Drawing on the reading and your own sound reasoning and good judgment, make a case for or against a showing that any of the defendants have civil or criminal liability, a legal duty of some sort that they breached, in the following three cases: (1) Bernstein v. the Harvard Board of Overseers (1974); (2) Farwell v. Keaton (1976); (3) Nevada v. Strohmeyer (1998). In writing your opinion, think of the arguments that might be made against it, and respond to them.
In defending your position, offer what you believe are the most principled arguments you can make. In thinking of objections to your opinion, think of the best possible objections that someone on the other side might be able to come up with, i.e., give yourself a hard time. If you can respond to the other side at its strongest point rather than at its weakest, that can only help to strengthen your own opinion and make it that much more persuasive. Finally, offer your opinion on whether or not you believe states should adopt more stringent duty to rescue laws.
Papers should be between five (5) and seven (7) pages in length or longer if you wish. They are due on Tuesday, April 20th in class. Please submit two copies, marked "COPY 1" and "COPY 2."
From its inception our criminal justice system has required that two elements be present before imposing liability for the commission of a crime. It must be shown that the defendant had a culpable state of mind and that he committed a bad act, an actus reus. From this we might conclude that failures to act, all inaction cannot, indeed should not, be punishable under the law. Indeed there was a famous incident nearly forty years ago that seems to bear this suspicion out:
The Kitty Genovese Murder: A woman named Catherine "Kitty" Genovese, an American, was stalked and repeatedly stabbed by an assailant in a middle-class New York City neighborhood. Although thirty-eight neighbors either heard or saw Genovese being attacked, no one came to her aid or even called the police until thirty-five minutes after the attack, by which time Genovese was dead. . . . No one was investigated or prosecuted for failing to help Genovese because it was not a crime in New York."
Kitty Genovese Story and Photos:
But now consider the following, more recent occurrence:
Princess Diana's Car Crash and the Photographers: On August 30, 1997, Princess Diana's speeding Mercedes-Benz crashed in France, killing her and critically injuring other passengers in the car. Before medical help arrived for the Princess and her companions, photographers who had arrived at the scene allegedly snapped photographs of her body instead of assisting her and the others trapped in the car. As a result, the seven photographers were investigated for possibly violating, among other things, France's "Good-Samaritan" law, which requires that onlookers lend aid to victims in peril.
Princess Di Story and Photos:
Of course, the French have a peculiar way of looking at the world, a way that is typically French. That there is such a "duty to rescue" law in France but not in New York may simply reflect a difference between French and American culture. But it turns out France is not alone in this regard. All the European countries have "duty to rescue" laws, including Rumania, Poland, and Russia as well as Turkey. So, while it is true in this country, i.e., with us, that all of us are under a general legal duty to refrain from inflicting harm on others, we are not under any similar general legal duty, or so it would appear, to prevent harm from befalling another. The American law is dramatically expressed in the language of an opinion from the end of the nineteenth century:
Buch v. Amory (1897): Suppose A, standing close by a railroad, sees a two year old baby on the track and a [train] approaching. He can easily rescue the child with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster, but he's not liable in damages for the child's injury, or indictable under the statute for its death . . . There is a wide difference - a broad gulf - both in reason and in law, between causing and preventing an injury; between doing by negligence or otherwise a wrong to one's neighbor, and preventing him from injuring himself; . . . The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law.
But we have come a long way since these words were written by the Judge in Buch v.Amory (1897). The general American rule that there is no legal duty to rescue another in danger, even though a moral obligation may exist has been eroded by several clear exceptions. Personal relationships, such as the relationship of parent and child have created legal duties in the parent such that a parent who fails to feed their own child, a parent who simply omits meals from the child's day-to-day activities, is criminally liable to that child for any injury, fatal or otherwise, the child may suffer from the parent's failure to act. So, too, courts have concluded that someone may be held criminally liable for an injury that occurs to a person whom the defendant had begun to rescue, but then abandoned that person in, let's say, mid-rescue. So, for an example, consider the following:
John, the Designated Driver: Henry calls John from a bar where he (Henry) has been drinking heavily for much of the night. It is almost closing time and Henry asks if he (John) will come, pick him up and drive him home. Henry realizes he is too drunk to drive himself home. John agrees. On the way to Henry's house they have an argument and John tells Henry to get out of the car. He has stopped on a very dark stretch of road next to a pond. Henry gets out; John drives off; and Henry wanders drunkenly into the pond and drowns. Henry's parents sue John, claiming that he had a duty to look out for Henry once he picked him up and that he should not have abandoned him on the way home. Did John's failure to come to Henry's aid make John in some way criminally liable for Henry's death?
