NOAH RACHLIN

DUTY TO RESCUE


LAW REVIEW ARTICLE
April 19, 2003




Copyright (c) 2000 New England Journal on Criminal and Civil Confinement
New England Journal on Criminal and Civil Confinement

Winter, 2000

26 N.E. J. on Crim. & Civ. Con. 67

LENGTH: 14050 words

COMMENT:

Andrew D. Kaplan

SUMMARY:
  ... Presently, the American public is witnessing a rekindled interest in the duty to assist issue because of the rape and murder of seven-year-old Sherrice Iverson. ... The Act stems from the concepts of easy rescue, moral responsibility, and legal responsibility. ... It appears two theories illustrate the means by which individuals are motivated: legal responsibility and moral responsibility. Moral responsibility is defined here as the inherent conscience, and legal responsibility is defined as an external stimuli imposing pressures for conformity. ... The fundamental difference between legal responsibility and morality lies in the consequence of motivating someone out of fear versus motivating someone out of a moral responsibility. ... A moral responsibility transcends legal responsibility and requires personal acceptance and conformance. ... After determining the actus reus, "the State must prove beyond a reasonable doubt that the defendant had a culpable mental state (mens rea) at the time of the crime, and it must also show that the defendant caused the social harm for which she is being prosecuted." ... A lower mens rea, such as reckless or negligence does not suffice after appreciating the base mental state a witness possesses. ... While Cash had the opportunity to become an intervening force, his omission cannot be seen as an intervening act, superseding the actual cause of Sherrice's death. ...  

TEXT:
 [*67]  I. INTRODUCTION

Throughout the development of the Anglo-American legal system, there have been moments when "national attention is drawn to the issue of a legal duty to assist." n1 Presently, the American public is witnessing a rekindled interest in the duty to assist issue because of the rape and murder of seven-year-old Sherrice Iverson. n2

In the early morning hours of May 25, 1997, Sherrice was followed into the women's restroom at the Primadonna Casino by nineteen-year-old Jeremy Strohmeyer, who proceeded to rape and murder her. n3 The duty to assist issue has been thrown into the spotlight because Strohmeyer's life-long friend, David Cash, "witnessed the beginning of the assault and later learned of the child's death but took no action." n4

According to Nevada law, Cash did nothing wrong. n5 "[A] person who merely witnesses a crime and chooses neither to stop it nor report it has committed no crime." n6 It was not only Cash's omission that stirred interest, but also it was his public "indifference to the girl's death." n7 Cash stated:

 [*68]  I have a lot of remorse toward the Iverson family. It was a very tragic event . . . . The simple fact remains [that] I don't know this little girl. . . . I don't know people in Panama or Africa who are killed every day, so I can't feel remorse for them. The only person I know is Jeremy Strohmeyer. n8


Is David Cash unusual? Is he any different from thirty-eight people who ignored Kitty Genovese's pleas? Or, is Cash expressing the very foundation of our legal system: individualism. While his comments shock the conscience, are they any different than what the silent majority has codified as law? Do we blame our legal system, David Cash, or both?

Part II of this Note discusses the background of the general no-duty to assist rule, and compares legislation among the states and the current status of the general rule. Part III discusses the fundamental purpose and foundation of the Sherrice Iverson Act. Part III then focuses on the consequences of imposing this duty to report. This Part also suggests modifications to the Sherrice Iverson Act. Part IV discusses if the Sherrice Iverson Act is really necessary, in that, whether it will prevent similar crimes or cause needless prosecutions.

II. BACKGROUND

A. Theories Supporting the General Rule.

Generally, "there is no duty under Anglo-American law to lend personal assistance to or obtain help for persons in distress, or to warn of imminent danger." n9 "The law does not compel active benevolence between man and man. It is left to one's conscience whether he shall be the Good Samaritan or not." n10 The following historical exploration sets forth differing theories which impacted on the present state of the general rule.

1. Individualism

There are numerous fundamental theories both in tort and criminal law which are sources of the no-duty to assist rule. n11 "The early common law was highly individualistic" and was heavily influenced by capitalist economic  [*69]  theory. n12 Early economists "feared that judicial intervention in social and economic affairs would sap men of their self-reliance and encroach upon their individual freedom." n13 Moreover, with "the emerging spirit of capitalism -- the belief that 'the struggle of selfish individuals automatically produces the common good of all' -- reinforced judicial reluctance to compel citizens to assist persons in trouble." n14 Thus, a strong economic-based foundation was at the center of promoting individualism. n15 Society was not to impose constraints or responsibility on individuals at the expense of limiting their economic prosperity. n16 Such freedoms are manifested in notions of selfishness; such selfishness has become a fundamental tenet of the general rule. n17

The explanation for individualism is also predicated on the underlying social values that provide a basis for Anglo-American law; n18 however, there is tremendous tension between social values and individualism. n19 Social values seek to bind people, while individualism seeks to "champion[] a person's self-interest." n20 Individualism "imposes severe limits on what the law can require of an individual" where "the law may set necessary guidelines for social conduct, but should not structure all of social life." n21 While individualism allows for some general social controls, the theory states "it is not the purpose of the law to maintain the entire fabric of morality." n22 For example, laws punishing illegal drug use are generally accepted social controls, but laws imposing inherently altruistic conduct, such as clothing the homeless or aiding children, are thought invasive. n23 The goal of individualism is not for the greater good but to maintain autonomy. n24 Individuals are not each others servants. n25

"Individualism . . . holds autonomy, privacy, and self-interest as paramount values. . . . These "values have both descriptive and normative  [*70]  features." n26 Individuals can be described as desiring autonomy and privacy which "function as moral ideals toward which human beings should strive." n27 Since individualism considers autonomy to be fundamental, "the formation of the state is justified only if it reflects the individual's autonomous choices." n28 Therefore, under individualism, a general duty of rescue deprives the rescuer of his liberty to choose whether or not to rescue the victim. n29 Since individualism demands autonomy, the imposition of an affirmative act invades the privacy of the individual. n30 An individualistic perspective offers the explanation:

liberty is fundamental, and when government requires a person to act, it is necessarily interfering more seriously with his liberty than when it places limits on his freedom to act -- to make a man serve another is to make him a slave, while to forbid him . . . [from committing] affirmative wrongs is to leave him essentially a free man. n31


2. Public law

While the early common law limited imposition of tort liability to acts of misfeasance, n32 there did exist some positive duties to prevent criminal violence. n33 The origins can be traced to Bracton, a legal theorist of the mid-thirteenth century, who observed "that an individual 'who. . . could rescue a man from death, [but] failed to do so,' is free neither from guilt nor from punishment." n34 In later times, Hale observed "that 'every man is bound to use all possible lawful means to prevent a felony' . . . 'without hazard of himself.'" n35 At early common law, individuals also assisted government officials as part of communal obligations. n36 In many situations, "criminal violence could be prevented or offenders apprehended only by officers with the assistance of private individuals." n37

"Over time, the traditional approach of requiring citizens to assist in law enforcement fell largely into disuse." n38 With the advent of modern police  [*71]  forces, the responsibility for the prevention of crime shifted from the community to specific citizens in law enforcement. n39 Thus, individuals were no longer inherently involved in assisting crime prevention because there were now individuals enlisted for that very purpose. n40 For this reason, the role of the individual in maintaining the community dwindled. n41

3. Misfeasance and Nonfeasance

The distinction between misfeasance and nonfeasance is critical to the common law's reluctance to require one to render aid to a stranger. n42 "'While no man was allowed to act so as to injure others, the early law recognized no general duty of protection.'" n43 Early criminal law distinguished between an act that caused harm and the failure of a bystander to take measures to prevent harm. n44 The distinguishing characteristic is affirmative action versus non-action. n45

The common law notion was that everyone was "responsible for his own safety, the law merely saw that he was not interfered with from without." n46 This was because the early courts were "too . . . occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act." n47

The "view of the common-law attitude toward nonfeasance was based in part on the traditional theory of the development of trespass . . . the common law form[] of action that ultimately gave rise to the modern law of torts." n48 At early common law, trespass was defined as "direct forcible injury." n49 Since "actions of trespass were predicated on a breach of the  [*72]  peace, they typically involved misfeasance." n50 As a general rule, only trespass cases were heard in the king's courts, whereas all other cases not involving a breach of the peace were heard in local courts. n51 On occasion, the local courts prosecuted persons causing non-direct forcible injury; the basis of the prosecution was breach of a duty to act. n52 This led to recognition of liability for nonfeasance; n53 although, "liability for nonfeasance in the absence of an undertaking was exceptional." n54 A prerequisite for finding liability was a breach of a duty. n55 Only in situations in which the "plaintiff could show injury resulting from the defendant's breach of an affirmative duty to act" could there be a viable claim. n56 Moreover, "if a court characterizes the defendant's behavior as nonfeasance . . . the defendant ordinarily will owe no duty to the plaintiff." n57 The result is that "unreasonable behavior may be immune from liability as long as a defendant can successfully characterize it as nonfeasance." n58

There are "two fundamental problems [that] plague the distinction between misfeasance and nonfeasance: (1) in many cases it is impossible to distinguish the two; and, (2) in cases where intuitively there is a clear distinction, that distinction does not always coincide with generally accepted notions about whether liability should attach." n59 In situations  [*73]  "where inaction and action can be distinguished, one defendant's 'failure' to act may well be more reprehensible than another's affirmative misconduct." n60 In an attempt to "provide a more satisfying rationale," n61 one theorist discusses the role of a bystander as nonfeasance. n62 According to the theory, the bystander's behavior does not create the risk; rather, it is the actions of another that create the risk. n63 "By observing the incident passively, the bystander simply allows the . . . risk to materialize." n64 The "risk existed . . . whether or not the bystander had been viewing the [act]." n65 Thus, "the law imposes a duty of care in misfeasance cases because the defendant affirmatively acted to injure the plaintiff." n66

4. Omissions

The reason the law "does not criminalize (most) omissions of positive duties is simply 'the very real difference . . . in the moral force of our negative versus our positive duties,' which . . . rests on the distinction between making the world a worse place and failing to improve it." n67 When someone acts in furtherance of a purpose, the result has a consequence. Conversely, when someone omits or does not act, the result has a consequence. The difference lies in the consequence. Hence, "wrongful as it is to let the child drown, it is much more wrongful to drown the child." n68

The fundamental question is what behavior should be punished? Causing harm should not be punished in the same manner as not causing harm. Traditionally, omissions have not been punishable unless the omitter had a legal duty to act. n69

