DUTY TO RESCUE
LAW REVIEW ARTICLE
April 19, 2003
Copyright (c) 1999 Oklahoma Law Review
Oklahoma Law Review
52 Okla. L. Rev. 613
LENGTH: 20082 words
"Am I My Brother's Keeper?"
n1 Sherrice's Law: A Balance of American Notions of Duty and Liberty
Justin T. King
... The proposed federal statute, Sherrice's Law, amends the existing statute
42 U.S.C. § 5106a. In its current form, section 5106a places certain requirements on states which
receive grants for child abuse prevention and treatment programs. ... Some
form of a mandatory child abuse reporting statute exists in the statutory
provisions of all fifty states and the federal government. ... The Oklahoma
legislature has also passed a child abuse reporting statute. ... The Efficacy
of Oklahoma's Child Abuse Reporting Statute ... However, the Oklahoma child
abuse reporting statute contains an additional element. ... The Oklahoma Court
of Criminal Appeals upheld the conviction of a state-employed nurse in Capaldi
v. State for a violation of the Oklahoma Child Abuse Reporting statute. ...
Capaldi is the only significant reported case which has tested Oklahoma's
mandatory child abuse reporting statute. ... A question arises whether the
Oklahoma Child Abuse Reporting statute could apply to one who witnesses the
actual abuse of a child while it occurs. ... The duty to assist statute covers
emergency situations; the child abuse reporting statute covers after- the-fact
reporting of child abuse; and Sherrice's Law would cover any incidents of
sexual abuse, including those situations which may not technically be
considered an emergency. ... Neither Oklahoma's child abuse reporting statute
nor Oklahoma's rescuer liability statute addresses the same kind of situation
as Sherrice's Law. ...
I. Introduction and Background
In September 1998, two members of Congress proposed a bill which would impose
criminal penalties on anyone who witnesses acts of sexual abuse on minor
children and does not report the abuse to the proper authorities.
n2 The impetus for this Good
Samaritan-style bill was an enraged California, and indeed national, populace which
strongly believed that in the aftermath of the tragedy involving seven-year-old
Sherrice Iverson, justice had not been served.
During Memorial Day weekend in 1997, David Cash, Jr. watched from an adjacent
casino bathroom stall as his best friend, Jeremy
Strohmeyer, sexually assaulted and eventually killed young Sherrice Iverson. Cash did not
witness the entire episode, but he knew what was happening and elected to do
nothing about it. He never mentioned it to anyone until
Strohmeyer was caught. At that point, Cash, currently a student at the University of
California at Berkeley, began talking about the incident. Perhaps he talked
about it more than he should have.
Strohmeyer emerged and found Cash, he confessed to his friend that he had molested and
killed the young girl.
n4 Cash was astonished, but chose not to say or do anything, and the two friends
continued casino-hopping late into that Nevada night.
n5 Cash never intended to turn his friend over to the authorities.
n6 In fact, when asked if he could go back and change anything, Cash defiantly
"I don't feel there's much I could have done differently."
Over a year after the incident,
Strohmeyer pleaded guilty to charges of murder, kidnapping, and sexual assault.
n8 He received a sentence of life without parole.
n9 Cash, on the other hand, faces no legal punishment.
n10 Though some societies have enacted
Samaritan laws" which require citizens to intervene in emergency situations, there is no such
law in Nevada.
n11 However, Cash has faced significant
[*615] sanctions in the court of public opinion. A throng of furious Californians,
and indeed livid Americans nationwide, cringe at Cash's insensitive inaction
and the callous reaction which he has arrogantly displayed to the public since
"I'm not going to get upset over someone else's life," Cash told the Los Angeles Times in a July 1998 interview.
"I just worry about myself first."
Responding to this public outrage and the absence of any legal redress in
Nevada or California, Sherrice's parents and friends sought passage of
n15 Sherrice's loved ones secured 30,000 signatures on a petition in support of a
law requiring adults who witness the sexual abuse of children to assist the
victim or report the crime.
n16 Her family's efforts proved to be fruitful when Sen. Barbara Boxer (D.-Cal.)
and Rep. Nick Lampson (D.-Tex.) introduced Sherrice's Law in Congress on
September 9, 1998.
Should Sherrice's Law successfully withstand congressional scrutiny and become
law, individuals like Cash will not be able to observe sexual abuse and, with
impunity, fail to report the crime.
n18 The theory behind this law appears to be a natural and instinctive control of
behavior, but in fact this law would overturn volumes of cases in which, at
least in most United States jurisdictions, the courts have consistently held
that there is no duty to aid victims or report crimes.
n19 The tide, however, is turning in the United States. Sherrice's Law is part of
a recent legislative trend in which certain duties regarding assisting the
victims of crimes or accidents are becoming better established.
n20 This legal trend is beginning to expand traditional notions of the concept of
the duty to assist, which has long existed in tort law.
The proposed federal statute, Sherrice's Law, amends the existing statute under
42 U.S.C. § 5106a.
n22 In its current form, section 5106a places certain requirements
[*616] on states which receive grants for child abuse prevention and treatment
[*617] The revised statute would require states to criminalize the failure to report
any observed sexual abuse of a child or forego the federal grants for child
abuse and neglect prevention and treatment programs.
n24 The question arises, however, whether this reporting requirement would be
prudent legislation which preserves individual rights while also meeting the
current needs of our society.
This comment will explore the advantages and disadvantages of this proposed
cousin of Good
Samaritan laws through the analysis and discussion of existing Good
Samaritan and child abuse reporting laws in the United States and particularly in
n25 Part II will examine the different variations and viability of current Good
Samaritan laws in the United States. Part III will address the widespread child abuse
reporting statutes and how they differ from the proposed form of Sherrice's
Law. Part IV explores existing Oklahoma laws and contemplates whether there is
already something similar to Sherrice's Law in Oklahoma. Finally, Part V
contains an analysis of Sherrice's Law and its viability.
The principal question raised by the proposal of Sherrice's Law is whether the
impassioned opposition of Cash's critics to his immoral behavior translates
into strong public policy which Congress should codify. The simple response to
this question is
"yes." Although in some instances it may be unwise to
n26 our nation should not permit its citizens to act, or fail to act, with callous
n27 Sherrice's Law would not impose an unreasonable, liberty-infringing duty on
Americans. Sherrice's Law encourages citizens to aid in the prevention of
crimes. The principle behind Sherrice's Law not only celebrates the virtues of
neighborly conduct but also improves our society as a whole while still
preserving individual freedoms.
In contemporary American jurisprudence, there are two categories of laws
commonly referred to as
Samaritan laws." The first fits the traditional notion of a Good
Samaritan law because it imposes on citizens an affirmative
"duty to assist." This category of laws can also be referred to simply as
"duty to assist" or
"duty to rescue" laws.
n28 Only eight American states have enacted versions of a
[*618] duty to assist law.
n29 The second and more widely enacted category of Good
Samaritan law is that which exempts rescuers from liability for any negative results of
their rescue attempt.
n30 These laws exist in every state and the District of Columbia.
n31 For one reason or another, both types of statutes, though very different in
purpose and effect, have come to bear the same name. This common reference to
two very different categories of laws can be confusing. For both statutes, the
Samaritan law" presumably has its roots in the well-known biblical parable.
A. The Parable of the Good
The parable of the Good
Samaritan in the Bible is one of the more familiar stories remembered from Sunday
n33 Responding to the question
"[w]ho is my neighbor?" from an
"expert in the law," Jesus related the story to a group of followers.
n34 The parable depicts a severely injured man on the side of a road. Robbers had
beaten him badly and had left him there to die. Passersby, including a priest,
went out of their way to avoid the helpless man. He received no help until a
n35 came along and tended to the man's injuries. He helped the man to his feet,
took him on his donkey to an inn, and nursed him back to health. Ultimately,
Samaritan had to leave, he gave the innkeeper enough money for the man to remain at the
inn for as long as he needed.
Upon completing the story, Jesus explained that the neighbor to the unfortunate
man was the one who had mercy on him. He then instructed the expert in the law
"[g]o and do likewise."
n37 The parable illustrates the rarity of a helpful, selfless character while
demonstrating his silent reward. If this quality of character was rare in
biblical times, it has become virtually nonexistent today. The uncertainty and
indifference in today's world casts great doubt on the likelihood of a similar
episode of selfless kindness unfolding in present times. Today, common sense,
fear of dangerous confrontations with strangers, and the accompanying
precautions prevent most Americans from being
Samaritans" in the sense the Bible illustrates.
Regardless of one's religious beliefs, the parable and many biblical precepts
still serve as a standard for ideal behavior and a guideline for how we would
generally want our neighbors to act.
n38 This requirement to treat one another with respect is one of the roots on
which our society is based and remains an ideal for human behavior.
B. Traditional Good
Samaritan Laws: The
"Duty to Assist"
In an attempt to require modern citizenry to display the same type of behavior
displayed by the Good
Samaritan in the Bible, some societies have enacted so-called
Samaritan laws" which impose a duty on the members of those societies to provide assistance to
a party in need.
n40 Traditionally, tort law has imposed a duty to assist only on people who have a
special relationship with someone who is in need of aid.
n41 For many years, lawmakers, legal scholars, students, and citizens have
contemplated the necessity and practicality of implementing a Good
Samaritan law which creates the heretofore resisted affirmative
duty to rescue or assist, even in the absence of a special relationship.
A thorough and lengthy examination of such laws in the historical context has
not yielded much in the way of legislation. Many commentators assert that while
the laws of our communities are based on fundamental notions of right and
wrong, legislators should not legislate morality.
n43 Those who have spent time scrutinizing this issue have typically concluded
that our nation's legal system as a whole does not support an affirmative duty
to assist or rescue a person in distress.
[*620] widely advocated conclusion, finding favor even from prosecutors, rests on the
common assertion that morally bankrupt behavior is not always a punishable
There are no laws on the books today which require that private citizens act as
selflessly as the Good
Samaritan in the Bible and thus provide extensive remedial care to another citizen who
is injured or otherwise in need.
n46 To require this extent of care would be to impose an immense burden.
n47 The closest example of a law resembling the parable is a statute which
requires that anyone present at the scene of a crime or an emergency give
reasonable assistance to the victim or victims without imperiling him or
herself or others.
n48 These laws, referred to as Good
Samaritan laws, are also known as
"duty to assist" or
"duty to rescue" laws.
n49 Many of these statutes simply require that a bystander make an effort to
obtain aid from a professional rescuer or law enforcement official.
n50 The failure to observe the statutory mandates results in a criminal penalty
under most of these statutes.
n51 This type of law is common in many civil law jurisdictions and has been passed
in eight American States: Florida, Massachusetts, Minnesota, Ohio, Rhode
Island, Vermont, Washington and Wisconsin.
n52 Aside from the laws in these three states, the ordinary private American
citizen generally has no duty to assist another who is in danger or distress.
