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Subject: Consensual Crimes -- a book excerpt
Message-ID: <201319Z11081993@anon.penet.fi>
Date: Wed, 11 Aug 1993 20:06:17 UTC
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From markm@wri.com Wed Aug 11 15:56:50 1993
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Date: Wed, 11 Aug 93 14:56:59 CDT
From: markm@wri.com
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To: aiko@world.std.com
Subject: consensual crimes
Status: R



                      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
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