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Is Prostitution a Victimless Crime or Not?

Introduction

Victimless crimes refers to category of felonies that involve one or more than one person through consensual agreement which results to no direct injury or loss, more importantly these crimes do not interfere with other people’s rights in any way. They are therefore referred as victimless crimes because no party is injured or willing to institute any legal proceedings for redress purposes. For a crime to qualify as a victimless crime it must satisfy three important characteristics; it should be fully consented by the participants, it should not interfere with anyone’s rights at all and finally it should not cause any pain or injury to the participants or third parties (Marlatt, 2004).

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It is for these reasons that victimless crimes are also referred as consensual crimes or public order crimes because it is often the case that the issues involved in these crimes are issues of morality and public orderly. Because victimless crimes involve two contentious issues of morality and liberty, the legalization of this category of crime is always disputed on many grounds.

As it is, many governments worldwide are halfway committed in enacting or enforcing existing laws and regulations that deter people from engaging in these category of crimes or indeed their prosecution, but still a lot of resources continue being allocated towards addressing victimless crimes. Enforcement of victimless crimes is always contested from two major grounds by many critiques, factors that we shall closely analyze in the next chapters. One is on the basis of the nature of crimes themselves which are considered to be moral issues rather than an illegality per se, and as we all know morality is relative because it is based on personal values that cannot be defined by the State (Marlatt, 2004).

Therefore enforcing victimless crimes will first require States to set national moral standards which will act as benchmarks that would provide the framework of defining which victimless crimes to enforce. But there is a catch, because State in itself has no morals of its own since it is not an individual, rather the individuals entrusted with governance are the ones who usually determine standards of morality. Unfortunately standards of morality tends to differ very much, therefore what is morally right for John cannot be said to be the same for Mary and neither of them should use their moral basis to set the standard for the other.

The other factor from which victimless crimes are always contested has to do with liberty; because the principles of Common Law and natural justice demands that people be free to do what they like as long as they don’t interfere with other peoples liberties, it would be unfair and against natural laws of justice for the State to limit peoples liberties. Throughout this paper these are the core theories that we shall attempt to investigate in order to arrive at a fair assessment that would justify or otherwise refute the need for victimless crimes.

Forms of Victimless Crimes

There are many types of crimes that have no apparent victim or which do not cause injury for that matter; generally there are two forms that victimless crimes can take, one, victimless crimes that involve self only and two, victimless crimes that involve more than two persons (Ward, 2003). Oneself victimless crimes involve felonies that a person commit without involvement of any other party, typical examples include use of recreational drugs, not wearing seatbelt while driving, public nudity, abortions (which can be argued) and failure to wear helmets when riding motorbikes.

Incidentally these are the types of victimless crimes that are less serious and therefore not very much contested, on the other hand, victimless crimes that involve more than one person are the ones which seem to raise more contention despite their harmlessness. Prostitution, gambling and substance abuse are some of the most contentious victimless crimes which involve more than one person that are usually at the centre of victimless crimes debate.

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This is probably because of the fact that these crimes occur at a very high rate within the society; for instance victimless crimes in US was responsible for more than 350,000 peoples serving jail time and another 1.5 million being on parole in 2003 according to Parenti (1999).To put into perspective the cost associated with enforcement and prosecution of victimless crimes in United States for instance let us briefly discuss the direct and indirect cost that the government incurs as far as victimless crimes are concerned.

Cost Implications of Enforcing Victimless Crimes

Most government prison systems are clogged by the high proportion of victimless crimes which makes up the majority of the cases, a good example to analyze is the United States prison system. Despite a general reduction in crime rate over the years, the United States prison system has continued to grow to be one of the most massive worldwide with a record of 7.3 million incarcerated persons as of 2008 that keeps on rising everyday 2008 (Parenti, 1999).

