Ain't Nobody's Business If You Do


What Are Consensual Crimes?

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.
First Inaugural Address

A CONSENSUAL CRIME IS any activity—currently illegal—in which we, as adults, choose to participate that does not physically harm the person or property of a nonconsenting other.

Does this mean that consensual crimes are without risk? No. Nothing in life is without risk. The fact is, we're all going to die. Life is a sexually transmitted terminal illness.

Consensual crimes are sometimes referred to as "victimless crimes." Alas, every scoundrel committing a real crime of extortion, fraud, or embezzlement declared it a victimless crime, attempting to argue that a crime without physical violence is also a crime without a victim. Everyone who has been robbed with a fountain pen—or computer terminal—rather than a gun knows that's not true. Another group claiming protection under the victimless crime umbrella are those, such as drunk drivers, who recklessly endanger innocent (nonconsenting) others. Just because no one actually got hit, it was okay to go seventy miles an hour through a school zone. Not so.

Meanwhile, all the intolerance mongers, attacking a bona fide consensual crime, maintain the crime does so have a victim. ("We're all victims!" is one of their favorite phrases.)

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; and each time we fall in love we may become the victim of someone tearing the still-beating heart from our chest and stomping it into the dust of indifference. (Sorry, it's been a hard month.)

A civilized society is one
which tolerates eccentricity
to the point of doubtful sanity.

Does this mean we should outlaw Florida, automobiles, or falling in love? Of course not. It isn't whether we could be victims that puts such activities outside the realm of criminal law enforcement, but that we, as adults and knowing the risks, consented to take part in them. "Please know that I am aware of the hazards," Amelia Earhart wrote her husband before her last flight; "I want to do it because I want to do it."

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. Being an adult, in fact, can be defined as having reached the "age of consent"—we become responsible for our choices, our actions, our behaviors. (Nothing in this book refers to children. Children have not yet reached the age of consent. This book discusses only activities between consenting adults.)

Sometimes we land on the sunny side of risk and get the reward. Sometimes we land on the dark side of risk and get the consequences. Either way, as responsible adults, we accept the results (sometimes kicking and screaming, but we accept them nonetheless).

Our governmental elders have decided, however, that some activities are just too risky, and that people who consent to take part in them should be put in jail (where, presumably, these people will be safe).

Ironically, many activities far more risky than the officially forbidden activities are not crimes. Why should cocaine be illegal and Drano not? Whether snorted, swallowed, or injected, Drano is far more harmful than cocaine. And yet Drano is available in every supermarket. Children can buy Drano. No one asks, "What are you doing with this Drano? You're not going to snort it, are you?") There is also no "Drano law" that prohibits us from ingesting Drano nor a Drano Enforcement Agency (DEA) to enforce the law. Nor is there an Omnibus Drano Act designed to reduce the international use and trafficking of Drano.

Freedom is the right to choose:
the right to create for oneself
the alternatives of choice.
Without the possibility of choice
and the exercise of choice
a man is not a man
but a member, an instrument,
a thing.

All the consensual activities the government makes illegal must have some up-side. People don't bother with things that have only a down-side. (In this way, consensual crimes are the government's way of writing a handbook for rebels, saying, in effect, "This is the latest thing we think should be illegal. Try it today.")

Another way of defining consensual activities is this from Hugo Adam Bedau:

Government should allow persons to engage in whatever conduct they want to, no matter how deviant or abnormal it may be, so long as (a) they know what they are doing, (b) they consent to it, and (c) no one—at least no one other than the participants—is harmed by it.

Why are some consensual activities considered crimes while others are not? The short answer is religious beliefs. Almost all of the consensual crimes find the basis of their restrictions and prohibitions in religion. Even the idea that one should take good care of oneself has a religious base. ("The body is the temple of the soul.")

Liberty exists in proportion to
wholesome restraint;
the more restraint on others
to keep off from us,
the more liberty we have.

Prudent participation in consensual crimes, however, is not necessarily anti-God, anti-religion, or even anti-biblical. The prohibitions against certain consensual activities grew from a misinterpretation and misapplication of biblical teachings. (This is discussed in the chapter, "What Jesus and the Bible Really Said about Consensual Crimes.")

The fact is, however, that religious beliefs (or misbeliefs) are what most people use when choosing what is right or what is wrong for themselves. This is fine. It's when they try to bestow that system of right and wrong on others—by force—that consensual crimes are born.

The argument that society prohibits certain consensual acts to protect itself is almost instantly transparent. Any number of things that are far more damaging both to individuals and to society are perfectly legal. (These are discussed in detail in the chapters, "Putting the `Problem' in Perspective" and "Hypocrites.") Besides, society can protect itself just fine—it doesn't need the government's help. (Please see the chapter, "Separation of Society and State.")

In framing a government,
which is to be administered by men over men,
the great difficulty lies in this:
you must first enable the
government to control the governed,
and in the next place,
oblige it to control itself.