 [*74]  B. Present State of the Law and Modifications to the General Rule

1. Legislative Modifications

In contrast to the general rule, a minority of states have imposed a duty to act in special situations. n70 There are generally two forms of a duty: first, a duty to aid, n71 and second, a duty to report. n72 The imposed responsibility under the respective statutes differs greatly. n73 Under a duty to aid, the range of responsibility is broad; it ranges from requiring assistance in any situation n74 to requiring assistance in situations where the rescuer will not be endangered. n75 Under a duty to report, some states drafted narrowly attendant circumstances where the duty applies only in situations involving sexual assault, n76 whereas other states require reporting in observation of a violent felony. n77

 [*75]  a. Duty to Aid or Assist Laws in Action

The number of appellate cases reported dealing with prosecutions for failing to assist or aid is remarkably few. n78 The most recent case on record, Logarta v. Gustafson, n79 thoroughly explores the general rule by comparing the historical approaches of morality and nonfeasance. n80 The United States District Court for the Eastern District of Wisconsin acknowledged the general rule of no-duty by citing the "distinction between the infliction of harm and the failure to prevent it." n81 The issue was whether D.V.G. had a duty to prevent a suicide. n82 The court found that because suicide is not a crime in Wisconsin, the statute "would not punish the failure to report or render assistance to a suicide." n83 Thus, the court noted "'the fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.'" n84

In State v. LaPlante, n85 the Court of Appeals of Wisconsin held the "failure to aid" statute did not violate the defendant's privilege against self-incrimination. n86 The court found the "statute . . . devoid of any mandate  [*76]  that an individual identify oneself when fulfilling the statute's requirements." n87 Moreover, the court found that the defendant simply had to call for assistance without disclosing how the victim was injured. n88

The LaPlante Court also rejected the defendant's argument that the statute was unconstitutional due to vagueness. n89 The defendant contended the level of knowledge required to trigger the duty was unclear. In other words, what does a person need to know as a witness in order be held accountable under the statute. n90 The court found "[a] plain and reasonable reading of the statute reveals that any person who knows that a crime is being committed and knows that the victim is exposed to bodily harm must either call for law enforcement . . . or provide assistance to the victim." n91

The cases discussed here clearly show the tension between the duty to aid or report and the strong historical basis for the general rule. The following section discusses exceptions to the general rule by outlining statutorily enacted special relationships which impose a duty.

2. Judicial Modifications

"Judicial decisions have steadily eroded the [no duty] rule in two ways: by recognizing exceptions in which the law imposes a duty to aid strangers and by expanding the class of special relationships that give rise to affirmative duties." n92 To date "there are seven major avenues the courts have utilized to impose a criminal duty to act." n93 First, a duty to act based upon the relationship of the parties. n94 For example, a parent's "legal duty to aid their children, adult children who have a duty to aid their aging parents, spouses who have a duty to care for each other, and a ship's captain who has a duty to assist those under his care." n95 Second, a duty based on contract. n96 For example, if a security guard does not perform the duties of his/her position and fails to protect an individual from harm, the security guard breached his/her duty and can be criminally liable. n97 Third, a duty based on a voluntary assumption of care. n98 For example, "although one  [*77]  might not, as an original matter, have a duty to act to rescue a stranger in peril, yet once he undertakes to help him he may have a duty to see the job through." n99 In other words, if a responding person, while originally under no duty to aid, has voluntarily undertaken assistance to aid the victim, he must aid until the victim is safe. n100 Fourth, a duty can arise from the fact that the "person created the risk from which the need for protection arose." n101 For example, "when [a] person engages in a physical altercation with another, rendering that person incapable of taking care of himself." n102 Specifically, when a driver hits a pedestrian and does not render assistance, "criminal liability for the outcome may result." n103 Fifth, a duty can arise when a person becomes responsible for another's criminal action. n104 For example, a parent is held responsible for "criminal conduct of a child when the parent fails to 'control' the minor child." n105 Sixth, property owners can be held liable for dangerous conditions on their property. n106 For example, "[a] night club owner may be criminally liable . . . for the deaths of his patrons killed as a result of the owner's failure to provide proper fire escapes." n107 Lastly, a statutory duty to act. n108 The statutory duty requires action rather then relying on action based upon a special relationship between the assisting party and the victim. n109

The judicial and legislative creations run contrary to the historical notions of the general rule. n110 However, the current state of the law reflects both the past and present. Despite the strong foundation for the no-duty rule, judges and legislators are imposing duties by finding special relationships. n111 A substantial "development is that some courts are now inclined to increase the number of special relationships which may require a specific legal duty to aid the victim." n112 Part III of this Note discusses such a relationship and the duty to report sexual abuse against children.

 [*78]  III. THE SHERRICE IVERSON ACT

On September 9, 1998, Congressman Nick Lampson, n113 founder of the Congressional Missing and Exploited Children's Caucus, introduced new legislation on the floor of the House of Representatives to "create criminal penalties for witnesses who fail to report sexual crimes against children." n114 Lampson proffered his creation of the Sherrice Iverson Act (the Act) as a fundamental weapon against crime targeting children. n115 Lampson stated:

in a perfect world, reporting crimes against our children would be common sense, . . . this case highlights the fact that this is not a perfect world and Congress needs to pass legislation to make sure witnesses 'do the right thing' and report incidents of child violence to law enforcement. n116

Lampson proposed the following as an amendment to the Child Abuse Prevention and Treatment Act: n117

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. n118

Lampson noted "with crimes against children on the rise, this type of legislation is more important than ever before." n119

 [*79]  A. Fundamental Basis for the Act

There is probably nothing easier than reporting. n120 The Act does not criminalize omission of rescue, but criminalizes the omission of not reporting. n121 The Act does not even require immediate report but penalizes an individual who fails to report the witnessing of another individual engaging in sexual abuse of a child. n122 Thus, the Act enables an individual to become involved without getting his/her hands dirty.

The Act stems from the concepts of easy rescue, moral responsibility, and legal responsibility.

1. Easy Rescue

Even though the Act only requires reporting, an analysis of easy rescue is warranted to develop the concept of affirmative "good citizenship." n123 Easy rescue is a simple act in assistance of another. n124 Easy rescue has been defined as nothing "more than making a phone call." n125 It does not require unreasonable assistance to someone in grave danger. n126 Rather, easy rescue involves reasonable assistance, it is not about acts of heroism, but acts of common sense. n127

"The controversy over whether to recognize a general legal duty to rescue is primarily a controversy about easy rescues." n128 "There are different types of rescues, some more difficult than others." n129 If one could accept an easy rescue scheme, the notion of requiring reporting seems quite trivial in comparison. n130 The easy rescue scheme does not require "a bystander [to] be forced to imperil his own life for the sake of the stranger. . . . most suspend the duty in the face of serious bodily harm, and some in the face  [*80]  of any harm at all to health." n131 An easy rescue merely requires action "when it can be performed without danger . . . and by one close enough temporally and spatially to be held accountable for nonperformance." n132 Simply, if one is required to assist another only to the point of not endangering herself, "a bystander's duty does not include the heroism of invulnerability and infantile omnipotence. Instead, it contemplates something milder . . . ." n133 In light of this, "most proposals for change in the law have urged that the bystander should have an obligation to protect the child from serious harm, at least when protection could be offered without serious inconvenience or risk." n134

2. Moral and Legal Responsibility

"The strongest argument for a universally applicable rescue duty is that lives would be saved and injuries avoided." n135 However, before getting to that end, an individual must act. n136 In order for an individual to act, he/she must be motivated. n137 It appears two theories illustrate the means by which individuals are motivated: legal responsibility and moral responsibility. n138 Moral responsibility is defined here as the inherent conscience, and legal responsibility is defined as an external stimuli imposing pressures for conformity. Categorically, motivation can be described as:

many people . . . acting out of a desire to be law abiding; others would act out of fear of legal sanctions, particularly when witnesses were present; some who are timid would be provided with the necessary motivation to intervene; and still others would be moved to action by a heightened sense of the morality of rescue. n139


Since the Act was narrowly drafted to include only children, the focus seems to be that of a heightened moral duty. n140 In essence, the offering of  [*81]  help to someone fundamentally helpless draws first on morality, then on legal responsibility. n141 For example, if a reasonable person came upon a seven-year-old child, alone, locked in a non-operating car without the air conditioner running, in a parking lot during 100 degree temperature, a reasonable natural reaction would be to assist the child. The response may be motivated by fear of legal consequences and public outcry for not assisting. But, overwhelmingly, the stronger catalyst for action would be a reflexive response to aid a helpless child. The catalyst would be morality and the initial response would be reflexive. The sense of responsibility is compelled. In this example, the offering of help would be primarily morally motivated. On a secondary level, the response would be motivated by legal responsibility, out of fear of legal consequences for leaving a child in a dangerous situation. Now, if one came upon the same situation, except the car was running and the air conditioner operating, many people would inquire as to the well-being of the child, but the heightened moral catalyst as seen in the first situation may not compel action here. Witnesses may not feel compelled to assist because the child is not in immediate danger. The motivation to help would be part moral, but also a reason not to help would be the lack of threatened legal consequences. The witness would decide to aid out of fear of harm to the child, not fear of consequences for her omission. Thus, an act of assistance would be catalyzed by morality.

It is the degree of moral compulsion versus legal compulsion which is evident in these hypothetical situations. In the first hypothetical, an initial reaction motivated by both morality and legal responsibility would be to assist the child, whereas in the second hypothetical, because the safety of the child is not threatened, a legal responsibility may impact more on the decision not to act. If a person does act, however, morality was the underlying catalyst.

The fundamental difference between legal responsibility and morality lies in the consequence of motivating someone out of fear versus motivating someone out of a moral responsibility. n142 A legal responsibility to rescue "would increase the number of persons who feel morally compelled to offer emergency aid. This, in turn, would increase the likelihood that people would render assistance in situations in which the failure to do so  [*82]  would go undetected." n143 A legal responsibility establishes reasons to aid out of fear of personal consequences stemming from legal retribution. A moral responsibility motivates someone even when consequences are not considered. n144 Some feel "'legal and moral rules are in symbiotic relation; one 'learns' what is moral by observing what other people . . . tend to enforce.'" n145 If law is teaching morality, one must have had the opportunity to observe law in action. n146 However, this argument fails because many things in life are not observed, but we know them to exist. Therefore, we are left with a bottom line of morality motivating the responsibility. n147

A moral responsibility transcends legal responsibility and requires personal acceptance and conformance. n148 In persons with developed moral constitutions, the internal struggle of independence from others succumbs to the inner calling of aiding a victim. n149

The Act is based on the notions of easy rescue and moral responsibility. The question arises, how effective can the imposition of a duty to assist be where conduct should be an inherent response? In other words, such conduct should come naturally without pressure from external stimuli. n150 Nevertheless, the following proposed Act imposes a moral obligation as a response to a child in danger.

