DUTY TO RESCUE
LAW REVIEW ARTICLE
April 19, 2003
Copyright (c) 2000 The Trustee of Indiana University
Indiana Law Review
33 Ind. L. Rev. 571
LENGTH: 13664 words
Justifications for State Bystander Intervention Statutes: Why Crime Witnesses
Should Be Required to Call for Help
Jennifer Bagby *
* J.D. Candidate, 2000, Indiana University School of Law-Indianapolis; B.S.,
1993, University of Kansas. The author wishes to thank her family and friends
for their patience, support, and insight in the writing of this Note.
... The need for a statute creating a duty to report a crime or assist a crime
victim enters into the debate through highly publicized tales of failure to
render assistance. ... Therefore, the federal Misprision of Felony statute
does not serve the role of a bystander intervention statute. ... Without any
intervention, a crime victim is certain to suffer some type of harm; bystander
intervention statutes serve to prevent harm or alleviate this harm in order to
create a better result for the victim. ... The statute would define the
content of the duty, to contact the authorities, and specify when the bystander
has the duty. ... A bystander intervention statute does not fall within the
traditional federalization of crime framework. ... Rather, a bystander
intervention statute involves punishing conduct of a purely local concern. ...
Because the channels of interstate commerce and the instrumentalities of
interstate commerce are not involved in a bystander intervention statute,
Congress may only regulate in this area if the activity under regulation has a
substantial affect on interstate commerce. ... As well, judicial resources
allocated for criminal prosecutions would be further strained in order to
enforce the bystander intervention statute. ... Civil cases would be even
further delayed if federal courts were to enforce a federal bystander
intervention statute. ... Because states have not started to enact such
legislation, there is no evidence that they have failed to enforce a bystander
intervention statute. ...
In the series finale of the television show Seinfeld, Jerry, Elaine, George,
and Kramer served time inprison for violating Massachusetts' new Duty to Assist
Statute. The fictional foursome had not only stood by passively and watched the
mugging of a stranger, but also found the crime amusing. Seinfeld saw humor in
a tragic situation.
The need for a statute creating a duty to report a crime or assist a crime
victim enters into the debate through highly publicized tales of failure to
render assistance. The first high profile incident of a failure to intervene
occurred in 1964. On March 13, 1964, twenty-eight-year-old Catherine
"Kitty" Genovese was stabbed to death outside of her Queens, New York apartment at
three in the morning.
n1 Thirty-eight of Ms. Genovese's neighbors witnessed the attack, but none called
the police or intervened to stop the criminal. Ms. Genovese's assailant left
her at one point when a neighbor yelled out of his window, but he later
returned to continue his attack. Only one neighbor stepped forward to call the
police, though even he waited to seek advice from a friend. By the time the
police arrived at the scene, it was too late. Ms. Genovese had died.
In 1983, six patrons of a New Bedford, Massachusetts tavern raped a twenty-two-
year-old woman while the other customers cheered. No one intervened or called
the police. The victim received help only when she escaped, ran into the street
and hailed a passing truck.
More recently, in May 1997, seven-year-old Sherrice Iverson was sexually
assaulted and strangled to death in the women's restroom of a Primm, Nevada
[*572] hotel and casino.
n4 Sherrice's murderer was eighteen year-old Jeremy
Strohmeyer. Jeremy's best friend, David Cash, followed Jeremy into the women's restroom,
peered over the toilet stall and witnessed Jeremy in the stall with Sherrice.
David tapped Jeremy on the head, but Jeremy did not stop his attack on
Sherrice. David then left the restroom and waited outside
n5 without attempting to alert security guards to physically intervene to aid
Sherrice. When Jeremy emerged, he confessed to molesting and killing Sherrice.
After hearing the confession, David's only response was to ask whether the girl
had been aroused.
n6 The two young men then left the casino and played video games at a nearby
arcade. As a result of David's failure to intervene, Sherrice Iverson's mother
and others are advocating a law requiring witnesses to intervene and report
cases of sexual assault against children. They have vowed to take their case to
the federal level.
This Note, in part, addresses whether a statute, either state or federal,
should impose upon a crime witness both the duty to intervene
n8 and criminal liability for failure to do so. Part I provides background on the
legal duty to assist another and existing legislation in the area. Part II
discusses sociological/societal and psychological justifications for an
affirmative duty statute that would require intervention on behalf of the
victim of a crime. Part III proposes a statute requiring intervention on behalf
of the victim and considers possible penalties for the violation of such a
statute. Part IV examines the federalization of such a statute and concludes
that, while states are justified in enacting intervention statutes, the federal
government does not have the power to pass such legislation.
Traditionally, American law has not imposed liability, either civil or
criminal, for the failure to render assistance or rescue, absent a specific
legal duty to do so.
n9 Instead, within the law of torts, a distinction has generally been made
"misfeasance" (active misconduct), and
"nonfeasance" (passive inaction).
n10 In order for liability to be imposed, the law has typically required active
rather than passive conduct. Thus the law has created restraints on affirmative
acts of harm while avoiding turning the courts into a means of forcing people
to help each other.
Affirmative duties and subsequent liability for omissions, however, are imposed
upon persons standing in certain personal relationships to others.
n12 Within the law of torts, a specific relationship is required for the
imposition of liability for a failure to act.
n13 Criminal liability for omissions may also be imposed when the parties involved
stand in personal relationships with each other.
n14 For example, parents are under a duty to aid their children; a spouse is under
a duty to aid his or her spouse; ship captains are under a duty to aid their
crews; and masters are under a duty to aid their servants.
n15 These relational duties are similar to those required in the law of torts.
Thus, while criminal liability will not usually be imposed upon a bystander who
fails to summon the authorities for a stranger, a parent may be held criminally
liable for failing to summon the authorities to assist his or her child.
In addition to duties created by special relationships, many other situations
also give rise to an affirmative duty. Often, an affirmative duty may be
created by statute. Examples include a duty to help another in distress, a duty
to provide safety measures, and a duty to provide necessities.
n16 In addition, an affirmative duty may also arise out of a contract. Failure to
act according to the contract may result in criminal liability even if the
victim is not one of the contracting parties.
[*574] Further, once someone undertakes to rescue another, a duty is subsequently
imposed to complete the rescue.
n18 When a party creates a danger, he or she is under a duty to safeguard others
against that danger.
n19 A duty to act also exists where a party is under a duty to control the conduct
n20 Finally, landowners may be under a duty to provide for the safety of those
"present on their property."
B. Current Legislation
While in common law no general
duty to rescue existed, many states have now enacted affirmative duty statutes in response to
outrageous crimes and the failure of witnesses to intervene. These affirmative
duty statutes require a bystander to intervene to assist a crime victim or
impose criminal liability for the failure to do so. These statutes require
either the rescue of one in peril in the absence of danger or the immediate
reporting of crimes to the authorities.
Four states have each enacted statutes requiring rescue by a bystander when no
danger is imminent: Minnesota,
n22 Rhode Island,
n25 Minnesota enacted its statute in response to the gang rape in New Bedford,
n32 Rhode Island,
n33 and Washington
n34 have each enacted statues requiring witnesses to report the crimes they
witnessed to the authorities. These state statutes that create a duty to report
crimeappear to fall within two distinct types: those that require the reporting
of certain, specifically enumerated crimes and those that require reporting of
all general criminal acts. Massachusetts,
n35 Rhode Island,
n37 and Florida
n38 fall into the first class of statutes, while Colorado,
n41 and Ohio
n42 represent the second.
In January 1998, a bill was introduced into the Mississippi House of
Representatives that would have required a person to summon law enforcement
officers or other assistance when he or she knew that a victim was being
exposed to bodily harm during the commission of a crime.
n43 However, the bill was not carried over when the regular session ended in May
1998. A bill requiring one to summon assistance when he or she knows that
another person has suffered
[*578] substantial bodily harm was also introduced in Washington in 1997.
n44 The bill was never codified and was re-introduced on January 22, 1999.
At the federal level, the Misprision of Felony
n46 statute has long been
"on the books," although it has seldom been used. The Misprision of Felony statute is likely
not to apply in situations of bystander intervention. The statute states that
[w]hoever, having knowledge of the actual commission of a felony cognizable by
a court of the United States, conceals and does not as soon as possible make
known the same to some judge or other person in civil or military authority
under the United States, shall be fined under this title or imprisoned not more
than three years, or both.
