Victimless Crimes
The criminalization of victimless crimes in several countries has caused controversy.
Polemic broke out recently over a recent Constitutional Court (MK) ruling on lesbian, gay, bisexual and transgender (LGBT) issues, the arrest of several noted artists and government officials or their families for misusing drugs, and the uncovering of various moral offenses. The polemic makes us aware of the controversy that surrounds the concept of victimless crime, which must be comprehensively and accurately understood.
The term “victimless crime” covers illicit and illegal acts considered that do not have victims, and which typically involves only the perpetrator directly or happens with the consent or voluntary transactions among adults, without causing casualties or losses among innocent people who do not participate directly in the act (Decker, 1973).
The first aspect is the consensual behavior among adult participants. Second, the parties or perpetrators involved do not object to the act. And third, the act does not cause harm to others who do not participate.
For example, abnormal sexual behavior (LGBT) that is carried out clandestinely, in a private and unpublicized manner, does not involve minors and is neither forced nor coerced. The same applies to drugs misused in private for recreation, prostitution, gambling, consensual adultery, living together out of wedlock, sexual intercourse among unmarried adults, sodomy, inebriation, pornography, attempted suicides, abortion, bigamy (polyandry), vagrancy, obscene acts, and incest.
The basic problem here is that there has been a public shift in moral standards, values, norms, behaviors and beliefs. The understanding of “victimless crime” is related to the principle that an individual has absolute sovereignty over himself and that abstract institutions such as the public and the state should not impose prohibitions, because the victim of the activity is the perpetrator himself, and the punishment, an unwise act that can damage innocent people’s right to privacy.
There are no objections with regard to such acts, because even here there is an exchange of services or property that is mutually expected by the parties trying to prevent both individual and public losses, as with crimes in general. Under criminal law, victimless crimes are not considered ”mala per se” (an act that is evil in and of itself because of a sense of fairness, morality and civilization, and not because it is forbidden by law), but constitutes ”mala prohibita” (an act that is deemed evil or disgraceful because it is regulated by law).
Controversy
The criminalization of victimless crimes in several countries has caused controversy. There is a view that such a criminalization reflects overcriminalization, which violates human rights and is an application of criminal sanctions. Actually, one of the main requirements (of procedural or legislative ethics) for turning an act into a crime is the existence of real victims (victimization), whether factually or potentially.
They demand that acts of victimless crime be decriminalized, repealed as a criminal offense, restricted in its arrangement or be exempt from prosecution or punished (soft approach). Coaching along with criminal sanctions could also be applied as an alternative, for example, through the rehabilitation and detoxification of those addicted to drugs, psychotropics and other addictive substances, as well as alcoholics.
Moral and religious coaching or other effective and rational forms of guidance can also be implemented. For example, in a number of countries, red-light districts are tightly supervised with regular health inspections and local gambling dens are licensed with tight requirements for gamblers.
Several European countries, a number of American states and Russia have decriminalized particular victimless crimes and imposed certain requirements, such as the recreational and medicinal use of marijuana, adultery, sexual intercourse out of wedlock, prostitution, sodomy, homosexuality, pornography, and drunkenness. Criminalization is deemed to result only in enormous law enforcement costs and will lead to overcrowded prisons and vulnerability to abuse.
On the contrary, those rejecting the notion of victimless crimes argue that the notion of victims of crime in the criminal justice system are not only direct victims, but also includes those with the potential to be harmed proximately, which is suspected of happening indirectly to others; for example, an increase in the indirect spread of HIV/AIDS among the public due to widespread LGBT practices.
Another example is an increase in theing number of national and transnational drug dealers supplying drugs to increasingly widespread users upon promising profits. Not to mention the problem of pornography and other immoral actions that tend to undermine the morals of underage children. Gambling will also trigger increased thuggery, loan sharks, prostitution, liquor, and violent crimes (Garvin and LeClair, 2011).
In Eastern communities, which are monodualistic, familial and religious, victims of crime are not seen individually, but also socially. Gambling, a moral offense that was originally individual and consensual, becomes criminal with the development of secondary crimes and collateral victims.
This will, of course, harm the moral standards of the surrounding community. Prostitution will be followed by the pimping business, and the increasing number of drug users will encourage growth in the number of drug dealers and drug traffickers that operate in a more organized manner.
Decriminalization as selective legal enforcement is not enough. There must be a rational and effective policy that aims to minimize and mitigate legal and moral violations that were initially private, but may tend to cause indirect victims through secondary crimes. This will also be supported by technological developments, enhanced transportation, communication and modern informatics.
Relaxation and mitigation
Besides decriminalization measures, several Western countries have applied semi-legalized decriminalization, for example in relation to the legalized use of marijuana and cannabis for personal recreation or for medication. This is also similar to the legalization of pornography, prostitution, adultery, LGBT, and living together out of wedlock, as well as gambling.
In the draft Criminal Code (RUU KUHP), which will be passed soon, the issue of victimless crimes is also widely debated. For example, gambling that can only be done by permission, private moral offenses (adultery, living together out of wedlock, sexual intercourse among unmarried adults) is likely to be formulated as a complaint if a member of the family or the surrounding community has an objection, and incest is still prohibited because of religious taboos. Public drunkenness also remains a crime.
LGBT is prohibited if it involves underage children, is forced or employs violence, is publicized or displayed in public. Rehabilitation is also being widely applied to drug users. Pornography is punishable unless there is a mitigating circumstance such as for artistic, cultural, sport or scientific purposes. Abortion remains a criminal offense, unless it is performed by a doctor in an medical emergency to save the mother\'s life and/or her fetus. Bigamy remains a prosecutable crime. Prostitution through public loitering is also a crime. Assisted suicides (not euthanasia) also carries legal penalties.
This “Indonesian Way” is formulated by always considering the margins of appreciation in the form of Pancasila, human rights, and the general principles of law recognized by civilized nations.
Muladi
Expert Team Member for the Draft Criminal Code Law