Victimless Crime Research Articles

The great design conundrum

What should be done about the protection of designs? Practitioners, judges, and academics cannot even begin to discuss this without demanding further particulars. They will, for example, ask: ‘What do you mean by “design”?’; ‘Are you referring to industrial, aesthetic, functional, or ornamental creations?’. And they will not be wrong to do so, since, unlike trade marks, patents, and even copyrights, design law seems to have no coherent and generally accepted theme in terms of its subject matter and objectives. A quick survey of design law reveals the degree of chaos to which this topic has sunk. Designs may be registered or unregistered; they may be protected by patents or by sui generis rules; they are sometimes registrable as trade marks, other times protected by regular artistic copyright. The Paris Convention on the Protection of Industrial Property offers little guidance. The Agreement on the Trade-related Aspects of Intellectual Property Rights (TRIPS) contains less on design protection than on the protection of the names of alcoholic beverages, and the Office for Harmonisation in the Internal Market, which administers the registered Community design system, appears to attract unmeritorious and indeed theftuous registrations that cause great inconvenience to honest traders. Within industry itself—big industry at any rate— one rarely hears calls for better or more consistent design protection. As between sectors there is no apparent harmony of approach either. In one form or another, and in one jurisdiction or another, design protection may cover, or refrain from covering, subject matter as disparate as fashion garments, semiconductor topographies, kitchen utensils, lamp covers for street lights, and the organization of modular units for a temporary bus station. Smalland medium-sized enterprises (SMEs), as well as micro-enterprises, have been increasingly calling for more and better protection for designs. Yet it is unclear whether this is even worth achieving for them. In so many instances, the protection accorded by a design, whether registered or not, is so narrow that a competitor can lawfully and confidently make a few changes and sell a similar product without fear of legal action. Designs take time and effort to register and are usually of shortterm protection unless renewed. Litigation is expensive and uncertain. So why bother at all? Yet if design protection is not an adequate barrier to market entry by me-too competitors and it is expensive to obtain and enforce, it is still desirable—if only because it sends out the message that a design is an intellectual asset and enables even the smallest, least resourced SME to claim the moral high-ground and say ‘I’ve created this through my own effort and ingenuity; you’ve taken it for nothing and are nothing but a commercial parasite’. While many members of the public view shoplifting from big stores and major chains as a harmless activity, a victimless crime, and there is a widely held view that anything available online is ‘fair game’, it is possible to stir up sympathy for the underdog by drawing attention to the welldocumented help-yourself activity which characterizes the attitude of many larger businesses today. The point is this. By stirring up sympathy for the designer as underdog, we can do something to influence public attitudes towards IP. Only where, and when, the misappropriation of the creative products of others is generally regarded as morally wrong will we start to change things. In a recent seminar at the House of Commons in London, Germany was heralded as a country in which the populace appears more than most to respect IP; it is also a country which has developed a sophisticated civil wrong of unfair competition. The psychological dimension of even the name ‘unfair competition’ cannot be underestimated, since it sends out a message that it governs conduct which is inherently unfair. There is no such message in design law, where the word ‘unfair’ is not found and which, both in Europe and in many other jurisdictions, buries its principles beneath a morass of technical detail from which morality struggles to emerge. Journal of Intellectual Property Law & Practice, 2011, Vol. 6, No. 8 EDITORIAL 507

The Ongoing Milberg Weiss Controversy

In this paper we revisit the ongoing controversy surrounding the Milberg Weiss prosecution. Our paper responds to an important, recent empirical study by Michael A. Perino that claims to have found evidence to support the government’s assertion (made without evidentiary support) that class members were in fact injured by the payments Milberg made to the named representatives. Notwithstanding the carefully constructed and rigorous study Perino has authored, we argue that the evidentiary proof of harm he claims to have found simply cannot withstand scrutiny. We raise several methodological critiques of the study. Although we did not have access to Perino’s full data, we were able to replicate some of it by using the same database of securities class action settlements on which he primarily relied. The replication data results validate some of our hypotheses. Most critically, the replication data strongly suggests that the reason why fees may have been higher in the indictment cases is that the almost all were filed before the Reform Act went into effect. By contrast, the vast majority of cases in the replication sample of Perino’s non-indictment cases were filed in a later period when fees have been lower. Additionally, the replication data we report is not consistent with some of the descriptive statistical findings Perino presents. Specifically, we find no difference either in mean or median fee awards between cases in which the government alleged Milberg paid a kickback and all other cases. Beyond the study’s methodological difficulties, we also show that there are equally substantial reasons to be concerned about the inferential conclusions Perino draws from the data. The big take away that Perino offers at the end of his study - that the evidence contradicts the claim that kickbacks paid to the named plaintiffs were a “victimless crime” - is not supported by the data he has collected and reported. Far from demonstrating that kickbacks allowed Milberg to obtain higher fees, his study fails to rule out the possibility that other, entirely benign reasons could explain the higher fees Milberg received, including that the fees were earned by the results obtained in settlements of the indictment cases.