"Felony" is a much more technical requirement than knowing that someone is in danger or
the victim of crime. A further requirement read into the statute in order to
obtain a conviction is an affirmative act of concealment.
n48 In order for the Misprision of Felony statute to serve as a bystander
intervention statute, the bystander would have to know that a felony is being
committed and engage in some affirmative act of concealment. Therefore, the
federal Misprision of Felony statute does not serve the role of a bystander
II. Justifying Bad
The bystander intervention duty has its origins in biblical tradition.
Intervention statutes, such as those discussed above,
n49 are often referred to as
Samaritan" statutes based on the parable of the same name. In the
n50 a man, though he was not obligated to do so, rescues a stranger
[*579] who had been beaten and left on the side of a road. Unlike the priest and the
Levite who passed the stranger by, the
Samaritan offered assistance.
Samaritan statues, however, provide a better description. According to professor and
author Joel Feinberg in Harm to Others, the Bad
1. [A] stranger standing in no
"special relationship" to the endangered party,
2. [W]ho omits to do something-warn of unperceived peril, undertake rescue,
seek aid, notify police, protect against further injury, etc.-for the
3. [W]hich he could have done without unreasonable cost or risk to himself or
4. [A]s a result of which the other party suffers harm, or an increased degree
5. [A]nd for these reasons the omitter is
"bad" (morally blameworthy).
Tales of outrageous omissions, such as those described above,
n52 indicate the need for
Samaritan" legislation. Aside from existing legislation in a few states, sociological and
psychological justifications exist in support of enacting
Samaritan" statutes in the states. Bystander intervention statutes prevent harm and
protect public interests by motivating and requiring bystanders to intervene to
aid crime victims.
A. Sociological Justifications
Sociological justifications exist for bystander intervention statutes because
they serve both current societal requirements and benefit society as a whole.
Moral obligation, civic duty, harm prevention, and public interest each provide
sociological justifications for bystander intervention legislation.
1. Moral Justifications.-"Bad
Samaritan" legislation is supported by the moral obligation to render assistance to
others. Moral obligation in itself is often criticized as a justification for
Samaritan" statutes based on the belief that such statutes (wrongfully) legislate
n53 Because other justifications exist for
Samaritan" statutes, it is not necessary that these criticisms be addressed.
However, even if morality served as the only justification,
Samaritan" legislation should not be automatically dismissed. Lord Patrick Devlin of
"I think it is clear that the criminal law as we know it is based upon moral
principle. In a number of crimes its function is simply to enforce a moral
principle and nothing else."
n54 He went on to state that
[*580] ideas on politics, morals, and ethics no society can exist. Each one of us has
ideas about what is good and what is evil; they cannot be kept private from the
society in which we live."
n55 That we share the ideals inherent in the morality of
Samaritan" legislation is evident in the teachings of various world religions.
n56 Legislation in this area
"would give legal effect to a moral principle that we are our brother's keeper."
Because the moral principle behind
Samaritan" statutes is shared almost universally by the world's many religions and
because laws are often based, to some degree, on moral principle, moral
obligation supports enactment of a bystander intervention statute. Creation of
such a statute would give legal effect to an already existing shared principle
that we should help those in distress.
2. Civic Duty as a Justification.-The enactment of
Samaritan" legislation is further supported by existing civic duty. While few
jurisdictions have mandated a duty to report crime, a civic duty to assist in
the criminal justice system by notifying the police with information concerning
crimes is as old as our nation.
"For our political system . . . clearly imposes a civic duty, a duty of
citizenship, to cooperate with law enforcement, even when that duty is not
specifically enforced by the criminal or civil law."
n58 Notification is vital to the criminal justice system.
The duty proposed by this Note,
n60 bystander intervention by summoning the authorities, would serve the civic
duty of assisting law enforcement. By requiring bystanders to notify the
authorities, the criminal justice system is able to fulfill its role in aiding
the victims of crime and stopping criminal acts. Because all citizens share in
the responsibility of maintaining the criminal justice system and because
notification is a vitally important factor in its efficient administration,
civic duty justifies the enactment of bystander intervention statutes.
3. Prevent Harm.-"Bad
Samaritan" legislation is further justified because it serves to prevent harm by
requiring either a rescue or the immediate reporting of a crime in order to
assist the victim. Without any intervention, a crime victim is certain to
suffer some type of harm; bystander intervention statutes serve to prevent harm
or alleviate this harm in order to create a better result for the victim.
Bystander intervention statutes serve to prevent harm to the victim that is
connected and causally relevant to the bystander's failure to intervene.
Criminal laws exist, in part, to prevent harm.
n61 The law regulates personal freedom by imposing duties and extending liberties.
The law also confers rights against one's fellow citizens; it protects citizens
by prohibiting one from exercising their personal liberties to the detriment of
n62 While a presumption in favor of liberty exists, certain societal interests
justify limiting personal liberty.
The Harm Principle is a common liberty-limiting principle. It holds that penal
law is permissible because it is an effective means of preventing harm to
n64 A harm is defined as a wrongful setback of interest.
n65 Omissions, under some circumstances, can be the cause of harms.
"Preventing people from causing harm is noncontroversially a legitimate function
of criminal law, and prohibiting people from allowing harm has precisely the
same point, namely to prevent harms."
One argument against
Samaritan" legislation is the distinction between misfeasance and nonfeasance.
Samaritan" legislation is justified as it serves to prevent harm, regardless of
misfeasance or nonfeasance. Under the Harm Principle, the distinction between
preventing people from causing harm and prohibiting people from allowing harm
is irrelevant, because the victim ultimately suffers harm. Regardless of
whether there is a bystander witnessing a crime or not, the crime victim
suffers harm. The bystander intervention statute proposed by this Note
n69 would require the bystander to intervene by reporting the crime and summoning
the authorities. By summoning the authorities, the victim's injury would be
mitigated or avoided all together. The police may be able to stop the crime and
rescue the victim. Because harm to the crime victim is either mitigated or
completely avoided by the enactment of
Samaritan" legislation, it serves the harm principle, thereby providing support for the
Samaritan" legislation serves to prevent harm. The harms prevented by such statutes are
connected to the bystander's failure to intervene.
n70 A bystander who witnesses a crime upon a victim has the power to affect the
situation and the crime in progress by notifying the authorities or directly
assisting the victim. If the bystander does nothing, the resulting harm to the
victim is a consequence of the bystander's decision not to use this power to
Not only is the harm that results to the victim connected to the bystander's
failure to intervene, but the bystander's failure to intervene is also a
"causally relevant factor"
n71 in the resulting harm to the victim. Failing to summon the authorities on
behalf of the victim is not the sole cause for the resulting harm- the
bystander is not directly attacking the victim. However, the bystander's
failure to summon the authorities or to provide direct assistance plays a
relevant role in the harm that results. This causal connection supports the
Samaritan" legislation. If the bystander intervenes, the victim will not be harmed as
severely. If, for example, the victim was assaulted, the bystander's direct
intervention or immediate crimereporting may avoid commission of a rape or a
murder. This connection indicates that the bystander is a casual factor in the
victim's harm if he or she fails to intervene.
Requiring a bystander to intervene, either directly or by summoning the
authorities, could reduce or prevent any harm done to the victim. The harm that
is avoided is causally connected to the bystander's failure to intervene.
Because it prevents harm and therefore serves the Harm Principle, justification
exists for enactment of
4. Protect Public Interests.-Related to the Harm Prevention Principle, which
protects people from harm,
Samaritan" legislation is further justified because it would protect public interests. A
statute imposing the duty to intervene on behalf of crime victims and imposing
criminal liability for the failure to do so would serve to deter antisocial
behavior. Criminal legislation exists to protect societal interests, including
the protection of public harm.
n72 Antisocial behavior can appropriately be made the subject of a criminal
statute because it constitutes a public wrong.
Witnessing a crime and ignoring the plight of the victim is antisocial behavior
and therefore a public wrong. A witness to a crime who fails to intervene
ignores societal expectations to aid one's neighbor, despite the absence of a
n74 A statute that requires intervention would allow the criminal justice system
to punish the failure to intervene. Such a criminal statute would therefore
serve to deter antisocial behavior on the part of the witness/bystander.
Moral justifications and existing civic duty serve as societal justifications
Samaritan" legislation. In addition, such legislation would serve to prevent harm to
others and would serve to deter antisocial behavior.
