DOESN’T that sound absurdly simple? Everyone knows what crime is, or thinks he does. Yet actually it is one of the hardest words to define in the English language. Many attempts have been made to formulate an accurate definition, such as “an antisocial act,” or “a failure or refusal to live up to the standard of conduct deemed binding by the rest of the community,” or “some act or omission in respect of which legal punishment may be inflicted on the person who is in default whether by acting or omitting to act.”

The catch in all these definitions is that they apply equally to things which all of us would agree are crimes, like slitting a throat or holding up a bank, and to other things which we regard as trivialities, like parking too long in a restricted area or spitting on the sidewalk. In most states, for instance, it is a crime to run a lottery. Even a church bingo game istechnically illegal, but does playing in one make your grandmother or your maiden aunt a criminal?

One factor which complicates the matter is that most of us think of crime as being the same as wickedness, or sin, or iniquity. But this is not entirely accurate. There are many kinds of conduct that most of us would regard as bad, or sinful, that are not prohibited by law, and consequently are not crimes. And there are many other acts that are technically crimes, but are performed every day by perfectly good citizens, either in ignorance of the law or because the law does not fit commonly accepted standards of conduct.

Is the man who throws away an empty cigarette package without destroying the tax stamp guilty of a crime? How about the man who adds on a few dollars to the amount of his church contributions when he makes out his income-tax return? There are so many laws on the statute books these days that very few persons can go about their normal lives without breaking the law sooner or later, very likely without even being aware of it. This is particularly true in the older states, where ancient blue laws may remain on the statute books long after any attempt to enforce them has ceased.

How do we deal with these complications?

In practice, the federal and state penal codes separate what most of us would regard as serious crimes from those which are less grave, by classifying them into two groups. The serious crimes are called felonies; the other are misdemeanors. Yet even here we must beware of difficulties. Crimes which in some states are felonies are misdemeanors in others. Even in the same jurisdiction, the same offense may be a felony under some circumstances and a misdemeanor under others. In New York State, for instance, driving while intoxicated is a misdemeanor if it is a first offense but a felony if it is a second offense.

Who is a criminal?

When we come to this seemingly simple question, once more we must watch out. Is a man a criminal if he has violated a criminal law but has not been caught at it? Many people would argue that only the individual who has been convicted of breaking the law should be called a criminal. But that is just as absurd as to argue that the man who has no birth certificate has therefore never been born. In convicting a criminal, or registering a birth, the state simply certifies to something that has already happened. It is committing a crime, not being convicted of it, which snakes an individual a criminal.

How about crime waves?

Most of us have seen newspaper headlines proclaiming the existence of a crime wave. In an ordinary, middle-sized city for instance, if several holdups should be committed on successive nights, most people would readily agree that a crime wave had started. It would seem to be a simple matter to say that a crime wave was a sudden, marked increase in the number of crimes, but here again we must look into the matter a little more fully.

Our first difficulty is that no one has ever accurately recorded the number of crimes or of criminals in any large community. A very large number of crimes of various kinds are never reported to the public authorities. The old saying that “murder will out” is not always true. Some murders are wrongly classified as suicides, or accidents, or as deaths due to natural causes and a few others are not discovered because the bodies of the victims are never found.

Many kinds of larceny (theft) are likewise never reported to the police. Sometimes the victim will feel sorry for the culprit and agree to give him another chance. Sometimes he is permitted to go free if he returns what he has stolen. Some times proof is lacking. A few years ago there were more thefts committed in three department stores in Philadelphia in one year than the entire number recorded in the police department’s statistics for the whole city. The explanation was that in most cases of petty theft the stores preferred to deal with the matter themselves.

Sex offenses, such as rape or sodomy or prostitution, are particularly unlikely to come to the attention of public authorities. The reason in many cases is the unwillingness of the victim to endure the pitiless publicity likely to result from a complaint to the police. A recent scientific investigation of sex behavior in a typical state showed that only a tiny fraction of the actual cases of rape were reported to the police. Of course it must be remembered that, legally, rape includes extramarital intercourse with a girl who is below the age of consent, even though she is willing and cooperative.

If you saw one redheaded girl in Times Square yesterday, and three today, you probably would not think there were three times as many redheaded girls in New York today as there were yesterday. But many people make a somewhat similar mistake in talking about crime. They overlook the fact that the number of crimes reported is only a small proportion of the total number committed, and therefore may not be an accurate guide to the increase or decrease of the latter.

Great caution, therefore, should be observed in accepting any general statements to the effect that crime is increasing or decreasing.

From EM 3: Is a Crime Wave Coming? (1946)