The laws of these eight states are similar to those found in several overseas
western cultures, like France and Australia.
n54 The prevalence of Good
Samaritan laws in other countries has periodically brought about debate over the absence
of such laws in the majority of the United States. As recently as 1997, during
the investigation of the death of Princess Diana, commentators weighed the
advantages and disadvantages of such laws.
n55 In the aftermath of her death, various commentators made arguments both
advocating and condemning the creation of a duty to assist.
n56 However, the heated debate did not result in any legislative response in the
form of Good
[*622] C. Modern Good
Samaritan Laws: Exempting Rescuers from Liability
Beginning with the first rescuer liability statute in 1959,
n58 every state and the District of Columbia has passed some form of what many
individuals refer to as a Good
n59 These laws, however, do not follow the principles of the biblical parable, nor
do they even require an affirmative act on the part of a bystander or witness
to an emergency.
n60 In fact, the majority of Good
Samaritan (rescuer) laws tend to contradict the type of duty to assist law found in
eight American states and other western cultures. Most Good
Samaritan laws enacted in the United States serve to limit the liability of a rescuer.
These laws exempt individuals from potential liability for the negative
consequences of his or her efforts to assist another.
In effect, these laws encourage good deeds by rewarding the selfless behavior
of a passerby who offers assistance.
n62 However, these rescuer liability laws reward good deeds only by ensuring that
the individual who performs the good deed will not face civil liability as a
result of any negative consequences of his or her assistance or attempt to
n63 Instead of affronting citizens with potential criminal consequences for
failing to act, this type of Good
Samaritan law serves to favor the unselfish assistance of those who need emergency
assistance in our litigious society.
D. Is the Term
Samaritan Law" Appropriate to Describe Contemporary Laws?
Upon reflection, it is clear that the biblical parable and the modern statutes
bear little similarity to each other. This disparity is partly because the
Samaritan law" is a misnomer. Furthermore, the title is confusing because it is used to refer
to two very different types of statutes which embody almost opposite legal
A true Good
Samaritan law would not require its citizens to provide benevolent assistance, but
instead would somehow reward those who perform good deeds or otherwise benefit
society by their selfless actions. The ideal would be a society full of
citizens who were under no legal obligation to perform good deeds and would
feel comfortable enough to act without fear of penalty. After all, people who
purport to act as Good
Samaritans should do it out of genuine beneficence. Ideally, they should not act because
they are moved by an incentive, because they are under a state-imposed duty to
act, or because they might face criminal penalties for failing to act.
Moreover, if one should be unselfish enough to perform a good deed, one should
not fear some type of liability for an inadequate performance of the deed.
Lifting the title of the statute from the Bible seems inappropriate at best
when one realizes that these laws glaringly contravenethe spirit of the
biblical parable. In an
"ideal world," true rewards for good deeds would not come in the form of an exemption from
civil tort liability, nor even in the form of monetary compensation, such as a
tax break for charitable donations.
n66 Perhaps the reward would suffice in the form of self-gratification or maybe
even in the form of public recognition for honorable and unselfish conduct.
n67 The true Good
Samaritan would neither seek nor accept any recognition for his unselfish behavior.
Sadly, we do not live in an
E. Effectiveness of Good
"Duty to Assist" Laws
Before 1967, there was no legal duty anywhere in the United States to assist a
person in an emergency situation absent a special relationship.
n68 Beginning with Vermont's statute requiring citizens to aid victims of
emergencies, more states have passed similar laws in what seems to be a slowly
n69 The eight states which enacted duty to assist laws have had the laws in place
for at least fifteen years,
n70 yet there has been little documentation about the enforcement of these laws,
and there have been relatively few instances where the laws have actually been
1. Existing Laws
Each of the eight states with existing
duty to rescue laws have varying approach-es to what is required of its citizens.
n72 Although this comment will explore only two states'
duty to rescue laws in detail,
n73 it is worthwhile to note some of the more significant differences.
n74 Most states with
duty to rescue laws impose only a duty to report or to
"provide reasonable assistance" to someone in danger, and only when the reporter or rescuer himself is not
imperiled by this mandate.
n75 Ohio's statute, on the other hand, is probably the broadest of the eight
statutes because it imposes a duty to report on all witnesses of felonies,
Vermont was the pioneer state in enacting duty to assist legislation, by
"Duty to Aid the Endangered" Act in 1967.
n77 This law requires one with knowledge of another in danger to provide the
endangered party with
"reasonable assistance," unless it might endanger the rescuer himself or interfere with the efforts of
n78 The maximum penalty for violating Vermont's duty to assist statute is a $ 100
One of the other eight states with a duty to assist statute in place is
Wisconsin. Having first enacted its Good
Samaritan law in 1983,
n80 Wisconsin's statute specifically criminalizes the failure to report a crime or
aid a victim of a crime involving potential bodily harm.
n81 Typical of most of the duty to assist statutes, the Wisconsin law contains a
provision exempting citizens from compliance where it would place them in
danger, but it also adds two other conditions wherein compliance is not
required: first, if compliance interferes with duties owed to others; and
second, if others have already aided the victim or called for assistance.
n82 These three exceptions have similar incarnations in other Good
Samaritan statutory provisions.
n83 However, their existence, while understandable, could create confusion in
interpretation. For instance, under the first exception, there is no clear
definition of what duty or duties might take precedent over the duty to assist.
Under the second exception, significant questions of fact could arise as to
whether a potential rescuer actually or in good faith believed that help had
already been summoned. Some of these very questions were recently addressed by
the Wisconsin Court of Appeals.
2. Judicial Application of the Laws
Although not all of the
duty to rescue statutes have faced significant judicial challenge, and seem largely untested,
Vermont's and Wisconsin's laws have faced scrutiny at least to some extent by
the states' respective courts.
n85 The very first application of the Wisconsin statute
n86 occurred in 1994 in State v. LaPlante.
n87 In LaPlante, the Wisconsin Court of Appeals affirmed the trial court's
conviction of LaPlante for failing to assist a party invitee who was attacked
at a party hosted by LaPlante.
n88 Affirming the conviction meant overcoming the most significant challenge
launched against a Good
Samaritan law reported to date.
n89 To affirm the conviction, the court rejected several constitutional arguments
advanced by the defendant about the statute's exceptions and their vagueness,
as well as the statute's vagueness in defining standards of guilt.
n90 Having withstood LaPlante's bold challenge, the Wisconsin statute stands firm,
yet it has been rarely enforced.
n91 Furthermore, even the state's jurists doubt the law's potence. Even the
LaPlante trial judge commented that the statute
"revels in ambiguity."
Like Wisconsin's statute, the Vermont statute has also undergone significant
judicial interpretation only once.
n93 The Vermont Supreme Court held in State v. Joyce,
n94 that the Good
"does not create a duty to intervene in a fight."
n95 This holding simply serves to underscore the language in the statute which
guards against imperiling the rescuer.
n96 In the statute's thirty-one-year history,
[*627] Joyce is the only case which involves the prosecution of a defendant for
allegedly failing to comply with Vermont's Good
3. Effectiveness of the Laws
Apart from Joyce and LaPlante, two relatively indeterminate cases,
n98 there has been little use made of the Good
Samaritan statutes which have been enacted in the eight
n99 These states seldom test their statutes judicially or even charge their
citizens with violations of these duties very frequently.
n100 This scarcity of enforcement raises several questions about the effectiveness
of such laws. Perhaps the lack of enforcement of these statutes suggests that
the eight modern Good
Samaritan duty to assist laws are hardly prime examples of worthwhile, enforceable moral
duties. For one reason or another, they are rarely tested, cited, or even used.
n101 The fact that there is not much case law involving the existing Good
Samaritan statutes raises several questions.
First, are the citizens of the respective states aware of the statutes? Without
any awareness on the part of the citizenry, violations of these statutes are
less likely to be reported. Second, are these statutes clear and understandable
to the average citizen?
n103 One problem underlying all of these laws is that the definition of what is
"reasonable assistance" is unclear. Does reasonableness entail stopping and getting out of one's car,
or does a good faith effort, such as simply dialing 911 on a cellular phone and
hoping that the proper authorities will find the distressed parties in time to
render aid, constitute reasonableness? Third, are courts and law enforcement
officials willing to impose criminal penalties, even if the crimes are only
misdemeanors, on citizens who, for whatever reason, were in a position to
render aid and did not? It seems that this last issue may be one of the biggest
obstacles that these laws confront.
n104 A fourth problem is the rather technical proposition that an unreported breach
of the Good
Samaritan statute could create a very circular web of confusion. In contrast to the
generally pleasing notion of a community-wide duty to assist, it is the more
egregious crime of non-assistance, like that committed by Cash, that these
types of statutes seek to prevent and punish. Put another way, society is more
concerned with punishing the potentially life-threatening inaction of people
like Cash than with codifying moral conduct. Although the aim of these laws is
cloaked with good intentions, their existence in
[*628] American law has apparently been heretofore impractical. Perhaps the lack of
application of these laws echoes the sentiment that one cannot legislate
4. The Bad
Samaritan: Would Cash Have Escaped Prosecution if Nevada Had a
"Duty to Assist" Law?
Depending on what type of duty to assist statute Nevada decided to enact, Cash
could have been liable for his inaction under a simple Good
Samaritan statute like that of Vermont or Wisconsin.
n106 If the Nevada law were similar to that of Wisconsin, Cash would have been
under a duty to at least report the incident, as duty Sherrice's Law seeks to
n107 However, under any of the eight American statutory examples, Cash could have
defended himself in court by claiming assistance was not required because of
the threat of endangering himself.
The defense of danger would have been more likely if the Nevada statute lacked
a reporting alternative. The ability to report would avoid the peril posed by
getting involved. Cash could have cited Joyce
n108 in an attempt to show that the interplay between
Strohmeyer and young Sherrice was a struggle similar to a fight. Cash's attorneys would
Strohmeyer as an intimidating and volatile young man of whom Cash was frightened.
n109 Successfully proving
Strohmeyer's unstable nature could have led to an acquittal of Cash under a Good
Samaritan statute, as long as there was no alternative provision for a duty to report
III. Child Abuse Reporting Statutes
Reporting requirements have become commonplace since the mid-1960s. Some form
of a mandatory child abuse reporting statute exists in the statutory provisions
of all fifty states and the federal government.
n111 Most of these statutes were passed between 1963 and 1967, when the Children's
Bureau of the Department of Health, Education and Welfare created the first
model reporting laws in an effort to explore
[*629] their viability.
n112 Legislatures designed these statutes according to these model laws, but all of
the laws have undergone drastic changes over the last thirty to thirty-five
n113 In their current form, these statutes criminalize the failure to report
suspected evidence of child abuse.
n114 Since the statutes were first enacted,
[*631] their existence has been, at least in part, responsible for a marked increase
in child abuse reporting nationwide.
n115 Logically, health and child care professionals are in the best position to
notice cases of child abuse by seeing actual physical evidence of the abuse on
While the statutes vary nationwide in different respects, the statutes
historically contain seven similar elements.
n116 The common elements in these statutes are:
(1) the definition of reportable conditions;
(2) a list of persons who must report;
(3) the level of certainty required of reporters;
(4) the penalty for the failure to report;
(5) immunity for reports made in good faith;
(6) the exception of communication privileges; and
(7) definition of reporting procedures.
Some variations on these elements include what persons are listed as mandated
n118 the penalties for incorrect reporting,
n119 and the state-imposed penalty for failing to report.
n120 A violation of these statutes is usually classified as a misdemeanor,
resulting in a fine.