B. Psychological Justifications
In addition to sociological justifications, psychological justifications also
exist for the enactment of
Samaritan" legislation. Psychological justifications include creating an expectation of
intervention, creating a prior personal decision on behalf of the bystander,
drawing the bystander to the suffering of the victim, equalizing expectations,
and fulfilling the need for personal gratification. Each of these serves to
motivate the bystander to intervene and, in doing so, justifies the enactment
1. Societal Expectation of Intervention.-"Bad
Samaritan" statutes would create a societal expectation of intervention. Individual's
behavior is shaped by social norms. One reason people do not render assistance
is that they perceive no societal expectation to do so. Bystanders are acting
in accordance with the social norm of no intervention.
n75 David Cash, whose best friend Jeremy
Strohmeyer sexually assaulted and murdered Sherrice Iverson in a restroom while David
waited outside, repeatedly stated, when criticized for failing to stop his
friend, that he did nothing wrong and was under no duty to act otherwise.
n76 Based upon David's statements one could say that he felt no societal
expectation to intervene. A statute requiring some form of intervention would
change the legal duty from no obligation to assist to a duty of intervention.
[*584] to people that they have a responsibility to help.
n77 Therefore, the creation of an expectation of intervention justifies enactment
2. Personal Responsibility and Prior Decision to Intervene.-"Bad
Samaritan" legislation would also aid in developing a personal responsibility and a prior
decision on behalf of bystanders to help. Bystanders are more likely to
intervene if they feel personally obligated to do so and if they made a prior
decision to intervene when necessary. A feeling of personal responsibility on
the part of the bystander influences their decision whether or not to
intervene. Individuals are more likely to act in a prosocial manner when they
feel personally responsible or under an obligation to do so.
n78 In a 1972 experiment by professor and psychologist Thomas Moriarity, only
twenty percent of bystanders intervened to stop a would-be thief.
n79 However, when the owner of the belongings asked the bystander to watch her
things, ninety-five percent of those asked to watch intervened to stop the
n80 Moriarity's study further revealed that when a prior decision to help was
made, failure to intervene decreased.
If all potential bystanders and witnesses were under a duty to intervene,
personal responsibility and a prior decision to help would be created. When
faced with a crime in which the victim needs assistance, a bystander may feel a
personal responsibility and would know that intervention is required. Further,
the obligation of the statute would serve as a prior decision to intervene.
Intervention would be increased by this personal responsibility and prior
decision. Because it would motivate bystanders to intervene, enactment of
Samaritan" legislation is justified.
3. Drawing the Bystander to the Victim.-A statute meant to benefit the victim
would draw potential bystanders to the suffering of crime victims.
Psychological studies indicate that emotions play an important motivational
role in rendering assistance.
n82 Psychologist Robert Kidd believes that intervention is not based on cognitive
decision making, but instead on the bystander's impulses and emotional arousal.
n83 Should the witness experience emotional arousal in witnessing another in
distress, intervention will result if the act of intervention
[*585] is the bystander's dominant response.
n84 Kidd believes that the bystander's focus of attention-the person on whom the
bystander is focused when he or she witnesses a crime-determines the
While Kidd believes that legislation itself will not lead to increased
intervention, he does believe that the media's role in increasing awareness of
the victims could promote intervention.
n86 Therefore, legislation combined with increased media attention could serve to
increase intervention. Rather than focusing on the need to capture criminals,
Samaritan" statutes should direct attention to the plight of the victims of crime and the
need to intervene in order to render assistance to those in danger. By focusing
on the victim's suffering,
Samaritan" statutes would lead to increased intervention, further justifying their
4. Normalizing Responsibility of Bystanders.-A statute which imposes a duty to
intervene by reporting a crime in order to assist the victim requires the same
responsibility of all bystanders at the scene of a crime. The presence of other
bystanders is often cited as a reason witnesses fail to intervene.
n87 Several reasons for this have been posed. When multiple bystanders are
present, the responsibility of intervention is shared among them all and, as a
result, no one helps.
n88 Also, the potential blame for failing to intervene may be diffused among all
of the bystanders.
n89 Witnesses often believe that others are acting and so their assistance is not
n90 The presence of other on-lookers also creates
"evaluation apprehension," the fear of being judged by other witnesses.
A duty to intervene would impose the same duty and the same level of
responsibility on all bystanders at the crime scene. Each bystander would be
equally punishable for the failure to report, and one would know that if they
did nothing, they would face the consequences for their omission. Because the
only requirement would be a notification of the authorities, evaluation
apprehension would be diminished as there is no conduct to be judged by the
other bystanders. Normalizing responsibility would increase motivation to
5. Self-gratification.-Finally, reporting crime fulfills a personal need for
self-gratification. According to a survey conducted by Robert Wuthnow,
seventy-three percent of the public said that helping people in need was
absolutely essential or very important, twenty-four percent reported that it
was fairly important, and only two percent felt that it was not very important.
n92 Other studies indicate that most people believe that helping others is a good
way of gaining self- fulfillment.
n93 The Bad
Samaritan Statute would motivate bystanders to intervene thereby increasing assistance
to victims. In addition, satisfying the obligation imposed by the Bad
Samaritan Statute would offer bystanders a sense of self-fulfillment. This increased
motivation and sense of self-fulfillment further support enactment of Bad
III. Proposed Duty and Proposed Penalties
As the above discussion demonstrates, sociological and psychological
justifications exist for enacting Bad
Samaritan intervention statutes. This Part proposes a duty to report crimes and
discusses the benefits of a duty to report crime statute. In addition, the
absence of constitutional prohibitions on such a duty, possible penalties for
breach of such duty, and the challenges of enforcement are addressed.
A. Proposed Duty
As discussed above, intervention means either reporting the crime or providing
direct assistance to a crime victim.
n94 This Note proposes bystander intervention by reporting specifically enumerated
crimes in order to aid the crime victim.
The proposed statute would require bystander intervention by summoning the
authorities in order to assist the victim of specific crimes such as assault,
battery, sexual assault, and homicide. In order to provide clarity to
bystanders, the proposed legislation should focus on the specific crimes or
acts that must be reported rather than a more general duty to report a crime.
n95 The rationale for reporting the crime should be assisting the victim rather
than aiding in the apprehension of criminals.
n96 A statute creating a duty to intervene on behalf of the crime victim by
summoning the authorities would be easily fulfilled by the bystander, would
readily alert a witness to the need for intervention, and would provide a safe
means of intervention where the bystander's role is clearly defined.
1. Duty Would Be Easily Fulfilled.-A statute requiring a bystander to report
specific crimes and summon the authorities to assist a victim would clearly set
out the bystander's easily fulfilled duty. Competence is a factor influencing
responsibility and the obligation to intervene. People feel a greater sense of
obligation to intervene where they feel they have the skills to effectively
n97 The proposed statute would require the bystander to notify the authorities in
order to assist the crime victim. The proposed duty would not require the
bystander to fight off an attacker or provide medical assistance to the crime
victims. To fulfill the duty, the bystander need only summon the authorities to
the crime scene by dialing 911 or using an alternative method. No special
skills, medical or otherwise, are required to notify the authorities.
Conversely, if direct assistance were required, a bystander may feel that
special skills would be needed. Therefore, by requiring only that bystanders
notify the authorities, bystanders would be less likely to feel incompetent to
Bystanders often cite fear of doing the wrong thing as a reason why they fail
n98 Where only some form of notification is required, the fear of acting
inappropriately would be lessened. Little preparation to act would be required
because all the bystander must do is call the authorities when a specifically
enumerated crime is witnessed. The statute would define the content of the
duty, to contact the authorities, and specify when the bystander has the duty.
2. Creates a Perception of Need.-When deciding to help a victim, a bystander
must first notice the crime and then decide whether or not help is needed.
Next, if help is required, the bystander must consider his or her own personal
responsibility to act. Third, the bystander may weigh the costs and rewards of
helping or not helping. Finally, the bystander must decide what type of help is
needed and how to provide it.
By defining specifically when intervention is required, i.e. through
specifically enumerated acts, the bystander's perception of a need would be
fulfilled. Psychologist David Sears has defined five characteristics that lead
to the perception that an event is an emergency, and therefore that
intervention may be needed:
"(1) [s]omething happens suddenly and unexpectedly, (2) there is a clear threat
of harm to a victim, (3) [t]he harm to the victim is likely to increase over
time unless someone intervenes, (4) [t]he victim is helpless and needs outside
assistance, and (5) [s]ome sort of effective intervention is possible."
Requiring intervention when another is the victim of assault, battery, sexual
assault, or homicide, forexample, would fulfill the above mentioned
characteristics. Such situations pose a clear threat of harm to the victim. The
harm to the victim would likely increase over time unless someone intervenes.
The victim is likely to be helpless in such situations and would need outside
assistance. Finally, by fulfilling the duty of summoning the authorities, an
[*588] effective intervention would be possible as those trained to intervene would
be directed to assist the victim.
