Law in Contemporary Society

Morality and the Law: Duty to Rescue Statutes in American Jurisprudence

-- By DavidFrydman - 14 Feb 2012

The Bystander Effect & Duty to Rescue Statutes

The Bystander Effect is the phenomenon whereby persons witnessing another human in danger take no action to aid the distressed individual because they have been lulled into a state of pluralistic ignorance by the diminished sense of individual responsibility that results when many unrelated parties are witness to a single occurrence or event. Each individual allows himself to believe that the person next to him will assume the social responsibility of the group as a whole.

A few American jurisdictions sought to mitigate against the Bystander Effect by enacting statutes imposing a duty to rescue an imperiled person in certain circumstances, making it a misdemeanor punishable by fine, jail time, or both, to neglect this legal duty. Such laws are currently in effect in Minnesota, Rhode Island, and Vermont.

However, most American jurisdictions have not enacted similar statutes. Why is this so?

Conflicting Social Values at Stake

When viewed from an ethical perspective, there are two social values inherently at stake in the choice about whether to criminalize the omission to attempt a reasonable rescue of an imperiled person. The first social value is based in morality: society should encourage rescue actions, not omissions to act, when other members of the society are in danger. The second is based in logic: criminals should be punished because that punishment will deter the original criminal and future actors from behaving criminally.

Why does the discussion have to be so schematic here? Evidently there are many other values that can be involved, if we were trying to be analytically exhaustive. You're giving a false sense of exactitude.

In the context of duty to rescue laws, these values are in conflict with one another. Rescue statutes encourage individuals to approach the bystander dilemma from the perspective of Oliver Wendell Holmes Jr.’s “bad man.” Rather than encourage the “positive” social value of rescuing a distressed neighbor, the statutes give a negative construction to the value by relating them to the rationalization of the utilitarian purposes of punishment. The difference between bystander laws and most other criminal statutes is that bystander laws impose penalties for failure to act morally, not the decision to act immorally. If one takes the limited view of morality as a simple dichotomy—an act or omission is either moral or immoral—then the difference between these forms of punishment is negligible or even nonexistent. But morality is not a simple dichotomy. And the decision to act immorally is one deserving of punishment, while the decision to not act in a moral way based on a judgment of the personal dangers inherently involved in doing so is not deserving of similar punishment.

Are you sure you thought this argument through when you added it? Did no instances of punishing criminal neglect occur to you?

Instead of addressing positive social activity with positive reinforcement, rescue statutes instead take the inverse of the activity to be encouraged (the bad man’s approach) and discourage that activity by criminalizing it and attaching criminal punishment to it. The result is not an image of a society that values its members who reflect the overarching morality or ethos of that society.

Why We Don’t Like Duty to Rescue Statutes

Statutes imposing similar duties to behave morally, for example the duty of physicians and other professionals to report instances of child abuse, are far more commonly instituted and accepted than duty to rescue statutes because the actions they require are in a more protected, private realm, and because the duties they impose are in direct relation to the professional capacity of the individuals on which they are imposed. These statutes impose duties to report, not to take immediate (and often public) action. Reporting can be done fully in the privacy of one’s office or workplace, and the confidentiality of the reports is often statutorily protected (see Ohio Revised Code 2151.421(H)(1), linked above).

On the other hand, duty to rescue statutes impose duties on all individuals equally, regardless of their professional or otherwise personal capacity to address the particular harm giving rise to the duty. Furthermore, such statutes require these individuals to act immediately, and often publicly, to avoid penalty. Simply put, one can assume the risk of being charged, prosecuted, and fined for not intervening to stop a public attack that one witnesses, or one can intervene and thereby assume the risks of retaliation by the felonious assailant, ridicule by non-intervening bystanders, and time-consuming long-term involvement with law enforcement and legal institutions as a witness or potential party to a criminal lawsuit. Prohibiting an individual from valuing such dangers to himself over the dangers faced by the victim, and punishing that value-judgment by imprisonment and/or fine, is inherently unjust.

In the end, it's inherently unjust to you, because you just know it is. The rest of us need something more, however. And your pile of rhetorical flourishes here is beside the point. This is a criminal statute you're talking about, like all such acts addressed to the discretion of the prosecutor. Whose enthusiasm for bringing charges under this act will at all times hover below zero. When you were preparing this essay, did you look for figures on prosecutions in MN, WI, RI, or VT? I cannot find any.

Are you surprised that all the systems descendant (according to them) from the Roman law, under which approximately 300 million Europeans live, have a duty to rescue that can be criminally enforced? I would have expected you to mention it, if you are not surprised. I would also have expected you to mention, there too, the absence of all these railroaded, hounded, broken people that someone's libertarian musings have counterfactually led you to expect will follow from the adoption of this misguided legislation.

Would it not be reasonable to expect you to address some attention to the conclusion, which the evidence seems to support, that the presence or absence of such a duty in any particular society's legal system doesn't make a damn bit of difference, probably because law is a weak form of social control?

If the consequences of action still outweigh the consequences of omission even for the bad man, how can the statute possibly act to encourage action by discouraging omission in the average citizen? Where the idealized “morality” behind a criminal statute does not match with such real-world assessments made by the denizens of society who are required to act, the criminal law is not functioning justly or rationally.

This injustice exemplifies the weakness of the law as a form of social control. In jurisdictions that do not impose duty to rescue statutes, citizens are encouraged (or even obligated) to act based on other social mores that do not impose criminal stigma to a basic value judgment about one's safety and privacy in relation to that of a total stranger. The decision to rescue, when framed by religious, familial, or neighborly motivations, is a decision that reflects the morality of the individual who engages himself to rescue another. These other social forces operating without the law--and therefore without the stigmatizing effects of criminal punishment--are more readily accepted as a source of control over human actions and omissions because the law "holds us not at all." Imposing a duty to rescue is effectively handled in most of the country by extra-legal forms of social control, and the legislatures should leave the duty in the hands of the social forces most capable of imposing it.



Webs Webs

r6 - 22 Jan 2013 - 20:10:24 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM