The disgrace and resignation of New York Gov. Eliot Spitzer brings the concept of victimless crime back to the public attention of late, so I guess it is a good time to explain the Libertarian view of the oxymoronic concept of victimless crime. Of course, Spitzer deserved to be disgraced and thrown out of office, but not for engaging the services of a hooker, but rather for being a hypocrite by prosecuting others for victimless crimes even as he was paying for sex.
Our Declaration of Independence states the basis for our form of government in the second sentence of the second paragraph, “That in order to secure these rights, governments are instituted among men…” Our concept of law had at its base that government exists to secure our rights, and has no role in human interactions that do not violate someone’s rights. Somewhere along the way, we lost track of that
and government assumed the job of protecting us from our own folly. Libertarians do not dispute the fact that most victimless crimes involve someone doing something stupid, dangerous and/or immoral, we just don’t believe that government is the proper tool for dealing with these social ills, and that using the force of government when no one’s rights have been violated invariably turns out to be stupider, more dangerous and more morally corrupting than the original problem.
When Gov. Spitzer transacted with his prostitute, whose rights were violated? His wife might well have a breach of contract claim to make in civil court, but that is between them and not a public matter. At $5500/hr, the Governor probably didn’t get his money’s worth, but the price of pleasure is best determined by the marketplace, just like any other service. The prostitute freely chose to exchange what most of us see as an expression of affection and passion for money, but she was willing and I don’t see how her demeaning herself affected anyone else. So, what right of yours or mine did they violate, and if the answer is none, than what concept of government gives us license to interfere? Is it to protect the prostitute?
Certainly, most prostitutes live a dismal life. But to what extent is that the result of their choice as opposed to the hardships our legal system adds to their woes? After all, if a masseuse is abused by a client, or the client pays with a bad check, the masseuse can go to the police for protection or to collect her debt. The prostitute must seek the protection of a pimp, and may even be forced to work for a pimp simply because she cannot rely on the police to protect her from being forced to work for him if she wishes to work at all in his area of influence. By making her avocation unlawful, she is denied the protection of the rule of law the rest of us enjoy.
The same principles apply to gambling and drug use. Both are foolish and dangerous enough on their own, but our legal system magnifies those ills. Consider that in the 1920’s, cocaine and heroin were available legally, without even a prescription from a doctor, at your local pharmacy. There were people who misused them and became addicts, but no more so than today. But there were no pharmacists forming gangs or driving by and shooting other pharmacists for control of a street corner. Our prisons were not full of young pharmacists, and there were no pharmacists on schoolyards giving out free samples of narcotics to hook new clients. The profit margin on narcotics was no higher than on aspirin, so there was no reason to go to such extremes of marketing.
There was organized crime, and gangland killing, and lots of men in prison, but that was over alcohol, which was illegal during Prohibition and not over the legal and cheap narcotics. Just as with Prohibition, making crimes of vices leads to massive corruption, violence, and enormous incentives for aggressive marketing. Its really just simple economics.
None of this makes prostitution, drug use or gambling desirable behaviors, and to be sure, they are poor life choices, but can their be any rational argument that making them unlawful has in any way made them less harmful? Or have we magnified their inherent ills a thousandfold?
In health care, we follow one overarching principle, to first of all, do no harm. In treating these social ills, we should follow that dictum as well.