h a l f b a k e r yQuis custodiet the custard?
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"So long as a man rides his hobbyhorse peaceably and quietly along the King's highway, and neither compels you or me to get up behind him — pray, Sir, what have either you or I to do with it?"
-Laurence Sterne
Over time, the UK legal system seems to have accreted a number of laws intended to
regulate behaviour on solely moral grounds.
That is, laws creating offences for what are victimless crimes.
After some introspection I realised that this is the rotten core of what I find so painful about the legal system.
I propose a new law to fix this. Obviously it would need to be couched in the appropriate language to make it precise and accurate. I have no problem with the politicians taking the time and care to get it exactly right.
However, the gist of it would be:
A valid defence against any prosecuted offence is to show that there is no victim. The defendant is not a victim. A consenting party is not a victim.
Great swathes of outdated and mis-applied laws would be blocked at a single stroke. If a number of prosecutions under any legislation were to fail on these grounds then this would be a good reason to review and fix that area of law.
I now try to forstall invalid objections by stating and rebutting them, in QA format:
Could this be used to avoid prosecution for insurance fraud / non-payment of tax / cruelty to animals etc?
No. all these harm other entities : the insurance company (and hence other insurees paying a higher premium), the rest of the population and animals, respectively.
Would this make some current legal behaviour with a harmed entity (eg. killing bacteria with disinfectant; abortion) illegal?
No. The proposal doesn't create new offences.
Would this make consuming drugs in private legal?
Yes. Recreational drug use may (or may not) increase. Incidentally, studies show that the illegal state of drugs which causes more societal harm than the drug use itself.
Would this legalise assisted suicide?
Yes, within an appropriate system of safeguards.
Would this make <some sexual practice between consenting adults in private> legal?
Probably, yes. Get over it. It's not your business anyway.
Would this make statutory rape (adults engaging in sex with minors under the age of consent) legal?
No. Except that in jurisdictions where both parties are currently guilty, the underage one would not be.
Other questions given in comments may be added below.
Would this prevent punishment for safety offences (eg. speeding)?
No. Endangering others would still be a crime.
Dangerous driving on a public highway would always be prosecutable.
However, endangering yourself (only) might become legal under certain restricted circumstances. Typically such circumstances are already legal though.
...
Other jurisdictions may benefit from such laws. For example I've read that children in the USA have been prosecuted for using their phones to send others pictures of themselves. A law intended to protect children is imprisoning them for harming - if anyone - themselves. I don't think that's desirable.
Scotland bans smut. What smut? Won't say
http://www.theregis...r0n_law_no_defence/
A law clearly intended as a weapon for the prudish [Loris, Sep 06 2013]
Ain't Nobody's Business If You Do
http://en.wikipedia..._Business_If_You_Do
The Absurdity of Consensual Crimes in Our Free Country [ytk, Sep 06 2013]
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Do you have any specific examples from UK
legislation? |
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//Do you have any specific examples from UK legislation?// |
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There have been multiple cases involving assisted suicide, and even assisting people in going elsewhere to do so. |
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Apparently there were some guys in Scotland who took pleasure in nailing each others private parts to tables, who were prosecuted for doing so. Not my bag, but I don't see why they shouldn't be allowed to indulge themselves. |
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Also some categories of image are illegal to possess in the uk. This includes hand-drawn images and cartoons, however crude. (Incidentally, this theoretically criminalised the 2012 olympics logo.) In Scotland, they won't even give advice about what images are illegal. See link - (it took some time to find that again). |
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//Speeding on a public roadway is often thought of and referred to as a victimless crime, but if it isn't discouraged by the threat of legal/ monetary punishment, it will encourage more people to get in the habit of ignoring posted speed limits which will result in increased traffic collisions, which are certainly not victimless.// |
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My proposal concerns 'true' victimless crimes.
Risking other peoples safety is not a victimless crime (as you note), so the defense wouldn't apply.
(added to the QA section) |
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I agree with this idea 100%. But it's hardly a new
idea. This is
pretty much the (USA) Libertarian Party's platform,
for example.
Numerous books, essays, opinion articles, and so on
have been
written decrying the existence of victimless crimes.
