Police: Policing Complainantless Crimes

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POLICE: POLICING COMPLAINANTLESS CRIMES

Certain types of criminal offenses, such as some forms of commercialized consensual sex (e.g. prostitution), nongovernmentally sanctioned gambling, public drunkenness, and drug addiction, are said to generate no complaints. These offenses are often designated as victimless crimes because of a perception that these crimes involve no specific objects of attack, which is one of the defining characteristics of larcenies, assaults, and other common law crimes. The term "victimless crimes" also assumes that the participants are adults and fully capable of making informed decisions about their participation in these activities and that they are engaged in these activities through their own volition.

The term victimless crime, when used to describe various activities that constitute a class of illegal behaviors, has been a source of considerable controversy because these crimes do cause substantial human suffering, not in the direct way that common law crimes produce clear injury to the victims, but indirectly through damaged lives and communities. For many who look at the fallout created by victimless crimes, it seems obvious that the activities forbidden by the relevant criminal laws should indeed be outlawed. They should be treated as crimes, observers argue, for they are too damaging to go unregulated. Those who hold this position argue further that victimless offenses violate various community standards and propriety that have been codified into law to protect the moral welfare of the public and the physical health of its citizens. Consequently, proponents of this position argue that law enforcement officers should police such activity in order to promote and reinforce the social order.

On the other side of the debate are those who say that the formal machinations of the criminal justice system should not be alerted or activated to respond to the activities currently known as victimless crimes. Those who maintain this position argue that because the selling and purchasing of these services is consensual, such crimes do not warrant the attention of the criminal justice system. In other words, because those who participate directly in these proscribed activities do not report the illicit behavior to the authorities, the government should not intervene. From this perspective, law enforcement activity directed at victimless crimes is unjustified and constitutes an unreasonable intrusion into the private lives of citizens. Proponents of this reasoning further argue that governmental attention to these activities greatly burdens the police, the courts, and the correctional system by diverting funds and energy away from serious crimes that directly affect their victims (Territo, Halstead, and Bromley).

This entry will not discuss the legal and philosophical issues relating to the criminalization versus decriminalization debate often associated with so-called victimless crimes, but instead focuses on the fact that participants engage in such crimes voluntarily. The point that participants in victimless crimes do not report the illicit behavior to the authorities has several crucial implications for understanding the nature of crime and social control. This entry addresses those implications and the law enforcement actions directed toward them.

The crime of prostitution is illustrative of the various rationales for taking law enforcement action against victimless crimes and addresses generally the methods that police agencies employ to combat such crimes. Other sorts of victimless crimes will be addressed in passing as a means of demonstrating the similarities manifest in this category of crime.

Why law enforcement action is requested for victimless crimes

There is a substantial assortment of activities that constitute each classification of victimless crime. Diversity is clearly the case in the chosen exemplar, because prostitution varies widely in terms of types of services rendered, prices charged, location of operation, and, consequently, official attention from law enforcement. In order to understand the differences in police dealings with various sorts of prostitution, it is necessary to describe briefly the range of the commercial sex trade.

While there are male prostitutes and female customers, most of those who trade sexual favors for monetary compensation are female and most of their customers are males. Consequently, most of the ensuing discussion of this vice crime and the law enforcement response to it will focus on female prostitution involving male customers. The high end of the continuum of female prostitution entails the services of escorts (also known as call girls) that men solicit for an afternoon sexual diversion or for an expensive evening (often during professional conventions). Call-girl operations are generally far removed from public view because in most instances the initial contact and the arrangements are made by telephone or, increasingly, by computer, thus allowing the customer (commonly known as the john) to specify the physical characteristics of the woman he wishes to procure and the services he desires. Escort services are businesses where satisfied repeat customers are highly desired because they are safer and more profitable. Thus, every effort is made to ensure confidentiality and safety of both the prostitute and the client. Consequently, the actual exchange of money and the provision of sexual services are conducted behind closed doors, usually in an upscale hotel room. Unless the act is accompanied by some sort of extreme irregularity such as a heart attack during the encounter, the entire incident is relatively unremarkable. Because the nature of such transactions rarely includes either uninvolved witnesses or complainants who might be offended or injured, law enforcement officials are seldom called to come into contact with those who participate in this type of prostitution. Without an official witness to the act or a complainant, law enforcement rarely comes into contact with either of the participants.