These reporting statutes vastly differ from Good
Samaritan laws in that there is no
"emergency rescue" element. These statutes simply require an ex post facto reporting of suspected
abusive behavior which is believed to have occurred elsewhere in the child's
life. The proposed Sherrice's Law is a variation on both themes, combining the
element of reporting and the element of emergency, thus making it a hybrid of
two existing legal models.
IV. The Law in Oklahoma
Like every other state, Oklahoma has what it calls a Good
Samaritan Act (also referred to as a rescuer statute), which exempts from liability
those who assist others during an emergency.
n122 The Oklahoma legislature has also passed a child abuse reporting statute.
n123 However, Oklahoma legislators have never enacted a Good
Samaritan statute like the ones found in the eight states discussed in Part
n124 In Oklahoma, there is not a duty to act unless one finds evidence of child
A. The Oklahoma Good
Samaritan Act: Limiting Rescuer Liability
The Oklahoma Good
Samaritan Act serves to exempt rescuers from tort liability.
n126 As in every other state, the Oklahoma Good
Samaritan statute aims to encourage good deeds on the part of Oklahoma citizens. The
statute provides those who aid in emergencies with immunity from civil
liability should something go wrong during an attempt to rescue the victim of
The Oklahoma statute underwent a significant challenge recently, having been
first enacted in 1890.
n128 In Jackson v. Mercy Health Center, Inc.,
n129 the Oklahoma Supreme Court held that when an individual has entered the
premises of a hospital or similar health care facility for purposes other than
to receive medical treatment and later receives emergency care from hospital
employees, he or she is not considered a patient but a visitor.
n130 This status exempts the hospital from liability for tort actions arising from
emergency care rendered under title 76, section 5 of the Oklahoma Statutes.
The plaintiff in Jackson sought damages for injuries he received after members
of the hospital staff tried to assist him when he fainted watching his wife
give birth. Because the plaintiff was merely a visitor and not seeking
treatment at the hospital, the hospital did not owe him a duty of care.
n132 Instead, the aid rendered by the hospital staff fell under the Oklahoma Good
Samaritan Act and the hospital was thereby relieved of liability.
Although application of the Oklahoma Good
Samaritan Act is rare, the act is in full force and serves its purpose.
n134 Because of this act, a would-be rescuer does not have to fear litigation
should his munificent rescue efforts fall short of success. The purpose of
these laws is noble and the motivation behind them deserves praise. Laws like
the Oklahoma Good
Samaritan Act strike a balance between encouraging benevolent behavior and preserving
[*633] B. The Oklahoma Child Abuse Reporting and Prevention Act
In addition to the Good
Samaritan Act, Oklahoma has effected the Child Abuse Reporting and Prevention Act which
requires health care and child care professionals to report suspicions of child
abuse or evidence of non-accidental injuries.
n135 However, the Oklahoma statute also contains a unique provision which seems to
require reporting by anyone, not just professionals, who is in a position to
encounter evidence of child abuse.
n136 This extra provision creates an unclear and uncommon duty because it so
vaguely includes the at- large citizen under its reporting requirement.
However, there does not appear to be any effort on the part of lawmakers to
make the average citizen aware of this duty to report.
1. The Efficacy of Oklahoma's Child Abuse Reporting Statute
It is estimated that over 51,000 occurrences of child abuse were reported or
referred to the Department of Human Services (DHS) in Oklahoma during 1997.
n137 Just under 48,400 of those cases were investigated and a little over 13,600 of
the referred cases were confirmed.
n138 The number of referrals actually resulting from the reporting statute is
neither documented nor ascertainable. However, on a national level, the number
of child abuse cases reported has risen dramatically since the mid-1960s, when
child abuse reporting statutes first took effect.
n139 Presumably, there is at least some correlation between the increase in
reported child abuse and the codification of the duty to report.
Oklahoma has passed two separate statutes which together are known as the
Oklahoma Child Abuse Reporting and Prevention Act.
n141 The first and principal section, found in title 10, section 7103 of the
Oklahoma Statutes, contains most of the seven elements listed in Part III by
designating who must report and how to go about reporting.
n142 The second section, section 7104, deals with reporting criminally inflicted
injuries, including more than just child abuse,
n143 and limits the mandated reporters to health care providers and professionals.
The Oklahoma child abuse reporting law conforms to the model by containing the
seven required elements.
n145 However, the Oklahoma child abuse reporting statute contains an additional
n146 The Oklahoma law requires that professionals and
[e]very . . . other person having reason to believe that a child under the age
of eighteen (18) years has had physical injury or injuries inflicted upon the
child by other than accidental means where the injury appears to have been
caused as a result of physical abuse, sexual abuse or neglect, shall report the
matter promptly to the county office of the Department of Human Services in the
county wherein the suspected injury occurred.
This provision expands the duty beyond the customarily mandated health or child
care professional and imposes the duty on anyone with
"reason to believe" a child has suffered non-accidental injuries which may result from child
n148 This expansion of the duty to report child abuse is unorthodox,
n149 vague, and untested.
The aforementioned language raises several questions about the statute's
overall effectiveness. How, for example, is the average citizen to know he or
she is under a legal duty to report evidence of child abuse? Whereas members of
the medical or child care community are reminded of this duty through their
professional licensors, the average citizen receives no such reminder, nor even
a primary notification of the law's existence. Of course, ignorance of the law
is no excuse,
n151 but in the case of affirmative duties such as this affirmative duty to report,
the state must at least make an effort to alert people of this duty before
holding them subject to it. It is clear that the state makes an effort to
inform the obligated professionals of their duty; the general public should
likewise be informed.
Perhaps if the state is serious about imposing this requirement, notification
could be achieved through advertising or mailing campaigns. The state wages
[*635] campaigns for traffic laws and related prohibitions; it seems that the
interest of the state in its children would be equally important and thus would
merit similar efforts on the part of law enforcement agencies.
A second issue unanswered by this law is that the statute does not specify how
much time a reporter has between the time the evidence of child abuse is
recognized and the point at which the actual report is made. The statute
specifies only that the reporter act
n153 This aspect of the statute may be purposefully vague, but it could create a
potentially nettlesome issue if the reporter delays action for any reason. For
example, if an unreasonable delay results from a reporter's very ignorance of
his duty, he may face criminal consequences for his ignorance. It is certain
that the sooner DHS knows about a child abuse case, the better able the agency
is to address the problem. However, without a clearer codification of the duty,
the statute's efficacy remains in question.
Oklahoma's reporting statute has had its day in court only once.
n154 The Oklahoma Court of Criminal Appeals upheld the conviction of a
state-employed nurse in Capaldi v. State
n155 for a violation of the Oklahoma Child Abuse Reporting statute.
n156 The nurse in Capaldi physically examined and nevertheless discharged a patient
who, it was discovered upon later examination by his mother and a hospital, had
sustained extensive bruises. The nurse had noticed the injuries but failed to
report them to DHS, as the Oklahoma statute requires.
Capaldi is the only significant reported case which has tested Oklahoma's
mandatory child abuse reporting statute. Unfortunately, it barely reveals any
of the interesting aspects of the statute. As a textbook application of the
statute, because the nurse clearly violated it by failing to report the
evidence of abuse, it is interesting to consider what may happen if Oklahoma
courts ever review a situation more complex than Capaldi.
For example, one question raised by the statute is whether a non-professional
who has seen evidence of child abuse would be prosecuted.
n158 Those who might fall into this non-professional category, but who would have a
foreseeable opportunity to see evidence of child abuse are, for example, a
babysitter or a friend of the family. The statute seems to include such people
"other person" language, but it is hard to imagine that the state would truly charge such a
person with a violation of this law.
n159 The statute seems more squarely aimed at requiring reporting by health care or
child care professionals rather than imposing the same mandate on the private
citizen. If that aim is true, however, the question of why the Oklahoma
Legislature included the
"other person" language remains unanswered.
2. Oklahoma's Existing Laws Are Significantly Different from Sherrice's Law
A question arises whether the Oklahoma Child Abuse Reporting statute
n160 could apply to one who witnesses the actual abuse of a child while it occurs.
n161 Although the statutory language does not expressly require witnesses of the
actual abuse to report to DHS, it could be construed to include witnesses
because they certainly would be in the best position to have reason to believe
that the injuries inflicted were other than accidental.
n162 In contrast, considering the proposed bill's impetus, the goal of Sherrice's
Law is specifically directed at eyewitnesses and endeavors to impose on them a
duty to at least report what they have observed.
n163 The proposed law seeks to respond to a more time-sensitive situation than the
existing child abuse reporting statutes. The public policy issue driving both
laws, however, is the same. Each of these laws serves not only to protect just
any endangered citizens, but to protect those citizens who need the most
protection because they are the most vulnerable. Owing to both their physical
helplessness and their political powerlessness, our children deserve utmost
V. An Analysis of Sherrice's Law
Sherrice's Law, as proposed by Senator Boxer and Representative Lampson in
September of 1998, will amend title 42 of the United States Code, section
"Child Abuse Prevention and Treatment and Adoption Reform."
n164 The amendment adds language to an existing statute requiring state compliance
in order to receive federal funding.
n165 As proposed, the statute will require that each state's governor provide to
the federal government an assurance that the state has enacted and enforces a
law exacting criminal consequences against anyone over eighteen who witnesses
and fails to report to a state or local government official incidents of sexual
n166 The statute was proposed in order to require that states enact and enforce the
mandated reporting laws. If they do not, the grants that they receive for
federal child abuse and neglect prevention and treatment programs will be
A. Efficacy of Mandatory Reporting
Unlike the duty to assist laws, Sherrice's Law simply would require a duty to
report. Citizens, like Cash, would not have to intervene in a violent
situation; they would simply face a criminal sanction for failing to report the
criminal act they had witnessed. Even though most current Good
Samaritan statutes permit the waiver of
[*637] a would-be rescuer's duty when it may endanger the rescuer,
n168 the elimination of the danger element better serves to encourage third party
action in situations involving violence. For example, an episode of child abuse
or sexual abuse of children might subject a would-be rescuer to the unwelcome
danger inherent in a situation involving a powerful aggressor. However, under
the mandatory reporting laws, such as Sherrice's Law, the rescuer has only a
silent duty and, upon reporting the crime, can leave the actual intervention to
a professional, such as a law enforcement officer.
If one of the purposes of Sherrice's Law is to act as a deterrent, the law may
not serve its purpose. First, the majority of people who will potentially face
prosecution under Sherrice's Law would not be aware of the duty imposed by the
law. The principle that ignorance of the law is no excuse still exists,
n170 but it is very probable that those who are most likely to be in a position to
report sexual abuse are going to be most ignorant of their legal duty and thus
not feel compelled to act. In this situation, ignorance of the law could be far
more costly to society than the benefit of arresting the uninformed party.
n171 In other words, if part of the law's aim is to compel people who would not
otherwise feel obligated to report crimes, then awareness of the law, and of
the duty to report, is paramount. In a similar vein, the duty to assist
statutes have enjoyed some recent popular recognition on network television.
n172 In the final episode of a popular sitcom, the use of a Good
Samaritan law to incriminate the show's characters for their callousness seemed to poke
fun at the absurdity of prosecuting unknowing parties under such laws.
