Druidus
Keeper of the Grove
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.)
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, none 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.
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