Failure to Report a Crime: Why We Should Punish Bystanders
Since news of the gang rape of a 15 year old Richmond High School girl broke, one of the biggest questions has been about the guilt of the bystanders. News outlets reported that more than twenty people came to watch as the California girl was beaten and raped repeatedly by several boys for two and a half hours. CNN says that “[some] witnesses took photos. Others laughed.” Some of those who came over joined in the assault. None of them made any attempt to stop the crime or report it to police. It was only later when some witnesses were discussing the event that they were overheard by a citizen who did call the police who found the girl unconscious under a bench where she had been left. She was flown to a hospital, listed under critical condition, and remained there for days.
Despite the outrage felt by many, there is little chance of any criminal action against the bystanders. Crimes that result from a failure to act are rare. The most common such offenses result from a special relationship between the defendant and the victim (child neglect, for instance) or when the defendant is the one who put the victim in danger in the first place. State legislatures are free, however, to enact statutory duties with criminal penalties for a failure to act. For instance, California has a law that makes it a misdemeanor for anyone not to report a witnessed crime against a child under 14 (that law was prompted by the story of David Cash, which sparked national outrage). The unfortunate victim in this recent case was 15.
Kitty Genovese was 28 when she was murdered in an alley and became a symbol of the bystander effect. There are several psychological reasons why bystanders do nothing when they witness a violent crime. They may fear for themselves if they attempt to intervene or they may fear retaliation if they report the crime to police. The more bystanders are involved, the more diffused the responsibility is among the crowd, reducing the pull on any single person.
Any law that required witnesses to act would need to be narrowly framed because these kinds of laws involve a lot of questions about possible undesirable situations. How serious would the crime have to be to demand action? Would the person be forced to intervene or just to report the crime to police? Would the person need to witness the crime personally or just become aware of it? Would this require friends and neighbors to report each other? Such fears about broad are understandable.
Misprision of felony is an old common law tradition that makes it illegal not to report a witnessed felony. For various reasons, including the above suspicions, it has disappeared from most jurisdictions. This recent incident may lead legislatures to reexamine this kind of legislation, though. The national outrage over this incident demonstrates a societal desire to punish bystanders who do nothing. There is clearly a societal interest in protecting victims of violent crimes, and that interest easily outweighs the privacy interest of bystanders who need only pick up their phones to call police (instead of using them to take pictures). Furthermore, criminal penalties may provide enough incentive to overcome the bystander effect (or “Genovese syndrome”).
I am not a lawmaker, but the legislation I drafted below might be narrowly tailored enough to meet the societal interest without leading to the frightening possibilities:
Failure to Report a Crime
Section 1. Any person who reasonably believes that he or she has witnessed a crime identified in Section 2 below and fails to report the crime to a law enforcement officer as soon as reasonably possible commits a class A misdemeanor.
Section 2. This act shall apply to the following crimes: murder, manslaughter, rape, and aggravated assault when such assault involves a firearm.
Section 3. This act shall not apply if the perpetrator of the crime is an immediate family member of the witness.
Section 4. Nothing in this act shall be construed as to impose a duty to intervene to stop the crime or to perform any action that puts the witness in immediate physical danger.