By defining what acts must be reported, bystanders would know that an act is
criminal and that notification is required. Crime reporting depends upon the
bystander defining an act as a crime. The bystander must recognize a criminal
act before he or she will be required to report it.
Once an act of violence has been witnessed, bystanders may or may not define it
as a crime.
n103 By knowing that an act is a crime, the bystander will apply a criminal label
n104 Non-reporting may be caused in part by a failure to connect the observed
behavior with a criminal label.
n105 By listing the crimes that require reporting, the statute lays out when a
bystander must notify the authorities. The bystander would easily be able to
define the conduct as a crime and the criminal label would be attached, making
the bystander more likely to intervene.
3. Safe Intervention.-Crime reporting, as a means of providing assistance to
the victim, allows for intervention, but in a means safer for the bystander
than requiring a direct rescue. Even after the criminal label has been attached
or an emergency defined,
n106 a bystander may not intervene because the cost of doing so outweighs the
n107 Many witnesses fail to become involved because they fear harm or retaliation.
n108 The proposed statute would require bystander intervention by summoning the
authorities to aid the victim. Like many of the existing intervention statues,
this statute would require intervention by notification only where it may be
completed reasonably and without harm to the bystander.
A duty to summon the authorities would only arise where the intervention
[*589] may be made without danger to the rescuer. Under the harm principle,
intervention is only justified where it may be completed safely.
n110 Where the bystander is unable to safely summon the authorities, the duty to do
so would not arise. Further, notification of the authorities may be made safely
where a rescuewould not. Under the Duty to Aid the Endangered Act, Vermont
requires a person to aid someone known to be exposed to grave physical harm,
but only to the extent that aid may be rendered without harm to the one
obligated to assist.
n111 The Vermont Supreme Court held in State v. Joyce
n112 that the Duty to Aid the Endangered Act does not create a duty to intervene in
a fight because such a situation would present danger or peril to the rescuer
which, under the statute, prevents a duty from arising.
n113 However, the Vermont statute does not provide that notification of the
authorities satisfies the rescue as the Minnesota
n114 and Wisconsin
n115 duty to assist statutes.
n116 A bystander may be able to safely notify the authorities and satisfy the
proposed duty where a rescue could not be made. However, as in Joyce,
intervention would not be required under the proposed statute where it could
not be done safely.
This Note proposes a duty of intervention, that would require bystanders to
assist, the victims of specific crimes such as assault, batter, sexual assault,
and homicide by notifying the authorities. Such a duty would be easily
fulfilled, would create a perception of need, and would provide for safe
intervention. The proposed duty, requiring bystanders to notify the
authorities, would only arise where it may be executed without harm to the
B. Absence of Constitutional Prohibitions
A statute imposing a duty on bystanders to report crime in order to assist
crime victims does not violate the U.S. Constitution. Neither the Fifth
Amendment nor the Due Process Clause bar such legislation.
1. Self-incrimination.-A statute requiring a bystander to report specifically
enumerated crimes would not violate the Fifth Amendment's prohibition on self-
n117 The bystander would not be under a duty to report a crime where notifying the
authorities would lead to the bystander's self- incrimination. In response to a
prosecution under the Ohio duty to report statute,
n118 the Ohio Court of Appeals held, in State v. Wardlow,
n119 that the statute was unconstitutionally applied where the defendant would
incriminate himself or
n120 Therefore, where the defendant would incriminate himself or herself by
reporting the crime, the duty under the proposed legislation would not arise.
2. Due Process Clause.-One potential challenge to a duty to report crime
statute is that such a criminal statute is void for vagueness and therefore
violates the due process clause of the Fourteenth Amendment. The Due Process
Clause states that no State shall
"deprive any person of life, liberty, or property, without due process of law. .
n121 Vague statutes fail to provide notice of exactly which acts are forbidden
n122 and lead to uncertainty as to the meaning of penal statutes, at the
"peril of life, liberty or property."
n123 Therefore, everyone is entitled to know what the state requires or prohibits.
The proposed statute, requiring those who witness certain crimes notify the
authorities in order to aid the crime victim, specifies what criminal acts must
be reported to the authorities by a bystander in order to assist the victim. In
State v. Wardlow,
n124 the Ohio Court of Appeals held that the Ohio
"duty to report" statute was not unconstitutionally void for vagueness.
n125 The statute states in part that
"[n]o person, knowing that a felony has been or is being committed, shall
knowingly fail to report . . . ."
n126 The court found that the statute gives a person of fair intelligence notice
that failure to report witnessed crimes is forbidden and is therefore not
unconstitutionally void for vagueness.
n127 The proposed statute is more specific than the Ohio statute. The proposed
statute would enumerate those specific crimes that must be reported. Because
the Ohio statute survived a void for vagueness challenge, the proposed statute
would also likely survive any void for vagueness challenge.
Not only would the proposed standard provide a clear duty for bystanders, it
would also provide a clear standard for enforcement. Another due process
challenge is that vague statutes fail to provide explicit standards for law
enforcement, allowing discriminatory and arbitrary enforcement.
n128 Because the proposed statute clearly defines when a bystander must report a
crime to the authorities in order to assist the victim, it is also clear to the
authorities when the statute has been violated.
C. Penalties and Enforcement
1. Penalties.-Penalties for violating current duty to assist or report statutes
provide a guide for other such statutes. Existing duty to intervene statutes'
penalties range from a fine of $ 100 to $ 2500 and/or jail time of up to six
n129 Implementing existing penalties such as fines and/or jail time for up to six
months would serve the purposes of criminal punishment.
The goals of punishment include retribution, deterrence, reform, and
n130 As with other criminal offenses, punishment by either a fine or incarceration
would serve the purposes of punishment. Fining and/or jailing would prevent
future violations, correct the offender, prevent excessive or arbitrary
punishment, and provide a fair warning for punishment of others.
2. Enforcement.-One potential argument against the creation of a legal duty to
intervene on behalf of the victims of crime is the difficulty in enforcing such
a duty. One concern is determining whether the duty to intervene by reporting
has been breached. If the witness is still standing at the crime scene when the
police finally arrive at the scene, then the breach of the duty would be
obvious. However, knowing whether a witness was present would be almost
impossible. If the victim dies, it is unlikely that the assailant would later
report the bystander's presence, and more unlikely that he or she could
identify the witness. If the victim were to live, it would be possible that the
victim may not be able to remember the bystander well enough to identify him or
The inability to punish all persons who breach the duty should not deter its
creation. A statute imposing the duty to notify the authorities in order to aid
[*592] crime victim would demonstrate the importance of assisting victims even if it
is unlikely most will be punished. Little litigation has occurred under any of
the current affirmative duty statutes at the state level. However, criminal
statutes may have symbolic value even if little litigation occurs.
"In some instances, the public is less concerned with the 'tangible deprivations
and discomforts that go with punishment' than with 'a symbolic denunciation of
what he or she did.'"
n131 Creating such a statute would demonstrate that failing to report an offense is
Authorities would be able to punish violators as they see fit, possibly
choosing to punish only serious violations.
n133 Selective enforcement should not deter enactment of a statute requiring
intervention on behalf of the victim. Selective enforcement is permissible and
a constitutional violation only when the statute's enforcement is based on
IV. State vs. Federal Legislation
While justifications for a statute creating a duty to report crime in order to
aid the victim exist, such legislation is solely within the states' power. Such
a statute at the federal level would infringe on the broad police power
provided to the states, exceed the power of Congress to create federal crimes,
and exceed the purpose of federal crimes. In addition, such legislation at the
federal level would unduly burden the federal judiciary.
A. Broad Police Power Reserved for the States
The creation of a statute imposing a duty to report crime and a criminal
penalty for its breach falls within the broad police power reserved for the
states. State governments have the power to regulate their affairs for the
protection or promotion of public health, welfare, safety, and morals, and they
do not need to rely on specific constitutional authorization when criminalizing
"[O]ne transcendent advantage belonging to the province of the State governments
which alone suffices to place the matter in a clear and satisfactory light . .
. [is] the ordinary administration of criminal and civil justice."
n136 As the Supreme Court has stated,
"[u]nder our federal system, the 'states possess primary authority for defining
and enforcing the criminal law.'"
n137 Therefore, because the states have authority to define what conduct is
criminal, they may
[*593] impose a duty to intervene on behalf of victims of crime.
States define criminal conduct and assign appropriate penalties in light of the
goals of criminal law that the states have accepted. Because the harm of
criminal conduct is localized, the states have a more immediate interest in
defining and enforcing criminal statutes.
n138 The individual states should decide what crimes must be reported and how
violations should be punished.
