Don’t punish victimless crimes

This is the seventh installment of my weekly column for Mint, Thinking it Through.

Imagine a dystopia where a mad dictator comes to power and decides to ban sex and dating. Sex is ruining the moral fabric of our nation, he decides. Men and women must not be allowed to get together. What will happen?

Here is what I imagine: One, immense copulation will still take place behind closed doors, and as no one engaged in consensual sex will complain, the state will have to spend considerable resources and do invasive policing to make sure people don’t break the law. Two, the underworld will get involved in enabling encounters between the sexes, as those won’t be legal any more, and couples will no more be able to shoot the breeze at a Barista. Three, there will be more rapes, as repressed men denied normal outlets will resort to force.

What a silly thought experiment, you say, it could never happen. After all, what two consenting adults choose to do together, harming no one else in the process, should never be the state’s business. And yet, while sex and dating are thankfully allowed in our country, many other consensual, harmless acts are banned. Allow me to give you a few examples of such victimless crimes.

First, take betting. Betting on cricket matches is, ludicrously, illegal in India. (Other forms of betting are allowed, such as speculative investments in the stock market or in real estate or betting at horse races, which all amount to the same thing.) If I choose to bet with another private party on the outcome of whatever, it should be no one else’s business.

Now, what happens when you ban something that has a high demand? The underworld gets in. As it operates beyond the arm of the law, there is no transparency, and the cost to consumers is higher. It is hard to monitor and, since it’s illegal, there is no industry mechanism to do so. Match-fixing becomes more possible. (People speak of betting and match-fixing in the same breath, but that’s really like conflating sex and rape.)

If betting was legal, though, the underworld would find little scope to be involved. In a competitive market, legitimate companies would raise customer service and transparency while driving down costs. Like your bank gives you a demat account to invest in shares, it might provide one for betting. You’d have various vendors to choose from and the chances of getting ripped off would be less. It wouldn’t be a panacea, but it would be an improvement on what exists. Consider that match-fixing in cricket has germinated from exactly those countries where it is illegal.

Another example of a victimless crime: prostitution. A consensual transaction between two adults is nobody else’s business, but prostitution evokes sordid images of young girls being kidnapped and beaten and forced into the profession. Why does such violence happen? It is because prostitution is effectively illegal in India and, therefore, the underworld is involved.

If it was legalised, it would be easier to police, and to safeguard the rights of the women involved. Legitimate companies in the hospitality industry might choose to get involved. To attract clients, they would have to have standards and practices. Yes, it would be sad that some women would choose to be prostitutes for a living, but they would do so because they prefer it to other available choices. Why should we pass moral judgement on them, or deny them some of those choices?

Again, legalising prostitution would be no panacea, but would cut down on much of the criminal abduction-rape cycle that forces so many young girls into the business in the first place. A perfect example of how legalised prostitution can function without coercion is the Netherlands, where prostitutes pay taxes and are part of unions, which look after their interests, and brothels advertise like other respectable businesses.

One more example of a victimless crime: taking drugs. A study published recently by the Lancet shows that alcohol and tobacco are more harmful than LSD, cannabis and ecstasy. If an adult chooses to smoke a joint, is it not immoral to stop them and impinge on their freedom? You might argue that people commit crimes under the influence of drugs, but then, punishing those crimes should be deterrent enough. (Tobacco is an exception, though: I support banning smoking in public places because it harms other people.)

Indeed, the drug trade is the lifeblood of the underworld in many countries. Consumers have none of the protections that a well-functioning free market affords, and might end up buying adulterated drugs at exorbitant prices. In contrast, consider the Netherlands, where drugs are legal and cannabis is purchased mainly in coffee shops. They have the lowest rate of drug-related-deaths-per-million in Europe.

While our cops are busy busting “betting rackets” and “dens of vice” and “rave parties”, do note that I am not endorsing either gambling or prostitution or drugs use. I am simply speaking out for individual freedom, and pointing out that the costs of denying such freedom are generally greater than any intended benefits.