A second reason that Sherrice's Law may not fully serve its deterrent purpose
is that even if people are somehow aware of the criminalization of silently
witnessing a vile crime, they may not be inclined to turn their friends over to
the authorities. This reason is precisely the same reason that Cash cited for
choosing to do nothing after witnessing the assault on Sherrice Iverson.
n174 The dilemma represented by Cash's situation is likely to recur if only because
it is foreseeable that an unassuming
[*638] friend may find himself in the company of a criminally prone peer whom he does
not wish to
"rat on." This problem is not foreign to law enforcement, but because of the nature of a
duty to assist or duty to report law, the goal of saving lives suffers when
loyalty or peer pressure frustrates the statutory objective.
Certainly, however, deterrence is not the only motivation for the statute's
implementation. The very impetus for the law is a desire to punish a bystander
for his inaction where a simple call for help may have saved a life, indeed
maybe even two lives.
n175 Many people would go so far as to argue that because of his inaction, Cash is
equally guilty as
Strohmeyer and that he deserves a similar punishment to prison.
n176 However, considering the penalties under the existing reporting and Good
Samaritan statutes, the sanction under Sherrice's Law will likely carry only a
misdemeanor classification, which would result in little more than a monetary
n177 Though at first blush a mere fine may seem a minor punishment for the likes of
Cash, this classification would serve to balance morality and liberty. The
"free moral agent,"
n178 is thus permitted to choose his or her fate and not suffer too harsh a penalty
for abiding by his own moral code.
B. Impact of Sherrice's Law
It is possible that Sherrice's Law will be a toothless attempt to bite down on
the apparent increasing apathy among Americans toward violence. If the
congressional effort to require states to enact an affirmative duty law is
anything like the existing state legislation, the statute is a waste of
government time and resources.
Callous indifference toward human life, however, like that exhibited by David
Cash, endangers lives and destroys families and communities. If such
impassivity can be punished, discouraged, or even stopped, then Sherrice's Law
is worthwhile and the tragic death of young Sherrice may benefit society as a
whole in the long term.
Many of today's advocates of civil liberties would consider this affirmative
duty to act on another's behalf an infringement of liberty.
n179 However, as one commentator points out, our society already requires its
citizens to care for the needy in the form of taxes which, through welfare
programs, support the elderly, the disabled and the poor.
n180 The fact that abused children do not receive the full benefit of society's
laws may result entirely from their lack of political power.
It is difficult to anticipate the effect of Sherrice's Law on sexual abuse or
crimes in general. The main reasons for this uncertainty are fivefold. The
first is that the federal statute simply mandates that states implement the law
in order to continue to receive federal funds for its Child Abuse and Neglect
n182 This type of legislation, while it has faced challenges for appearing
unconstitutional, is a way for the federal government to control state
lawmaking. These types of federal laws for such issues as speed limits and
other traffic laws have thus far survived United States Supreme Court scrutiny.
n183 However, these indirect federal mandates can pose a host of varying problems.
For example, a state can choose to ignore the mandate and suffer the
consequences by foregoing the funding.
n184 In addition, such a federal mandate increases the potential for a
Second, the statute does not suggest nor impose a criminal penalty.
n186 The decision about an appropriate sanction is left to the states. Having not
provided a minimum penalty, a state which opposes imposing an affirmative duty
on its citizens could enact the statute as required for federal funding, yet
assess a nominal fine or a state-authorized
"slap on the wrist." A de minimis penalty would not accomplish the aim of Congress and would
undermine the bill's purpose.
Third, given the lack of application of the current duty to assist and duty to
report laws nationwide, the enactment of another such statutory requirement may
have a correspondingly minimal effect on society.
n187 The sparingly applied Good
Samaritan statutes currently in effect may not attain much judicial attention because
[*640] of a general absence of violations or enforcement thereof. Similarly, one must
hope that incidents like the one in the casino restroom are rare occurrences.
Even if such incidents do occur, it is impossible to estimate their frequency.
Thus, the applicability and usage of the proposed law is difficult to determine.
Fourth, the statute may be written too narrowly. As proposed, Sherrice's Law
will punish witnesses of sexual abuse of children only for failing to report
the crime. Conspicuously absent from the category of potential reporters are
those who witness crimes of a sexual nature with adults as victims, such as
rape. It also excludes crimes of a nonsexual nature of which children are
victims, such as kidnapping. Although the principal intent of the statute is to
protect children, it would not hinder the effect of the statute if it were more
broadly drafted to include more categories of crimes. This goal could still be
accomplished without enacting a general Good
Samaritan law to punish any witness who fails to report any crime.
Finally, the purpose for the statute's enactment may be misguided. These types
of laws are an attempt to codify a moral standard.
n188 Their existence serves to provide society with a type of moral guidance.
Sherrice's Law has enjoyed support because of the outrage over one man's
contemptible behavior and election not to act. That fact and the history of
similar laws suggest that the purpose of a law like Sherrice's Law is merely
symbolic and may therefore lack legislative merit.
C. Improving the Efficacy of Sherrice's Law
Despite the shortcomings of similar laws and their histories, with additional
examination and some possible modifications, Sherrice's Law may prove to be a
valuable piece of legislation. When contemplating passage of Sherrice's Law,
Congress should take into account three principal considerations. First, a
federally suggested or mandated minimum penalty may be an appropriate inclusion
in the law. An indication as to the appropriate penalty will provide states
with a guideline for how serious Congress believes the crime is, and will give
states some notion of what will be required to enforce the statute. Without an
idea about what kind of penalty the law should carry, or a guideline to prevent
misapplication, a state may impose too lenient a penalty.
n189 In addition, a state which does not support the law may attach an insipid
sanction in order to express its disagreement with the law and to protect its
citizens from what it considers a pointless piece of federally mandated
Similarly, bearing complicity in mind, Congress should consider seeking the
support of the states. Without genuine state support, laws like Sherrice's Law
- enacted because of federal pressure - cannot be successful. Even if a state
is obligated to pass the law to receive a federal grant, it is up to the state
to enforce the law. Thus, a state which does not freely advocate a federally
suggested law is in a position to weaken the law's effect in terms of
[*641] enjoyed strong advocacy from citizens of California and members of Congress,
n191 Sherrice's Law is not without its loyal support. Without a doubt, when people
hear the story of Cash's culpable passivity, they commonly assert a desire to
see such insensitivity punished and express their disbelief that there is not
already a penalty for such behavior. However, the states must be willing to
expend their resources to enforce such a law in order for it to be successful.
Congress should ensure that the law can flourish and enjoy support at the state
level before enacting it.
Finally, the authors of the bill must define the essential terms provided in
the statutory language. For example, there must be a definition of sexual
abuse. This definition could be unique to this statute or in the form of a
reference to another provision or statutory definition.
n192 The statute should also contain a clear definition of the term
"witness." As proposed, the bill provides for a duty to report to be imposed on any
"has witnessed another individual in the State engaging in sexual abuse of a
n193 The term
"witness" creates ambiguity because there is no specification as to whether the abuse
must be eyewitnessed or if an individual can witness sexual abuse by hearing it
through, for instance, a shared apartment wall. Without these essential
clarifications, the proposed statute will be another source of congressionally
imposed confusion leading to judicially inconsistent interpretation.
D. Does Sherrice's Law Infringe on Individual Liberties?
There have been very few judicial examinations of the existing duty to assist
and duty to report statutes.
n194 To date, there have been no successful constitutional challenges to the duty
to assist laws.
n195 The fact that several such laws have existed undisturbed for a long period of
time may be testimony to their constitutional soundness. However, the endurance
of these laws does not necessarily mean that they are widely accepted, nor does
it indicate that their constitutionality is certain. Moreover, the enduring
presence of such laws does not guarantee that Sherrice's Law will escape heated
criticism. In fact, the necessity and legality of
[*642] these laws are bitterly debated.
n196 Most of the arguments against these laws are fear-based citations to the
jeopardy of personal freedoms.
For example, one of the principal arguments against this type of law is that it
imposes a penalty for an omission, or failure to act.
n198 The concept of punishing an omission is hardly unfamiliar to the law. It is a
less common reason for sanction, but it exists. For example, in everyday terms,
if one fails to pay taxes or to register a vehicle, he or she can be criminally
prosecuted for failing to act according to the requirements of the law.
n199 Individual omissions have always been as punishable as if they are commissions.
Another argument against these laws is that they encroach on individual rights.
n200 It is true that one of the virtues of being an American is that we enjoy
certain inalienable rights,
n201 but these very rights are established to aid in life, liberty and the pursuit
n202 An important wayin which these ideals are best achieved is through neighborly
behavior. This concept is present in the law, and American citizens, even if
begrudgingly, have long adhered to this principle and benefit from it. Our
welfare system and our very system of government aims to provide society with
aid and assistance where it is needed by channeling resources to benefit those
n203 If these requirements restrain the rights and liberties of American citizens,
the restraint is minimal and the benefit outweighs the cost. What is more, the
"restraint" is aimed at assisting those in need as one would like to be assisted when he
or she is one day similarly situated.
A third argument leveled against Good
Samaritan and duty to assist laws is that they are unconstitutionally vague. This
argument was unsuccessful in Wisconsin and lacks merit generally.
n205 Furthermore, when deciding whether a law is unconstitutionally vague, courts
often look to Connally v. General Construction Co.
n206 The Connally Court held that if a person must guess at a statute's meaning and
there is potential for disagreement about its application, then due process of
law is violated because the statute is unconstitutionally vague.
It is extremely unlikely that anyone should have to guess at the meaning or
application of Sherrice's Law and its state-level counterparts. Even in its
most primitive form, it is a clear statute within the Connally definition
because there is little room for conflict about its application. Moreover,
Sherrice's Law has a clear and noble purpose: to protect America's youth.
It seems almost callously indifferent to regard a law requiring a witness to
act in an emergency situation an infringement of personal liberty. If it will
infringe one man's freedom to require him to act when he sees wrongdoing and
perhaps save a human life, that liberty is justifiably restrained.
Sherrice's Law fills a gap which currently exists in the law. The proposed law
even fills a void in the three states that have Good
Samaritan duty to assist statutes and child abuse reporting statutes.
n208 The duty to assist statute covers emergency situations; the child abuse
reporting statute covers after- the-fact reporting of child abuse; and
Sherrice's Law would cover any incidents of sexual abuse, including those
situations which may not technically be considered an emergency.
Should Congress enact Sherrice's Law, Oklahoma, like other states and their
citizens, would benefit and would not experience adverse effects. Existing law
in Oklahoma does not provide the beneficial aspects Sherrice's Law would
provide to Oklahomans. Neither Oklahoma's child abuse reporting statute nor
Oklahoma's rescuer liability statute addresses the same kind of situation as
Sherrice's Law. The Oklahoma Legislature would do well to heed the call of
Congress and enact a statute to comply with the federal version of Sherrice's
Law and thus continue to receive federal funding. Even if the federal statute
does not overcome congressional scrutiny, it would be commendable for Oklahoma
to lead the way in bridging the gap between the traditional Good
Samaritan law and child abuse reporting statutes by enacting a sexual abuse reporting
law like Sherrice's Law.
Sherrice's Law, if enacted, would make good law. This statute represents a
departure from an established trend in American law which illustrated a
historical aversion to affirmatively imposed moral duties. Perhaps it is time
for that aversion to subside. Almost as if he were speaking to this issue,
Martin Luther King, Jr.,
"Morality cannot be legislated, but behavior can be regulated. Judicial decrees
may not change the heart, but they can restrain the heartless."