B. Fundamental Concerns with the Act

The imposition of a criminal sanction upon an omission is contrary to Anglo-American legal principles. n151 Two major questions arise when looking at the origin and basis of the Act. First, is the criminalization of  [*83]  omissions going to prevent similar happenings? Second, will the proposed Act foster prosecutorial abuse?

Individuals can be unjustifiably caught in the criminal justice net simply because the language of a statute is poorly worded. n152 The notion of net widening is very real when criminalizing an omitter's non-action.

1. Actus Reus

Generally, it is stated "that a crime consists of both a physical part and a mental part; that is, both an act or omission . . . and a state of mind." n153 The act or actus reus is a voluntary bodily movement. n154 Nevertheless, "there are a number of statutory crimes which are specifically defined in terms of failure to act." n155 Such a failure to act is considered an omission. n156 For criminal liability to attach to an omitter "it must first be found that there is a duty to act -- a legal duty and not simply a moral duty." n157 Thus, while an omission can suffice as an act, n158 liability is only possible if there is a prescribed duty. n159 When looking at the Iverson Act, it appears that an individual who does not report sexual crimes against children has acted by omission in breaching his duty.

2. Mens Rea

After determining the actus reus, "the State must prove beyond a reasonable doubt that the defendant had a culpable mental state (mens rea) at the time of the crime, and it must also show that the defendant caused the social harm for which she is being prosecuted." n160 There are statutes written with the purpose of excluding the finding of a culpable state of mind. n161 Such statutes hold an offender strictly liable for his/her transgressions. n162 Here, the Act does not mention a mens rea requirement; n163 as  [*84]  such, it appears to be one of strict liability. n164

For a statute to be constitutional under a strict liability scheme, it must satisfy the fundamental prerequisites articulated in Morrisette v. United States: n165

from these cases emerges the proposition that where a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. n166

The notion that the Act imposes strict liability is troubling. The Act appears facially non-besmirching to an offender; however, the penalty damages a reputation because this omission by its very nature gravely besmirches. The thrust of the Act's mission is to prevent crimes against children. n167 Therefore, if one is charged with violation of the Act, the natural public reaction will be of disgust and persecution of the omitter. n168 The crime of not reporting abuse against children carries tremendous baggage. n169 Some will respond accordingly, while others will not or cannot. The omitter will become a pariah, and may be held vicariously liable for the victim's plight. For instance, Marc Klaas, now an activist for child safety after his daughter, Polly, was murdered, stated:

fate gave David Cash the opportunity to be heroic, and he turned his back on that opportunity . . . he was in the singular position of being able to save a seven-year-old child, and he chose to do nothing. For that, he will have to answer to his own withered soul forever. n170


Such criminal labeling, regardless of the omitter's motivations, does gravely besmirch. Therefore, because the Act "imposes criminal liability  [*85]  for conduct unaccompanied by . . . any particular mental state[,]" n171 and in turn gravely besmirches a reputation, it violates a prerequisite of Morrisette.

Instead of the strict liability approach taken, the Act would be more potent articulating a required mental state. While more difficult to prove than strict liability, a crime defined by an act and mental state allows for greater penalization than strict liability's mere limitation of prosecuting "violations." n172 Under common law, a culpability definition of mens rea connotes a general notion of moral blameworthiness. n173 It is not necessary to prove the defendant committed the offense with any purpose or intent. n174 Rather, "it was sufficient that the defendant committed the proscribed acts in a manner that demonstrated his bad character, malevolence, or immorality." n175 In light of this, by using the culpability definition of mens rea of a failure to report, Cash may be successfully prosecuted. Cash's actions were committed with malevolence and an evil mind. n176 By his own admission, "I'm not going to lose sleep over somebody else's problems," n177 suggests omission with malevolence.

Under a mens rea elemental approach, the Model Penal Code (the Code) establishes four basic degrees of culpability based on the offender's mental state: (1) crimes requiring purpose to do the forbidden act or cause the forbidden result; n178 (2) crimes requiring knowledge of the nature of the act or of the result which will follow therefrom or of the attendant circumstances; n179 (3) crimes requiring recklessness in doing the act or causing the  [*86]  omission; n180 and (4) crimes requiring only negligence. n181

Under the Code's "purposely" category, a redrafted version of the Act would appear as "providing for a criminal penalty on an individual . . . who [purposely] 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." n182 The State would have to prove that it was the omitter's conscious object to engage or cause such a result. n183 In essence, that his/her omission was a conscious decision. n184 In light of such a requirement, since Cash purposely did not report his witnessing of Strohmeyer's act, his omission was his conscious object. n185 As such, prosecution would be viable under a mens rea redrafted with a "purposely" threshold.

