CRIMES AGAINST PUBLIC ORDER & MORALITY
"It's best to keep obscenity at home where it belongs" (Harold Pinter)

    Crimes against public order and morality are the subjects of law because in many ways the law is intended to uphold minimum standards of decency and civility. Much of the law in this regard has ancient roots, but in modern times it has come to be associated with efforts to improve the quality of life or with the legislation of morality.  The range of behavior that law governs is vast -- from public nuisances, to public indecencies, to public immoralities, to controlled substance use. Most public order offenses are usually general intent crimes where the inference of intent (purposely, knowingly, recklessly) is typically made by a judgment of offensiveness to a reasonable person's sensibilities.  In other cases, like certain other laws in this area, they are usually strict liability crimes where the subjective nature of intent is looked at more closely.

    Public order crimes are known by a variety of names -- consensual crime, victimless vice, crimes without victims, or victimless crime.  In fact, Siegel (2004) defines both public order crime AND victimless crime as "crime which involves acts that interfere with the operations of society and the ability of people to function efficiently."  This definition aside, the term public order, meaning public (moral) order has become favored in recent years, and the term victimless is mostly out of favor because the discovery of secondary victims (family, friends, and acquaintances) has led to recognition of victimlessness as a myth.  The field of criminology has gone through at least three stages of controversy: (1) a period around 1930-1960 when the debate was over the functions of deviance (Davis 1937; Coser 1962); (2) a period around 1960-1980 when the debate was over harm to self versus harm to society (Becker 1963; MacNamara & Karmen 1983); and (3) the period from about 1990 on, which has involved trying to sort out the many links between sex, drugs, alcohol, and crime (Krohn et. al. 1997). 

    The major crimes that are usually analyzed in the public order category include (in no particular order): prostitution, deviant sex (paraphilias), precocious sex (underage sex), homosexuality, pornography, alcoholism, liquor law violations (underage drinking), driving while intoxicated, disorderly conduct, public drunkenness, drug offenses (opiates, heroin, cocaine, crack, meth, marijuana), and cigarette smoking.  There are a number of other crimes and deviant acts, such as vagrancy, panhandling, homelessness, helmet and seat belt violations, gambling, abortion, suicide, and witchcraft that are not fully discussed here for sake of brevity. 

    For simplification, it is often customary to arrange the discussion around sex-related and/or substance-related offenses, which subsume almost everything within the public order crime category.  One commonality is that criminalization has produced more by way of creating profit than shaping demand.  Profit is what attracts unscrupulous people.  Profit is what corrupts the system.  Profit is what takes money away from the tax base for community services.  Profit is what enables vice and organized crime to extend its control.  Regulation and treatment are much more cost-effective than using the criminal justice system to handle public order problems.  

    There are some 5 million arrests for public order crime every year, the most frequent ones being drug offenses, driving while intoxicated, disorderly conduct, public drunkenness, liquor law violations, and prostitution.  Despite a skyrocketing drug offense rate, the overall substance-related offense rate has been declining in recent years.  The sex-related offense rate has been consistently stable for decades.  Both sex- and substance-related crime rates are higher in the Northeastern and Western states, although for some liquor offenses (like underage drinking and public drunkenness), the Midwest and South have far higher rates.  Sex-related offenses are higher in urban areas, and substance-related offenses are somewhat higher in rural areas.  Except for prostitution, males comprise 90% of all public order offenders.  Except for driving while intoxicated (predominately committed by whites), African Americans account for slightly more than half of public order offenders.  The peak age for a drug offender is 18, age 25 for driving while intoxicated, and age 33 for sex-related offenses like prostitution (Miethe & McCorkle 1998).

PUBLIC NUISANCES

    The crime of "making a public nuisance" is typically defined as an offense against, or interfering with, the comfortable enjoyment of life or property by a neighborhood or considerable number of people. The law in this regard is often aimed at controlling unlawful congregations and assemblies. The First Amendment right to assembly is not absolute.