The natural fear is that Sherrice's Law will be more like the relatively
unsuccessful American Good
Samaritan statutes rather than the more effectively used child abuse reporting statutes.
The reality is that Sherrice's Law will probably fall somewhere in between. One
of the sad realities of the success of the nation's child abuse reporting
statutes is that there is a great deal of child abuse occurring in our nation.
n211 Hence, there is an abundance of evidence of child abuse in our nation which
needs to be reported. Sherrice's Law, like the child abuse reporting statutes,
would serve to curb this trend.
On the other hand, one must hope that there are relatively few instances where
a passerby, a bystander or a witness to an emergency situation, like Cash, will
impassively watch the emergency develop and the victim suffer without taking
some form of action.
n212 Following this apparent pattern, one can hope that there will be few instances
wherein a witness observes sexual abuse and does nothing, in violation of
Sherrice's Law. However, if in the instances where the law can be enforced and
a life can be saved, then the law will have served its purpose and will be a
much needed tool in the prevention of crimes against our children. There is
certainly at least one crime that could have been prevented, and a life saved,
had David Cash felt an obligation, legal or otherwise, to save Sherrice Iverson.
n1 See Genesis 4:9 (In response to the Lord's question to Cain,
"Where is your brother Abel," Cain replied,
"I don't know. Am I my brother's keeper?").
n2 See 144 Cong. Rec. S10,118-19 (daily ed. Sept. 9, 1998) (statement of Sen.
n3 See 60 Minutes: The Bad
Samaritan (CBS television original broadcast, Sept. 27, 1998) (rebroadcast Aug. 29, 1999
as The Unreported Crime) [hereinafter 60 Minutes] (transcript available in
LEXIS, newsfile, transcripts, and at
1999 WL 16209106) (detailing the circumstances surrounding the Sherrice Iverson tragedy and
featuring an interview with David Cash, Jr.).
n4 See Cathy Booth
& David Willwerth, The Bad
Samaritan, Time, Sept. 7, 1998, at 59.
n5 See 60 Minutes, supra note 3.
n6 See id. Cash stated,
"I didn't want to be the one that - that turned him in." Id.
n8 See Teen Admits Girl's Slaying Inside Casino Plea Just Before Trial Averts
Death Penalty, Chi. Trib., Sept. 9, 1998, at 8 [hereinafter Teen Admits Girl's
n9 See Milestones, Time, Oct. 26, 1998, at 31.
n10 Perhaps if Cash had taken steps to conceal his knowledge of the incident or if
he had aided
Strohmeyer in his escape from the casino, Cash could have faced accessory after the fact
charges. Nevada does not have case law defining an accessory. In Oklahoma, the
three elements of the crime of accessory after the fact are: (1) the predicate
felony was completed; (2) the offender had knowledge that the person he is or
was aiding committed the crime; and (3) the accessory concealed or aided the
individual that committed the crime. See
State v. Truesdell, 620 P.2d 427, 428 (Okla. Crim. App. 1980). Cash's nonfeasance, however, is not punishable under current Nevada law.
n11 Only eight states have laws requiring witnesses of a crime to report it and/or
offer aid to the victim(s): Florida, Massachusetts, Minnesota, Ohio, Rhode
Island, Vermont, Washington, and Wisconsin. For a discussion of these statutes,
see, e.g., Jessica R. Givelber, Note, Imposing Duties on Witnesses to Child
Sexual Abuse: A Futile Response to Bystander Indifference,
67 Fordham L. Rev. 3169, 3191 (1999); see also infra notes 72-105 and accompanying text.
Strohmeyer, who asked for forgiveness at his sentencing, said of Cash for failing to act
and for his callousness,
"He makes me sick." Milestones, supra note 9, at 31.
n13 Nora Zamichow, The Fractured Life of Jeremy
Strohmeyer, L.A. Times, July 19, 1998, at A1.
n15 See Booth
& Willwerth, supra note 4, at 59.
n16 See Teen Admits Girl's Slaying, supra note 8, at 8.
n17 See 144 Cong. Rec. S10,118-19 (daily ed. Sept. 9, 1998) (statement of Sen.
Boxer). The bill was introduced into the Senate as Senate Bill 2452, and in the
House of Representatives as House Bill 4531. See S. 2452, 105th Cong. (1998);
H.R. 4531, 105th Cong. (1998).
n18 See 144 Cong. Rec. S10,118-19.
n19 See C.D. Sumner, Annotation, Private Person's Duty and Liability for the
Failure to Protect Another Against Criminal Attack by Third Person,
10 A.L.R.3d 619, 626 (1967); see also, e.g.,
J.A.W. v. Roberts, 627 N.E.2d 802, 809 (Ind. Ct. App. 1994) ("As a civil society we certainly encourage third parties and bystanders to aid
the helpless . . . . However, we have declined to impose a duty to act absent
the existence of a special relationship.").
n20 Since 1967, eight states have enacted Good
Samaritan laws requiring an affirmative duty to assist. See supra note 11.
n21 See supra note 19; infra text accompanying notes 40-57.
42 U.S.C. § 5106a(b)(2) (Supp. III 1997). 5106a. Grants to States for child abuse and neglect
prevention and treatment programs . . . . (b) Eligibility requirements. (1)
State plan. (A) In general. To be eligible to receive a grant under this
section, a State shall, at the time of the initial grant application and every
5 years thereafter, prepare and submit to the Secretary a State plan that
specifies the areas of the child protective services system described in
subsection (a) of this section that the State intends to address with amounts
received under the grant. (B) Additional requirement. After the submission of
the initial grant application under subparagraph (A), the State shall provide
notice to the Secretary of any substantive changes to any State law relating to
the prevention of child abuse and neglect that may affect the eligibility of
the State under this section. (2) Coordination. A State plan submitted under
paragraph (1) shall, to the maximum extent practicable, be coordinated with the
State plan under part B of title IV of the Social Security Act [42 U.S.C.A. § 620 et seq.] relating to child welfare services and family preservation and family
support services, and shall contain an outline of the activities that the State
intends to carry out using amounts received under the grant to achieve the
purposes of this subchapter, including - (A) an assurance in the form of a
certification by the chief executive officer of the State that the State has in
effect and is enforcing a State law, or has in effect and is operating a
Statewide program, relating to child abuse and neglect that includes . . .
[various required provisions deleted] . . . . (B) an assurance that the State
has in place procedures for responding to the reporting of medical neglect
(including instances of withholding of medically indicated treatment from
disabled infants with life-threatening conditions), procedures or programs, or
both (within the State child protective services system), to provide for -
[various required provisions deleted] . . . . (C) a description of - (i) the
services to be provided under the grant to individuals, families, or
communities, either directly or through referrals aimed at preventing the
occurrence of child abuse and neglect; (ii) the training to be provided under
the grant to support direct line and supervisory personnel in report taking,
screening, assessment, decision making, and referral for investigating
suspected instances of child abuse and neglect; and (iii) the training to be
provided under the grant for individuals who are required to report suspected
cases of child abuse and neglect; (D) an assurance or certification that the
programs or projects relating to child abuse and neglect carried out under part
B of title IV of the Social Security Act [42 U.S.C.A. § 620 et seq.] comply with the requirements set forth in paragraph (1) and this
paragraph; and (E) an assurance in the form of a certification by the chief
executive officer of the State that the State has in effect and is enforcing a
State law providing for a criminal penalty on an individual 18 years of age or
older who fails to report to a State or local law enforcement official that the
individual has witnessed another individual in the State engaging in sexual
abuse of a child.Id.
§ 5106a(b) (unitalicized portion); 144 Cong. Rec. S10,119 (daily ed. Sept. 9,
1998) (italicized portion, proposed additional language); see also Sherrice
Iverson Act, S. 2452, 105th Cong. (1998).
n23 See supra note 22.
n24 See supra note 22.
n25 The existing laws, as discussed in this comment, deal exclusively with the
criminal, and not the civil, implications of the affirmative duties to assist
and report. See John M. Adler, Relying upon the Reasonableness of Strangers:
Some Observations About the Current State of Common Law Affirmative Duties to
Aid or Protect Others,
1991 Wis. L. Rev. 867 (1991).
n26 See, e.g., Hubbard, infra note 43; 60 Minutes, supra note 3. Peggy Leen, a
Nevada deputy district attorney, points out that
"historically, [our society] ha[s]n't been very successful in our efforts to
legislate morality. From prohibition to prostitution, you can tell somebody not
to do it, you can regulate it, you can punish it, but ultimately, it doesn't do
a very good job of changing the conduct." Id.
n27 The term
"callous indifference" is frequently used when an individual's disregard for another is particularly
contemptible so as to merit an award of punitive damages. See, e.g.,
Smith v. Wade, 461 U.S. 30, 56 (1983);
Graham v. Satkoski, 51 F.3d 710, 714 (7th Cir. 1995).
n28 The terms
"duty to assist," and
"duty to rescue" can be used interchangeably. Except where otherwise noted, these terms share
the same meaning for the purposes of this comment.
n29 See supra note 11 and accompanying text; infra notes 72-105 and accompanying
n30 The term
"rescuer" is used liberally throughout this comment to refer to a person who renders or
could render aid or assistance to a person in an emergency situation.
n31 See Danny R. Veilleux, Annotation, Construction and Application of
68 A.L.R.4th 294, 300 (1989); see also, e.g.,
Ga. Code Ann. § 51-1-29 (1994);
N.C. Gen. Stat. § 90-21.14 (1997).
n32 See Luke 10:25-37.
n33 See id.
n34 Id. at 10:25.
Samaritans were the biblical people who settled in the district of Samaria and who were
despised by Jews as foreigners. Thus,
Samaritans were subjected to racist treatment by many Jews. See Oxford Dictionary of the
Bible 332 (1st ed. 1997). The modern definition of a
Samaritan is a
"person who is compassionate and helpful, especially to those in adversity." New Shorter Oxford English Dictionary 2677 (5th ed. 1993).
n36 See Luke 10:25-37.
n37 Id. at 10:37.
n38 The Bible, its teachings, and Judeo-Christian ethics have had an immeasurable
influence on modern American laws. See, e.g., R.H. Helmholz, The Bible in the
Service of the Canon Law,
70 Chi.-Kent L. Rev. 1557 (1995); Paul B. Rasor, Biblical Roots of Modern Consumer Credit Law, 10 J.L.
& Religion 157 (1994).
n39 See supra note 38.
n40 Many western societies impose this duty on their citizens. For example,
Australia, France, and eight states in the United States have enacted laws
imposing a duty to assist. See supra note 11 and accompanying text; infra notes
72-105 and accompanying text.
n41 See, e.g., Sumner, supra note 19. A special relationship is traditionally
defined as that of, for example, parent-child, employer-employee,
master-servant, etc. See id.
n42 See, e.g., Sumner, supra note 19. For further discussion of the
"duty to assist" or the
"duty to rescue," see generally James M. Ratcliffe, The Good
Samaritan and the Law (1966); James Barr Ames, Law and Morals,
22 Harv. L. Rev. 92 (1908); Steven J. Heyman, Foundations of the
Duty to Rescue,
47 Vand. L. Rev. 673 (1994); Jay Silver, The
Duty to Rescue: A Reexamination and Proposal,
26 Wm. & Mary L. Rev. 423 (1985); 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 (1998); Ernest J. Weinreb, The Argument for a
Duty to Rescue,
90 Yale L.J. 247 (1980) A.D. Woozley, A
Duty to Rescue: Some Thoughts on Criminal Liability,
69 Va. L. Rev. 1273 (1983); and John T. Pardun, Comment, Good
Samaritan Laws: A Global Perspective,
20 Loy. L.A. Int'l & Comp. L.J. 591 (1998).
n43 See Elbert Hubbard, Contemplations 65 (1902) ("You cannot legislate virtue into any people. There is no man ever any better
than he wants to be."). But see Benjamin N. Cardozo, The Paradoxes of Legal Science 37 (1928) ("Law accepts as the pattern of its justice the morality of the community whose
conduct it assumes to regulate.").
n44 See, e.g., Sumner, supra note 19, at 623.
