Before discussing crimes regarding sexuality, it is important to distinguish between those laws that are currently enforced and those that are not being actively enforced. For example, there are some laws that still punish engaging in consensual homosexual behavior, certain consensual sexual acts committed in privacy between adults in non-commercial transactions, or the use of sexual aids. While these laws exist, the fact is that there simply is not a push towards the investigation, prosecution, or punishment of these crimes. On the contrary, even challenges to the constitutionality of these laws often only arise after those who oppose such laws have arranged for an arrest and prosecution. Therefore, it is improper to consider this category of crime in a discussion of overcriminalization.

However, law enforcement, prosecution, and the judiciary do expend a tremendous amount of energy targeting commercial sexual transactions. Opponents of this cite the fact that many of those transaction occur between adult prostitutes and adult clients. Such an argument ignores the cold, hard facts behind prostitution. First, it must be acknowledged that if a person truly desires to grow up and become a prostitute, he or she can move to Nevada and work in a regulated brothel. However, the fact is that most people do not turn to prostitution as a career option in adulthood. On the contrary, the vast majority of prostitutes enters the profession as teenagers, and does so out of desperation. Most of them are fleeing abusive home situations, and the majority of them have some type of chemical dependency. Because of these circumstances, it is difficult to label their behavior consensual. Furthermore, the adults involved in the sexual transaction are not the only people harmed by the behavior. For example, a spouse who visits prostitutes places their spouse at a greater risk for sexually transmitted diseases. In addition, prostitutes are frequently the victims of crimes ranging from petty theft, to physical abuse, rape, and even murder. Finally, all women in society suffer when men are allowed to purchase sexual favors from some women; transactional sexual systems make actual...

Those who argue that prostitution has existed since the beginning of history and will continue to exist are not giving a valid argument for its legalization; rape, incest, assault, and murder have existed for that long as well.
In fact, advocates of criminalization seem to use a similar argument when discussing drug crimes. For example, Richards discusses the use of alcohol, caffeine, and nicotine in his argument for legalization. (Richards, 1986). However, one does not prove overcriminalization by indicating that there are more egregious or pervasive behaviors that have not been criminalized. It may be true that the use or abuse of alcohol and nicotine contribute to greater societal harm than the use of illegal drugs, but such a fact does not mitigate the fact that the use of illegal drugs does have a negative impact on society. Drug users do take from society, as they are less able to contribute in their various roles. A tremendous amount of social-service resources are directed at mitigating the effects of drugs on the family, because drug use is linked with heightened rates of family violence, a greater incidence of household and vehicular accidents, and child abuse and neglect. To classify drug use as a victimless crime ignores the fact that drug users live in families, work in businesses, and drive on public streets.

While it is certainly possible to find examples of laws that are ridiculous, such laws do not indicate a trend towards overcriminalization if they are not enforced. Those laws that are consistently enforced, even if they target behavior that some consider merely immoral, do have a detrimental effect on society. Because of that detrimental effect, it is inappropriate to label the crimes as victimless, and inappropriate to label their legislation, investigation, enforcement, prosecution, and punishment as overcriminalization.

References

Luna, E. (2005). The overcriminalization phenomenon. American University Law Review, 54,

Richards, D. (1986). Sex, drugs, death, and the law: an essay on human rights and overcriminalization. Lanham, MD: Rowman and Littlefield, Inc.