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.
I like it! I’m curious what led you to develop section three.
I heard a presentation on the Stasi from one of the leaders of the Citizens’ Committees that oversaw its dismantling. During the cold war a lot of family members and neighbors were encouraged to spy on each other. I know that this kind of law wouldn’t necessarily lead to that, but I don’t think that family members should be required by law to report fellow family members.
Besides that, I don’t think they would, so the purpose wouldn’t be served very well by deleting that section.
I suppose you assign a reckless culpability to this statute for criminal liability… However, does this establish a duty under tort liability that can be recovered upon breach merely using negligence? Does this undermine the established rule?
Aggravated Assault particularly presents a problem; a heated argument with parties throwing items at each other may not become aggravated until a severe injury occurs… should I have known that would be the probable result? Hypothetically if my neighbors were making intense sexual noises, must I report it to cover for criminal and tort liability of a possible rape? Would the police be inundated with frivolous claims? In fact if police resources were drawn off more serious crimes could be left ‘less safe’.
I ponder the value of such a rule. Further, if this was instituted would it actually have any impact? I assert that the overwhelming majority of people have a working ethical compass to report heinous crime. This gang rape is major news because it is so rare.
What if the facts come out such that most people in the crowd ‘”thought” (erroneously) it was consensual? This law would have offer no recourse except for tortuous negligence. But would it be fair to punish people who did not willingly violate the law when they owed no duty to a random person?
I like your concept. People should be activity concerned with the well being of others. However, I think that using a cost/benefit formula to this idea would demonstrate that it offers little to no protection at the expense of massive liability and enforcement issues. Is there a net social benefit?
I think the concept that any human being could ever be ‘random’ is he failure of our society.There are no random beings, we are all one big human family.
Man’s inhumanity to man is our problem, and there is no law that man could ever create or enforce legislate compassion for your fellow man.
I work for defense attorneys to help investigate cases, but I am not, one, and your languaging sounds like you are a fan of law journals, or you may be in law school, so you and I know.
When a perpetrator commits an offense against humanity, people like you and I parse words, and interpret segments of the law, depositions, and discovery items, so that we can twist the truth to satisfy our goal, which would be to get a criminal off for an offense that he/she obviously did.
We are good at what we do, and there are a lot of rich criminals walking around free, because we are great at reinterpreting the laws around an event that should not have happened in the first place, if our client had not willfully committed a crime against humanity.
What you may want to sort out for your own personal identity, is that you have a definitive real life distinction between ‘right’ and ‘wrong’…and try to put yourself in the victims role, as well as the perpetraitor role at the ‘random’ moment of the offense,without the benefit of a 500. per hour investigator commited to twisting the truth, and answer for us, ny friend, what would you do, and what would you want witnesses to do…then use our legal shennanigans…which are fun, to get turn a criminal into a falsely accused victim…
I agree with your opinion here, even if we want to, it would be a disaster to the justice system to attempt to legislate decency in our population.
American people act, as in this case, much like the citizens of Nazi Germany, that just stood back and watched the German Jews being brutalized by the Government, and did nothing.
They have no excuse or forgiveness in history, and for all ages will be despised.
If our children continue to be rasied without any human compassion for their fellow man, then events like this will continue to be witnessed by the supposedly innocent bystanders.
We, you and I, and our citizens, all of us are the problem…
We help to legislate, currently, state sanctioned man’s inhumanity to
man, and we have not seen the worst that we will do to each other, but legally, we all have the right to sit back and watch…while Rome burns.
Lots of questions. Hey, it’s like Radio Shack. You’ve got questions; I’ve got answers.
“does this establish a duty under tort liability that can be recovered upon breach merely using negligence?”
No, but there could be a separate law establishing a civil duty and I think that would be valuable as well.
“if my neighbors were making intense sexual noises, must I report it to cover for criminal and tort liability of a possible rape?”
No. Not unless you reasonably believe that you have witnessed one of your neighbors raping someone.
“What if the facts come out such that most people in the crowd ‘”thought” (erroneously) it was consensual?”
I don’t think that would be a reasonable belief. Maybe my wording needs to be tweaked, but I don’t think people should be able to escape penalty from something like this by making up bull like that.
“Is there a net social benefit?”
Well, I’d like to think so. The psychological disincentives to acting, especially when there are multiple witnesses, are well documented. Even if only a few people were ever charged with this (probably likely), it would provide incentives for people to act in a better way in a lot of potential situations. What is the downside? Even if it has a chance of helping one person a little bit, it is net beneficial if there are no downsides.