In the middle of the economic spectrum of prostitution are women who frequent public gatherings such as bars and dance halls in order to pick up customers. Prostitutes working this aspect of the trade typically contact their potential clients from the array of patrons, often with the approval and occasional support from a bartender or other legitimate employee of the establishment. They then engage in a brief period of social drinking, suggest some form of additional intimacy, and present a proposed fee for specified services. After reaching an agreement, prostitute and client retire to a nearby hotel or motel room where the deal is consummated.

With this type of prostitution, the initial contact, negotiation, and agreement takes place in a low visibility environment in which only a few people might take notice of the criminal activity. Unless the prostitute mistakenly approaches an unwilling person as a client, or the pickup is made in a location where such activity is unwanted, or there is an assault perpetrated by either party, police involvement is unlikely. (The likelihood of an assault tends to increase with two factors. As the price of the transaction decreases and as the instability and lack of permanence in the location of the event increases, the likelihood of an associated assault increases. The assault may be perpetrated by a dissatisfied john or it may be perpetrated by confederates of the prostitute who may be lying in wait at a prearranged location. In the latter instance, the offer of sex is merely a ruse to gain the confidence of the john who is subsequently attacked and robbed, often left for dead. Such a situation is often referred to as a "Murphy Game.") Similarly, because the sexual activity that occurs between prostitute and client takes place in private confines, it is not likely that the police will be alerted to the transaction.

At the lowest end of the spectrum of the commercial sex trade are the street prostitutes (often referred to as hookers) who typically work in the open in areas known as "strolls" located on main streets of mixed use and commercial neighborhoods. The street prostitute is usually dressed provocatively and can be seen waving at traffic (flagging) or walking very slowly with the flow of traffic and stooping to make eye-contact with drivers approaching her slowly from the rear ("trolling"). When a driver stops and rolls down a window, the hooker typically leans into the car and engages in a brief negotiation with the ostensible customer. While conducting this negotiation neither party initially knows the true identity of the other and each often suspects the other of being an undercover police officer. Usually the negotiation will continue until the prostitute is convinced that the john actually wants to procure sexual services. Such convincing requires the john to describe what sort of activity is desired in the most specific and graphic terms. If the prostitute and the customer reach an agreement, they consummate the transaction nearby—in a room at a cheap motel that the prostitute frequents, in the customer's vehicle, or even in public view in places such as alleys, sidewalks, and driveways or front yards of local residents.

The public nature of the contact, bargaining, and consummation that constitute street prostitution places it under considerable law enforcement scrutiny. Such scrutiny results not only from the visibility to police officers on patrol, but because prostitution itself fosters a climate where other sorts of criminal activity can thrive. Some of this additional criminality is part and parcel of the prostitution trade, while other components emerge as crimes of opportunity. Perhaps the single biggest reason for both sorts of ancillary crimes is that street prostitution is a trade that operates strictly on a cash basis.

Street prostitutes sometimes try "scamming" potential customers, deceiving them into parting with their money without having provided any sexual favors—by literally grabbing the money and running away. Another common deception is to convince the customer either to remove his trousers and underwear or to lower them around his ankles, sexually arouse the customer as a distraction, grab the customer's wallet and quickly depart the area.

Many other people in the locales where street prostitutes work are also aware of the large amounts of cash carried into the area by those who come to procure sex. For those inclined to take things from others through force or fear, the ready supply of cash is a tempting target. Consequently, robbery is a problem that plagues many strolls as criminals seek to get cash from the potential customers before contact with a prostitute is made. This sort of robbery—often referred to as "rolling"—can also be done in concert with prostitutes who lure customers to some secluded spot where accomplices steal his money and other valuables. If the customer decides to report the crime, the police become involved to the same degree they normally would when robberies occur. (Customers usually do not report their victimization because they do not want friends and family to know of their involvement with prostitutes.) In rare instances, "rolling" victims end up dead and the high degree of police involvement that is routine in homicide investigations ensues. In sum, the predatory criminality that accompanies street prostitution is a major source of police attention to this so-called victimless crime.