This is our first indication that the high number of persons incarcerated in US jails has nothing to do with serious crimes, which would indicate a significant proportion of persons jailed for victimless crimes. Indeed, United States is the leading country in the world with the highest number of persons incarcerated in jails and prisons; and also the leading country with the highest number of prisons, most of which have been built over the last few decades (Parenti, 1999).

In United States, like many other countries worldwide, incarceration is the major method that is used as punishment for convicted persons besides probation. By 2009, the total number of US federal prisons had exceeded the 115 mark, this is without counting the military prison facilities, state prison facilities and county jails among other forms of prisons that are usually outsourced by the governments from private companies (Parenti, 1999).

My hypothesis is that the increased expansion of the prison system in United States was largely driven by the increasing need to prosecute victimless crimes. This hypothesis is supported by the fact that since the start of early 1990, general crime rate in United States dramatically dropped to the lowest ever recorded rates in the country and have since remained relatively low, throughout the 1990 decade all forms of crimes, that ranged from homicides to shoplifting reduced by 40% across all cities in the country in what later come to be known as the “Great American Crime Decline” (Elsner, 2006).

In other cities such as New York which were prone to even high crime rates before this period, the drop in crime rate was even more dramatic and reduced by a whopping 75% (Elsner, 2006). In fact during the year 1990 up to 2006 for instance, the number of incarcerated persons in US prisons has risen to an all time of 2.3 million from just about a million prisoners in 1990 while another approximately 5 million were on probation (ThirdWorldTravellers.com, 2006). It is also during this period, over the last two decades that the United States government rapidly expanded it prisons facility and more than quadrupled its spending on prison system as shown in the chart below (ThirdWorldTravellers.com, 2006).

Trend on Incarceration in US.
Figure 1. Trend on Incarceration in US.

So the question then becomes why is the rate of incarceration been increasing at a time when all types of crimes have been decreasing to an all time lowest levels? To answer this question let us compare some crime rate statistics. In his book “Ain’t Nobody Business if You Do”, McWilliams states that 4 million persons are arrested in any given year for engaging in victimless crimes (cited in Ward, 2003).

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What is more the government incurs cost in excess of $200 billion per year, costs that are associated with enforcement, deterrent and prosecution of victimless crimes. So if the government has committed this vast amount of resources towards controlling victimless crimes, it makes perfect sense that victimless crimes represents the majority of felonies that one is likely to be prosecuted for breaking?

If there is any doubt still left regarding the cost implications of deterring and prosecuting people from engaging in victimless crimes then consider this. United States prison system is one of the most efficient, organized and largest anywhere in the world not because it is the country with highest crime rate or even population but probably because of a phenomenon that was first defined by James Wilson as the “broken window theory” (Elsner, 2006).

In early 2000 the US legal system adopted new policy that required stiff penalties for felonies that were considered lesser crimes; the logic was that meting out harsh penalties for lesser crimes will deter people from committing more serious crimes, which is the essence of broken window theory. Unfortunately most of the “lesser crimes” that the government chose to make example out of were mostly victimless crimes such as drug related crimes, prostitution and gambling.

The result was that by 2006 after just six years of the implementation of this policy, per capita incarceration rate in US stood at 737 persons for every 100,000, far higher than the average rates for most developed countries with the exceptions of Russia and China (Elsner, 2006). In fact the number of convicted persons in US stood at 2.2 million by this period and another 7.3 million people on parole was far much more than in China at 1.5 million prisoners which have a population of 1 billion people (Elsner, 2006). Another way to look at it is that US accounted for 25% of all incarcerated persons anywhere in the world by 2006 while it only has 5% of the world population (Elsner, 2006).

Whichever way you look at it the fact remains that majority of crimes that most people still gets convicted for are basically victimless crimes. Before we consider the reasons that would make any government continue draining resources on an initiative that it should be less concerned with and which it makes no impact at all, let us briefly review the most common types of victimless crimes that many governments are so bent on abolishing.

