Laws against consensual acts--particularly private consensual acts-- are among the silliest and most invasive laws imaginable. People who try to justify the creation of victimless crimes generally point to rather fuzzy concepts such as "societal harm" or "community standards."

In the case of sexual practices, the "societal harm" standard is amusing because it's bandied about by alleged conservatives who are generally in favor of individual freedoms and strongly opposed to anything that even sounds like collectivism. Besides, how exactly does one measure "societal harm" anyway?

As for the "community standards" notion, people only really believe in it when it happens to support whatever view they're espousing at the moment. For example, I have heard left-wingers argue that "community standards" would justify the banning of certain kinds of speech--say, the Horowitz ad. Unfortunately, once upon a time, this standard would have resulted in bans on interracial marriage as well as the censorship of newspaper columns arguing that black people should have rights equal to white people. Would these leftists accept that? I doubt it, which means they don't really support the standard. Similarly, consider a Republican who thinks that "community standards" justify the banning of homosexual sex or descriptions thereof. Suppose that twenty years from now, "community standards" say that gay sex is A-OK. Would these Republicans then support legalization? I doubt that too. All the arguments boil down to "I don't like X; therefore X should be illegal and I'll rationalize it post hoc by grasping at whatever straw I can find, even if it turns me into a hypocrite."

That's pretty dumb, as your private behavior is, with few exceptions, none of my business. For example, it so happens that I don't find the idea of homosexual sex particularly appealing. I also don't find the idea of Rush Limbaugh having sex with a woman to be particularly appealing. (In fact, I suspect that an application of "community standards" would be more likely to censor speech about the latter. There is a subset of men and women who want to think about gay sex, but who on God's green earth wants to think about Rush getting it on?) As I said, I don't much care for these activities, but I cannot fathom why my distate should have anything to do with their legality, as long as they're carried out in private among consenting adults. (Public behavior is a separate and more difficult topic.)

We should note, though, that legalizing these activities requires some attention to detail, as many of them are not as victimless or consensual as they might seem. For example:

  • Gambling: If you are married or are otherwise pooling money with someone, gambling is not victimless unless your partner(s) have agreed that you can spend the money in that way. The same, of course, would be true of jointly held money spent on pornography, alcohol, or Legos.
  • Drug use (of all kinds) and public intoxication: Obviously there are certain kinds of drug use that we would still want to prohibit, such as drunk driving. Along the same lines, if you have someone who is dependent on you for care (a kid, a parent with Alzheimer's disease), you shouldn't be allowed to go get trashed whenever the whim strikes you. This doesn't mean you can never use mind-altering drugs--you can leave the kids with Grandma and go spend the weekend frying your brains with the current drug of choice. But when the kids are under your care, you had damn well better be competent to care for them.
  • unorthodox medical practices: Fraud and malpractice are the obvious problems here, but nobody would really even think of legalizing them. (As a side note, I generally support laws that would require practicioners to provide information on their credentials, the kinds of treatment that they can offer, the evidence behind such treatments, etc. I would also support specific laws explaining what you have to do to advertise as a doctor or a therapist or whatever, because words are supposed to mean things).
  • prostitution, pornography, and obscenity: These aren't always really consensual, as the people involved may be so high that they can't make competent decisions. A well-regulated prostitution industry might be better than what we currently have in the US, though. (Fat chance, I know).
  • cults and fringe political views: no problems here, except for those that use coercion, fraud, etc. Of course, this should apply to all religious and political organizations.
  • violations of marriage: I have no problems with the legalization of fornication, cohabitation, or sodomy, but I am a little leery about others (adultery, bigamy, polygamy). Marriage is often seen as a contract, and, as part of the marriage ceremony, people commit to monogamy either explicitly or implicitly (for example, they may be married in a church that defines marriage as monogamous and heterosexual). Nonmonogamous activity should in some way require the consent of one's partner(s). Then it's fine. Otherwise it's not victimless--it's a violation of a contract.

It's great to try to decriminalize consensual or victimless crimes--but first you have to make sure they really are consensual and victimless.