A second reason why police attention is directed toward street prostitution comes from the display of sexual activity in public places. Payment for all forms of prostitution is based on how many customers they can service in a given time frame. Because street hustling is the least lucrative form of prostitution, the time taken to acquire the privacy of a hotel or motel room is time away from the next customer. Consequently, customers usually never leave their cars in a substantial portion of street hustling encounters. In some cases the prostitute enters the car and the customer drives away from the main thoroughfare onto a quieter street—often a residential area—to consummate the deal at curbside or even in the driveway of a local resident. In other cases the prostitute directs the customer into a nearby alley or parking lot, where she then meets him. It is not unusual for the entire transaction to take place during daylight hours in the midst of passersby. Whatever the particular details, citizens who live and work in the areas where prostitutes and customers carry on in public often call the police to report the illicit activity.

A third source of complaints comes from the parents of missing children. Street hustling is an easy form of prostitution and provides fast cash to those who participate. As a consequence, teenage runaways can be easily drawn into the business (Lyman). While the parents of many of the youngsters who become involved in street prostitution are not aware of what their children are doing, some parents do inform the police of their children's involvement. In a related vein, because the police are aware of the runaway–street prostitution nexus, officers looking for female runaways often check the local street hustling scene in their attempts to locate missing children.

Finally, and perhaps most importantly, the primary source of complaints about prostitution in many communities is the women who live, shop, and work in legitimate businesses located in and around the strolls where other females ply their illegal trade. These women, weary of being approached—and sometimes accosted—by men who wish to employ the services of a prostitute, will call the police to complain. Women at the lower end of the economic ladder, who either must walk or use public transportation, suffer disproportionately from unwanted solicitations by men who are unable to differentiate prostitutes from those women who are not prostitutes.

Police tactics employed in victimless crimes

Once the police receive a complaint related to the commercial sex trade from either a willing participant who has been somehow harmed or, more typically, from an unwilling bystander, they may respond in several ways. If the complaint involves a specific crime (e.g., a robbery), the police will investigate the crime if warranted. If the complaint alleges some broader pattern of criminality (e.g., an active stroll), detectives may conduct a surveillance operation to ascertain the scope of the problem while the patrol officers on the beat direct more attention to the location. Beat officers have at their disposal a variety of options to dissuade prostitutes and their customers from continuing their activities in the area. One option employed as an initial strategy is to make frequent stops at commercial establishments and other places where prostitutes loiter and provide their services. Doing so discourages prostitutes and customers from making contact and consummating deals. It also produces a feeling of security among the general public and shows that the police are sensitive to community concerns.

If the increased presence of uniformed law enforcement officers does not serve as a deterrent, officers may initiate progressively more proactive measures with increasingly more severe consequences for the offenders. Officers may, for example, enforce traffic violations more rigorously, for example, by issuing summons to johns who block traffic lanes while chatting with known prostitutes. Police often lecture suspected customers about the impropriety of cruising for prostitutes and offer stern warnings that they not return to the area. Likewise, officers may cite streetwalkers for illegal hitchhiking or for impeding pedestrian traffic on sidewalks.

Expanded police presence and an increase in enforcement of illegal activities associated with prostitution sometimes prove insufficient methods of controlling the problem. When more drastic measures are necessary, the police will often institute a variation of the "sting" operation where officers, men or women, will pose as participants in the prostitution trade—as either prostitutes or johns—in order to make criminal cases against the real participants. This tactic generally involves the use of decoys in a two-stage effort. The first stage, directed at the prostitutes, involves undercover officers posing as potential customers who attempt to elicit an offer of sex for money. This method presents legal barriers because entrapment laws require that the prostitute herself (or himself) offer sex for money. Moreover, the law requires that the prostitute explicitly state the sexual services being offered and the exact amount of money to be exchanged. If these requirements are not met, the police will not make an arrest because they realize that their case will not stand up in court.

Even when the police make successful cases, prostitution stings often have little long-term impact on the overall level of commercial sexual activity in a given community because prostitutes view arrest and incarceration as little more than a minor inconvenience, a part of the cost of doing business. Prostitutes respond by laying low for a period or changing locations until the police ease enforcement efforts. They rarely leave the business altogether.

The second stage of prostitution sting operations is directed at customers. In this phase, female officers posing as prostitutes will loiter in the area of the stroll. When customers approach and offer money for sex, they are arrested. Because being arrested is extremely embarrassing for many customers, the police anticipate that a substantial portion of them will resist arrest. Consequently, decoys are supported by other officers who perform the actual arrest and convey the customer to a detention facility. The decoy is then free to prepare the proper reports for prosecution.

