find any activity in life that does
not, potentially, have a victim.
People who live in Florida may become victims of hurricanes, drivers
of cars may become victims of traffic accidents. Each time we fall
in love we may become the victim of another's indifference. Does
this mean that we should outlaw Florida, automobiles and falling
in love? Of course not. It's not our role as victims that puts
such activities outside the realms of criminal-law enforcement,
but the fact that we, as adults, knowing the risks, consent to take
part in those activities.
Consent is one of the most precious rights we have. It is central
to self-determination. It allows us to enter into agreements and
contracts. It gives us the ability to choose. "Without the
possibility of choice and the exercise of choice," the poet Archibald
MacLeish wrote, "a man is not a man but a member, an instrument,
a thing." Being an adult, in fact, can be defined as having reached
the age of consent. It is upon reaching the age of consent that
we become responsible for our choices, actions and behaviors.
(Nothing in this article, by the way, refers to children. It
discusses only activities between or performed by consenting adults.)
The laws against consensual crimes take away the right we all have
to be different. Even if you don't want to take part in any of
the illegal consensual acts, a culture that puts people in jail
for them is also a culture that will disapprove -- forcefully,
clearly and oppressively -- of something different you _may_ want
to do.
If we let anyone lose his or her freedom without just cause, we
all have lost our freedom. The bell, as the poet said, tolls for
thee.
With this thought in mind, here are the most popular consensual
crimes: gambling, recreational drug use, religious drug use,
prostitution, pornography, obscenity, homosexuality, adultery,
bigamy, polygamy, regenerative drug use and other unorthodox medical
practices ("Quacks!"), unconventional religious practices ("Cults!"),
unpopular political views ("Commies!"), transvestism, not using
safety devices (motorcycle helmets and seat belts, for example),
public drunkenness, jaywalking, loitering, vagrancy (so long as it
doesn't become trespassing or disturbing the peace) and ticket
scalping.
Even if you don't want to take part in a consensual crime, defending
the right of others to do so has a trickle-down effect of tolerance,
acceptance and freedom for the things you _do_ want to do. (This
may be one trickle-down theory that works.) "My definition of a
free society," said Adlai E. Stevenson, "is a society where it is
safe to be unpopular."
Here are the primary reasons consensual activities should not be
illegal. In my view, any one reason is sufficient to remove all
laws against consensual crimes from the books.
* It's un-American. America is based on personal freedom and the
strength of diversity, not on unnecessary limitation and slavish
conformity. We are, after all, "endowed by [our] Creator with
certain unalienable rights, that among these are life, liberty and
the pursuit of happiness." Thus, we are well-endowed. Let's use
our endowment.
* It's unconstitutional. The Constitution and the Bill of Rights
clearly give us the right to pursue our lives without the forced
intervention of self-appointed moralists, do-gooders and busy-bodies.
Those who claim that the Constitution is "a Christian document"
are about as wrong as they could be. (Which, considering how wrong
these people can be, is pretty wrong.) The founding fathers --
George Washington, Benjamin Franklin, Thomas Jefferson, John
Adams -- were not even Christians; they were Deists. They believed
there is a God, but did not believe the "revealed word" or any
religion. The founding fathers read the words of Jesus with respect,
but they also turned for inspiration to the works of Confucius,
Zoroaster, Socrates and many others. That almost everyone believes the
founding fathers were all "God-fearing Christians" is a perfect example
of telling a big enough lie often enough that is becomes "truth."
George Washington summed it up succinctly: "The government of the
United States is not, in any sense, founded on the Christian religion."
* It violates the separation of church and state. The Constitution
not only guarantees that we can freely practice the religion of
our choice but also that the government will not impose religion
upon us. Almost all arguments in favor of maintaining laws against
consensual crimes have a religious foundation. The biblical sexual
prohibitions are oft quoted. The restrictions against drugs come
from the evangelical revivalism of the 1820s and 1830 that directly
gave us, among other delights, Prohibition. Even the idea that we
should take care of our bodies -- _or else_ -- is the old body-is-the
temple-of-the-soul argument espoused by Saint Paul.
* It's against the American Principles of private property, free
enterprise, capitalism and the open market. If everything thus
far has sounded hopelessly liberal, here's a nice conservative
argument: Our economic system is based on private property. What
you own is your own business. You can give it away, trade it or
sell it -- none of which is the government's business. Whether
you make or lose money on the transaction is not the government's
business (until it's time to collect taxes). This is the system
known as capitalism. We fought (and recently won) a 45-year
cold-and-hot war against communism to maintain it. For the government
to say that certina things cannot be owned, bought, given away,
traded or sold is a direct violation of both the sanctity of private
property and of the fundamental principles of capitalism.
* It's expensive. We're spending more than $50 billion per year
catching and jailing consensual criminals. In addition, I estimate
that we're losing at least an addition $150 billion in tax revenues:
Every man, woman and child in this country is paying $800 per year
to destroy the lives of 6 million fellow citizens involved in the
tangled web of consensual acts, crime and punishment. And moving
the underground economy that is associated with consensual crimes
above ground would create 6 million tax-paying jobs.