The Modern History of Probable Cause

It is frequently assumed that probable cause, roughly as we understand it today, has, since time immemorial, been the standard allowing an officer to search or arrest. The reality is that probable cause has change a lot since the Bill of Rights was drafted. In the mid-nineteenth century, probable cause was no more than a pleading requirement in criminal cases -- and never have been more than a pleading requirement in criminal cases. Victims of crimes alone were able to seek arrest or search warrants by swearing that they had suffered an injury and that they had probable cause to believe that the person identified committed the crime, or that evidence of the crime could be discovered in the place identified. The victim did not describe the factual basis of his suspicion. Probable cause as a pleading requirement for victims became inconsistent with late nineteenth century social regulations. In the latter half of the nineteenth century, states and the federal government created and punish victimless crimes. Prohibition, pornography and prostitution became targets of new government regulations. These new crimes required a mechanism to allow government searches and arrests without a victim's complaint. At the same time, professional police departments were emerging in American cities. This article accounts for the evolution of probable cause from the early nineteenth century pleading requirement to the modern evidentiary threshold requirment by looking at policing in New York City in the second half of the nineteenth century. While modern social regulations required a standard that public investigators could satisfy, distrust of the police prevented allowing police to simply plead probable cause as victims had done. A standard requiring police to offer facts supporting probable cause was thus born.

Global Implications of White Collar Crime

In recent decades there has been an increase in the number and scope of white-collar and non-violent crimes around the world (Kane and Wall, 2005). Criminals who commit these illegal acts have become more sophisticated, there actions more calculated, there approach more strategic and meticulously carried out. While collar crime is a serious problem and has a profound adverse financial impact on individuals, communities, corporations and government agencies, those convicted of these crimes tend to receive relatively shorter sentences when compared to those convicted of similar criminal acts (U.S. Sentencing Commission, 2005). There are a number of factors which may have contributed to the increase in white collar criminal acts world wide. The global economic recession has certainly forced many to seek unorthodox means to generate revenue. The primary objective of this chapter is to examine factors which have lead to an increase in white collar crimes. This chapter also evaluates the social, economic and political consequences of white collar crime. Historically, white collar crime has been viewed as non violent and in many cases victimless crimes. It is clear that white collar crime has serious social, economic and political implications. It is also clear that white collar crime is on the rise and, for various reasons, is far more difficult to detect and deter. More importantly, it is clear that white collar crimes are not always victimless and can result in serious injury and death. These crimes cost governments, civilians, major corporations and small businesses more than $10 trillion annually worldwide (Millennium Project, 2008). It is also clear that with the current global economic recession the number of white collar crimes will continue to increase. As such, this chapter will outline viable, cost effective actions, particularly by government, which can be employed to reduce white collar crime globally.

Shame and Punishment

This study investigates the effects of having a religious affiliation and of an individual’s level of religiosity on social norms in relation to victimless crimes. Two mechanisms are hypothesized to influence these norms: having a religious affiliation, via external sanctioning by others, and religiosity via internal sanctioning. In addition, it was predicted that the effects of internal sanctioning would be stronger than the effects of external sanctioning. To test these hypotheses, we used the data from the World Values Survey (WVS) 1981—2004. The final data set contains information on 128,243 respondents residing in 70 countries. The results of the multivariate analyses show that having a religious affiliation and a higher level of religiosity both result in a stronger condemnation of victimless crimes and that the effects of religiosity are stronger than the effects of belonging to a religious group.