    Under common law, an unlawful assembly is a gathering of three (3) or more persons for any unlawful purpose or under such circumstances as to endanger the public peace or cause alarm and apprehension. The full set of related crimes increase in seriousness as the number of people go up:

    Another common nuisance crime is breach of peace, commonly called "disturbing the peace" or disorderly conduct. Disturbing the peace usually involves minor offenses involving noise at decibels greater than 85; such as playing a stereo too loudly. Disorderly conduct, on the other hand, can involve a wide range of behaviors, such as:

    Often a city or state government will use public nuisance laws to control gang behavior. Other states rely upon organized crime statutes. Harsh penalties exist for encouraging minors to join a gang and aggravating factors exist for gang-related felonies. The following is a sample of public nuisance laws aimed at the crime of engaging in gang activities:

    To be sure, many jurisdictions prefer not to even recognize gang activity by making a legal offense about it. Gangs often thrive on a renegade status bestowed upon them by the adverse publicity of law enforcement crackdowns. Therefore, many jurisdictions prefer to incorporate the above gang activity indicators into civil abatement statutes.  This involves using court-ordered injunctions to command a group to stop doing something, or be held in contempt.

    Use of civil abatement has advantages for other types of public nuisances related to public health concerns, such as:

PUBLIC INDECENCIES

    For centuries, vagrancy and loitering laws have been used to protect society against the moral pestilence of vagabonds, paupers, and beggars just as if society was guarding itself against physical pestilence. The crime of vagrancy is committed by wandering about from place to place without any visible means of support, refusing to work even though able to do so, and living off the charity of others. Vagrancy laws are much broader than disorderly conduct laws. Some states use the term loitering rather than vagrancy, which is often defined as being in a place, at a time, and in a manner not usual for law-abiding individuals, and under circumstances that warrant alarm for the safety of persons or property in the vicinity. 

    Most vagrancy and loitering laws (with the exception of curfew and truancy laws) have been held void for vagueness. They also tend to make the status of being poor a crime. According to the equal protection clause of the Constitution, things with the protection of status are not acts that can be criminalized. Indecency laws that remain on the books are always at risk of infringing upon a status group, but some that have not yet been declared unconstitutional are:

PUBLIC IMMORALITIES

    Most jurisdictions hope to regulate public immoralities to some extent, but they commonly fall back on simply prohibiting something and then failing to enforce their prohibitions. This means that there are tolerated "vice" zones in most American cities, and also problems inherent with "unenforceable" laws that erode legality and legitimacy. Most of the crimes in this area are private and consensual. They are criminal not because there's a "victim" in the usual sense, but because the volitional behavior of both parties to the crime offends societal notions of morality.

    Crimes in this area tend to fall into two main categories: (1) regulation of marital status and sexual behavior; and (2) regulation of sex-related vice.

REGULATION OF MARITAL STATUS & SEXUAL BEHAVIOR

    Adultery and Fornication involved the same act of sexual intercourse when being out of wedlock, the former offense when at least one of the partners is married. Prosecution of these crimes is so rare as to make the laws nonexistent.

    Bigamy law prohibits a person from having more than one spouse at the same time.  Most states allow a good faith exception if it was believed a previous spouse was dead or a previous marriage dissolved. No mens rea is required for this offense. Muslims and Mormons have historically practiced polygamy, but the former usually do not do so in the U.S. and authorities are sometimes reluctant to prosecute the latter.

    Buggery or Bestiality is any type of sexual intercourse with an animal, or, in some states, anal intercourse with a man or women.

    Cohabitation requires no proof of sexual intercourse. It's just "living together" outside of wedlock. It's the least prosecuted public order crime.

    Incest law prohibits sexual intercourse between a male and a female who are too closely related. Typically, any relationship (or consanguinity) of being first cousins or closer is included as incest. The law tends to base relationship on family ties, not genetic ties. Therefore, adopted and "step" relatives are included.

    Miscegenation is the intermarriage (and in some states living together) of persons of different races, generally white and black. All such statutes have been struck down by the Supreme Court.

    Sodomy has traditionally been a catchall term for any "unnatural" sexual intercourse, and similarly, for any type of homosexual activity. Some states have abolished their sodomy statutes, and in those states where they are still on the books, questions about discrimination against homosexuals remain.

REGULATION OF SEX-RELATED VICE BEHAVIOR

    Prostitution is legal in parts of Nevada, but illegal (although tolerated) throughout the rest of the U.S., especially in certain "vice zones" where some communities have approached the problem by charging prostitutes with trespass if found outside the tolerated areas. Prostitution laws vary, as do definitions of the term "prostitute".

    The typical elements of prostitution are:

    1. Offering to engage or soliciting in --  This is any offer of agreement, or in the case of soliciting, getting another to make the offer of agreement.