Under the Code's "knowingly" category, a redrafted version of the Act would appear as "providing for a criminal penalty on an individual . . . who [knowingly] 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." n186 The State would have to prove the omitter was aware that it was practically certain his/her conduct would cause such a result. n187 In essence, the omitter committed the actus reus with knowledge of the attendant circumstances. n188 Moreover, since the Act is targeting  [*87]  witnesses, the Act facially requires knowledge at a minimum. In other words, a witness by his/her very nature has knowledge. n189 Since a witness has the fundamental prerequisite of knowing the attendant circumstances, n190 the argument can be made that the witness' actus reus is performed with knowledge. If the individual fails to act, then his/her mental state was fundamentally influenced with the possession of such knowledge. n191 In light of this, Cash would be liable under a "knowingly" category redraft because he was aware of the attendant circumstances and knowingly failed to report the crime. n192

Since a witness by definition has knowledge, the minimal mental state of the omitter must be "knowingly." n193 A lower mens rea, such as reckless or negligence does not suffice after appreciating the base mental state a witness possesses. The actor's conduct by omission is performed with knowledge of the circumstances.

3. Causation

Despite a redrafting of the Act to establish a minimum mental state of "knowingly," the issue of causation n194 must be addressed concerning the actor's role in the child's injury. The "principals of causation assist us in deciding who or what among the various people and forces existing in the world should be held responsible for resulting harm." n195 Causation analysis is divisible into two categories. n196 First, "but for" causation or actual cause, establishes that "there can be no criminal liability for resulting harm 'unless it can be shown that the defendant's conduct was a cause-in-fact of the prohibited result.'" n197 Actual cause analysis determines whether "'but for' the antecedent conduct the result would not have occurred," n198 or put another way, "but for defendant's omission, would the injury have occurred when it did?" n199 The underlying purpose of an actual cause analysis  [*88]  is to "exclude certain forces . . . from responsibility." n200 Thus, if the injury would not have occurred when it did, then the omitter is the actual cause. n201 Conversely, if the injury would have occurred when it did, then the omitter is not the actual cause. Under this analysis, "but for" Cash's omission, would Sherrice Iverson's injuries have occurred when they did? n202 Clearly, the answer is yes; because Strohmeyer was the principal actor causing Sherrice's death. n203 Thus, Cash cannot be the actual cause. n204 In light of this, the next question is who is the legal cause n205 of Sherrice's death?

After determining that an actor is the actual cause of the harm, the analysis then should focus on legal or proximate cause. n206 The closest test in the realm of proximate cause is "an act that is a direct cause of social harm is also a proximate cause of it." n207 In essence, "a 'direct cause' is a force already determined to be an 'actual cause' of the undesired result." n208 And as such, there "is no more proximate a party to whom to shift legal responsibility." n209 In Sherrice's case, the force creating the social harm was Strohmeyer, not Cash. While Cash had the opportunity to become an intervening force, his omission cannot be seen as an intervening act, n210 superseding the actual cause of Sherrice's death. In a timeline of events, Cash observed an already occurring event, and he did not produce the harm. To view it any other way would result in an absurd conclusion. n211 Cash's omission does not constitute the catalyst which resulted in Sherrice's death. Cash's inaction, which coexisted with an already ongoing crime, was not the proximate cause of Sherrice's injury. n212

IV. IS THE ACT REALLY NECESSARY?

A. Will the imposition of criminal penalties prevent predatory crimes  [*89]  against children?

The underlying purpose of the Act is to distribute cause and blame. The apparent focus of the act is reactive rather than proactive, such that the Act offers little deterrence to a would-be principal offender. n213 It is difficult to surmise a situation where a principal offender would abort or not commit the offense knowing a bystander had a duty to report. Common sense dictates that the principal offender does not want to be caught. However, the Act only impacts the witness, not the principal offender. Therefore, the imposition of a bystander's duty to report has no deterrent effect on the proximate cause.

From the viewpoint of general deterrence theory, an offender "is punished in order to convince the general community to forego criminal conduct in the future." n214 Punishment should teach the general public what conduct is permissible and "habituates us to act lawfully, even in the absence of fear of punishment." n215 When applying general deterrence theory to the Act, numerous realities become evident. First, how does one deter inaction by non-principal actors? Since general deterrence is rooted in providing lessons to others, n216 the fact that an omission is the catalyst for penalty is enigmatic. The notion of general deterrence of not acting does not square with the notions of providing lessons for the greater community. n217 Since the deterrence benefit is derived by imposing punishment for not acting, to achieve a benefit community members would need to change the way they view omissions. In a situation where Cash was charged and convicted under the Act, general deterrence theory would hold that the imposition of a penalty on Cash for not reporting the crime benefits the larger community. n218 However, when looking at some of the reasons why community members do not become involved, it is evident deterring inaction is not the correct foundation. n219

There are a number of reasons why people will not intervene, n220 and thus, criminalization of an omission by one actor will not influence others. n221 First, blame can be laid on individuals, and "because emergencies are, for most of us, exotic, a bystander's lack of opportunity for planning and rehearsal and the difficulty of quickly selecting the appropriate  [*90]  type of intervention might make her assistance less likely." n222 Second, "the presence of other bystanders may reduce each potential rescuer's individual sense of responsibility to the imperiled." n223 Simply, an individual may find comfort in the fact that another may provide assistance or that there are so many individuals doing nothing to assist, the danger cannot be that great. n224 Third, the notion of the "choice of nightmares." n225 Sometimes, when a bystander assists, he gets derided by others for helping or is mistaken for the cause of the harm. n226 A bystander then becomes entangled in a web of "innumerable encounters with police, lawyers, and judges." n227 Fourth, a clash between "the controlling norm to 'mind ones own business' and the equally dominant norm to 'do unto others.'" n228 In short, informants and "stool pigeons" are characterized as self-motivated, not community oriented. n229 Conversely,