Commentary: The Election of Barack Obama: The Debt Has Not Been Paid

Many people have commented that with election of Barack Obama as 44th President of United States, this is a wonderful time to be a historian or other scholar of American experience. In person of President Obama we have coming together of multiple meanings and conceptualizations of designation While his father was from Kenya, Barack Obama understands that he and his family are Americans culturally; but unlike for many of us, Obama's African connection is as real and apparent as American. The election of President Obama in many ways is realization of social and political trends that began with launching of modern Civil Rights Movement in 1950s and Black Power Movement of 1960s and 1970s. But in many ways this is the best of and worst of times for U.S. Americans. On 29 February 2008, while Barack Obama was successfully winning Democratic presidential primaries, New York Times published an article on report from Pew Center for States stating that in 2007 U.S. prison population rose to 1.6 million, that more than 1 in 100 adults are in and that the U.S. inmate population is highest in world. For those who would like to argue that with election of President Obama, Americans have entered a new post-racial era, we need to call their attention to reports of The Sentencing Project, Human Rights Watch, and other groups that have documented disparities in rates at which Americans and whites are arrested and imprisoned for drug offenses, despite roughly equal rates of illegal drug use. The Sentencing Project reports that while Americans represent about 13 percent of monthly drug users, they represent 35 percent of arrests, 55 percent of convictions, and 74 percent of those sentenced to prison for drug possession. American men in 15 states were imprisoned on drug charges at rates ranging from 20 to 57 higher than those of white men. As a result, one out of every 15 black men is in prison, and for those between ages of 20 and 24, rate is one in nine. And increasingly, black women are also targeted by prison-industrial complex so that one out of every 18 black women born in 2006 can expect to go to prison in her lifetime, while for white women expected rate is one in every 108; and whereas one out of 355 white women between ages of 35 and 38 was behind bars in 2007, rate for black women was one in 100. This high incarceration rate means that on any given day, one out of every 14 black children has at least one parent in prison. The drug laws that were put into effect, and harsh sentencing rules, are not merely result of politicians wanting to demonstrate that they are tough on crime, but are also a reflection of way U.S. political system currently operates. Thus wealthy lobbyists for private prison industry not only participated in writing of these new drug laws and contributed heavily to both Democratic and Republican politicians' campaigns, they also lobby to make sure that there are no changes in these laws that would stem flow of prisoners into these private prisons. Therefore, if Americans organized to change drug sentencing laws, and thus decrease numbers of black children and adults being incarcerated by thousands for victimless crimes, we would have to compete against resources and influence of private prison industry for support among politicians. In other words, we could move beyond moral indignation and outraged rhetoric to mass marches and public protests, but we would still have to raise filthy lucre to pad pockets of politicians and their political campaigns to effect any type of meaningful legislative changes. Moreover, with economic meltdown, gross disparities in circumstances for Americans compared to white Americans further undermine arguments about onset of a post-racial era in United States. …

Child Pornography's Forgotten Victims

The goal of this paper is to demonstrate that possession of child pornography is not a victimless crime. It will illustrate the problem and explain the harm suffered by its victims. It will then trace factors that may have contributed to the perception that possession of child pornography is a victimless offense. The first factor is the dual nature of the child pornography laws that addresses both actual and future harm. When this duality is applied to possessors, their link to actual harm appears attenuated because the possessor is not involved in the acts of sexual abuse inherent in producing the images. The second factor is that a number of scholars have criticized generally possession offenses as a tool for preemptive prosecutions, but they have not exempted child pornography from their condemnation. Finally, technology itself is a cause. The growth of the Internet and the ability to find images from the comfort of one's home further weakens the connection between the victim and the viewer; this distance is exacerbated by a general sense that nothing is real in cyberspace.

‘UNSATISFACTORY, DISCRIMINATORY, UNJUST AND INVITING CORRUPTION’

For four days in February 1977, Sydney's Seymour Centre hosted a most unlikely collection of people to discuss the subject of ‘Victimless Crime’ in light of Premier Wran's proposal for repeal of th...

Public Perceptions of Crime Seriousness: A Comparison of Social Divisions in Israel

Crime seriousness research indicates that respondents from varying social and cultural groups rank the perceived seriousness of offenses similarly, with violent offenses as the most serious, followed by property, economic, and victimless offenses. It has also consistently been found, however, that the specific ratings of offenses by respondents from different social groups often differ. Because Israel is considered a deeply divided society, this article focuses on the comparison of public perceptions of the seriousness of varied criminal offenses between respondents belonging to varying central social groups in the countiy. As expected, the findings show similar, albeit not identical, rankings of offenses and important differences in the rating of specific offenses across groups. These findings are interpreted in the context of the Israeli society.

Using Financial Incentives and Income Contingent Penalties to Detect and Punish Collusion and Insider Trading

Collusion and insider trading, being white collar crimes, are often characterised as being victimless crimes. The absence of identifiable victims makes the detection of these crimes particularly difficult. This paper proposes that, in order to increase the flow of information about collusion and insider trading, parties engaged in these crimes should be offered financial incentives to provide evidence against their co-conspirators. In order to provide greater certainty that rewards will be paid, and also to increase the probability that any fines are paid, it is also proposed that an income-contingent fine collection mechanism be utilised. The paper presents two case studies to illustrate how the fine collection mechanism could be used.