Prostitution

The old adage that prostitution is the oldest profession on earth certainly has some elements of truth because since the man invented trade sex has always been one form of payment that was offered in exchange of good or with some other form of service. This is perhaps the ancient origin of prostitution business whose concept has essentially remained the same many thousands years later. Today the annual turnover of prostitution industry worldwide is in excess of 100 billion and a flourishing underground business in America (Pen.com, 2002). Prostitution involves consensual engagement or solicitation of sex by adults, it is one of the most common misdemeanors that someone is most likely to be arrested for. Indeed if the current statistics are anything to go by, prostitution is no longer an ancient profession but the largest as well.

In a report compiled by the National Task Force on Prostitution (NTFP) in 2003, 1 million is the modest estimates of women previously or currently engaged actively in the vice (Bayswan.org, 2010). This figure represent 1% of women population who are involved in the illegal business of prostitution not to mention 70% of their male counterparts estimated by the same report to have willingly engaged in prostitution at least once in their lifetime (Bayswan.org, 2010).

Because prostitution is one of the big three victimless crimes that many government allocates vast resources to control, it would be important to undertake a critical review to establish if it should indeed be regulated by considering the cost implications that it has in the society or in fact its benefits to the society. The theory that I wish to advance is that decriminalizing prostitution would be more beneficial from a pure perspective of cost-benefit analysis.

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It is a widely held opinion by many policy makers that legalizing prostitution could be the way out of solving various issues such as human trafficking, child pornography and other related crimes that are associated with prostitution, yet except for few States in United States such as Nevada prostitution is still regarded as a felony in many other States and countries worldwide. A report published by Prostitute Education Network (PEN) as early as 1993 indicated that the effects of failing to legalize prostitution had started taking toll on the judiciary system because of the huge case pile up of prostitution related cases that had congested the judiciary as well as the prison system.

70% of all female arrest that were being made for instance at that time involved prostitution charges while male cases accounted for up to 20% (Meir, 2010). Like all victimless crimes there are many reasons why this type of crime should not continue to be enforced; decriminalizing victimless crimes will boost tax revenues and directly save the government a lot of money, decongest judicial and prison system, facilitate enforcement of serious crimes and promote human right through increased liberty.

Perhaps one of the most compelling reasons why prostitution should nolonger be considered as a crime in America are contained in a recent finding that has found a correlation between legalization of prostitution and the prevalence of rapes. In a research study done by Cundiff titled “Prostitution and Sex Crimes” that utilized a regressed model of testing theories the study found that if prostitution was made legal in the United States “the rape rate would decrease by roughly 25% which is a decrease of approximately 25,000 per year” (Cundiff, 2004). The findings of this research study are compatible with various other literatures on the subject which have largely attributed the phenomenon of rape to factors of “lust” and “power thesis” (Cundiff, 2004).

Because men are easily able to access the services of prostitutes at lower rates in jurisdictions that legalize prostitution, there is higher rate of utilization of this purposes that serve to diffuse the elements of lust and power thesis that usually compel men to commit rape (Cundiff, 2004).

The table below copied from the same study indicates the data on rape, sex and homicide to depict the relationship that exist between availability of sex and prevalence of rape as well as other homicide crimes. Let us consider data from just two countries; Portugal for instance has the lowest rape rates according to the data, but for good reasons, the frequency of sex per month is seen to occur at a rate of 95.2 times almost 8 times more than is the case for United States which incidentally has a rape rate of 32, this is one of the highest on the list as well as the homicide rate that appears to be correlated with rape rate (Cundiff, 2004).

This figures provides evidence that criminalizing victimless crimes has far reaching implications than is usually thought to be the case given that homicide rates indicated here are indeed a factor of rape which we have seen to be correlated with prostitution.

Table 1.