Modern technology has improved prosecution in both types of sting operations with sensory-enhancing technology such as night vision optics and audio amplification equipment. Video and audio recordings have been introduced in many court proceedings. In some cases the people legitimately living and working in the affected areas have been allowed to state in open court how the neighboring street hustling has negatively affected their quality of life. In an increasing number of municipalities, the names and even pictures of arrested participants have been published by the local news media.

The efficacy of all of these enforcement techniques has been augmented through the assistance of officers whose primary assignment is the investigation of juvenile crime and status offenses (runaways). These officers will check the areas frequented by street hookers and their pimps in an attempt to locate curfew violators, investigate child exploitation in sexually oriented businesses (nude model studios, massage parlors, and cabarets featuring topless and nude dancers), and return runaways to their parents or guardians. Any adults present with juveniles will be investigated and prosecuted when appropriate.

With some minor modifications the same law enforcement tactics can also be applied to the upper and middle segments of the prostitution spectrum. However, because the call girl and, to a lesser degree, the mid-range bar hustler are less likely to conduct business in the open, complaints to the police and subsequent enforcement responses are less frequent.

Extrapolation to other types of criminality

Although this entry has emphasized prostitution, the principles discussed can be extrapolated and applied to other areas of "complainantless" crimes such as gambling, illegal drug use, or public intoxication. Even enforcement actions directed toward other criminal activities unrelated to traditional vice crimes can be rationalized on the same basis; that is, the true victims are not the participants but are innocent bystanders.

For example, traffic offenses that do not involve vehicle-to-vehicle or vehicle-to-pedestrian contact are included in the rubric of complainantless crime. Because there are no victims in the traditional sense and because the only witness is a police officer, traffic offenses are not perceived to be malum in se by a large section of the public. At best, the enforcement of traffic laws is viewed as an inefficient use of a police officer's time when other types of criminal violations are more deserving of attention. Unless an actual collision has taken place many members of the public feel that police attention to traffic violations is unwarranted. At worst the enforcement of traffic laws is incorrectly viewed as a dubious means of providing local revenue and as an unnecessary limitation of freedom.

However, prompting by the public is also evident even in traffic offenses. As a case in point, when motorists speed through areas near schools where children walk, parents will direct complaints to the police. Similarly, when lanes are blocked by illegally parked delivery trucks, complaints to the local police will follow. However, citizen outrage and a demand for instant and vigorous police action usually takes place when there has been an increase in the severity and frequency of traffic accidents. Traffic accidents where children are the victims tend to draw the fastest and most vigorous police response.

The most effective response to a rapid rise in traffic accidents comes through a program known as selective enforcement. It is an accepted reality that the police simply cannot respond to every traffic law violation. Selective enforcement entails a four-step process that allows the officers to focus their attention on the most serious offenses. First, the formal reports of the most frequent and severe forms of traffic accidents are reviewed and analyzed to determine patterns (such as time, day, location) and common hazardous driving actions. Second, officers who are normally assigned to patrol the areas in question are briefed on the situation and advised of the interrelated variables causing the accidents. Third, the officers are directed to issue traffic citations only for the specific hazardous driving behaviors leading to the accidents. Fourth, the efficacy of the enforcement program is reviewed and a decision is made to continue, reduce, expand or alter the enforcement efforts accordingly.

Whether the criminal activity is prostitution or some other form of so-called victimless crime, involvement of the formal machinations of the criminal justice system may never completely eliminate the offending behavior. However, agents of the criminal justice system, particularly the police, are ethically bound to respond to the needs and desires of the affected citizens who live and work in the area, and are legally bound to take the appropriate action against the perpetrators. They are also required to do so with procedures in compliance with established legislation and judicial review.

Tomas C. Mijares

David A. Klinger

See also Criminalization and Decriminalization; Domestic Violence; Federal Bureau of Investigation: History; Police: Community Policing; Police: Criminal Investigations; Police: Handling of Juveniles; Police: Organization and Management; Police: Police Officer Behavior; Police: Private Police and Industrial Security; Police: Special Weapons and Tactics (SWAT) Teams; Scientific Evidence; Sex Offenses: Consensual; Victimless Crime.