Then consider the following:
Tavern Rape, Jodie Foster and THE ACCUSED: On March 8, 1983, a 21 year old woman was raped by four men in a tavern in New Bedford, Maasschusetts. Indictments were subsequently brought against six men, four of the men who were involved in the alleged rape and two additional men who allegedly witnessed the assault. Some of you may think you recall this case. But it occurred quite some time ago in Big Dan's Tavern in New Bedford, Massachusetts; nineteen years ago, to be exact, in March 1983.
If you think you remember the case it may be that you remember the film which was based on that case. The movie starred McGillis and Jodie Foster and was called "The Accused". Only in the film, if you remember correctly, the bystanders were more actively involved, egging the attackers on and as a result the case against any of the bystanders was somewhat easier to prosecute.
In the actual New Bedford case two of the onlookers were charged as accessories to rape and were acquitted. There was no "duty to rescue" law in the State of Massachusetts at that time. Sentencing of the defendants in the New Bedford rape case took place on March 26, 1984. Massachusetts Superior Court Justice William Young sentenced three of the defendants to maximum prison terms of 9 to 12 years. The fourth defendant convicted of aggravated rape received a six to eight year prison term. Two other men indicted in the case were acquitted upon evidence that they had not actually participated in the rape, although they had watched and encouraged the perpetrators. N.Y. Times, March, 27, 1984, p. 6.
The following stories, among many others, also ran: "The Tavern Rape: Cheers and No Help," NEWSWEEK, Mar. 21, 1983, at 101:25. The New Bedford Standard Times noted that when police returned to the bar later that night, two of the victim's alleged assailants were still there, and the bar had been open for business the entire time. Such reports fueled the national outrage over the incident.
Approximately 2,500 people took part in a candlelight procession in New Bedford one week after the attack. One protestor was quoted as saying: "They should take every one of those guys who were there cheering and fine them $ 1,000 apiece" (Section A16, col. 2). These sentiments were echoed by magazine and newspaper editors throughout the country, see, e.g., "Violence and the Social Fabric," AMERICA, Apr. 2, 1983, at 148:251-52 ("It is the kind of atrocity that strikes sharply at the national consciousness and stirs feelings of revulsion and outrage miles from the scene of the assault, among people with no possible connection to the victim ").
At the first trial, it was established that there had been more than ten men who had stood by, watched the assault, and done nothing. Two had been positively identified. None of the witnesses had encouraged the assault by their cheers and applause but none of them had taken steps to discourage the attackers either or to stop the rape or to call for help. A waitress who worked at the bar testified that there was a public telephone in the front room of the bar and a local police officer testified that phone calls to 911 from this area of town produced a response within five minutes. The attack lasted more than one hour, at which point the young woman managed to break free of her attackers and run out onto the street where she hailed a passing motor vehicle and was taken to a local hospital. What is your opinion on this case? Did the Judge do the right thing when he acquitted the bystanders? Whichever way you are inclined to rule, do you think the Massachusetts legislature took steps in the right direction when it passed a "duty to report" law in the following year (1984)?
Tavern Rape Story and The Accused
Now imagine (once again) that you have risen through the ranks of the law and you are a judge in each of the three following cases. How would you rule? Do you think that the defendants in these cases had for one reason or another a duty of care (a duty to rescue) that they owed and that they failed to meet? If so, why, if not, why not? And finally, how would you testify before the special legislative hearing described below after your ruling on the criminal liability of David Cash.
First, consider the following case:
Charles Gilbert was a sophomore at Harvard University as was Ariana Bernstein. Charles and Ariana had "gone out" together during the Spring semester, but Ariana had broken off their relationship before she went home for the summer. Charles pleaded with her to try again when they returned to the campus in the Fall, but Ariana had made up her mind. She asked him not to call or write. Charles went into a deep depression. Shortly after he arrived on campus to begin the Fall semester he became a voluntary outpatient at Harvard University Health Services. On October 5th he informed his therapist, Dr. Lawrence Stone, that he was going to kill Ariana as soon as she moved into her off-campus apartment. Ariana was planning to move sometime during the month of October, was not speaking to Gilbert, and knew nothing of his intentions.