COUNTRY RAPE RATE SEX/MONTH HOMICIDE RATE
Austria 6.35 13.51 1.97
Belgium 7.83 40.58 2.72
Czeck Republic 4.85 13.51 2.71
Denmark 9.32 18.40 4.03
Finland 11.18 26.09 0.71
France 14.45 14.23 3.70
Germany 9.13 42.88 3.37
Greece 2.29 65.82 2.75
Ireland 6.01 31.40 1.41
Japan 1.78 37.00 1.10
Korea, South 4.86 18.05 1.99
Netherlands 10.39 69.18 1.00
Norway 15.12 15.09 2.66
Poland 6.21 11.14 3.40
Portugal 1.41 95.20 3.32
Slovakia 2.84 12.18 2.37
Spain 3.09 50.73 2.91
Sweden 22.58 17.47 1.40
Switzerland 5.61 71.92 2.25
Turkey 2.33 15.61 4.92
United Kingdom 14.69 30.50 2.75
United States 32.05 14.10 5.51

Drug Related Crimes

Substance Abuse is a term that is used to describe addiction to regular use of drugs that is characterized by a pattern that indicates reliance to particular type of substance which is not regarded as dependent. It is a term that is used to describe all types of drug use by a person which is not conditioned by any medical condition regardless of frequency of their intake (Chamberin, 2010).

Due to the breadth and width of types and nature of drugs use which can be described as substance abuse the World Health Organization allows for different definition of the term “substance abuse” which is generally categorized into four groups: medical definitions, public health definitions, mass communication definitions and criminal justice definitions (Chamberin, 2010). Drug abuse is categorized as a victimless crime because it involve willing user who willingly buys for purposes of consumption, the fact that “addiction” would indicate there is no free will to choose is still unresolved debate.

Currently the United Nations estimates that more than 100 million peoples worldwide regularly abuse the major types of hard drugs such as heroin, amphetamines, cocaine and other synthetic drugs (Sobell and Agrawal, 2009). However there is no estimate of the actual extent of all types of drugs abuse that is regularly used by majority of peoples which also include all forms of drugs that are usually referred as soft drugs such as alcohol, marijuana, barbiturates among others which affect hundreds of millions of peoples. In United States alone for example, approximately 24% of all patients admitted in hospital in year 2004 suffered from Mental Health and Substance Abuse disorders (MHSA) (Busko, 2007).

According to the 2008 report released by National Survey on Drug Use & Health, marijuana is the single most abused illicit substance in United States with 10% of the population regularly or occasionally abusing the drug (Busko, 2007). This is despite the existence of strict laws and regulation that have been developed to curb access and use of illegal drugs in general; decriminalizing this type of victimless crime would therefore lead to unimaginable increase in illicit drug usage.

In any case current studies indicate that drug abuse is probably not a victimless crime; a recent research study provides evidence that shows people who are most prone to abuse drugs have at one point in their life been victimized in one way or another (Celia, Young and Wesley, 2008). Because drug users resort to substance abuse because of what Celia et all refers as “illegitimate coping strategies”, the implication of this findings indicate that drug users are actively involved in completing the cycle of victimization because they are most likely to “victimize” other people when under the influence (Celia et al, 2008).

The effects of drug abuse in a country is a very costly affair; foremost drug use is sort of a past time that keeps people from engaging in constructive work that would contribute to building of economy. For instance, the 5% population in United States that are engaged in drug abuse, half of whom are marijuana users means they are denying government direct income inform of tax that would have been generated otherwise. And it doesn’t even end there, since the government has to allocate finances towards their rehabilitation as well as enforcing drug laws, this makes them unnecessary burden that cause unnecessary spending of money in this areas.

As if this is not enough drug use is directly proportion to the rate of crime in a country since addicts usually resorts to crimes in order to finance their habits; increased crime rate implies more funding to keep people secure in town and cities; if it is true that 40% of all assaults and violent robbery crimes are attributed to drug use; then it is safe to say curbing drug use will consequently reduce these crime rate by the same proportion (Elsner, 2006). There is no doubt therefore that substance abuse is at least one form of victimless crimes that should be highly regulated.

