CHAPTER 5: THE VICISSITUDES OF THE PRACTICE OF CONSENSUAL
5.2 Defining a Victimless Crime
perspectives. If it is found that the definition of sadomasochism should be a recipient to the groupings of victimless crimes, what level of harm upon society must be established to sustain a prosecution under this guise? Further, would the classification of consensual sadomasochism as a victimless crime unjustifiably infringe the rights of the participants?
5.2 Defining a Victimless Crime
To evoke the conceptualisation of a victimless crime, the exploration of the definition of a
‘crime’ becomes relevant to this concept. Burchell alludes that the general nature of a crime curtails the protected rights and interests of the State or that of another person.881 This viewpoint avers that a crime brings with it a potential victim, whose rights are infringed by the unlawful conduct of another. Kramer defines the socio-legal construction of a crime as existing within a category of legal creation,882 produced and outlined by the State.883 Thus, the State must define what behaviour will constitute a ‘crime’,884 and in turn, provide the criteria in which criminal behaviour shall be interpreted and punished885. Therefore, the legal norms, values, and morals of a State will serve within the primary embodiment of the criminal law and its textual outline of crimes. In turn, the clarity of the definition of a crime will unravel into the elements of the specific act itself, as outlined by either statute or common law, bringing into focus the nature of the crime and the appropriate criminal proceedings.886
Within the school of Criminology, the once offender-focused inquiry is now expansive within a new sub-branch known as ‘victimology’.887 This sub-branch was borne from the considerations relating to the infringement of rights suffered by the victim by the unlawful conduct of the offender. This exposes the role of victimology in a new prominence within the framework of the constitutionally oriented criminal justice system of South Africa.888 The victim-focus inquiry is an expansive stride that pays homage to the safeguarding of the victim’s
881 Burchell Principles of Criminal Law (2013) 9.
882 R.C. Kramer ‘Defining the concept of crime: A humanistic perspective’ (1985) 12 The Journal of Sociology &
Social Welfare 469.
883 Ibid at 475.
884 Ibid at 477.
885 Burchell Principles of Criminal Law (2013) 3.
886 G. Williams ‘The definition of crime’ (1955) 8 Current Legal Problems 107.
887 J. Bednarova ‘The heart of the criminal justice system: A critical analysis of the position of the victim’ (2011) Internet Journal of Criminology 4.
888 H. Hargovan ‘Victimology in South Africa’ (2014) 47 SA Crime Quarterly 49.
139 rights by way of victim impact statements and other supporting avenues of protection.889 Therefore, the existence of a victim to a crime is part-and-parcel to the unlawful conduct of a criminal offender, and it is the focus of the criminal justice system of South Africa to balance both the rights of the offender and that of the victim respectively.
The term ‘victimless crime’ is ripe with difficulty in satisfying the State’s legal, and moral, definitions of the distinction between the parties to a crime. As explored earlier in this chapter, a crime will involve the infringement of another’s rights; creating a dynamic that outlines an offender and a victim. Further, the commission of a crime surfaces an identifiable victim, or the clear infringement of another’s protected rights, by the unlawful conduct of the offender.
Actual harm need not materialise from the unlawful conduct, but the risk of harm must be displayed within the conduct of the offender.
The inspection of the term ‘victimless’ is the absence of a victim, or injured party, to a crime.
Thus, if conduct mimics the definition of a crime, yet there is no victim to the offence; surely the complete definition of the crime is not satisfied. The rumination of a victimless crime derives from this orbit, understanding that such an occurrence is probable within certain consensual, and often private, activities between persons. Superficially, a victimless crime may be defined as the willing participation of consenting individuals to an outlined crime, yet no victim, or injury, exists within the dynamic of the offence.890 Based on the absence of a true victim, the justification of the criminal law in applying its sanctions appears to be disjunctive to the nature of the ‘crime’ and the consensual, autonomous, nature of the interaction.
Stone builds on the introductory definition of victimless crimes by arguing for the interpretation of its legal resonance.891 To Stone, the only ‘victims’ that derive from victimless crimes are those that are willing participants to what is considered ‘morally’ divergent criminal conduct by the legislature and common law regimes.892 Without a defined or identifiable victim, Stone conjures a relevant juncture into the assessment of a perceived ‘crime without victims’ by highlighting that it is the legislature’s prosecution, which inevitably victimises the consensual and autonomous conduct of the participants. A criminal prosecution supports the criminality
889 Burchell Principles of Criminal Law (2013) 8.
890 J.F. Winterscheid ‘Victimless crimes: The threshold question and beyond’ (1977) 52 Notre Dame Law Review 1995.
891 K.L. Stone "The Decriminalisation of Victimless Sexual Offences" (Masters thesis, University of Natal, 1996).
892 Ibid 82.
140 of such conduct, for the consensual actions of the victimless crimes are divergent to the moral values instilled by the legislature.