Link provided
to one of the most widely known examples. |
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//nailing each others private parts to tables… Not my
bag// |
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Or any other part of you, I should hope. |
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// The defendant is not a victim. A consenting party is not a victim. |
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Meaningless blanket definition. Of course both could be victims. |
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Although it's possible that some of the consequences listed in the QA may happen, it's just as likely they would not happen, and the door is wide open for unintended consequences. What constitutes a "victim" is open to interpretation in every instance given in the QA, and the right lawyer can make the right judge believe anything or anyone is a victim (or is not a victim) in virtually any circumstance. |
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So fishbone for high hopes but little practical value. |
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/bag-nailer/ [marked-for-dictionary inclusion] |
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//evicerate// [not-so-much] |
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I'd generally agree that no victim is a good guideline.
Although I would limit consent as a liberating factor to a
few things like drugs, and some sexual acts, and probably
not extend it to things life threatening. Assisted suicide
should be legal, but only for those who need assistance,
for example someone who is too scared to follow through
would not qualify. Some drug dealing I
would still have illegal such as to minors, or extremely
addictive substances in some cases. |
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I'm not convinced about this. This is the kind of
thinking that would make being Welsh legal. |
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That's only using scare tactics. |
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//evicerate // It means "to remove something from
being rated a vice". |
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Any law at all will be upheld under the claim "society"
is the victim. |
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////evicerate//
//It means "to remove something from being rated a vice".// |
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Ha!
The trouble is, now I'm in two minds whether to fix it. |
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Stupid Second Law. Always thwarting my plans for energy supply domiance. |
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//// The defendant is not a victim. A consenting party is not a victim.////
//Meaningless blanket definition. Of course both could be victims.// |
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I'm not sure where you're coming from with that. Did you understood that I gave a simplified, human-readable description rather than the full text of the proposed law? And the idea was that no, people couldn't be considered as victimising themselves for the purposes of prosecuting them. |
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//... and the door is wide open for unintended consequences. What constitutes a "victim" is open to interpretation in every instance given in the QA// |
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If the time was taken to write the law correctly, and was debated at length, with care - then it should be water-tight.
...And if it isn't, we fix it. |
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//, and the right lawyer can make the right judge believe anything or anyone is a victim (or is not a victim) in virtually any circumstance.// |
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If you have such a low opinion of the law as to think that, then certainly no law can possibly make any difference to anything. |
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Of course a defendant or a consenting party can be victims. Being the person who does the thing, or consents to the thing, does not and should not mean you give up your rights to any claims afterward. Why should that be so? It isn't so, and would remain not so regardless of any law you make. |
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Just because you say they are not victims, and just because you construct a law that says they are not victims, does not mean it is true. |
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Yeaaahp, the nub here is, as has already been identified, is that we
need to identify victims. Without a victim, the crime is victimless
and Loris's carve out functions. What we need to do it not define
victim but to establish a test for the state of victimhood. Of course,
to create a test for victimhood, we need to look at a definition of
"victim" so please disregard the second sentence of this paragraph,
Miss Jones, take a memo. |
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Because we are doing this on the back of a fag packet, we can
create the test for victimhood by looking at the components of
victimhood and the key caveat/qualifier. |
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Component one: a person
Personhood is a well understood legal concept, so we can blithely
refer to existing case law on this are and bash on, pausing only to
note that this would most definitely include corporate entities, so
shoplifting is not, in this formulation, a victimless crime. |
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Component two: harm, injury or dun dun duunnn death
Harm or injury are also well-kent concepts. There is a world of case
law relating to delictual (or tortellionian, if you're that way inclined)
harm and the valuation of the impact of those harms. Vandalise
public property and the public authority has to incur the cost of the
clean up. Vandalism is not a victimless crime. Stick a high pressure
air hose up a rectum and let of a blast of air, at once inflating and
tearing the guts of the inflatee and there is harm to the guts of the
inflatee (true story) There is also a cost to, in the UK at least, the
taxpayer, in relation the patching up of said guts. This brings us to: |
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Component three: proximity of consent
Taking the shattered back passage of our hapless hose-enveloper.