Gambling

Gambling is a game that involves wagering money in most cases or anything of value for hope of winning perceived amount of money that is way above what someone is putting in. Currently it is estimated that legal gambling establishments are responsible for controlling a total of $335 billion per annum (Purcel, 1997). There is no doubt that gambling is a victimless crime because it is usually undertaken by parties based on various rules which they must fully consent before they can participate. The tendency to gamble has been described by one research study to conform to Extremely Frequent behavior (EFB) theory which is based on compulsion buying (Ricketts and Macaskill, 2003).

Compulsion spending is a behavior found even among general product consumers and is described as “repetitive and seemingly purposeful behaviors that are performed according to certain rules or in a stereotyped fashion” (Ricketts and Macaskill, 2003). The argument that I wish to advance is that compulsion spending when it comes in gambling is no different than what happens when one is actually spending on consumable goods. It would therefore make no sense in trying to limit people freedom in how best they wish to spend their legally earned money.

All forms of gambling or compulsive spending appears to be a symptom of more serious psychological disorders that influence this kind of spending; this is the same for even the most serious form of gambling referred as Pathological Gambling (PG). A research study by Ricketts and Macaskill that sought to theorize the main determinants of gambling in persons found that majority of gamblers are emotionally prone to become addicted (2003). As such gambling becomes a problem because of other factors that are not associated with loosing or winning aspects of the game. Central to these research findings is the fact that gamblers are as a matter of fact drastically hampered by lack of problem solving skills, have fewer choices of coping skills and markedly exhibits low self esteem compared to other people (Ricketts and Macaskill, 2003).

This is evidence enough which indicate that gambling is a function of several related factors that interact to make a person prone to addiction that is associated with gambling. Because gambling is an end product this would mean that criminalizing it is the wrong approach of solving this problem in the society, rather the government should allocate resources towards addressing these underlying problems to the 2% gamblers who are described as PG because they are the only one negatively affected when they engage in gambling.

Legislation Vs Individual Freedom

A central theme that emerges throughout this paper is the issue of liberty which is freedom to express oneself or act as anyone would wish to as long as their actions do not interfere with other people’s rights. The right to liberty and pursuit of happiness are two of the core values that are expressly provided by the United States constitution as captured in the Declaration of Independence and in the fourth amendment. Liberty is also provided in the Universal Human Rights article; when the government therefore implements legislations to limit these rights to act as one would wish as long as no other people’s right are trumped personal liberty is greatly curtailed and denied.

Libertarianism refers to a theory that advocates for individual freedom in terms of thoughts and actions, what will usually be referred as liberty. The ideology of libertarianism is founded on the principle of natural rights that existed before the advance of governments which is the reason that it advocates for personal liberty to come before the rights of the government.

The Self Ownership theory is an argument that libertarians advances to justify and defend the need for increased personal freedom; the self-ownership theory states that “individuals own themselves – their bodies, talents and abilities, labor, and by extension the fruits or products of their exercise of their talents, abilities and labor” (Dammon, 1987). Thus, because people own themselves they should be at liberty to do what they choose without being regulated by any form of authority, of course as long as their actions are not adverse to the welfare of the other members of the society.

An interesting point that is made by the critiques of libertarianism theory is that unrestricted freedom of choice negatively affects other members of the society that would not otherwise be the case if liberty was limited by the government. However I find this not to be a serious objection because failure to choose is actually a choice in itself; in that case, the section of people that argues to be disadvantaged by the choice of others actually appears to have made a conscious choice of not engaging in activities that they consider to be immoral such as prostitution or drug abuse.