* It destroys lives. A single arrest and conviction, even without
a jail sentence, can wipe one out financially and permanently affect
one's ability to get a job, housing, credit, education and insurance.
IN addition, there is the emotional, mental and physical trauma of
arrest, trial and conviction. If jail time is added to this
societally mandated torture, and individual's life may be ruined.
* It corrupts law enforcement. Our law enforcement system is based
on a perpetrator and a victim. In consensual crimes, perpetrator
and victim are the same. Asking the police to control a crime that
does not have a clear-cut victim makes a travesty of law enforcement.
Who are the police supposed to protect? Theoretically, they arrest
the perpetrator to protect the victim. However, in a consensual
crime, when the perpetrator goes to jail, the victim goes, too.
Law enforcement implemented against consensual crime is a sham that
demoralizes police and promotes disrespect for the law. Because
of the artificially inflated cost of consensual crimes, people
resort to real crimes such as robbery and mugging. Thus we all
become innocent victims.
* It promotes organized crime. Organized crime grew directly out
of an earlier unsuccessful attempt to legislate against a consensual
act -- Prohibition. Any time that something is desired daily by
millions of people, there will be an organization to meet that
desire. If fulfilling that desire is a crime, that organization
will be organized crime. Organized criminals seldom differentiate
between crimes with victims and crimes without victims. Furthermore,
the enormous amount of money at their disposal allows them to
corrupt the best police, prosecutors, witnesses, judges, juries and
politicians money can buy. Once consensual crimes are no longer
crimes, organized crime will be out of business. (The other major
financier of campaigns against consensual crime is the religious
right. Its leaders find it easier to raise money with fear and
hatred than with love. Organized crime and the religious right.
Strange bedfellows?)
* It corrupts the freedom of the press. Reporting on consensual
crimes has turned a good portion of the media into gossips,
busybodies= and tattletales. With so much important investigation
and reporting to be done concerning issues directly affection the
lives of individuals, the nation and the world, should we really
be asking one of our most powerful allies -- the free press -- to
report who's doing what, when, where, how and how often to their
own (or their partners') bodies?
* It keeps people from being responsible for their own behavior.
If we maintain that it is the government's jobs to keep illegal
anything that might do us harm, it implies that anything not illegal
is harmless. Clearly, this is not the case. Either people must
be taught that what is legal is not necessarily harmless, or our
prohibitions must extend at least to automobiles, cigarettes and
alcohol. The current hypocrisy practiced in our society is unjust,
misleading and deadly.
* Finally, we have more important things to worry about. The short
list of problems facing our country and our world that are more
deserving of our precious resources includes: real crimes (the
chances are one in four that you or someone in your household will
be "touched" by a violent crime this year), drunk drivers (22,000
deaths per year), insurance fraud ( a $100 billion per year problem
that adds from 10 percent to 30 percent to all insurance premiums),
illiteracy (one in seven American adults if functionally illiterate
and one in 20 cannot fill out a job application), poverty (14.2
percent of the population -- 35.7 million people -- lives below
the poverty level and a good number of these are children),
prescription and over the counter drug abuse (more people are
addicted to these than to all the currently illegal drugs combined),
pollution AIDS and last but certainly not least, the national debt
($4 trillion and growing faster than anything else other than
religious intolerance).
Consensual crimes create a society of fear, hatred, bigotry,
oppression and conformity. They support a culture opposed to personal
expression, diversity, freedom, choice and growth. The prosecution
of consensual crimes encourages ostracizing, humiliating and scorning
people. This creates a nation of sheep. "It has been my experience,"
wrote Abraham Lincoln, "that folks who have no vices have very few
virtues."
If you look into the arguments in favor of laws against any consensual
crime, they are usually variations of "it's not moral." And where
does the objector's sense of morality come from? His or her
religion. Some claim community values as the basis of morality,
but where does this set of community values come from? The sharing
of a similar religion. To a large degree, we have created a legal
system that is to quote priest-turned-philosopher Alan Watts,
"clergymen with billy clubs." As Watts wrote in Playboy more than
20 years ago:
"As is well known, the enormous political power of fundamentalists
is what makes legislators afraid to take laws against victimless
'sins' and crimes off the books, and what corrupts police by forcing
them to be armed preachers enforcing ecclesiastical laws in a
country where church and state are supposed to be separate."
Don't think I'm against religion. I'm not. Individual morality
based on religious or spiritual beliefs is wonderful. It can be
an excellent guide for living one's own life. It is, however, a
terrible foundation for deciding who does and does not go to jail.
All it really does is allow a state-sanctified religion to pillory
citizens for their choice of lifestyle.
"The function of government is to protect me from others," wrote
the columnist Arthur Hoppe. "It's up to me, thank you, to protect
me from me."
Responsibility is the price of freedom. So is tolerance. We may
not like what others do with their persons and properties, but so
long as they are not harming our persons and property, we must
permit them to do as they please. In this way, we guarantee
ourselves the freedom to do as _we_ please, even though others may
not like it. The price of freedom is eternal -- and internal --
vigilance: In the time it took you to read this article, 342 people
were arrested for consensual crimes in the U.S.