    2. Any sexual contact -- This generally includes any kind of contact with the genitals; it's questionable from a constitutional standpoint if self-masturbation (as in peep show) constitutes prostitution.

    3. For a fee -- This is generally accomplished by exchange of money.

    Obscenity laws are enforced with variable success, and are unofficially tolerated if kept within certain "vice zones" where some communities have approached the problem by manipulating zoning ordinances and business permits. The Supreme Court in recent years has been accepting numerous obscenity cases, and the Communications Decency Act of 1996 doubles the penalties if computers are used to transmit child pornography, among other things.

    The typical elements of obscenity are:

    1. Average person -- This is the reasonable man standard.

    2. Applying contemporary community standards -- This refers to local norms about what is patently offensive. The material or performance must, as a whole, lack serious literary, artistic, political, and scientific value.

    3. Appeal to prurient interest in sex -- This means that there's a one-sided, almost obsessive, fascination with sex. Generally, this involves masturbation, excretory functions, sadism, masochism, lewd depictions of genitalia, genitalia in a state of arousal or turgid state, or depiction of a device designed primarily for genital stimulation.

CONTROLLED SUBSTANCES

    The federal government and all 50 states have controlled substance acts that are quite uniform in nature. Under such laws, it's a crime to do any of the following:

    Some states follow a "trace amount" rule which doesn't require the amount to be usable; other states follow a "usable amount" rule. Possession can be either actual or constructive (if within an accessible area of control). Intent to deliver is determined by the quantity of drugs (and, among other things, if baggies are present and any lists of customers). Delivery is generally the transfer of drugs from a supplier to a dealer or distributor, and from a dealer or distributor to a user. Possession is usually a misdemeanor while delivery is usually a felony.

    About 14 million people (one in every 13 adults) are alcoholic, mostly men between the ages of 18-29.  Alcohol is a major cause of mortality, morbidity, injury, and accident.  It is involved in at least half of all homicides (perpetrator or victim), 53% of all traffic fatalities, 64% of fires and burns, 48% of hypothermia and frostbite, and about 20% of completed suicides.  Injuries resulting from alcohol involvement are the fourth leading cause of death.  In criminology, there are well-established links between alcohol and crime.  Further, alcoholism tends to be a co-occurring illness with that catch-all diagnosis for criminality called antisocial personality disorder.  Alcoholism creates victims all around the offender, even among those who care about them.   

    There are few determinants of crime stronger than those related to alcohol and drugs. More than 1.1 million annual arrests for illicit drug violations, almost 1.4 million arrests for driving while intoxicated, 480,000 arrests for liquor law violations and 704,000 arrests for drunkenness come to a total of 4.3 million arrests for alcohol and other drug crimes. That total accounts for over one-third of all arrests in America.  Alcohol is a key factor in up to 68% of manslaughters, 62% of assaults, 54% of murders and attempted murders, 42% of rapes, 48% of robberies, 44% of burglaries, 66% of property crime overall, and 64% of child abuse and neglect.  Regular users of alcohol and drugs function at 67% of their capacity, have high rates of absenteeism (35 missed work days a year), are 5 times more likely to file a Workman's Comp claim, and 7 times more likely to have wages garnished.

    Neither the UCR nor the NCVS is well suited to measure the relationships between drugs, alcohol, and crime.  Most experts obtain data from one of the following sources: the Monitoring the Future study (MTF), the National Household Survey on Drug Abuse (NHSDA), the Drug Enforcement Administration, the Arrestee Drug Abuse Monitoring program (ADAM), the Office of National Drug Control Policy (ONCDP), and the Drug Abuse Warning Network (DAWN).     

    The U.S. Department of Justice conservatively reports that alcohol and drugs are a definite factor in crime 40% of the time, yet others report that alcohol and drugs are a proven factor at least 80% of the time.  The following table from Belenko (1998) illustrates this:

Percent of Prison Inmates who are Substance-Involved Offenders

State

Federal

Jail

Ever used illegal drugs regularly 64 43 59
Ever in treatment for alcohol abuse 29 14 15
Ever convicted of Driving While Intoxicated 2 1 8
Ever convicted of a drug law violation 19 55 21
Ever committed a crime to get money for drugs 17 10 13
Under influence of drugs/alcohol at time of offense 48 23 55
Substance-Involved Offenders
(Percent who fit into at least one of the above categories)
81 80 77

    With drunk driving, there are drunk drivers and there are hardcore drunk drivers.  The hardcore group is involved in 58% of alcohol-related fatalities, and is defined as: (1) driving with a BAC level of .15 or more; (2) having more than one drunk driving arrest; and (3) being highly resistant to changing their behavior in spite of previous punishment, education, treatment, or public disdain.