Not to beat a dead (outdated?) horse but when I was listening to the descriptions of the folks around the Cleveland home where all the women have been found murdered by strangulation, I wonder if they could be charged for being “bystanders.” Most of them said that they were “not surprised at all” when they found out that there were dead bodies inside because they knew of disappearances in the area and knew that the smell was more powerful than what could be attributed to the nearby sausage factory. One wonders if they are responsible for the murders if they failed to call the police after suspecting murder in their neighborhood?
This is an excellent point and it calls in to question the “Failure to Report”. First off, remember that Hindsight is 20/20, and ~now~ it only seems obvious that there a bodies over there because you were told there were! Anyway, if you really want to push this failure to report, grab a dozen people of a bus and ask them if they thought neighbors (what is culpability? negligent? reckless? knowing?) “should have” (i.e. merely negligent which is lowest) known that this smell was the work of serial murderer? Not only that, its wouldn’t be civil negligence (unless families sued for $$), it would be criminal negligence. David said in the article the law would ” reasonably believes that he or she has witnessed a crime”… So now if we were to think of this as a prosecutor lets look at the elements –
1. ??? – did they reasonably believe??? AND witness
2. Relevant Crime – Murder
3. Not Family (N/A)
4. No imminent danger
So now the whole case comes down to reasonably believe, well on the lowest scale of negligence and since they have said they ‘are not surprised’ I believe you could convince a jury of this fault. Further, what does to witness mean? What you observe, smell, maybe a mixture of senses?
Forget the criminal side, now these neighbors are hit with a torrent of civil suits! This case illustrated the basic fears I expressed about this kind of law. It will turn people against each other in an effort to constantly shield from liability. Note my fears of this behavior in my musings about the LAPD’s new iWatch program.
http://politicalcartel.org/2009/11/02/iwatch-internet-portal/
Mike, we have to resolve whether there is a societal interest in promoting this kind of reporting before we weigh it against the costs that will come with such promotion. The nature of laws is that they are enacted to serve some interest and those who fail to follow them are punished.
Speed limits exist for public safety, and there is a high government interest there. However, lots of people break them, get caught, and are punished. Your line of argument would get the cart before the horse and parade out all the billions of dollars spent on speeding tickets, all the jail time, all the increased sentences, and all the suspended licenses. You could also easily bring the speed limit laws into civil torts (it becomes relevant sometimes to prove negligence per se). That is a lot of cost! But to discuss the cost of enforcing the valid law as if it invalidates it is going at it completely backwards.
The point with the Failure to Report crime is that we WANT people to report crimes. We want to encourage it. The costs involved with noncompliance serve that interest to make people report crimes, and I think that is a good thing.
I respectfully dissent.
The social cost of penalized failure to report laws outweighs the benefits of its use. While we all can agree speeding should be enforced because its a social good, failure to report laws are distinguished because they tend to turn people against each other in order to stay in compliance with the law. The rationale is to protect people against crime – yet if I correct about these laws isolating people then not only is an negative consequence, it would increase crime because deterioration of social networks has a positive correlation.
In addition, I am in doubt they would work for the intended result. If you see a murder, rape, or any violent act people have two options, report or do not report. Would this statute impact the people who have not reported or do they report, what is the actual reason crimes are not reported? For the Richmond gang rape, if the people watching this crime occur did not have the moral fortitude to report it, do you think a legal duty would change that?
Further, if we are talking about a social good; this forced duty may inundate police offices with an disproportionally bad leads. Limited resources could be better spent.
Finally, I think if we are enacting such a reform as to change duty law, then lets think about how many people this actually helps. Albeit not a primary concern, it certainly is a factor. Are there any relevant statistics?
Overall, I think that the negatives would outweigh the positive – which makes for a bad policy.
Let’s not say things like “turn neighbors against each other” and forget about the crime part. It would turn neighbors against criminals. What rights of criminals to carry on their crimes are being violated here? I’m not sure what you are really worried about here. Make it concrete and relevant to this particular issue – not just vague “neighbors against neighbors” talk.
If I am committing a violent crime and my neighbors reasonably believe that they have witnessed me doing it, then they should be “turned” against me! I think they already have a social and moral duty to report me, but sometimes those are not enough and a legal duty encourages people to act in the proper way.
It’s very concrete, neighbors compelled to report under forcible legal compulsion. That legal compulsion not expressly given in the statute, but in the form of civil and criminal penalties that could arise. If I hear two people, my neighbors, harshly fighting, I will now have to call the police because I fear legal reprisal if something bad happens. Even just retaining a lawyer to fight a tort is prohibitively expensive, it is de facto compulsion. Would you be understanding if I called the police on you?
I think that family members should also have to report crimes. Why should you not be held accountable just because someone you are related to witnessed it. After all, you don’t get to choose your family.