Can he consent to having his bum shredded? Possibly (though it is
more likely that he did not envisage having his arse ruined by these
ill-considered hijinx), arguably, maybe. Is there a reasonable
expectation that the public purse will cover the cost of rectal
rebuilding, relocated saliva glands, chimpanzee acne and of course
moosebumps, even if the need for these groundbreaking medical
interventions is p much self-inflicted? In some countries. In the UK,
the NHS is (hopefully) sufficiently embedded in our sense of self that
patching up balls nailed to boards is seen as something good, and
therefore the less proximate stakeholders (the NHS/the taxpayers)
are deemed to have agreed not to get involved in the consenual
private lives of others, even if those private lives have a marginal
bottom line (ho ho ho) cost to the public purse. In other
jurisdictions, I don't think this bleeding heart permissiveness would
fly. |
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Component four: proximity of harm
Did the behaviour complained off cause the harm? This is a matter of fact, so not worth getting buried in. Just
note that it's a thing and move on. |
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Component five: the caveat: consent
Round these parts, you cannot consent to be killed. Your right to
life is, in fact, an obligation that you cannot divest yourself of, other
than by doing it yourself while no-one is watching. Brilliant system,
well done the UK. Anyway, can you consent to have your balls
squeezed until they burst? This is a grey area. The basic consent
principle re run of the mill sexual activities is clear: consent must be
given, consent can be withdrawn or modified at any time by the
consentor and the absence of any element of the consent at any
time should prevent the acts not consented to. I would be
reasonably happy if this was the test for this law, I am just not sure
that the facts would necessarily show the existence or non-
existence of the consent with the same clarity as the legal test. |
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I"d prefer a law that states any law unused in the last year goes on probation. If no one is charged under it's provisions in the next two years it simply expires. Psssst. |
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The legislature can write a better law. The police can charge you under a more valid practical or common law. |
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"When in trouble or in doubt run and holler, scream and shout." Famous quote from ? .
The legislature tends to write laws to fix things that don't need fixing or that already have perfectly good laws written to deal with the crisis. It is one way they "run and holler, scream and shout " . |
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The discussion must once again inevitably turn to the
issue of necrophilia, and beastiality. It is rather difficult
to come up
with new victimless crime examples, but as my thoughts
turned to darker subjects it struck me that performing
injustices upon the dead may be enough in grey areas to
be topical. Not just necrophilia but grave robbery, or
indeed robbery of the corpse for necrophilia, seems not
to harm a legal 'person', and because no 'person' is
involved, nor is consent. As a dead person is not a
victim, does [Loris]' proposal damn the world to a
zombilike puppetry of the dead by the sexually
deranged? Likewise will ill satisfactions derived from the
hinds of the menagerie become commonplace? |
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Fine, assume no next of kin, or ownership of the body by
the offender. In the case of animal abuse, beastiality is
more interesting, there was no prosecution for a long time
simply because they were entitled to no legal
status or rights. People wear, eat and enslave them
afterall. That
they can be legally considered victims is open for debate. |
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//it's a form of cruelty to animals// |
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I remember my Criminology prof (an ex-Mountie) talking about this very topic. They came across a guy, umm, 'servicing' his mare while standing upon a stepladder. The topic of whether or not this was cruel was valid cuz I don't care how you're hung - you are no stallion. And the mare could walk away at any point. |
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Just saying that nothing is cut and dried. |
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I do know that several decades ago there was a push for the Canadian Criminal Code to be expunged of all "status" crimes . These are instances where people were punished for being something rather than doing something - being homeless for example. |
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//Of course a defendant or a consenting party can be victims. Being the person who does the thing, or consents to the thing, does not and should not mean you give up your rights to any claims afterward. Why should that be so? It isn't so, and would remain not so regardless of any law you make.// |
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Then I think you don't understood the scenario.
The proposal isn't to remove rights but to confer protection.
The state prosecutes people for things they've done of their own volition, which don't harm anyone (or anything) else. I'm saying it shouldn't.
Of course being the perpetrator of one crime doesn't preclude being the victim of another. Nothing here suggests that. |
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Also, we should be careful not to confuse relationships here. Loris is dealing with the state-person relationship, the notion of "claims" covers both state-person and person-person. |
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