Using Financial Incentives and Income Contingent Penalties to Detect and Punish Collusion and Insider Trading

Collusion and insider trading, being white collar crimes, are often characterised as being victimless crimes. The absence of identifiable victims makes the detection of these crimes particularly difficult. This paper proposes that, in order to increase the flow of information about collusion and insider trading, parties engaged in these crimes should be offered financial incentives to provide evidence against their co-conspirators. In order to provide greater certainty that rewards will be paid, and also to increase the probability that any fines are paid, it is also proposed that an income-contingent fine collection mechanism be utilised. The paper presents two case studies to illustrate how the fine collection mechanism could be used.

Attitude Change Following a Diversion Program for Men who Solicit Sex

This study investigates the effectiveness of an educational diversion program, or “john school,” in changing the attitudes of men arrested for soliciting or attempting to solicit sex. Participants were 341 men who completed pre— and post-program measures assessing attitudes towards prostitution, attitudes towards prostituted women, and attitudes towards purchasing sexual services. Analyses revealed significant attitude changes in all three areas. Further analyses revealed that the program appeared to meet its goal of producing attitude change irrespective of prior experience levels with prostitution. Findings suggest that diversion programs like the one examined may be successful in their goal of changing the perception that prostitution is a victimless crime.

MINOR CRIME IN A QUAINT SETTING: PRACTICES, OUTCOMES, AND LIMITS OF VERMONT REPARATIVE PROBATION BOARDS

Research Summary:We performed the first outcome evaluation of Vermont's Reparative Probation Program by studying a sample of reparative cases terminated in the 2000 calendar year through a content analysis of case files and surveys of victims and community service sites. The evaluation was performed along four goals of the program: that communities are involved, victims’ needs are addressed, communities are restored, and offenders behave responsibly.Policy Implications:The program has been largely successful in meeting its program goals. Community involvement in probation programs with a focus on repairing harm and offender reintegration is growing. The evaluation shows that Vermont Reparative Probation was able to recruit and maintain a large volunteer pool, and involve these volunteers in sanctioning decisions. Whether this can be achieved in other settings, and whether volunteers can effectively work with more serious offenders are important questions for policy. While most cases processed in this program dealt with victimless crimes (such as drunk driving and underage drinking), victims did not participate as much as predicted, replicating results from other board evaluations. Because victim involvement is low, this practice may be less “restorative” for victims than other restorative justice models. Community service was a common sanction, offenders tended to comply with service obligations, and service sites were satisfied by their work. Despite a focus on offender reintegration, regular inclusion of reintegrative tasks, and reasonably high completion rates, this program made little use of effective correctional treatments or tasks that would develop strong attachments to the community.

No price too high: victimless crimes and the Ninth Amendment

Foreword Introduction: Defining the Victimless Crime The Lessons of Prohibition Prostitution: The History of Criminalization Gambling: The History of Criminalization Drugs: The History of Criminalization Victimless Crimes and the 9th Amendment Bibliography Index

Sexual Blackmail: A Modern History

Sexual blackmail first reached public notice in the late 18th century when laws against sodomy were exploited by the unscrupulous to extort money from those they could entrap. Angus McLaren chronicles this parasitic crime, tracing its expansion in England and the United States through the Victorian era and into the first half of the 20th century. The labelling of certain sexual acts as disreputable, if not actually criminal - abortion, infidelity, prostitution, and homosexuality - armed would-be blackmailers and led to a crescendo of court cases and public scandals in the 1920s and 1930s. As the importance of sexual respectability was inflated, so too was the spectacle of its loss. Charting the rise and fall of sexual taboos and the shifting tides of shame, McLaren enables us to survey evolving sexual practices and discussions. He has mined the archives to tell his story through a host of fascinating characters and cases, from male bounders to designing women, d<@from badger games to gold diggers, from victimless crimes to homosexual outing. He shows how these stories shocked, educated, entertained and destroyed the lives of their victims. He also demonstrates how muckraking journalists, con men, and vengeful women determined the boundaries of sexual respectability and damned those considered deviant. Ultimately, the sexual revolution of the 1960s blurred the long-rigid lines of respectability, leading to a rapid decline of blackmail fears. This fascinating view of the impact of regulating sexuality from the late Victorian Age to our own time demonstrates the centrality of blackmail to sexual practices, deviance and the law.