"In the absence of special circumstances, such as a special relationship between
the parties or knowledge by the defendant of an extraordinary danger, there is
no duty to protect another from criminal attack. The existence of such a duty
is widely, and sometimes categorically, denied by the courts." Id.; see also Weinreb, supra note 42.
n45 See 60 Minutes, supra note 3. As Nevada Deputy District Attorney Peggy Leen
pointed out, under existing Nevada law
"[m]oral reprehensibility isn't a crime. You have to participate - do something
affirmatively - to assist in the commission of the crime. Watching and failing
to report, regrettably, is not a crime." Id.
n46 In most of the communities that have imposed such a duty on their citizens, it
is limited to merely a duty to provide
n47 Furthermore, the law requires that if someone should go so far as to expend
his or her own resources to assist or rescue another, as the biblical parable
exemplifies, the rescuer is entitled to reimbursement under current legal
Restatement (First) of Restitution §§ 116, 117 (1936).
n48 See, e.g.,
Minn. Stat. Ann. § 604A.01 (West 1995
& Supp. 1999). Good
Samaritan law Subdivision 1. 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. Subd. 2. General immunity from liability. (a) A
person who, without compensation or the expectation of compensation, renders
emergency care, advice, or assistance at the scene of an emergency or during
transit to a location where professional medical care can be rendered, is not
liable for any civil damages as a result of acts or omissions by that person in
rendering the emergency care, advice, or assistance, unless the person acts in
a willful and wanton or reckless manner in providing the care, advice, or
assistance. This subdivision does not apply to a person rendering emergency
care, advice, or assistance during the course of regular employment, and
receiving compensation or expecting to receive compensation for rendering the
care, advice, or assistance. (b) For the purposes of this section, the scene of
an emergency is an area outside the confines of a hospital or other institution
that has hospital facilities, or an office of a person licensed to practice one
or more of the healing arts under chapter 147, 147A, 148, 150A, or 153. The
scene of an emergency includes areas threatened by or exposed to spillage,
seepage, fire, explosion, or other release of hazardous materials, and includes
ski areas and trails. (c) For the purposes of this section,
"person" includes a public or private nonprofit volunteer firefighter, volunteer police
officer, volunteer ambulance attendant, volunteer first provider of emergency
medical services, volunteer ski patroller, and any partnership, corporation,
association, or other entity. (d) For the purposes of this section,
"compensation" does not include payments, reimbursement for expenses, or pension benefits
paid to members of volunteer organizations.Id.
n49 See supra note 28 and accompanying text.
Minn. Stat. Ann. § 604A.01(1).
n51 The Minnesota statute provides that
"[a] person who violates this subdivision is guilty of a petty misdemeanor."
Minn. Stat. Ann. § 604A.01(1) (West 1995
& Supp. 1999). According to the terms of section 609.02(4a) of the Minnesota
"petty misdemeanor" carries a punishment of
"a fine of not more than $ 200." The Vermont statute imposes a $ 100 fine. See infra note 72. Minnesota's and
Vermont's criminal classifications of this duty calls to mind that civil
liability may also exist in many failure to assist situations. This comment
focuses solely on statutorily imposed, criminally sanctioned duties. For a
lengthier discussion of tort liability for failures to assist, see Adler, supra
Fla. Stat. Ann. § 794.027 (West 1992
& Supp. 1999) (enacted 1984);
Mass. Gen. L. ch. 268, § 40 (Law Co-op. 1992) (enacted 1983);
Minn. Stat. Ann. § 604A.01 (enacted 1983);
Ohio Rev. Code Ann. § 2921.22(A) (Anderson 1996
& Supp. 1998) (enacted 1974);
R.I. Gen. Laws § 1-56-1 (1994) (enacted 1984);
Vt. Stat. Ann. tit. 12, § 519 (West 1996) (enacted 1967);
Wash. Rev. Code Ann. § 9.69.100(4) (West 1998) (enacted 1970);
Wis. Stat. Ann. § 940.34 (West 1996) (enacted 1983).
n53 See 57A Am. Jur. 2d Negligence
§ 114 (1989).
n54 See Pardun, supra note 42, at 591-92.
n55 After the death of Princess Diana, allegations abounded that paparazzi
photographers, instead of reporting an emergency, took photographs of the
mangled bodies of the Princess and the other victims of the accident which
claimed her life. See, e.g., Ann G. Sjoerdsma, Good
Samaritan Law? Not in America, Roanoke Times
& World News, Sept. 18, 1997, at A9.
n56 See, e.g., Gloria Allred
& Lisa Bloom, U.S. Needs a Good
Samaritan Law, Newsday, Sept. 26, 1997, at A47. But see Sjoerdsma, supra note 55, at A9.
n57 All eight of the
duty to rescue laws currently in effect were enacted by 1983. For an argument supporting
these laws, see Jack Wenik, Forcing Bystander to Get Involved: Case for Statute
Requiring Witnesses to Report Crime,
94 Yale L.J. 1787 (1985). But see Sjoerdsma, supra note 55. For a summary of the eight state statutes
duty to rescue and arguing against such a state-imposed duty, see, e.g., Givelber, supra note
11, at 3191-94.
n58 California was the first state to enact such a statute. See Ben Zion Eliash,
To Leave or Not to Leave: The Good
Samaritan and Jewish Law,
38 St. Louis U. L.J. 619, 622 n.19 (1994).
n59 See supra note 31.
n60 See, e.g., 76 Okla. Stat.
§ 5 (1991). The section reads, in pertinent part,
"Any person who in good faith renders or attempts to render emergency care . . .
shall not be liable for any civil damages as a result of any acts or omissions
by such person in rendering the emergency care." Id.
n61 See id.
n62 For a discussion of this law as it exists in Oklahoma, see infra notes 126-34
and accompanying text.
n63 See infra notes 126-34 and accompanying text.
n64 The eight states which have enacted duty to assist laws have also enacted
statutes exempting rescuers from civil liability for their actions. See, e.g.,
Minn. Stat. Ann. § 604A.01. Subd. 2. General immunity from liability. (a) A person who, without
compensation or the expectation of compensation, renders emergency care,
advice, or assistance at the scene of an emergency or during transit to a
location where professional medical care can be rendered, is not liable for any
civil damages as a result of acts or omissions by that person in rendering the
emergency care, advice, or assistance, unless the person acts in a willful and
wanton or reckless manner in providing the care, advice, or assistance. This
subdivision does not apply to a person rendering emergency care, advice, or
assistance during the course of regular employment, and receiving compensation
or expecting to receive compensation for rendering the care, advice, or
n65 See supra text accompanying notes 28-32.
n66 An interesting exception to some Good
Samaritan laws takes effect in situations where the would-be rescuer will receive
compensation for his deed (like a paramedic) or is under a contractual
relationship with the rescuee (such as a
"master" rescuing a
"servant"). He is then unable to exempt himself from liability. See, e.g., 76 Okla.
§ 5 (1991);
Wis. Stat. Ann. § 940.34(3) (West 1996).
n67 There are similar rewards recognizing selfless behavior which are bestowed
frequently by governors, the president, and other government officials.
n68 See supra note 11; supra note 41 and accompanying text.
n69 The trend began in 1967 with the Vermont statute and continues today with the
proposal of Sherrice's Law.
n70 Oklahoma has never enacted such a statute, nor does it appear that, to date,
the state legislature has considered anything similar.
n71 See infra notes 84-103 and accompanying text.
Fla. Stat. Ann. § 794.027 (West 1992
& Supp. 1999);
Mass. Gen. L. ch. 268, § 40 (Law Co-op. 1992);
Minn. Stat. Ann. § 604A.01 (West 1995
& Supp. 1999);
Ohio Rev. Code Ann. § 2921.22(A) (Anderson 1996
& Supp. 1998);
R.I. Gen. Laws § 1-56-1 (1994);
Vt. Stat. Ann. tit. 12, § 519 (West 1996);
Wash. Rev. Code Ann. § 9.69.100(4) (West 1998);
Wis. Stat. Ann. § 940.34 (West 1996).
n73 See infra text accompanying notes 75-105.
n74 For a more detailed discussion of the differences of each state, see, e.g.,
Givelber, supra note 11, at 3191-94.
n75 Seven of the eight states make reporting or the provision of
"reasonable assistance" incumbent upon their citizens. These states are: Florida, Massachusetts,
Minnesota, Rhode Island, Vermont, Washington and Wisconsin. See
Fla. Stat. Ann. § 794.027;
Mass. Gen. L. ch. 268, § 40;
Minn. Stat. Ann. § 604A.01;
R.I. Gen. Laws § 1-56-1;
Vt. Stat. Ann. tit. 12, § 519;
Wash. Rev. Code Ann. § 9.69.100(4);
Wis. Stat. Ann. § 940.34.
Ohio Rev. Code Ann. § 2921.22(A) ("No person, knowing that a felony has been or is being committed, shall
knowingly fail to report such information to law enforcement authorities.").
Vt. Stat. Ann. tit. 12, § 519. 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. (b) A person who provides
reasonable assistance in compliance with subsection (a) of this section shall
not be liable in civil damages unless his acts constitute gross negligence or
unless he will receive or expects to receive remuneration. Nothing contained in
this subsection shall alter existing law with respect to tort liability of a
practitioner of the healing arts for acts committed in the ordinary course of
his practice. (c) A person who willfully violates subsection (a) of this
section shall be fined not more than $ 100.00.Id.
n78 See id.
n79 See id.; supra note 51 and accompanying text.
Wis. Stat. Ann. § 940.34. Duty to aid victim or report crime. (1) (a) Whoever violates sub. (2)(a) is
guilty of a Class C misdemeanor. (b) Whoever violates sub. (2)(b) is guilty of
a Class C misdemeanor and is subject to discipline under
§ 440.26(6). (c) Whoever violates sub. (2)(c) 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. . . . . (d) A
person need not comply with this subsection if any of the following apply: 1.
Compliance would place him or her in danger. 2. Compliance would interfere with
duties the person owes to others. 3. In the circumstances described under par.
(a), assistance is being summoned or provided by others. 4. In the
circumstances described under par. (b) or (c), the crime or alleged crime has
been reported to an appropriate law enforcement agency by others. (3) If a
person renders emergency care for a victim,
§ 895.48(1) applies. Any person who provides other reasonable assistance under
this section is immune from civil liability for his or her acts or omissions in
providing the assistance. This immunity does not apply if the person receives
or expects to receive compensation for providing the assistance.Id.
n81 See id.
n82 See id.
n83 Although most all of the statutes contain an exemption if there is a danger
element, Vermont's statute also addresses the other two conditions as follows:
"[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.