B. Federal Criminal Legislation
While the states possess broad police power, the federal government does not
possess such a plenary police power.
"Our national government is one of delegated powers alone. Under our federal
system the administration of criminal justice rests with the States except as
Congress, acting within the scope of those delegated powers, has created
offenses against the United States."
n140 A bystander intervention statute does not fall within the traditional
federalization of crime framework.
1. Development of Federal Criminal Legislation.-The development of federal
criminal law within the United States has not been systematic. It has developed
n141 Before the Civil War, few federal statutes criminalized conduct already
criminal under state law; rather, federal criminal jurisdiction was limited to
acts directly injurious to the federal government.
n142 Following the Civil War, federal sanctions were created to protect private
individuals from invasions of their rights by other private individuals,
traditionally a function of state law.
n143 In the Twentieth Century, federal intervention into matters once exclusively
the function of state criminal law has increased; federal criminal law is a
"[Twentieth] Century phenomenon."
Two general categories of federal crimes exist: those criminalizing activities
that occur in federal territories and those criminalizing activities that occur
within state territories. Where the criminal activity occurs within a federal
territory, such as on a military base or in Washington, D.C., the federal
government has broad police power similar to the states.
n145 However, where the criminal activity occurs within the territory of the
states, the federal police power
[*594] is less broad, and legislation is permitted only by the Constitution.
2. Functions of Federal Criminal Legislation.-Federal criminal law serves three
functions. It punishes conduct that is injurious to the federal government,
n147 it serves to secure compliance with federal administrative regulations,
n148 and it is used to punish conduct of a local concern with which the local
police are unable or unwilling to cope.
A statute requiring bystander intervention does not fall within the first two
functions of federal criminal law. It is not directly injurious to the federal
government and does not serve to secure compliance with federal administrative
regulations. Rather, a bystander intervention statute involves punishing
conduct of a purely local concern.
n150 However, nothing has indicated that it is a matter with which the local police
are unable or unwilling to cope. An example of this would be statutes
prohibiting flight across state lines to avoid state criminal prosecution.
n151 The proposed statute involves conduct that the states have not attempted to
legislate, not conduct that they are unable or unwilling to enforce. Therefore,
legislation is not justified at the federal level.
3. Federal Criminal Legislation Must Be Within the Constitution.-As discussed
n152 the power of Congress to create federal crimes must be expressed or implied
within the Constitution. The Constitution grants Congress the power
"to make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or
n153 The Necessary and Proper Clause, however, is only applicable where Congress is
carrying out other powers vested by the Constitution.
n154 While a federal statute creating a duty to intervene may in itself be deemed
necessary and proper by Congress, if the power to enact such a statute is not
found elsewhere in the Constitution, Congress may not create it.
The Commerce Clause
n155 provides Congress with the majority of its power
[*595] to legislate.
n156 The Commerce clause grants Congress the power
"[t]o regulate commerce with foreign nations, and among the several States, and
with the Indian tribes."
n157 Prior to United States v. Lopez,
n158 Congress had almost unlimited power under the Commerce Clause provided it was
related to or affected interstate commerce.
n159 After Lopez, the Commerce power exists only where: (1) the activity being
regulated affects the channels of interstate commerce, i.e. the highways,
n160 (2) the activity affects the instrumentalities of interstate commerce, i.e.
machinery used in interstate commerce,
n161 or (3) the activity has a substantial effect on interstate commerce.
Bystander intervention to assist the victim of crime probably does not fall
within the power of the Commerce Clause. Because the channels of interstate
commerce and the instrumentalities of interstate commerce are not involved in a
bystander intervention statute, Congress may only regulate in this area if the
activity under regulation has a substantial affect on interstate commerce. In
determining whether an activity substantially affects interstate commerce, a
number of factors are considered including (1) whether the activity is
commercial; (2) whether it is one traditionally reserved for state regulation;
(3) whether the regulation contains a jurisdictional element; and (4) whether
Congress has provided legislative findings to support a need for regulation.
n163 Before Lopez, only some minimal threshold effect on interstate commerce was
required. After Lopez, the effect on interstate commerce must be substantial.
n164 Criminal acts involving victims are not commercial activities. Further, the
activity is one that is traditionally reserved for the states. As discussed
n165 defining and enforcing crimes are within the broad police power reserved for
the states and are therefore activities traditionally reserved for the states.
Because bystander intervention is not within the Commerce power, Congress is
[*596] justified in enacting such a statute.
C. Burden on the Federal Judicial System
Enacting a federal duty to intervene statute is further inappropriate because
of the burden it would place on the federal judiciary. When more federal crimes
are created, the criminal caseload is increased and the resources allocated to
criminal cases are shifted. Criminal cases account for only seventeen percent
of the total federal judicial docket, but they take up a disproportionate share
of judicial resources.
n166 By creating a federal statute requiring bystander intervention, enforcement
would increase the criminal caseload. As well, judicial resources allocated for
criminal prosecutions would be further strained in order to enforce the
bystander intervention statute.
Not only would enforcement of a federal bystander intervention statute result
in straining already full dockets, it would also logically result in a decline
in resources available for civil cases. The Speedy Trial Act requires the
dismissal of charges that are not brought within specified time periods;
n167 therefore, criminal cases receive top priority. In order to respond to
increased pressure from the criminal caseload, the federal courts have reduced
the resources available for civil disputes.
n168 Civil cases would be even further delayed if federal courts were to enforce a
federal bystander intervention statute.
State courts are better equipped to enforce a duty to intervene statute, and
enforcement at the state level would not interfere with the primary functions
of the federal judiciary. The primary functions of the federal courts are
interpreting federal law, declaring federal rights, and providing a neutral
forum for interstate disputes.
"With less than 650 trial judges nationwide, the federal judicial system
performs a distinctive function not shared by the much larger state judicial
n170 Because the creation of a federal duty to intervene statute would over burden
the federal judicial system, such a statute belongs in the states where it
would be more effectively enforced.
D. Alternatives to Federal Legislation
Rather than creating a federal duty to intervene statute, Congress may more
efficiently act on the subject and motivate the states to enact such statutes
by conditioning state funding on the states' enactment of a bystander
intervention statute. The Spending Power
n171 provides Congress the power to spend for the general welfare.
"Congress can employ its spending power to supplement state
[*597] and local resources rather than enlarging either the number of federal
prosecutors and investigators or the scope of their jurisdiction."
n172 Such action by Congress would express its concern for a duty to intervene
statute, yet avoid strain on the federal judicial system.
"Conditioning federal aid upon the acceptance of federal standards formally
observes the bounds of federalism while, as a practical matter, moving the
federal system towards uniform standards."
As discussed above,
n174 only after demonstrated state failure should the federal government step in to
enact and enforce a duty to intervene statute.
"The state failure model is based on a rebuttable presumption against expanding
the jurisdiction of the federal courts . . . The presumption against federal
crimes that duplicate state crimes may be rebutted when state prosecution is
demonstrably inadequate and when other important federal interests are not
n175 There is little evidence that states have failed to enforce bystander
intervention statutes. Many states have yet to enact such legislation. Further,
there is little evidence of failure to enforce existing statutes. Because
states have not started to enact such legislation, there is no evidence that
they have failed to enforce a bystander intervention statute. Therefore,
bystander intervention legislation belongs within the states.
duty to rescue has not existed in American jurisprudence. Some states, however, have reacted
to serious omissions and enacted
"Duty to Intervene" statutes. Every state should follow their lead and enact such statutes,
requiring a bystander to intervene to assist the victim of specifically
enumerated crimes by notifying law enforcement officials. Such statutes are
justified by the moral obligation to help others, a civic duty to report crime,
and the societal interest in preventing harm. As well, such statutes would
create a societal expectation of intervention, serve as a prior, personal
decision to intervene, and would serve to publicize the suffering of crime
victims. A statute requiring bystander intervention would clearly define the
bystander's role and provide the bystander with a safe means of intervention.
Although Bystander intervention legislation is justified and should be enacted,
such legislation belongs in the states, not in the federal government. The
federal government does not possess the broad police power of the states and
such legislation is not within the enumerated powers of the Constitution.