American society has always approved those who own up to their wrongdoing and vow to do better, just as it has admired those who come to the aid of the victims of criminal conduct. But our admiration of those who inform on others has never been . . . unambiguous . . . . The countervailing social values of loyalty and personal privacy have prevented us from imposing on the citizenry at large a duty to join in the business of crime detection. n230


If specific deterrence is a goal of the Act, then "it can be hardly seen that under a utilitarian scheme punishment of a non-actor would be warranted." n231 Specific deterrence is rooted in punishing the actor so to deter him/her from committing future transgressions. n232 To punish for an omission seems to be beyond what utilitarians would consider meaningful. n233 Since Cash was not the proximate cause of Sherrice Iverson's death, it is difficult to imagine punishment serving any penological purpose. If punishment was imposed to prevent him from committing another similar  [*91]  omission, a misappropriation of the formula of pleasure and pain n234 would ensue simply because of the probability of a substantially similar situation occurring again.

B. Prosecution of an Omitter

In addition to the lack of deterrent effect and legal causation problems, the proposed Act also raises the prosecutorial problem of proving a witness' knowledge of the underlying facts. Since the Act is designed to prosecute a witness for not acting on his/her knowledge, n235 it is the burden of the government to establish beyond a reasonable doubt that the defendant knew of the events and did not act. n236 Even if the Act is not modified to include a "knowingly" mens rea, n237 it is still necessary for the prosecution to prove that the bystander had knowledge of the principal offender's acts. This notion, of proving what a witness may or may not have known, is the prosecution's burden. n238

The quest to meet the burden of proof is fact specific. To illustrate, the following examples show the difficulties in proving a witness' knowledge. First, in a situation where the charged witness was the only witness near the scene, it is difficult to imagine the prosecution proving that the witness had knowledge of the events leading to the injury. For example, in a situation where a father is sexually abusing his infant child, and the mother is charged under the Act, the prosecution would need to prove that she knew of the abuse. If the mother was the only person in the house besides the principal actor and there were no cameras recording the omission, the prosecution seemingly cannot prove her knowledge. Even if another witness accused the charged witness of ignoring the obvious, the prosecutor would have to argue knowledge by inference because there is no concrete evidence of knowledge.

Second, in a situation similar to Sherrice's, where the witness is seen on videotape, the prosecution would have the burden to prove the witness knew of the principal offender's acts and did not act. Here, while facially easier to show knowledge, it is not easy to prove knowledge. The prosecutor must establish that the witness observed the sexual assault. While the videotape may prove the witness went into the restroom, it does not prove the witness observed the act, triggering the required knowledge for the offense.

Lastly, proving a witness' knowledge from a situation similar to Kitty  [*92]  Genovese's, where a group of people independently ignore a victim's pleas. This causes the prosecutors to get evidence from one witness to incriminate another witness. While certainly not unusual, this situation can cause a race to the prosecutor's office. To illustrate, if A and B were both witnesses, A would have to testify that B observed the incident but did not act. This limits the number of prosecutions because the offense requires A, the eyewitness observing B, to testify that she saw B observe the incident. And there can only be so many eyewitnesses of the eyewitnesses. Some innocent witnesses may have heard Kitty's screams for help, while others wholly innocent may have been aware of a commotion, but not aware of a life and death situation. Thus, imposition of the duty to assist would be futile. As illustrated by the minority of states that already have codified a duty to assist, prosecutions are seldom. n239 Not only are the laws not being used, there is great potential for besmirching innocent reputations.

There is also great potential for innocent people to be caught in the oversweeping net of the Act. If, for example, the Act was to become law, and there was a repeat of a situation similar to Kitty Genovese's murder, should all thirty-eight people be prosecuted for "participating" in her death? n240 It does not make sense to attribute Kitty Genovese's death to a bystander. The bystander did not cause her death, he/she only chose not to intervene in an already ongoing situation. n241

IV. CONCLUSION

The proposed Act is a knee-jerk reaction to a terrible crime. It does not appear that the imposition of sanctions for an omission not previously recognized will be effective. It will take much more then criminal sanctions to change the way people think. n242 If one has never put his/her hand out to help another, the requirement to extend his/her hand is not only novel, but uncharted.

The Act criminalizes the failure to report a crime already in progress. n243 This reactive component is most perplexing considering the victim, a child, unable to help herself, who has been relinquished to rely on strangers for help after a crime has begun. It is this reactive component of the Act, which despite its attempt to prevent crime, fails because of its imposition  [*93]  of a legal duty after the fact. Where the goal should be broad crime prevention, the Act narrowly criminalizes what could be deemed after the fact, futile assistance. The goal should be to prevent the proximate cause of the injury. n244

Naturally, the horrific nature of this crime instills anger and thoughts of vengeance both for Strohmeyer and Cash. The imposition of the duty to report does not, however, seem to prevent the same two persons in the same situation from repeating their identical conduct.

