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The Lawless Society
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Welcome To The Lawless Society. Issue #14.
The following article is taken from the pages of Playboy, September 1993
issue. It deals with what are known as "Consensual Crimes" in America today.
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-=*=- Ain't Nobody's Business -=*=-
-The Absurdity Of Consensual Crimes In A Free Society-
By
Peter McWilliams
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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 able to do whatever you want
with your own person and property, so long as you don't physically harm the
person or 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 1801: "A wise and frugal government, which
shall restrain men from injuring one another, shall leave them 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, person
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 goes 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 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 meaningless. Every scoundrel committing a real crime has declared it a
victimless crime, attempting to argue that a crime without physical violence
is a crime without a victim. Anyone who had been threatened, blackmailed, 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 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 realm 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 out 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, 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
gives 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-- were not even Christians; they were Deists. They believed there
is a God, but did not believe the "revealed word" of any religion. The
founding fathers read the words of Jesus with respect, but they also turned
for inspiration to the works of Confucius, Zoroaster, Socrates and many
others. That almost everyone believes the founding fathers were all
"God-fearing Christians" is a perfect example of telling a big enough lie long
enough that it becomes "truth." George Washington summed it up succinctly:
"The government of the United States is not, in any sense, founded on the
Christian religion."
- It violates the separation of church and state. The Constitution not only
guarantees that we can freely practice the religion of our choice but also
that the government will not impose religion upon us. Almost all arguments in
favor of maintaining laws against consensual crimes have a religious
foundation. The biblical sexual prohibitions are oft quoted. The
restrictions against drugs come from the evangelical revivalism of the 1820's
and 1830's that directly gave us, among other delights, Prohibition. Even the
idea that should take care of our bodies --OR ELSE-- is the old
body-is-the-temple-of-the-soul argument espoused by Saint Paul.
- It's against the American principles of private property, free enterprise,
capitalism and the open market. If everything thus far has sounded hopelessly
liberal, here's a nice conservative argument: Our economic system is based on
private property. What you own is your own business. You can give it away,
trade it or sell it --none of which is the government's business. Whether you
make or lose money on the transaction is not the government's business (until
it's time to collect taxes). This is the system known as capitalism. We
fought (and recently won) a 45-year cold-and-hot war against communism to
maintain it. For the government to say that certain things cannot be owned,
bought, given away, traded or sold is a direct violation of both the sanctity
of private property and of the fundamental principles of capitalism.
- It's expensive. We're spending more than $50 billion per year catching and
jailing consensual criminals. In addition, I estimate that we're losing at
least an additional $150 billion in tax revenues: Every man, woman and child
in this country is paying $800 per year to destroy the lives of 6 million
fellow citizens involves in the tangled web of consensual acts, crime and
punishment. And moving the underground economy that is associated with
consensual crimes above ground would create 6 million tax-paying jobs.
- It destroys lives. A single arrest and conviction, even without a jail
sentence, can wipe one out financially and permanently effect one's ability to
get a job, housing, credit, education and insurance. In addition, there is
the emotional, mental and physical trauma of arrest, trial and conviction. If
jail time is added to his societally mandated torture, an individual's life
may be ruined.
- It corrupts law enforcement. Our law enforcement system is based on a
perpetrator and a victim. In consensual crimes, perpetrator and victim are
the same. Asking the police to control a crime that does not have a clear-cut
victim makes a travesty of law enforcement. Who are the police supposed to
protect? Theoretically, they arrest the perpetrator to protect the victim.
However, in a consensual crime, when the perpetrator goes to jail, the victim
goes too. Law enforcement implemented against consensual crime is a sham that
demoralizes police and promotes disrespect for the law. Because of the
artificially inflated cost of consensual crimes, people resort to real crimes
such as robbery and mugging. Thus we all become innocent victims.
- It promotes organized crime. Organized crime grew directly out of an
earlier unsuccessful attempt to legislate against a consensual act
--prohibition. Any time that something is desired daily by millions of
people, there will be an organization to meet that desire. If fulfilling that
desire is a crime, that organization will be organized crime. Organized
criminals seldom differentiate between crimes with victims and crimes without
victims. Furthermore, the enormous amount of money at their disposal allows
them to corrupt the best police, prosecutors, witnesses, judges, juries and
politicians money can buy. Once consensual crimes are no longer crimes,
organized crime will be out of business. (The other major financier of
campaigns against consensual crime is the religious right. Its leaders find
it easier to raise money with fear and hatred than with love. Organized crime
and the religious right. Strange bedfellows?)