    Public drunkenness laws are essentially the same as laws on disorderly conduct and disturbing the peace.  Offenders typically consist of what are called problem drinkers, or inebriates, and they make up over half of all misdemeanor arrests and jail admissions.  Depending upon jurisdiction, they have crossed the line on dietary or social custom.    

    With drugs, the most interesting theoretical questions revolve around what is called the enslavement versus escalation hypothesis in criminology.  This involves whether drugs addict, or enslave, individuals enough to make them think about committing a crime they would otherwise never think of, or whether drugs merely enhance, or escalate, pre-existing criminal tendencies.  There is an abundance of research to be found on the role of drugs in the beginning, middle, and desistence phases of criminal careers, with the so-called marrying effect a strong desistence factor.  There also appears to be an inordinate amount of interest in documenting the age at onset, and in particular, using indicators to document usage and availability in schools.    

    Cigarette smoking is the most recent entry into the reach of criminology.  About 25% of Americans smoke regularly, and the pattern of addiction is quite similar to drugs such as heroin and cocaine.  In 1998, tobacco companies agreed to pay a $206 billion settlement with 46 states that admitted civil wrongdoing.  The government subsequently failed by a 4-5 Supreme Court vote to have nicotine added as a dangerous drug (which would have required licensing or prescription to purchase cigarettes).

    The drug distribution system is the most complex and complicated thing on the planet, crossing five continents, and unprecedented in its economic might.  Economically, it's what probably holds the world together more than the official financial markets.  Billions of real dollars exchange hands every day.  The major parties in this vast network are as follows:

THE LEGALIZATION DEBATE

    Lifting the ban on marijuana has been the number one issue in the legalization debate.  The pro-legalization movement is primarily funded by billionaire philanthropists such as George Soros (financial speculator), Peter Lewis (retired CEO of Progressive Insurance), and John Sperling (founder of the University of Phoenix).  The anti-legalization movement is headed by whomever the President appoints as the Drug Czar (currently John Walters) who runs the office of ONDCP.  The American public, in poll after poll, show that citizens want to keep marijuana illegal, but don't want the laws strictly enforced.  For example, Time/CNN polls indicate that 80% of American approve of medical marijuana, and 75% think small-time recreational users should get off with a fine.  NORML maintains a nice map detailing a state-by-state guide to drug laws. 

    As of 2010, about fifteen (15) states have legalized medical marijuana (Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington).  Maryland is somewhat unique in that medical marijuana laws are enacted, but marijuaa prohibitions are still enforced.  New Jersey is more typical, having joined the other states in early 2010, and having cleared the way dispensaries to be set up with a Health department controlling prescriptions.  New Jersey's law also proposes to be a model in that growing marijuana at home or driving after taking the drug remain illegal.  A number of other states and local jurisdictions have reduced the penalties for small-time consumption down to nothing.  However, the Supreme Court ruled in U.S. v. Oakland Cannabis Buyers Coop (2001) that federal drug laws trump state drug laws, so if a state legalizes marijuana, federal authorities can still come in and make arrests.  Yet, in 2003, the Supreme Court also ruled that doctors cannot be punished for recommending medical marijuana, and in 2009, the Obama administration issued a memo urging prosecutors to not waste their time going after medical marijuana cases unless they involved violence, firearms, selling pot to minor, money laundering, or involvement in other crime.  In the minds of many legalization advocates, the medical marijuana movement is a ruse to get marijuana legalized more freely for everyone.  In the minds of common sense-oriented politicians, legal reform is necessary to help really sick people who need the drug.  The following insert contains some known medical facts about marijuana:

MEDICAL/MEDICINAL PROPERTIES OF MARIJUANA

     People who argue they need marijuana claim it numbs pain, relieves the eye pressure of glaucoma, calms muscle spasms, and helps them get the munchies so they don't waste away from AIDS.  The actual medical research is quite controversial, and depends upon how you interpret the results.  Earleywine (2002) and others have chronicled these controversies, and the media jumps on any new article that comes out of a medical research journal.  Pro-legalization advocates claim the government sabotages the medical research.  Scientific researchers claim the results show marijuana is both good and bad.  There are about 65 different psychoactive substances, besides THC, in marijuana, so the research is pretty exhausting.  To summarize, the drug has not been shown to reduce pain or nausea.  An a painkiller or analgesic, marijuana does little more than a placebo.  As an aid to nausea or the problem of keeping food down, there are no known appetite enhancement effects of the drug, and the so-called "munchies" appear to be subcultural in origin.  However, no one has ever died from smoking marijuana although a couple of cases are known where blood flow to the limbs became so bad amputation was needed, nor does the drug produce cancers, brain tumors, chromosome damage, lower IQ, or sexual infertility.  On the other hand, there is evidence that the drug is addictive and produces withdrawal states among heavy users and about 10% of recreational users.          

    During the 1980s and 1990s, doctors in the U.S. used to prescribe a drug called dronabinol (synthetic THC), but users claimed it works too slow since it's taken as a pill and doesn't help as much as smoked marijuana.  In Great Britain, a pharmaceutical company known as GW Pharmaceuticals has produced a mouth spray which is intended to avoid the lung damage that comes from smoking anything.  Marijuana is more irritating to the lungs because it contains 50% more tar than tobacco, and has a greater harmful effect on the upper airways (sinuses and larynx).  Criminologically, what remains important is the effect on mood, judgment, and behavior.  While there seems to be no lowered IQ or impulsivity effects, there are indeed negative effects on learning, time perception, and short-term memory.  There is a need for incorporating these known effects into theories about crime, and more generally, theories about human behavior and decision-making.    

INTERNET RESOURCES
A Guided Tour of the War on Drugs

Ain't Nobody's Business if You Do

Center on Alcohol Marketing and Youth
The Century Council

Drug Reform Coordination Network (DRCNet)

DUI Pictures

End Child Prostitution and Child Pornography

Gambling and Crime Impact Reports

Higher Education Center for Alcohol & Other Drug Prevention

Medical Marijuana Policy Project
Mothers Against Drunk Driving

National Center on Addiction & Substance Abuse at Columbia

National Clearinghouse for Alcohol & Drug Information (NCADI)

National Highway Traffic Safety Administration (NHTSA)

Panhandling and Aggressive Panhandling

Paul's Justice Page on Prostitution and Sex Work
RAND Drug Policy Research Center

San Francisco Task Force on Prostitution

State, Federal, and International Sex Laws
Substance Abuse and Mental Health Services Administration (SAMHSA)

Summary of Key Obscenity Cases

PRINTED RESOURCES
Becker, H. (1963). Outsiders. NY: Macmillan.
Belenko, S. (1998). Behind bars: Substance abuse and America's prison population. NY: National Center on Addiction and Substance Abuse. [online pdf]
Cook, P. (ed.) (1988) "Vice." Law and Contemporary Problems 51 (entire issue).
Coser, L. (1962). "Some functions of deviant behavior and normative flexibility." American Journal of Sociology 68: 172-81.
Davis, K. (1937). "The sociology of prostitution." American Sociological Review 2: 746-55.
Gardner, T. & T. Anderson. (1996). Criminal law. Minneapolis: West.
Harry, J. (1982). "Derivative deviance." Criminology 19: 546-64.
Krohn, M., A. Lizotte & C. Perez. (1997). "The interrelationship between substance use and precocious sexuality." Journal of Health and Social Behavior 38: 87-103.
MacNamara, D. & A. Karmen. (1983). Deviants: Victims or victimizers? Beverly Hills: Sage.
Meier, R. & G. Geis. (1997). Victimless crime? Los Angeles: Roxbury.
Miethe, T. & R. McCorkle. (1998). Crime profiles: The anatomy of dangerous persons, places, and situations. Los Angeles: Roxbury.
Reid, S. (1998). Criminal law. Boston: McGraw-Hill.
Samaha, J. (1999). Criminal Law. Belmont, CA: West/Wadsworth.
Schur, E. (1965). Crimes without victims. Englewood Cliffs: Prentice Hall.
Siegel, L. (2004). Criminology: Theories, patterns, & typologies, 8e. Belmont, CA: Wadsworth/Thomson Learning.
Skelton, D. (1998). Contemporary criminal law. Boston: Butterworth-Heinemann.

Last updated: Aug 15, 2010
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