Vt. Stat. Ann. tit. 12, § 519(a) (West 1996).
State v. LaPlante, 521 N.W.2d 448 (Wis. Ct. App. 1994); infra notes 87-92 and accompanying text.
n85 Both statutes, Vermont's and Wisconsin's, have had only one meaningful
judicial challenge. See
State v. Joyce, 433 A.2d 271 (Vt. 1981);
State v. LaPlante, 521 N.W.2d 448 (Wis. Ct. App. 1994).
n86 LaPlante was the first, and seemingly only, prosecution under the Wisconsin
Samaritan statute. See Dave Daley, Few Prosecuted Under State 'Samaritan' Law; Like France, Wisconsin Requires Residents to Help Crime, Accident
Victims, Milwaukee J. Sentinel, Sept. 5, 1997, at 9.
Laplante, 521 N.W.2d at 452.
n88 See id.
n89 As of the publication date, LaPlante is the most significant and comprehensive
reported challenge to a Good
Laplante, 521 N.W.2d at 450. LaPlante advanced six theories about the statute's vagueness; each took the
form of a question. The court rejected all six, which were as follows: (1) to
what degree must a witness have knowledge in order for the law to impose a duty
to aid; (2) must the witness have reported the crime to appropriate law
enforcement authorities in order for the duty to report to attach; (3) does the
witness actually have to believe crime was being committed; (4) what is the
nature of the four exceptions listed in section 940.34(2)(d)(1)-(4) of the
Wisconsin statutes; (5) does the duty to report attach only during the crime's
commission and not afterwards; and (6) when does one become a victim? See id.
n91 See Daley, supra note 86, at 9.
n92 Id. at 9.
Sabia v. State, 669 A.2d 1197 (Vt. 1995) (discussing the Vermont Good
Samaritan statute but holding that personnel from the Vermont Department of Social and
Rehabilitative Services cannot hide behind the liability limiting provisions of
the statute for private citizens); see also Lon T. McClintock, Duty to Aid the
Endangered Act: The Impact and Potential of the Vermont Approach,
7 Vt. L. Rev. 143 (1982).
433 A.2d 271 (Vt. 1981).
Id. at 273.
Vt. Stat. Ann. tit. 12, § 519 (1996) (establishing a duty
"to the extent that [reasonable assistance] can be rendered without danger or
peril to [the rescuer]").
Sabia, 669 A.2d at 1197.
n98 For a discussion of Sabia, a third case which makes reference to the Vermont
Samaritan statute, see id.
n99 For a discussion of why there may be a lack of application of these statutes,
see infra discussion in text accompanying notes 101-05.
n100 See, e.g., Daley, supra note 86.
n101 See, e.g., id.
n102 See Pardun, supra note 42, at 597.
n103 The defendant in LaPlante advanced six specific points about the vagueness of
the Wisconsin statute. See
State v. Laplante, 521 N.W.2d 448, 450 (Wis. Ct. App. 1994).
n104 See Veilleux, supra note 31.
n105 See Hubbard, supra note 43.
Vt. Stat. Ann. tit. 12, § 519 (1996);
Wis. Stat. Ann. § 940.34 (West 1996).
Wis. Stat. Ann. § 940.34.
State v. Joyce, 433 A.2d 271, 271 (Vt. 1981).
n109 It is unclear whether, in reality, Cash's nonfeasance can be attributed to his
fear of disturbing
Strohmeyer, or whether his inaction is attributable to his asserted position that it was
none of his business. See Zamichow, supra note 13.
n110 The absence of a Nevada Good
Samaritan statute is at least in part what caused the public outcry. This discussion may
appear speculative, but it is interesting to consider whether the public would
truly have been satisfied with the existence of a duty to assist or report law
n111 The federal provision was most likely enacted as a comparable statute for the
District of Columbia. See
18 U.S.C. § 2258 (1994) ("Failure To Report Child Abuse"). A person who, while engaged in a professional capacity or activity described
in subsection (b) of section 226 of the Victims of Child Abuse Act of 1990 on
Federal land or in a federally operated (or contracted) facility, learns of
facts that give reason to suspect that a child has suffered an incident of
child abuse, as defined in subsection (c) of that section, and fails to make a
timely report as required by subsection (a) of that section, shall be guilty of
a Class B misdemeanor.Id.
n112 See Victor I. Vieth, Passover in Minnesota: Mandated Reporting and the Unequal
Protection of Abused Children,
24 Wm. Mitchell L. Rev. 131, 135 (1998).
n113 See Margaret H. Meriwether, Child Abuse Reporting Laws: Time for a Change,
20 Fam. L.Q. 141, 142 (1986).
n114 See, e.g., 10 Okla. Stat.
§§ 7103, 7104 (Supp. 1999) (Child Abuse Reporting and Prevention Act).
§ 7103. Reporting of abuse or neglect or birth of chemically-dependent child -
Retaliation by employer - Contents of report - Violations - Spiritual treatment
of child through prayer A. 1. Every: a. physician or surgeon, including doctors
of medicine and dentistry, licensed osteopathic physicians, residents and
interns, examining, attending or treating a child under the age of eighteen
(18) years, b. registered nurse examining, attending or treating such a child
in the absence of a physician or surgeon, c. teacher of any child under the age
of eighteen (18) years, and d. other person having reason to believe that a
child under the age of eighteen (18) years is a victim of abuse or neglect,
shall report the matter promptly to the county office of the Department of
Human Services in the county wherein the suspected abuse or neglect occurred.
Such reports may be made by telephone, in writing, personally or by any other
method prescribed by the Department. Any report of abuse or neglect made
pursuant to this section shall be made in good faith. 2. Every physician or
surgeon, including doctors of medicine, licensed osteopathic physicians,
residents and interns, or any other health care professional attending the
birth of a child who appears to be a child born in a condition of dependence on
a controlled dangerous substance shall promptly report the matter to the county
office of the Department of Human Services in the county in which such birth
occurred. 3. No privilege or contract shall relieve any person from the
requirement of reporting pursuant to this section. 4. The reporting obligations
under this section are individual, and no employer, supervisor or administrator
shall impede or inhibit the reporting obligations of any employee or other
person. No employer, supervisor or administrator of any employee or other
person required to provide information pursuant to this section shall
discharge, or in any manner discriminate or retaliate against, the employee or
other person who in good faith provides such child abuse reports or
information, testifies, or is about to testify in any proceeding involving
child abuse or neglect; provided, that the person did not perpetrate or inflict
such abuse or neglect. Any employer, supervisor or administrator who
discharges, discriminates or retaliates against the employee or other person
shall be liable for damages, costs and attorney fees. Internal procedures to
facilitate child abuse or neglect reporting and inform employers, supervisors
and administrators of reported suspected child abuse or neglect may be
established provided that they are not inconsistent with the provisions of this
section and that such procedures shall not relieve the employee or such other
person from the individual reporting obligations required by this section. 5.
Every physician or surgeon making a report of abuse or neglect as required by
this subsection or examining a child to determine the likelihood of abuse or
neglect and every hospital or related institution in which the child was
examined or treated shall provide copies of the results of the examination or
copies of the examination on which the report was based and any other clinical
notes, x-rays, photographs, and other previous or current records relevant to
the case to law enforcement officers conducting a criminal investigation into
the case and to employees of the Department of Human Services conducting an
investigation of alleged abuse or neglect in the case. B. If the report is not
made in writing in the first instance, it shall be reduced to writing by the
Department of Human Services, in accordance with rules promulgated by the
Commission for Human Services, as soon as may be after it is initially made by
telephone or otherwise and shall contain the following information: 1. The
names and addresses of the child and the child's parents or other persons
responsible for the child's care; 2. The child's age; 3. The nature and extent
of the abuse or neglect, including any evidence of previous injuries; 4. The
nature and extent of the child's dependence on a controlled dangerous
substance; and 5. Any other information that the maker of the report believes
might be helpful in establishing the cause of the injuries and the identity of
the person or persons responsible therefor if such information or any part
thereof is known to the person making the report. C. Any person who knowingly
and willfully fails to promptly report any incident as provided in this section
may be reported by the Department of Human Services to local law enforcement
for criminal investigation and, upon conviction thereof, shall be guilty of a
misdemeanor. D. 1. Any person who knowingly and willfully makes a false report
pursuant to the provisions of this section or a report that the person knows
lacks factual foundation may be reported by the Department of Human Services to
local law enforcement for criminal investigation and, upon conviction thereof,
shall be guilty of a misdemeanor. 2. If a court determines that an accusation
of child abuse or neglect made during a child custody proceeding is false and
the person making the accusation knew it to be false at the time the accusation
was made, the court may impose a fine, not to exceed Five Thousand Dollars ($
5,000.00) and reasonable attorney fees incurred in recovering the sanctions,
against the person making the accusation. The remedy provided by this paragraph
is in addition to paragraph 1 of this subsection or to any other remedy
provided by law. E. 1. Nothing in this section shall be construed to mean a
child is abused or neglected for the sole reason the parent, legal guardian or
person having custody or control of a child, in good faith, selects and depends
upon spiritual means alone through prayer, in accordance with the tenets and
practice of a recognized church or religious denomination, for the treatment or
cure of disease or remedial care of such child. 2. Nothing contained in this
subsection shall prevent a court from immediately assuming custody of a child,
pursuant to the Oklahoma Children's Code, and ordering whatever action may be
necessary, including medical treatment, to protect the child's health or
welfare. F. Nothing contained in this section shall be construed to exempt or
prohibit any person from reporting any suspected child abuse or neglect
pursuant to subsection A of this section.Id.
§ 7104. Report of criminally inflicted injuries Any physician, surgeon,
osteopathic physician, resident, intern, physician's assistant, registered
nurse, or any other health care professional examining, attending, or treating
the victim of what appears to be criminally injurious conduct including but not
limited to child physical or sexual abuse, as defined by the Oklahoma Crime
Victims Compensation Act, shall report orally or by telephone the matter
promptly to the nearest appropriate law enforcement agency in the county
wherein the criminally injurious conduct occurred.Id.
n115 See Vieth, supra note 112.
n116 See Meriwether, supra note 113, at 143.
n117 See id.
n118 Oklahoma law requires anyone (the statute says any
"other person") who is suspicious of child abuse to report it. 10 Okla. Stat.
§ 7103(A)(1)(d) (Supp. 1999). For discussion, see infra notes 146-50 and
n119 See, e.g., 10 Okla. Stat.
§ 7103(D) (Supp. 1999).
n120 See, e.g., id.
n121 Upon a cursory review of similar statutes, it appears that a violation is
often classified as a misdemeanor.
n122 See 76 Okla. Stat.
§ 5 (1991) (Oklahoma Good
n123 See 10 Okla. Stat.
§ 7103 (Supp. 1999) (Oklahoma Child Abuse Reporting and Prevention Act).
n124 See supra note 52.
n125 See 10 Okla. Stat.
§ 7103 (Supp. 1999) (the Oklahoma Child Abuse Reporting and Prevention Act).
n126 See 76 Okla. Stat.