Hughes,893 in the inspiration of Mill’s ‘Harm Principle’,894 assesses the criminal law’s stance in protecting against the harm that would infringe fundamental rights entrenched by the State. In light of the Harm Principle, the criminal law’s inspection of the unlawful conduct, which causes harm to others, is a valid entry point for the punishment of an offender. However, in contemplation of Mill’s Harm Principle, criminal conduct that does not bring harm to others, even if only harmful to the offender alone, should not be the recipient of the criminal law’s interference.895 It is essential to note that victimless crimes often involve the consensual interaction of two, or more, persons. Thus, consensual actions that administer harm upon the consenting parties sway from the ambit of what was considered as a ‘self-regarding’ act by Mills.896
However, Saunders asserts that Mill’s Harm Principle accommodates for the extension of the
‘self-regarding’ criminal act concerning consensual harm within a victimless crime.897 The assessment of the malleability of the term ‘self-regarding’ may be applicable to the unified actions of the consenting parties.898 This argument is substantive in its worth, so long as no harm, or infringement, befalls the rights of another who is not a party to the consensual relationship. Therefore, a ‘self-regarding’ criminal act, even if unlawful in the outline of State statute, theoretically does not infringe the rights of others and is without a victim.
Schur identifies another plateau within the content of a victimless crime,899 putting forward that such a definition is satisfied within the trade of substances and items, or in the commission of personal services,900 that are forbidden by the laws of the State .901 The criminal law’s statutory
893 B. Hughes ‘Strictly taboo: Cultural anthropology's insights into mass incarceration and victimless crime’ (2015) 41 New England Journal on Criminal and Civil Confinement 49.
894 J.S. Mill On Liberty, 4 ed.(1869).
895 B. Saunders ‘Refomulating Mill’s harm principle’ (2016) 125 Mind 1006.
896 Mill identified that ‘self-regarding’ acts of a criminal nature do not harm the rights of others, nor is there a direct correlation between a ‘self-regarding’ criminal act and the curtailing of another’s rights. To Mill, a criminal act will cease to be ‘self-regarding’ when its nature becomes entangled with the rights of others. Therefore, a
‘self-regarding’ criminal action exists exclusively within the personal realm of the offender.
897 Saunders op cit note 895 above at 1010.
898 Ibid 1011.
899 E.M. Schur Crimes without Victims: Deviant Behavior and Public Policy: Abortion, Homosexuality, Drug Addiction (1965).
900 The soliciting of the services of a sex-worker fit this definition of a victimless crime.
901 As cited in K. Jaishankar ‘Sexting: A new form of victimless crime?’ (2009) 3 International Journal of Cyber Criminology 23.
141 ban and criminalisation of the use of narcotics moulds the consideration of an appropriate example of a victimless crime.902 Meyer argues that:
‘[The] prohibition of drugs simply creates an underground economy that cannot be taxed, controlled or regulated.
It causes corruption and fills the prisons with people found guilty of a victimless crime.903’
Thus, from this submission, the use of dependence-producing substances may be defined as a victimless crime, for the harm incurred is personally related to the offender alone.904 Yet, the State punishes an offender derived from their contrary indulgence with the proscribed substances. This submission will be explored at a later stage within this chapter.
The prosecution of victimless crimes appears to derive from the realms of legal, social, and moral prerogatives that prove to be ingrained within the values of an open and democratic State. This, however, exists as a reflective commentary on the concept of a victimless crime, for ‘self-regarding’ actions that do not infringe the rights of others are deemed to be punishable on the pretence that such may cause moral harm to society. Drug usage and trade may rightly send shockwaves through the public, yet the justification of prosecuting the practice treads upon a quagmire of conflicting jurisprudential views. The central question that inflates the concept of victimless crimes is whether the perceived immoral behaviour justifies a criminal prosecution by the State.
Furthermore, where the practice deserves a lesser punishment and not that of a criminal sanction would ultimately depend on the extent of the harm unto others. Rightly, the State may argue that a prosecution against a particular practice, even if there is no true victim, is a deterrence against actions that would cause the moral decay of society. Whether this alone is sufficient to instil an intrusion into the private and consensual realm of adult interactions will be explored in the inspiration of the findings of the Wolfenden Report and the Hart-Devlin debate.
5.3 The Wolfenden Report and the Hart-Devlin Debate: Precursors for the Reflections