Religiosity and perceptions of crime seriousness by jewish and muslim respondents in israel

Most empirical research has attempted to demonstrate the relationship between religiosityandcriminal behavior principally onthebasis of self-reported measures of criminality. The present study analyzed the influence of individual religiosity on personal perceptions of the seriousness of a variety of criminal offenses. Findings obtained from a national sample of Israeli respondents with varyingdegrees of religiosity and belonging to two different religions--Judaism and Islam--support the existence of effects of religiosity on perceptions of crime seriousness. Moreover, in the case of the Jewish respondents, religiosity emerged as the variable exerting the most influenceon their perceptions of victimless offenses.

Free State educators' perceptions of the scope of learner crime

Statements by academics and others in the media may prompt the average person to hold the perception that schools and neighbourhoods are danger zones where learner crime is rampant. However, is the situation out of control? In pursuing an answer to this problem, firstly an overview, on the basis of a crime typology, of the most important types of crime in which learners become involved is presented . Secondly, the findings of an empirical investigation of a group of Free State educators ' perceptions of the scope of learner crime and crime-related behaviour are reported. It was clear from the investigation that learners were involved, in particular, in victimless crimes such as the use of alcohol and smoking marijuana; convention al crimes such as vandalising school property, theft and less serious learner-on-learner attacks; abuse of the dignity and good name of fellow learners, in particular by swearing and making obscene signs at them; and youth-status offences. South African Journal of Education Vol.23(3) 2003: 168-175

Been Reading

Two California cosmetic surgeons are in the news. The first is Tony Ryan, a general plastic surgeon from Santa Barbara. We meet Tony and his wife, Montana, at the Little Nell Hotel in Aspen, Colo, where they are on a working ski vacation. Tony is the fictional creation of Mark Berman, Santa Monica cosmetic surgeon and chairman of the Academy's credentials committee. Mark's book, titled Substance of Abuse, is about Tony assuming the job of leading the country's first experimental legal drug program in Santa Barbara. It involves a murder, political corruption, a smart wife, and international travel and intrigue. It is reminiscent of John Grisham's novel The Firm. The underlying theme of the work is libertarian and points out the failure of the war on drugs. Illegal drugs cost us tens of billions of dollars a year because users commit crimes in order to keep buying, causing police and prosecutors to expend their time and resources chasing drug users instead of real criminals. Moreover, our overflowing prisons are full of criminals convicted of so-called victimless crimes, and those incarcerated drug criminals are taken out of the economy, often leaving their families wards of the state. Perhaps someday drug usage will be decriminalized and an effective system of rehabilitation will be in its place.

A public health perspective on violent offenses among persons with mental illness.

This study reanalyzed existing data to assess the extent to which persons with mental illness might contribute to criminal violence in the community. Data were examined from a representative sample of 1,151 remanded offenders who underwent a full structured diagnostic interview that was used to provide one-month prevalence rates of mental illnesses as defined by the Structured Clincal Interview for DSM-III-R. Diagnoses of interest were mood, psychotic, anxiety, psychoactive substance use, adjustment, and miscellaneous axis I disorders and axis II personality disorders. Criminological data describing the number of offenses against persons and property and the number of victimless crimes were abstracted from police arrest reports and warrants. A violent crime was defined as any crime against a person. The one-month prevalence of major mental and substance use disorders of newly admitted inmates was 61 percent. About 3 percent of violent offenses could be attributed to individuals who had a principal diagnosis of any non-substance use-related disorder. An additional 7 percent of violent offenses could be attributed to individuals who had a primary diagnosis of a substance use disorder. The results of the study support the hypothesis that people with mental and substance use disorders are not major contributors to police-identified criminal violence. Public perceptions of mentally ill persons as criminally dangerous appear to be greatly exaggerated.

Structuring the Cherokee Nation Justice System: The History and Function of the Cherokee Nation Marshal Service

On July 4, 1986, a Cherokee tribal member was shot in the leg and arrested by a deputy in Adair County, Oklahoma. In a subsequent civil action, the Tenth Circuit Court of Appeals ruled that absent a statutory grant of authority by Congress or consent from the tribe itself, Oklahoma law enforcement officers have no criminal jurisdiction “in Indian country” unless the crime is committed by a non-Indian against another non-Indian or the crime is a victimless crime committed by a non-Indian. Realizing that they were no longer protected by the state, the Cherokee Nation responded by creating its own Marshal Service. This article describes the evolution of that agency, checkerboard jurisdiction, and the need for cross deputization. In particular, the article addresses the recent political tribal crisis that almost devastated the newly formed Marshal Service and the tribe's current struggle to regain stability in the politically charged aftermath.