Bernstein v. Harvard Board of Overseers (1974)
Dr. Stone, with the concurrence of Dr. Brown, who had initially examined Gilbert when he came in to the Heath Services, and of Dr. Yankovich, the assistant head of the department of psychiatry at the Heath Services, decided that Gilbert should be committed for observation in a mental hospital. Stone notified Officers Armstrong and Tyson of the University campus police that he was going to make a request for commitment. He then sent a letter to Police Chief William Kelley of the Cambridge Police requesting the assistance of the Cambridge Police Department in securing Gilbert's confinement. On the evening of October 6th four officers, two from the campus police and two from the Cambridge Police took Gilbert into custody.
After three days of confinement Gilbert's parents complained to the head of the psychiatry division at Harvard Health Services, Dr. Nathan Lane, Stone's superior. Lane looked into the matter and asked the psychiatrists at the hospital for an "evaluation." They determined that Gilbert was rational and Dr. Lane ordered his release on the condition that Gilbert promise to stay away from Ariana. Lane then asked the Cambridge Police to return Stone's letter, directed that all copies of notes that Stone had taken as therapist be destroyed, and "ordered no further action be taken to detain Charles Gilbert." No one warned Ariana of her peril.
On October 27th Charles Gilbert killed Ariana Bernstein. Ariana's parents sued Harvard University claiming that the University Health Services and its psychiatrists permitted Gilbert to be released from police custody "without notifying them, Ariana's parents, or their daughter that Ariana was in grave danger from Charles Gilbert." Is the University liable for its failure to warn Ariana or her parents of the impending danger? The psychiatrists, Stone and Lane, say that they owed no duty of reasonable care to Ariana since she was not their patient and that they are immune from suit. They argue further that to require them to have warned Ariana of the danger would have necessarily involved them in a breach of confidentiality between doctor and patient. They also argue that it is extremely difficult to predict violent behavior.
Is Harvard University liable in damages for failing to notify Ariana or her parents? If you were the judge in this case, how would you rule? On what grounds? What do you think is the best argument for the "other" side and how would you respond to it? In making your ruling, you may, just may, wish to look at the actual case upon which this hypothetical case is based. See Tarasoff v. Regents of the University of California (1974) on the Philosophy of Law Website.
Tarasoff Story and Photos:
Now consider the following case:
On the evening of August 26, 1966 Siegrist and Farwell in separate cars drove to a trailer rental lot to return the car that Siegrist had borrowed from a friend who worked at the lot. While they were waiting for Siegrist's friend to finish work, they consumed some beer. Two girls walked by the entrance to the lot and the two men tried to engage them in conversation. They followed the girls on foot to a local drive-in restaurant down the street. The girls complained to some of their male buddies at the restaurant that they were being followed by a couple of "creeps." Six boys chased Siegrist and Farwell back to the lot. Siegrist escaped but Farwell was severely kicked and beaten.
Farwell v. Keaton (1976)
Siegrist found Farwell on the ground next to his car. He applied some ice to his forehead. He then helped him into his car and then drove Farwell around for about two hours, stopping at a number of drive-in restaurants. Farwell fell asleep in the back seat of the car. Around midnight Siegrist drove the car to the home of Farwell's grandparents, parked the car in the driveway, tried to rouse Farwell to no avail, and left.
Farwell's grandparents found their grandson in the car in the driveway the next morning. They took him to a hospital where he died three days later of an epidural hematoma. If a person in Farwell's condition is taken to a doctor before, or within half an hour after he loses consciousness, there is an 85 to 88 per cent chance of survival.
Did Siegrist have a duty to rescue Farwell? If so, on what grounds? Is Siegrist liable in damages for Farwell's death? What do you think? What do you think is the best argument for the "other" side and how would you respond to it? In making your ruling, you may, just may, wish to look at the actual decision in this case. See the Farwell v. Keaton (1976) on the Philosophy of Law Website.
Kitty Genovese Story and Photos:
Then, finally, consider the following more recent case:
Jeremy Strohmeyer and David Cash, Jr. had driven with David's father to Las Vegas from their homes near Los Angeles, California. As the night turned to the early hours of the morning, the young men played video games at the Primadonna Casino. A seven-year-old girl, Sherrice Iverson, was also playing in the game room, while her father gambled in the casino. Sherrice, while playing with another young boy, was throwing wet, wadded paper towels, when an errant shot hit Jeremy Strohmeyer. Jeremy turned toward the little girl and began playfully chasing her. Video security cameras display the two playing around the game room. Sherrice then ran into the women's restroom and began to get more wet paper towels to throw at Jeremy.