§ 5 (1991) (Oklahoma Good
n127 See id.
n128 See id.
864 P.2d 839 (Okla. 1993).
id. at 845.
n131 See id.
id. at 844.
n133 See id.
n134 See also
Sutherland v. Saint Francis Hosp., Inc., 595 P.2d 780 (Okla. 1979);
Scott v. Bradford, 606 P.2d 554 (Okla. 1979);
Hazlett v. Board of Comm'rs, 32 P.2d 940 (Okla. 1934);
Midland Valley R.R. Co. v. Littlejohn, 143 P. 1 (Okla. 1914);
Smith v. Saint Francis Hosp., Inc., 676 P.2d 279 (Okla. Ct. App. 1983).
n135 See 10 Okla. Stat.
§§ 7103, 7104 (Supp. 1999).
n136 See, e.g., id.
n137 This information is based on fiscal year 1997 and was provided by the Oklahoma
Department of Human Services, Child Protection Division.
n138 These statistics were provided by the Oklahoma Department of Human Services,
Child Protection Division.
n139 See Vieth, supra note 112.
n140 Other possible explanations include an increased number of child abuse cases,
an increased awareness of child abuse, and an increase in the number of
resources allocated by federal and local governments to document incidents of
n141 See 10 Okla. Stat.
§§ 7103, 7104 (Supp. 1999).
n142 See id.
n143 See id. Perhaps this provision serves to cover instances of injury resulting
from criminal acts beyond the realm of
"abuse," such as wounds caused by weapons or other forms of unlawful injuries caused by
n144 See, e.g., id.
§§ 7103, 7104.
n145 See supra text accompanying notes 115-17.
n146 See, e.g., id.
§§ 7103, 7104.
§ 7103(A)(1)(d) (emphasis supplied).
n149 Upon a cursory review of similar statutes requiring reporting of evidence of
child abuse, it appears that very few states contain a provision which compels
anyone having reason to believe abuse has occurred to report it. The Florida
statutory language reads
"any person, including but not limited to," then provides a list of professionals, such as health care and child care
Fla. Stat. § 39.201 (1998). This language also leaves open the possibility that anyone can be
liable under the statute for a failure to report.
n150 The only noteworthy case which has involved title 10, section 7103 of the
Oklahoma Statutes is Capaldi v. State, 763 P.2d 117 (Okla. Crim. App. 1988), and it does not address part (A)(1)(d). Two other cases,
Boyd v. State, 743 P.2d 674 (Okla. Crim. App. 1987), and
Alexander v. State, 534 P.2d 1313 (Okla. Crim. App. 1975), make mention of the statute, but it is not the center of the litigation in
n151 See infra note 171.
n152 See 10 Okla. Stat.
§§ 7103, 7104 (Supp. 1999).
§§ 7103(A)(1)(d), 7104.
n154 As of the publication date of this comment, Capaldi has been the only
significant challenge to Oklahoma's child abuse reporting statute. See
Capaldi v. State, 763 P.2d 117 (Okla. Crim. App. 1988).
763 P.2d 117 (Okla. Crim. App. 1988).
id. at 118.
n157 See 10 Okla. Stat.
§§ 7103, 7104 (Supp. 1999).
n158 See id.
n160 See id.
§§ 7103, 7104.
n161 The current statute only requires reporting of suspicions of child abuse;
suggesting that the statute covers only cases wherein the abuse has occurred
prior to the reporter's involvement.
n162 See 10 Okla. Stat.
§§ 7103, 7104.
n163 See supra note 2.
n164 See S. 2452, 105th Cong. (1998).
n165 See id.
n166 See id.
n167 See id.
n168 See supra notes 56-62 and accompanying text.
n169 See S. 2452.
n170 This well established doctrine dates back at least as far as Aristotle. See
8-9 Aristotle, The Nicomachean Ethics 147 (H. Rackham trans., rev. ed. 1934) ("[M]en are punished for offences committed through ignorance of some provision
of the law which they ought to have known, and might have known without
difficulty; and so in other cases where ignorance is held to be due to
negligence, on the ground that the offender need not have been ignorant, as he
could have taken the trouble to ascertain the facts.").
n171 It is arguable that the
"ignorance of the law is no excuse" principle was established for situations in which an act was punishable
because of its inherent wrongfulness. Good
Samaritan laws, and similar standards, serve more to encourage intervention and behavior
which could prevent exacerbated circumstances than to punish.
n172 Approximately 76.3 million viewers watched the final episode of Seinfeld, a
widely popular sitcom, which aired on May 15, 1998. See Gary Levin, Much-Hyped
"Seinfeld" Falls Short of Record, USA Today, May 18, 1998, at 4D. The final episode
depicted its main characters tied up in a lawsuit for failing to offer
assistance to an emergency victim, by violation of the Good
Samaritan law in a Massachusetts town.
n173 See id. The violation occurred in a jurisdiction foreign to the characters.
n174 See 60 Minutes, supra note 3.
n175 Theoretically, if Cash had caused his friend
Strohmeyer to have been caught in the act before Sherrice Iverson had died, his penalty
would have been significantly less severe and his life would not be wasted in
n176 See, e.g., Booth
& Willwerth, supra note 4.
n177 The current law, as proposed, suggests neither punishment nor classification.
The likelihood of a misdemeanor classification is based solely on existing
reporting statutes. See, e.g., 10 Okla. Stat.
§§ 7103, 7104 (1991).
n178 Every United States citizen is considered a
"free moral agent," unless he or she is imprisoned or otherwise lawfully constrained. See, e.g.,
Landfield v. Cohen, 200 P.2d 149, 150 (Cal. Ct. App. 1948).
n179 See infra text accompanying notes 194-204.
n180 See Vieth, supra note 112, at 160.
n181 See id.
n182 See S. 2452, 105th Cong. (1998).
n183 Despite numerous challenges (and eventual repeal in 1995), the nationally
imposed 55-mile-per-hour speed limit laws,
23 U.S.C. § 154 (Supp. IV 1998), were consistently upheld by the courts. See
People v. Austin, 443 N.E.2d 1107 (Ill. App. Ct. 1982) (holding that placement of conditions on state's receipt of federal funds by
Congress, which established national speed limit to prevent wasting of fuel and
jeopardizing of lives but which placed terms only upon allotment of federal
funds for highway construction within state and left it to individual state to
assess limit, was constitutional despite characterization of such action as
bribery, and thus 55-mile-per- hour speed limit enforced against motorist was
n184 Louisiana for many years technically complied with the national minimum
drinking age, set by Congress in
23 U.S.C. § 158, yet the state was not imposing sanctions on retailers of alcoholic beverages,
effectively setting its statewide drinking age at 18. The federal government
eventually forced Louisiana to enforce the minimum drinking age and the new
statute withstood judicial challenge in
Manuel v. Louisiana, 677 So. 2d 116 (La. 1996). See Alyson L. Redman, Manuel v. Louisiana: The Louisiana Supreme Court
Determines That Raising the Legal Drinking Age to Twenty-one Is Not Age
Discrimination Under Louisiana's Equal Protection Clause,
71 Tul. L. Rev. 987 (1997).
n185 The Tenth Amendment of the United States Constitution provides that
"[t]he powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people." U.S. Const. amend. X. This type of law may face intense judicial scrutiny. So
far, however, congressional imposition of a condition to require a state's
passage of a particular law has been upheld by the courts. See, e.g.,
South Dakota v. Dole, 791 F.2d 628 (8th Cir. 1986), cert. granted,
479 U.S. 982, aff'd,
483 U.S. 203;
Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989);
Vermont v. Brinegar, 379 F. Supp. 606 (D. Vt. 1974);
Manuel v. Louisiana, 677 So. 2d 116 (La. 1996).
n186 This likely was omitted to preempt any sort of constitutional challenge which
may arise under the Tenth Amendment to the United States Constitution.
n187 See Pardun, supra note 42.
n188 See supra note 43. But see infra text accompanying note 207.
n189 It seems unlikely that a state would impose an unreasonably harsh penalty for
a violation of such a statute.
n190 This occurred for many years in Louisiana. Local jurisdictions which did not
support the federally imposed minimum drinking age turned a blind eye to
violations of the law, which was in effect in Louisiana but hardly enforced.
See supra note 185.
n191 Apart from the introduction of Sherrice's Law by Sen. Barbara Boxer (D.-Cal.),
the proposal was also supported in the House of Representatives by Rep. Nick
Lampson (D.-Tex.), who was joined by 25 bipartisan co-sponsors. The list of
House co- sponsors included 22 Democrats and three Republicans. See 144 Cong.
Rec. S10,118-19 (daily ed. Sept. 9, 1998) (statement of Sen. Boxer).
n192 See, e.g.,
18 U.S.C. § 2242 (1994) (defining sexual abuse).
n193 See id.
n194 See supra notes 83-98, 147-58 and accompanying text.
n195 As of the publication date of this comment, the only known significant
constitutional challenge to a Good
Samaritan duty to assist statute in the
United States is State v. LaPlante, 521 N.W.2d 448 (Wis. Ct. App. 1994). See supra notes 87-90 and accompanying text.
n196 See Pardun, supra note 42, at 604 n.84; see also M.K. Osbeck, Bad Samaritanism
and the Duty to Render Aid: A Proposal, 19 U. Mich. J.L. Reform 315 (1985);
Sheldon Richman, You Can't Legislate Goodwill, Christian Sci. Monitor, Oct. 2,
1997, at 19.
n197 See, e.g., Pardun, supra note 42, at 607.
n198 See id. at 604.
n199 The duty to pay taxes is essentially constitutionally created. However,
criminal penalties (usually in the form of a misdemeanor fine) for failing to
register one's vehicle, etc. are state-imposed.
n200 See, e.g., Pardun, supra note 42, at 604.
n201 See The Declaration of Independence para. 2 (U.S. 1776).
n202 See id.
n203 See Vieth, supra note 112.
n204 The Golden Rule is a biblically based ideal of most Western civilizations:
"Do unto others as you would have them do to you." Luke 6:31.
LaPlante, 521 N.W.2d 448 (Wis. Ct. App. 1994).
269 U.S. 385 (1926).
n207 See id. For a discussion of the unconstitutionality of vague statutes, see
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). The Court stated in Grayned that [v]ague laws offend several important values.
First, because we assume that man is free to steer between lawful and unlawful
conduct, we insist that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not providing fair warning.
Second, if arbitrary and discriminatory enforcement is to be prevented, laws
must provide explicit standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen, judges, and juries
for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.Id.
n208 For a discussion of the Minnesota child abuse reporting law, see Vieth, supra
n209 An example of non-emergency sexual abuse of a child could involve a consensual
relationship between a minor and a parent or other person wherein sexual abuse
was occurring, but not in a violent manner, like that witnessed by David Cash.
n210 Martin Luther King, Jr., Strength to Love 22 (1963).
n211 The evidence is most probably significantly outnumbered by the number of
incidents of child abuse which are unreported and forever without notice.
n212 It is assumed from the lack of application of, in the case of Vermont, a
30-year-old concept, that part of the reason is that there are few instances in
our society of callous passivity which could lead to prosecution under these
Prepared: April 16, 2003 - 5:02:29 PM
Edited and Updated, April 17, 2003