If this section of people enjoys the full liberty to make choices out of their freewill why should they be the first to advocate for reduction of freedom of others? In A Theory of Justice, John Rawls derives the First Principle of Justice and the Second Principle of Justice from one of the key theories that he discusses; the difference principle. The First Principle states that “each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others” (Hikaru, 2009). This principle largely attempted to guarantee the basic human rights of all the persons in a society regardless of their beliefs and values, because these very concepts can never be universal.

History has also taught us that it would be futile for any government to intervene in matters of morality among its people because by and large morality is a term that is relative. For instance during 17th century for a long time the government used to control the religious beliefs of the people by establishing government churches but which failed and the church was eventually separated from the government. However, legislation alone is not adequate in maintaining order in society and therefore individual freedom is always advocated as a better approach because it primarily allows people to make the right decisions without coercion from the state.

In fact legislation approach of governance indicates that this strategy is very much ineffective; for instance despite a major fear in increased drug abuse that would occur if marijuana use was legalized other research findings indicate otherwise. In some countries where marijuana smoking is legal such as in Denmark and Jamaica the practice is not as rampant as is the case in United States where it is illegal (Parenti, 1999).

Another factor that would support increased liberty is the cost associated with enforcement of most victimless crimes. Unlike legislation, increased liberty would not require any resources to enforce or pass laws because people are given the liberty to make their choices. This difference is substantial to the economy given that in the recently announced 2011 FY budget the Drug Enforcement Agency was awarded a total of $15.5 billion dollars to fight war on marijuana alone (DrugEnforcementAgency.com, 2010).

Because legislation is essentially incompatible with the fundamentals of liberty, personal freedom and the need of reliable laws has always been a balancing act that governments have to undertake in order to create a just and safe environment. It is when this balancing act is not well achieved that a society ends up with more victimless crimes than is necessary. In conclusion I would therefore say that most forms of legislation that decriminalize victimless crimes cannot be justified or defensible in that case because personal liberty is a far more valuable principle that governments are chosen and sworn to uphold and the very fabric that defines democracy in the world today. It is therefore time to uphold the spirit of democracy and human rights across the world by giving people more freedom in choosing the way that they wish to live their life; to achieve this we will have to have more of these victimless crimes.

References

Bayswan.org. (2010). North America Task Force on Prostitution. Web.

Busko, M. (2007). Mental Health Substance Abuse Disorders Account for 1 in 4 Hospital Stays. Web.

Celia, C. Young, K. & Wesley, C. (2008). The Effects of Victimization on Drug Use: A Multilevel Analysis. Journal of Substance Use and Misuse, 43(1): 1340-1361.

Cundiff, Kirby (2004). Prostitution and Sex Crimes. Web.

Chamberin, J., (2010). Mind Disorders. Web.

Dammon C. (1987). A Farewell to Marx: An Outline and Appraisal of his Theories. California: Penguin Books, Harmondsworth.

DrugEnforcementAdministration. Marijuana. Web.

Elsner, A. (2006). Gates of Injustice: The Crisis in America’s Prisons. Washington, DC: FT Press

Hikaru, O. (2009). Ethical Theories-John Rawls: A Theory of Justice. Web.

ThirdWorldTravellers. (2006). U.S has the Most Prisoners in the World. Web.

Marlatt, A. (2004). Victimless Crimes. Web.

Meir, G. (2010). Prostitution – Regimes of Prohibition, Criminalization, and Regulation. Web.

Ward, D. (2003). Victimless Crimes. Web.

Parenti, C. (1999). LockDown America: Police and Prisons in the Age of Crisis. Web.

Purcel, K. (1997). Legalized Gambling: The Prostituting of America. Web.

Pen. (2002). Prostitution in the United States – The Statistics. Web.

Ricketts, T. & Macaskill, A. (2003). Gambling as Emotion Management: Developing a grounded theory of Problem Gambling. Addiction Research and Theory, 11(6): 383-400.

Sobell, B. and Agrawal S. (2009). Substance Abuse Disorders. Psychology of Addictive Behaviors, 23(4): 672-683.

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