Nevada v. Strohmeyer (1998)
David Cash, Jr., Jeremy's best friend, followed Jeremy into the restroom, and watched as they threw paper towels at each other. David then saw Jeremy pick up the little girl and take her into a toilet stall. David walked over to the next stall and looked over the door to see what his friend was doing. Jeremy had Sherrice pressed up against the wall with his hand over her mouth, muffling her screams. Jeremy told Sherrice to shut up or he would kill her. David maintains that he never saw Strohmeyer actually sexually molest the girl, but that he tapped Jeremy in the head and gave him a look as if he should not be doing that Jeremy just looked back at him with a blank stare and David felt it was time to for him to get out of there.
Tapes from the video surveillance cameras showed David Cash leaving the restroom about two minutes after he walked in. He waited outside for over twenty minutes for his best friend, Jeremy. His best friend walked out, looked at David Cash and said, "I - I killed her." The two boys immediately left. They spent the rest of the night at other casinos, playing slot machines and riding roller coasters, before returning to California.
Jeremy Strohmeyer was arrested and charged with first-degree murder. He pled guilty to the crime and received life in prison without the possibility of parole. In his statement to the court he expressed remorse and blamed his friend, David, for not stopping the attack. David Cash, Jr., has not been charged with any crime. According to Nevada prosecutors, he has committed none. Merely witnessing a crime is not a crime in itself. There is no law against the failure to report a crime in Nevada. So-called "Good Samaritan" laws have only been enacted in a handful of states.
Sherrice Iverson Murder Story and Photos:
Undoubtedly, David Cash was in a position to stop the assault and murder of Sherrice Iverson. He could have pulled his friend off of her or summoned the nearby casino security guards. He could have stopped the attack with little or no risk to himself. But he chose not to do so. There is no question that his decision to remain uninvolved while his friend sexually assaulted and eventually murdered a little girl was morally reprehensible, but prosecutors concede it is not a crime. Therefore, the question is whether it is possible to create a law that would make Cash's behavior criminal without violating the basic tenets of the criminal justice system and the U.S. Constitution. Cash did little to bolster his case. On a Los Angeles radio program, he expressed no remorse for his actions,
"How much am I supposed to-to sit down and cry about this? I mean... let's be reasonable here. Is my life supposed to halt for-like, for days, weeks and months on end? The simple fact remains, I do not know this little girl. I do not know starving children in Panama."
When asked if the murder was on his conscience during a national television broadcast, Cash responded, "No, not to the extent that most people would want it to be." Cash's lack of remorse fueled the controversy surrounding his actions. Surely, any decent human being would stop the molestation and murder of a little girl if it were easily within their power.
What would you do in this case? Whose side are you on? David Cash's or the side of those who maintain that what Cash did was not a crime, and that even if he had witnessed the entire assault and murder, he could not have been charged. Is there anything, anything at all in previous "duty to rescue" cases that provide a handle on this case here, that offer a "way" to show that Cash has some criminal responsibility here, a legal duty of some sort that he breached? And once you have decided, what is the best argument on the "other" side and how would you respond to it?
Then, whether your arguments are likely to carry the day or not, imagine that the Nevada legislature has decided to adopt an "Iverson" law, as the media are now calling it. Two alternative models have been introduced and will be voted on by the legislature. Here are the two proposals for a new law in Nevada:
PROPOSAL (1) A model crime reporting statute to read as follows: (1) Any person, who knows or has reason to know that a murder, rape, kidnapping, robbery or arson has been or is being committed, must notify law enforcement authorities within 24 hours of learning that such crime has been committed. Violation of the reporting requirement in (1) is punishable by a fine of up to $1,000 and/or one year imprisonment. In connection with a statute establishing a duty to render assistance, the legislation plans specifically to state: (1) when the duty arises; (2) what degree of risk will abrogate the duty; (3) what action is required; (4) who must give aid; and (5) any statutory defenses.
PROPOSAL (2) A model statute requiring aid to others in peril to state: (i) A person who knows that another is involuntarily in sudden and imminent danger of serious bodily harm or death shall, to the extent that assistance can be rendered without risk of serious bodily injury or death to himself or herself, give reasonable assistance to the endangered person unless that reasonable assistance or care is being provided by others. (ii) Violation of the duty in (1) is punishable by a fine of up to $ 1,000 and/or one year imprisonment.
A special hearing has been scheduled to which you have been invited to give expert testimony for or against both models or for one and against the other. Someone in the Nevada Legislature learned recently that you attend Brandeis ("A great university," this Nevada representative was rumored to have said) and that you were taking a class in Philosophy of Law and that you were discussing and thinking about this case as well as many others.
Prepared: April 1, 2004 - 5:02:29 PM
Edited and Updated, April 3, 2004
Philosphy of Law