Finally, bystander intervention legislation at the federal level would unduly
burden the federal judicial system. Therefore, bystander intervention
legislation belongs in the domain of the state legislatures.
n1 See A.M. Rosenthal, Thirty-Eight Witnesses 30 (1964).
n2 See id. at 30.
n3 See Daniel B. Yeager, A Radical Community of Aid: A Rejoinder to Opponents of
Affirmative Duties to Help Strangers,
71 Wash. U. L.Q. 1, 21 (1993). This attack served as the basis for the 1988 film The Accused. The Accused
(Paramount Pictures 1988).
n4 See Cathy Booth, The Bad
Samaritan, Time, Sept. 7, 1998, at 59.
n5 See id.
n6 See id. Jeremy
Strohmeyer pled guilty to avoid the death penalty. Jeremy's attorney proposed that David
should be punished for not stopping Jeremy. See id. The duty proposed by this
Note would not provide a means of reducing the guilt or culpability of the
assailant. Rather, it would serve to assist the victims of crime.
n7 See id.
n8 Intervention may mean reporting or providing direct assistance. See Robert F.
Kidd, 'Impulsive' Bystanders: Why Do They Intervene, in Reactions to Crime: The
Public, the Police, Courts, and Prisons 20, 23-24 (David P. Farrington
& John Gunn eds., 1985).
n9 See W. Page Keeton et al., Prosser and Keeton on Torts
§ 56 (5th ed. 1984). Because of this reluctance to countenance
"nonfeasance" as a basis of liability, the law has persistently refused to impose on a
stranger the moral obligation of common humanity to go to the aid of another
human being who is in danger, even if the other is in danger of losing his
life.Id. at 375.
"Generally one has no legal duty to aid another person in peril, even when that
aid can be rendered without danger or inconvenience to himself." Wayne R. LaFave
& Austin W. Scott Jr., Criminal Law
§ 3.3, at 203 (2d ed. 1986).
n10 Keeton et al., supra note 9, at 373.
n11 See id.
n12 See id. at 376.
"[D]ifficulties of setting any standards . . . ha[ve] limited any tendency to
depart from the rule to cases where some special relation between the parties
has afforded a justification for the creation of a duty. . . ." Id.
n14 See LaFave
& Scott, supra note 9.
n15 See id.
n16 See, e.g.,
Ind. Code § 35-46-1-4 (1998) (neglect of a dependent; child selling);
Kan. Stat. Ann. § 21-3605 (1995) (non-support of a child or spouse);
Kan. Stat. Ann. § 21-3608 (1995) (endangering a child);
N.Y. Penal Law § 260.05 (McKinney 1989) (non-support of a child); see also Joshua Dressler,
Understanding Criminal Law
§ 9.07, at 82 (1987); infra Part I.B (discussing statutes imposing a
duty to rescue).
n17 See Rollin M. Perkins
& Ronald N. Boyce, Criminal Law 54, at 663 (3d ed. 1982). For example, where a
mother enters into a contractual relationship with a babysitter to watch her
children, the babysitter could face liability for failing to assist one of the
children even though the child was not a party to the contract. See Dressler,
supra note 16, at 83; LaFave
& Scott, supra note 9, at 205.
n18 See Dressler, supra note 16, at 83.
n19 See id.
n20 See LaFave
& Scott, supra note 9, at 206.
Minn. Stat. Ann. § 604A.01(1) (West Supp. 1999). Duty to assist. A person at the scene of an emergency who
knows that another person is exposed to or has suffered grave physical harm
shall, to the extent that the person can do so without danger or peril to self
or others, give reasonable assistance to the exposed person. Reasonable
assistance may include obtaining or attempting to obtain aid from law
enforcement or medical personnel. A person who violates this subdivision is
guilty of a petty misdemeanor. Id.
R.I. Gen. Laws § 11-56-1 (1994). Duty to assist. Any person at the scene of an emergency who knows that
another person is exposed to, or has suffered, grave physical harm shall, to
the extent that he or she can do so without danger or peril to himself or
herself or to others, give reasonable assistance to the exposed person. Any
person violating the provisions of this section shall be guilty of a petty
misdemeanor and shall be subject to imprisonment for a term not exceeding six
(6) months or by a fine of not more than five hundred dollars ($ 500), or
Vt. Stat. Ann. tit. 12, § 519 (1973). Emergency medical care (a) A person who knows that another is exposed
to grave physical harm shall, to the extent that the same can be rendered
without danger or peril to himself or without interference with important
duties owed to others, give reasonable assistance to the exposed person unless
that assistance or care is being provided by others. . . . (c) A person who
willfully violates subsection (a) of this section shall be fined not more than
Wis. Stat. Ann. § 940.34 (West 1996). Duty to aid victim or report crime. (1)(a) Whoever violates sub.
(2)(a) is guilty of a Class C misdemeanor . . . (2)(a) Any person who knows
that a crime is being committed and that a victim is exposed to bodily harm
shall summon law enforcement officers or other assistance or shall provide
assistance to the victim. Id.
n26 See supra note 3 and accompanying text.
"[T]he 'bill's sponsor . . . said he was moved to introduce the bill by reports
of the gang rape earlier this year of a woman in a New Bedford, Mass., barroom
who was hoisted onto a pool table and repeatedly assaulted while spectators
stood by and some shouted 'go for it!'" LaFave
& Scott, supra note 9, at 212 n.70 (quoting Nat'l L.J., Aug. 22, 1983, at 5).
Colo. Rev. Stat. Ann. § 18-8-115 (West 1999).
Fla. Stat. Ann. § 794.027 (West 1992).
Haw. Rev. Stat. Ann. § 663-1.6(a) (Michie 1995).
Mass. Gen. Laws Ann. ch. 268, § 40 (West 1990).
Nev. Rev. Stat. Ann. § 202.882 (Michie 1999).
Ohio Rev. Code Ann. § 2921.22 (Anderson 1996).
R.I. Gen. Laws §§ 11-1-5.1; 11-37-3.1 (1994).
Wash. Rev. Code Ann. § 9.69.100 (West 1998).
Mass. Gen. Laws Ann. ch. 268, § 40 (West 1990). Reports of crimes to law enforcement officials Whoever knows that
another person is a victim of aggravated rape, rape, murder, manslaughter or
armed robbery and is at the scene of said crime shall, to the extent that said
person can do so without danger or peril to himself or others, report said
crime to an appropriate law enforcement official as soon as reasonably
practicable. Any person who violates this section shall be punished by a fine
of not less than five hundred nor more than two thousand and five hundred
R.I. Gen. Laws § 11-1-5.1 (1994). Reports of crimes to law enforcement officials. A person who knows
that another person is a victim of sexual assault, murder, manslaughter, or
armed robbery and who is at the scene of the crime shall, to the extent that
the person can do so without danger of peril to the person or others, report
the crime to an appropriate law enforcement official as soon as reasonably
practicable. Any person who violates the provisions of this section shall be
subject to imprisonment for a term not exceeding six (6) months, or by a fine
of not less than five hundred dollars ($ 500) nor more than one thousand
dollars ($ 1,000).Id.
R.I. Gen. Laws § 11-37-3.1 (1994) states: Duty to report sexual assault. Any person, other than the
victim, who knows or has reason to know that a first degree sexual assault or
attempted first degree sexual assault is taking place in his or her presence
shall immediately notify the state police or the police department of the city
or town in which the assault or attempted assault is taking place of the
Wash. Rev. Code Ann. § 9.69.100 (West 1998). Duty of witness of offense against child or any violent offense-
Penalty (1) A person who witnesses the actual commission of: (a) A violent
offense as defined in RCW 9.94A.030 or preparations for the commission of such
an offense; (b) A sexual offense against a child or an attempt to commit such a
sexual offense; or (c) An assault of a child that appears reasonably likely to
cause substantial bodily harm to the child, shall as soon as reasonably
possible notify the prosecuting attorney, law enforcement, medical assistance,
or other public officials. . . . (4) Failure to report as required by
subsection (1) of this section is a gross misdemeanor. However, a person is not
required to report under this section where that person has a reasonable belief
that making such a report would place that person or another family or
household member in danger of immediate physical harm. Id.
Fla. Stat. Ann. § 794.027 (West 1992). Duty to report sexual battery; penalties A person who observes
the commission of the crime of sexual battery and who: (1) Has reasonable
grounds to believe that he or she has observed the commission of a sexual
battery; (2) Has the present ability to seek assistance for the victim or
victims by immediately reporting such offense to a law enforcement officer; (3)
Fails to seek such assistance; (4) Would not be exposed to any threat of
physical violence for seeking such assistance; (5) Is not the husband, wife,
parent, grandparent, child, grandchild, brother, or sister of the offender or
victim, by consanguinity or affinity; and (6) Is not the victim of such sexual
battery is guilty of a misdemeanor of the first degree, punishable as provided
§ 775.082 or
Colo. Rev. Stat. Ann. § 18-8-115 (West 1994). Duty to report a crime-liability for disclosure It is the duty of
every corporation or person who has reasonable grounds to believe that a crime
has been committed to report promptly the suspected crime to law enforcement
authorities. Notwithstanding any other provision of the law to the contrary, a
corporation or person may disclose information concerning a suspected crime to
other persons or corporations for the purpose of giving notice of the
possibility that other such criminal conduct may be attempted which may affect
the persons or corporations notified. When acting in good faith, such
corporation or person shall be immune from any civil liability for such
reporting or disclosure. This duty shall exist notwithstanding any other
provision of the law to the contrary; except that this section shall not
require disclosure of any communication privileged by law. Id.