- It corrupts the freedom of the press. Reporting on consensual crimes has
turned a good portion of the media into gossips, busybodies and tattletales.
With so much important investigation and reporting to be done concerning
issues directly affecting the lives of individuals, the nation and the world,
should we really be asking one of our most powerful allies --the free press--
to report who's doing what, when, where how and how often to their own (or
their partners') bodies?
- It keeps people from being responsible for their own behavior. If we
maintain that it is the government's job to keep illegal anything that might
do us harm, it implies that anything not illegal is harmless. Clearly, this
is not the case. Either people must be taught that what is legal is not
necessarily harmless, or our prohibitions must extend at least to automobiles,
cigarettes and alcohol. The current hypocrisy practiced in our society is
unjust, misleading and deadly.
- Finally, we have more important things to worry about. The short list of
problems facing our country and out world that are more deserving of our
precious resources includes: real crime (the chances are one in four that your
or someone in your household will be "touched" by a violent crime this year),
drunk drivers (22,000 deaths per year), insurance fraud (a $100 billion per
year problem that adds from 10 to 30 percent to all insurance premiums),
illiteracy (one in seven American adults is functionally illiterate and one in
20 cannot fill out a job application), poverty (14.2% of the population --35.7
million people-- lives below the poverty level and a good number of these are
children), prescription and over-the-counter drug abuse (more people are
addicted to these than to all the currently illegal drugs combined),
pollution, AIDS and last but certainly not least, the national debt ($4
trillion and growing faster than anything else other than religious
intolerance).
Consensual crimes create a society of fear, hatred, bigotry, oppression
and conformity. They support a culture opposed to personal expression,
diversity, freedom, choice and growth. The prosecution of consensual crimes
encourages ostracizing, humiliating and scorning people. This creates a
nation of sheep. "It has been my experience," wrote Abraham Lincoln, "that
folks who have no vices have very few virtues."
-=*=-
If you look into the arguments in favor of laws against consensual crime,
they are usually variations of "It's not moral." And where does the
objector's sense of morality come from? His or her religion. Some claim
community values as the basis of morality, but where does this set of
community values come from? The sharing of a similar religion. To a large
degree, we have created a legal system that is, to quote
priest-turned-philosopher Alan Watts, "clergymen with billy clubs." As Watts
wrote in Playboy more than 20 years ago:
"As is well known, the enormous political power of fundamentalists is what
makes legislators afraid to take laws against victimless 'sins' and crimes off
the books, and what corrupts police by forcing them to be armed preachers
enforcing ecclesiastical laws in a country where church and state are supposed
to be separate."
Don't think I'm against religion. I'm not. Individual morality based on
religious or spiritual beliefs is wonderful. It can be an excellent guide for
living one's own life. It is, however a horrible foundation for deciding who
does and does not go to jail. All it really does is allow a stat-sanctified
religion to pillory citizens for their choice of lifestyle.
-=*=-
"The function of government is to protect me from others," wrote the
columnist Arthur Hoppe. "It's up to me, thank you, to protect me from me."
Responsibility is the price of freedom. So is tolerance. We may not like
what others do with their persons and properties, but so long as they are not
harming our persons or property, we must permit them to do as they please. In
this way we guarantee ourselves the freedom to do as WE please, even though
others may not like it. The price of freedom is eternal --and internal--
vigilance: In the time it took you to read this article, 342 people were
arrested for consensual crimes in the U.S.
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And there ya have it. That article was adapted from a book written by
Peter McWilliams entitled "Ain't Nobody's Business If You Do". There's no
publisher listed with the article, but I'm sure you can find the book in a
bookstore if you really want to read it.
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A brief note before I close out this issue of The Lawless Society. Being
as most of the original members of TLS are either no longer interested in the
group or involved with other more time consuming projects, I'm look for new
people to contribute to the TLS files. If you are interested in becoming a
writer or simply submitting a one time article you can contact me on any of
the systems listed below. Simply leave me mail with where you can be reached
or attach any text you would like to submit to the mail. All submissions will
be given honest consideration.
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The Lawless Society
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