…or, more specifically, subsumed into the law of torts. The law of torts addresses aggression against a party’s person or property. Force is appropriate only in response to aggression against one’s person or property, which is the exact purpose and scope of the law of torts. In contrast, criminal law – despite ostensibly protecting individuals against aggression – also penalizes actions that do not invade anyone else’s person or property (e.g., sex between consenting adults; smoking marijuana; buying alcohol on Sunday). Criminal law also further victimizes the victim by forcing the victim to pay, through taxation, for trials and imprisonment that the victim may not have even wished for but had no right to control or prevent.
Part of the fundamental problem with criminal law is that no one really agrees on what the point of criminal law actually is. To make the victim whole? To rehabilitate the aggressor? To punish wrongdoing? To prevent future crimes? Needless to say, these are four very different goals that can be (and typically are) mutually exclusive. As you might expect, our criminal law demonstrates varying levels of commitment to all of these goals and accomplishes none of them. Victims are not made whole; they are merely expected to show up to provide testimony. Rehabilitation is rare and accidental. Punishment results mainly from the sexual and other abuse endured in prison – an especially dehumanizing form of torture that is tacitly approved of by voters, politicians, and jailers alike. Prevention of future crimes is a joke; if prisons were intended to protect us from those unfit for society, prisoners would never be let out – and if almost all prisoners are sent there with the expectation that they will eventually return to society, then what exactly is prison’s purpose?
Criminal law does not fulfill any hypothetical raison d’être. Instead of making victims worse off – and creating new victims along the way – criminal law should give way to a victim-controlled process that builds upon existing tort law. More on how that might be done another time.