Haw. Rev. Stat. § 663-1.6(1) (Michie 1995). Duty to Assist (a) Any person at the scene of a crime who knows
that a victim of the crime is suffering from serious physical harm shall obtain
or attempt to obtain aid from law enforcement or medical personnel if the
person can do so without danger or peril to any person. Any person who violates
this subsection is guilty of a petty misdemeanor.Id.
Nev. Rev. Stat. Ann. § 202.882 (Michie 1999). Duty to report violent or sexual offenses against child 12
years of age or younger; penalty for failure to report; contents of report 1.
[A] person who knows or has reasonable cause to believe that another has
committed a violent or sexual offense against a child who is 12 years of age or
younger shall: (a) Report the commission of the violent or sexual offense
against the child to a law enforcement agency; . . . 2. A person who knowingly
and willfully violates the provisions of subsection 1 is guilty of a
misdemeanor.Id. The Nevada statute was inspired, in part, by the attack on
Sherrice Iverson. See 60 Minutes (CBS television broadcast, Aug. 29, 1999),
1999 WL 16209104.
Ohio Rev. Code Ann. § 2921.22 (Anderson 1996). Reporting Felony; Medical Personnel to Report Gunshot,
Stabbing, and Burn Injuries and Suspected Domestic Violence (A) No person,
knowing that a felony has been or is being committed, shall knowingly fail to
report such information to law enforcement authorities. . . . (I) Whoever
violates division (A) or (B) of this section is guilty of failure to report a
crime. Violation of division (A) of this section is a misdemeanor of the fourth
n43 See H.R. 604, 1998 Reg. Sess. (Miss. 1998).
n44 See Melody J. Stewart, How Making the Failure to Assist Illegal Fails to
Assist: An Observation of Expanding Criminal Omission Liability,
25 Am. J. Crim. L 385, 416 (1998).
n45 See H.R. 1429, 56th Leg., 1st Reg. Sess. (Wash. 1999).
18 U.S.C. § 4 (1994).
n48 See Jack Wenik, Forcing Bystanders to Get Involved: Case for Statute Requiring
Witnesses to Report Crime,
94 Yale L.J. 1787, 1792 (1985).
n49 See supra notes 22-42 and accompanying text.
n50 The Christian parable of the Good
Samaritan illustrates the moral duty to render assistance to those in need. The parable
states: A man fell victim to robbers as he went down from Jerusalem to Jericho.
They stripped and beat him and went off leaving him half-dead. A priest
happened to be going down that road, but when he saw him, he passed by on the
opposite side. Likewise a Levite came to the place, and when he saw him, he
passed by on the opposite side. But a
Samaritan traveler who came upon him was moved with compassion at the sight. He
approached the victim, poured oil and wine over his wounds and bandaged them.
Then he lifted him up on his own animal, took him to an inn and cared for him.
The next day he took out two silver coins and gave them to the innkeeper with
"Take care of him. If you spend more than what I have given you, I shall repay
you on my way back."Luke 10:30-36.
n51 Joel Feinberg, Harm to Others 126 (1984).
n52 See supra notes 1-6 and accompanying text.
n53 See Feinberg, supra note 51, at 129.
n54 Patrick Devlin, The Enforcement of Morals 7 (1975). Examples of such crimes
include bans on euthanasia, incest between siblings, and suicide. See id.
n55 Id. at 10.
n56 In addition to the Christian parable of the Good
Samaritan stated above, a story in the Jewish Talmud states that
"whoever saves one life is as though he had saved the whole world." Rev. Dr. A. Cohen, Everyman's Talmud 222 (E.P. Dutton
& Co. 1949). See also B.T. Sanhedrin 37(A); Plater Robinson, Schindler's List
Teaching Guide (June 1995) (visited Aug. 9, 1999)
<http://www.tulane.edu/so-inst/schind.html>. In Buddha's Sermon on Charity: The charitable man has found the path of
salvation. He is like the man who plants a sapling, securing thereby the shade,
the flowers, and the fruit in future years. Even so is the result of charity,
even so is the joy of him who helps those that are in need of assistance; even
so is the great Nirvana. We reach the immortal path only by continuous acts of
kindliness and we perfect our souls by compassion and charity.Paul Carus, The
Gospel of Buddha 76 (1915). The Hindus believe that God is unselfishness. See
generally Vivekananda, Vivekananda: The Yogas and Other Works (1953).
"Gandhi showed the world that the love of one's people need not be inconsistent
with the love of humanity. He strove to free the downtrodden from the shackles
of injustice, slavery and deprivation." Yogesh Chadha, Gandhi-A Life at vii (John Wiley
& Sons 1997).
n57 Diane Kiesel, Who Saw This Happen? States Move to Make Crime Bystanders
69 A.B.A. J. 1208, 1208 (1983) (quoting Arthur Miller).
n58 Joel Feinberg, Harmless Wrongdoing 244 (1988).
n59 See Feinberg, supra note 51, at 171.
n60 See discussion infra Part III.A.
n61 See Feinberg, supra note 51, at 131.
"[T]he criminal law system is the primary instrumentality for preventing people
from intentionally or recklessly harming one another." Id.
n62 See id. at 8.
n63 See id. at 10.
n64 See id. at 26.
n65 See id. at 33.
n66 See supra Part I.A.
n67 Feinberg, supra note 51, at 129.
"Both statutes prohibiting persons from causing harm and statutes requiring
persons to prevent harm have as their rationales the need to prevent harm,
precisely the rationale whose legitimacy is endorsed by the harm principle as
initially formulated." Id. at 186.
"Where minimal effort is required of a [S]amaritan there seems to be no morally
significant difference between his allowing an imperiled person to suffer
severe harm and his causing that harm by direct action, other things
(intention, motive) being the same." Id. at 171. The duty to intervene on behalf of the victim proposed by this
Note would only be imposed where the harm to be prevented or stopped is extreme
and the effort or risk required to prevent it is minimal. The duty would only
be imposed when a bystander witnesses specific criminal acts and where the duty
may be executed without harm to the bystander. See discussion infra Part III.A.
n68 See supra notes 9-11 and accompanying text.
n69 See discussion infra Part III.A.
"[W]hen one has the power to affect events one way or another depending on one's
choice, then the way events are subsequently affected is a consequence of the
way that power was exercised." Feinberg, supra note 51, at 174.
n71 Id. at 175.
n72 See id. at 11.
n73 See Anthony D'Amato, The
70 Nw. U. L. Rev. 798, 808 (1976).
n74 See id.
n75 See Wenik, supra note 48, at 1803.
n76 See Booth, supra note 4, at 59; see also supra notes 4-6 and accompanying text.
n77 See David O. Sears et al., Social Psychology 343 (6th ed. 1988). Mandatory
crime reporting can also serve as a substitute for, or supplement to, the
social influence that traditionally came from sources such as the community,
family, and religion. By making the failure to report crime a criminal offense,
the proposal combats indecision through its provision of an accepted course of
action and its explicit determination that a decision to ignore crime is wrong
and socially unacceptable.Id.
n78 See id. at 348.
n79 See id.
n80 See Thomas Moriarty, Crime, Commitment, and the Responsive Bystander: Two
Field Experiments, 31 J. Personality
& Soc. Psychol. 370, 373 (1975).
n81 See id. at 371.
n82 See, e.g., Bernard Weiner, Inferences of Responsibility and Social Motivation,
27 Advances in Experimental Psychol. 1, 26 (1995).
n83 See Kidd, supra note 8, at 37.
n84 See id. at 31.
n85 See id. at 33. If the bystander focuses his attention on the suffering of the
victim it is more likely that helpful responses will be evoked . . . . On the
other hand, if attention is directed towards other aspects of the situation,
such as the characteristics of an assailant, or the potential for violence, a
bystander is attending to the dangerous elements of the situation. This focus
on danger, as opposed to suffering, makes it less likely that helpful or
altruistic responses will be produced by the same circumstances.Id.