Let us assume just for a moment, however, that it is the job of the government to protect people from themselves and to protect innocent wives and husbands from being emotionally hurt by the self-destructive behavior of their spouses. Let's assume we are our brothers' keeper—whether our brothers like it or not. Is the best way to protect a wayward brother by seizing all his property and putting him in jail? Is this helping either the "criminal" or the people who love him? Would a wife really feel more secure knowing that her husband is safe in jail and not running around with gamblers? Would a husband truly be happier living on the street, penniless, because the state accused his wife of selling marijuana and tossed her in jail after seizing the house, car, and all their joint assets?

"But what about the children?" some lament. "The children are the victims!" Children are too young to give their knowing consent; that, by definition, is why they are children. If children are genuinely being harmed, it is the job of the government to remove them from the harmful environment.

To put parents in jail, however, for things that they consent to do with other consenting adults, activities that do not directly involve children—their own or others—is counterproductive. Is a parent's possible "bad example" worse for the children than throwing the parents in jail, confiscating their money and property, and making their children wards of the state?

The United States ranks 13th
on the Human Freedom Index.
Twelve other countries are freer
than the United States.

Prenatal care in this country is a national shame; twenty-two other countries have lower infant mortality rates than the United States. Every day, children in this country die of malnutrition and preventable diseases.

These are enormous problems. Pretending that the enforcement of laws against consensual activities is making these problems any better, when it is only making them worse, is tragic.

Just because certain acts do not involve violence does not make them legal. The act of taking something that belongs to another—whether done with a knife or a deceptive smile—is a crime.

To avoid committing crimes, then, all we need to remember is what we were probably told when we were five: "If it's not yours, leave it alone."

Central to all this discussion of crimes and victims is the matter of innocence. Here I mean innocence in the sense of "not consenting" rather than "not guilty."

Do what's right for you,
as long as it don't hurt no one.

If you are walking down the street and get hit by a baseball that someone intentionally dropped from a tall building, you are innocent. The person who dropped the ball is guilty of a crime and is responsible for all damage. He or she may not have intended to hit you, but intentionally dropping a baseball from a tall building includes the possibility (in fact, the high probability) that the ball will physically harm the person or property of another. If you are playing second base, however, and get hit by a baseball, you are responsible, not the batter. When you consent to play second base, the possibility you might be hit by a baseball comes with the territory.

Batters do not hit balls with the intention of striking players. In fact, batters try to hit balls as far away from opposing team members as possible. Although being hit by a baseball while playing second base is unfortunate, you are at best (worst?) only a victim of Newton's First Law of Physics: "If a body is moving at a constant speed in a straight line, it will keep moving in a straight line at a constant speed unless . . . ouch!" The batter may feel very bad about it, but the batter has committed no crime.

Although the physical harm done is the same with either a dropped ball or a batted ball, in one situation you were innocent and another person was guilty of a crime; in the other situation, you were responsible because you gave your consent. (No, you didn't give the batter consent to hit you, but you consented to the risks of baseball.)

It is the law's job to protect innocent people from likely harm to their person or property. It is not the law's job to protect adults from the risks of their own consensual acts.

It is the law's job, for example, to reasonably insure that the food and drugs we purchase are pure and that the measurements are accurate. It is not the law's job to tell us when, where, how, why, or how much of this food or drug we can and cannot consume. It is the law's job to see that the gambling it regulates—from casinos to the stock market—is fair and that all players have an equal chance. It is not the law's job to determine how much we can bet, how skilled we are, or how much we can afford to lose.

Heterosexuals don't
practice sodomy.
May 8, 199

As Arthur Hoppe wrote in the San Francisco Chronicle, September 2, 1992:

In a series of dramatic raids last week, police rounded up a number of hardened jaywalkers.obstructing traffic, then it becomes a crime. Until then, it's not.> They will undoubtedly claim they've broken the back of San Francisco's notorious jaywalking ring. . . .

Just as you might suspect. It's another case of creeping government paternalism. Even we most notorious jaywalkers endanger no one but ourselves. Once again, the government is out to protect me from me.

This isn't the function of government. The government is a fictitious entity created by us individuals to protect ourselves from each other. I agree not to murder them in return for their agreeing not to murder me. Fair enough. But if I want to kill myself, that's my business.

Unfortunately, this fictitious entity we created more and more takes on a life of its own. It pokes its nose into everything. . . . It tells me I'm too stupid to wear a seat belt and too careless to wear a motorcycle helmet. If I don't, it says, wagging its finger, I will be sent to bed without any supper . . .

The function of government is to protect me from others. It's up to me, thank you, to protect me from me.

Liberty is the only thing
you cannot have
unless you are willing
to give it to others.

It may seem that if people were running around doing what they wanted, society would run amok. Wouldn't this lead to all sorts of immorality? No. The need to be social, to interact—to be part of a society—takes care of that.


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