n86 See id. at 37.
n87 See generally John M. Darley
& Bibb Latane, Bystander Intervention in Emergencies: Diffusion of
Responsibility, 8 J. Personality
& Soc. Psychol. 377, 377 (1968).
n88 See id. at 378.
n89 See id.
n90 See id.
n91 Wenik, supra note 48, at 1789.
n92 See Robert Wuthnow, Acts of Compassion: Caring for Others and Helping
Ourselves 10 (1991).
n93 See id. at 87.
n94 See supra note 8.
n95 See, e.g.,
Mass. Gen. Laws Ann. ch. 268, § 40 (West 1990). But see
Haw. Rev. Stat. 663-1.6(1) (Michie 1995).
n96 See discussion supra Part II.B.1.
n97 See Sears et al., supra note 77, at 350.
n98 See generally Yeager, supra note 3, at 15-16.
n99 See Sears et al., supra note 77, at 346.
n100 Id. at 348.
n101 See Feinberg, supra note 51, at 169-71.
n102 See Robert F. Kidd, Crime Reporting: Toward a Social Psychological Model, 17
Criminology 380, 381 (1979). Kidd provides a model of the psychological process
involved with crime reporting. He finds three important questions: 1. Once a
possible act of violence or theft has been seen, what aspects of the situation
and what characteristics of the bystander lead to its definition as a crime? 2.
What are the cognitive processes involved in the decision to report an alleged
violation? 3. What possible motivational factors influence the probability of
reporting the crime?Id.
n103 See Sears et al., supra note 77, at 348.
"Our interpretation or definition of a situation is a vital factor in whether or
not we offer aid." Id.
n104 See Kidd, supra note 102, at 387.
n105 See id. at 391.
n106 See discussion supra Part III.A.
n107 See Kidd, supra note 102, at 392.
n108 See Yeager, supra note 3, at 15.
n109 See, e.g.,
Minn. Stat. Ann. § 604A.01 (West 1999 Supp.). See supra note 22.
n110 See Feinberg, supra note 51, at 150-59.
Vt. Stat. Ann. tit. 12, § 519 (1973); see also supra note 24.
433 A.2d 271 (Vt. 1981).
id. at 273.
Minn. Stat. Ann. § 904A.01 (West 1999 Supp.).
Wis. Stat. Ann. § 940.34 (West 1996).
n116 See supra notes 22, 25.
n117 See U.S. Const. amend. V.
Ohio Rev. Code Ann. § 2921.22 (Anderson 1996).
484 N.E.2d 276 (Ohio Ct. App. 1985).
n120 See id. at. 279.
n121 U.S. Const. amend. XIV,
Parker v. Levy, 417 U.S. 753, 774-75 (1974) (Stewart, J. dissenting) ("[B]y failing to provide fair notice of precisely what acts are forbidden, a
vague statute 'violates the first essential of due process of law.'" (quoting
Connally v. General Construction Co., 269 U.S. 385, 391 (1926))); see also Sanford H. Kadish
& Stephen J. Schulhofer, Criminal Law and Its Processes 304 (6th ed. 1995).
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
484 N.E.2d 276 (Ohio Ct. App. 1985).
id. at 279.
Ohio Rev. Code Ann. § 2921.22 (Anderson 1996).
Wardlow, 484 N.E.2d at 279.
Papachristou v. City of Jacksonville, 405 U.S. 156, 165-71 (1972).
R.I. Gen. Laws §§11-1-5.1; 11-56-1 (1994);
Mass. Gen. Laws Ann. ch. 268, § 40 (1990);
Vt. Stat. Ann. tit. 12, § 519 (1973).
n130 See Kadish
& Schulhofer, supra note 122, at 102- 30. The general purposes of the provisions
governing the sentencing and treatment of offenders are: (a) to prevent the
commission of offenses; (b) to promote the correction and rehabilitation of
offenders; (c) to safeguard offenders against excessive, disproportionate or
arbitrary punishment; (d) to give fair warning of the nature of the sentences
that may be imposed on conviction of an offense; (e) to differentiate among
offenders with a view to a just individualization in their treatment; (f) to
define, coordinate and harmonize the powers, duties and functions of the courts
and of administrative officers and agencies responsible for dealing with
offenders; (g) to advance the use of generally accepted scientific methods and
knowledge in the sentencing and treatment of offenders; (h) to integrate
responsibility for the administration of the correctional system in a State
Department of Correction. Model Penal Code
§ 1.02(2) (Official Draft 1962), reprinted in Kadish
& Schulhofer, supra note 122, at 1132.
n131 Yeager, supra note 3, at 34 n.160 (quoting Leo Katz, Bad Acts and Guilty Minds
n132 See supra notes 44-71 and accompanying text.
n133 See Wenik, supra note 48, at 1805.
n134 See id.
n135 See LaFave
& Scott, supra note 9, at 128; Richard H. McLeese, Federal Criminal
Jurisdiction, Ill. Inst. for Continuing Legal Educ.
§ 1.2 (1997).
n136 The Federalist No. 17, at 81 (Alexander Hamilton) (Garry Wills ed., 1982).
United States v. Lopez, 514 U.S. 549, 561 n.3 (1995) (quoting
Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)).
n138 See Geraldine Szott Moohr, The Federal Interest in Criminal Law,
47 Syracuse L. Rev. 1127, 1132-133 (1997).
Lopez, 514 U.S. at 566.
Id. at 561 n.3 (quoting
Screws v. United States, 325 U.S. 91, 109 (1945)).
n141 Sara Sun Beale, 2 Encyclopedia of Crime
& Justice 779 (Sanford H. Kadish et al. eds., 1983).
n142 See id. at 776.
n143 See McLeese, supra note 135,
n144 Id. Currently, there are more than 3000 federal crimes. See Moohr, supra note
138, at 1128 n.5.
n145 See LaFave
& Scott, supra note 9, at 118.
n146 See id.
n147 See id. at 124. Examples include treason, espionage, bribery of federal
officials, and murder of federal officials. See id.
n148 See id. An example of federal criminal legislation serving to secure
compliance with federal administrative regulations includes
18 U.S.C. §§ 343-44, which
"authorize the Secretary of the Treasury to require by rule or regulation that
certain information be kept by those who traffic in cigarettes and provide for
the imposition of criminal penalties for violations of such rules and
regulations." McLeese, supra note 135,
n149 See LaFave
& Scott, supra note 9, at 124.
n150 See id.
n151 See id.
n152 See supra notes 139-46 and accompanying text.
n153 U.S. Const. art. I,
§ 8, cl. 18 (Necessary and Proper Clause).
n154 See John E. Nowak
& Ronald D. Rotunda, Constitutional Law
§ 3.2, at 122 (5th ed. 1995).
n155 U.S. Const. art. I,
§ 8, cl. 3.
"Congress' authority to enact criminal statutes which are not aimed at
protecting direct federal interests has usually been based in the commerce
power, and less frequently, in the postal power or the taxing power." Norman Abrams
& Sara Sun Beale, Federal Criminal Law and Its Enforcement 16 (2d ed. 1993).
n157 U.S. Const. art. I,
§ 8, cl. 3.
514 U.S. 549 (1995).
n159 From 1937 to 1995 the Supreme Court would invalidate a federal statute on the
grounds that the statute was beyond the commerce power. See, e.g.,
Wickard v. Filburn, 317 U.S. 111 (1942) (holding that the Agricultural Adjustment Act of 1935 was within commerce
power as local farmers would have a cumulative effect on interstate commerce
and that the act was reasonably related to protecting interstate commerce);
National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding the National Labor Relations Act of 1935, based on the conclusion
that a labor stoppage would substantially affect interstate commerce).
Lopez, 514 U.S. at 558.
n161 See id.
id. at 559.
id. at 560-65.
id. at 559.
n165 See discussion supra Part III.C.2.
n166 See Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the
Proper Limits for Federal Criminal Jurisdiction,
46 Hastings L.J. 979, 985 (1995).
18 U.S.C. §§ 3161-3174 (1994); see also U.S. Const. amend. VI,
n168 See Beale, supra note 166, at 988.
n169 See id. at 988-89.
n170 Id. at 989. The U.S. Code indicates that there are 632 federal district court
28 U.S.C. § 133 (1994).
n171 U.S. Const. art. I,
§ 8, cl. 1.
n172 Beale, supra note 166, at 1008.
n173 Id. at 1010.
n174 See discussion supra Part IV.B.1.
n175 Moohr, supra note 138, at 1142.
Prepared: April 16, 2003 - 5:02:29 PM
Edited and Updated, April 17, 2003