FOOTNOTES:
n1 Jay Silver, The Duty to Rescue: A Reexamination and Proposal, 26 WM. & MARY L. REV. 423, 423 (1985). "Perhaps, the most notorious example of this problem is the case of Kitty Genovese, who was killed on the street in front of her apartment house while thirty-eight people watched from their windows without calling the police." Robert Justin Lipkin, Beyond Good Samaritans and Moral Monsters: An Individualistic Justification of the General Legal Duty to Rescue, 31 UCLA L. REV. 252, 270 (1983). The killer repeatedly attacked her over the course of thirty minutes. See id. "Only after she was dead did one neighbor finally call the police." Id. The witnesses explained that they did not call the police because "they did not want to get involved." Id.

n2 See, e.g., Sam Diaz, Protest Targets Man Who Didn't Halt Rape, Killing, SAN JOSE MERCURY NEWS, Aug. 20, 1998, at 1; see also Silver, supra note 1, at 423 (providing examples of recent cases that have caused a resurgent interest in establishing a "'rescue' duty").

n3 See Diaz, supra note 2, at 1.

n4 Earl O. Hutchison, Double Standard Obvious In Aftermath of Slaying, LOS ANGELES DAILY NEWS, Aug. 30, 1998, available in 1998 WL 3867958.

n5 See Diaz, supra note 2, at 1.

n6 Id.

n7 Hutchison, supra note 4.

n8 Diaz, supra note 2, at 1. Later, Cash said, "I'm not going to lose sleep over somebody else's problems." Id.

n9 Silver, supra note 1, at 424.

n10 Steven J. Heyman, Foundations of the Duty to Rescue, 47 VAND. L. REV. 673, 674 (1994) (citation omitted).

n11 See id. at 675, 682.

n12 Silver, supra note 1, at 424.

n13 Id. at 424-25.

n14 Id. at 425 (footnote omitted).

n15 See generally id.

n16 See generally id.

n17 See generally id.

n18 See Lipkin, supra note 1, at 255.

n19 See id. at 255-56.

n20 Id. at 256.

n21 Id. (footnote omitted).

n22 Id. at 257.

n23 See generally id. at 293 n.30.

n24 See Lipkin, supra note 1, at 276.

n25 See David C. Biggs, The Good Samaritan is Packing: An Overview of the Broadened Duty to Aid Your Fellowman, With the Modern Desire to Possess Concealed Weapons, 22 U. DAYTON L. REV. 225, 230 (1996). See also Lipkin, supra note 1, at 277.

n26 Lipkin, supra note 1, at 276-77.

n27 Id. at 277.

n28 Id. (footnote omitted).

n29 See id.

n30 See id.

n31 Id. (footnote omitted).

n32 See Heyman, supra note 10, at 682.

n33 See id. at 685.

n34 Id. (footnote omitted).

n35 Id. at 686 (footnote omitted).

n36 See id. at 687.

n37 Id. at 688.

n38 Heyman, supra note 10, at 689.

n39 See id.

n40 See id. at 689.

n41 See id.

n42 See John 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, 872 (1991); see also Heyman, supra note 10, at 682 ("There is no distinction more deeply rooted in the common law and more fundamental than that between misfeasance and nonfeasance.").

n43 Heyman, supra note 10, at 682 (citation omitted).

n44 See RESTATEMENT (SECOND) OF TORTS 314 cmt. c, at 116 (1965).

n45 See generally id.

n46 Heyman, supra note 10, at 682-83.

n47 RESTATEMENT (SECOND) OF TORTS 314 cmt. c, at 116 (1965) (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 56, at 373 (5th ed. 1984)).

n48 Heyman, supra note 10, at 683.

n49 Id. Heyman notes that "contemporary historical scholarship has decisively challenged this view of the rise of trespass and case, contributing to a revised understanding of the common-law position on misfeasance and nonfeasance." Id.

n50 Id. at 684.

n51 See id. at 683-84.

n52 See id. at 682-83. For example, some prosecutions for trespass "allowed recovery for indirect wrongs, such as, the creation of dangerous conditions . . . caused by the defendants wrongful act." Id. at 683 (footnote omitted).

n53 See id. at 684.

n54 Heyman, supra note 10, at 684.

n55 See id.
In a few contexts, however, affirmative duties were imposed by law or by custom having the force of law. For example, innkeepers were obligated to accept travelers and to safeguard their goods against theft. Landowners had a duty to repair river or sea walls adjoining their property to protect against floods.
Id.

n56 Id.

n57 Adler, supra note 42, at 872-73.

n58 Id. at 873.

N59 Id. at 878. "Although some courts and commentators have emphasized the significance of the action/inaction distinction in creating a legal duty, others have not been comfortable drawing a clear line between the two." Mary Kate Kearney, Breaking the Silence: Tort Liability for Failing to Protect Children From Abuse, 42 BUFF. L. REV. 405, 409 (1994)(footnote omitted). "In Whittaker v. Sanford, for example, the Supreme Court of Maine determined that a defendant's refusal to release the plaintiff from a boat satisfied the element of an act of physical restraint . . . and thus gave rise to a legal duty." Id. at 409-10 (footnote omitted). The court's decision in Whittaker "suggests that the line between action and inaction is not a bright-line distinction." Id. at 410. "In effect, the court recognized that no practical distinction existed in that case between affirmatively acting to help a person in need and doing nothing in the first place." Id.

n60 Id. at 879.

n61 Id. at 880.

n62 See id. Professor Ernest J. Weinrib has written extensively on moral values in decision making. See, e.g., Ernest J. Weinrib, The Case for a Duty to Rescue, 90 YALE L.J. 247 (1980).

n63 See Adler, supra note 42, at 880. "Professor Weinrib, whose article contributed enormously to a greater understanding of this area of tort law, has suggested that the difference between the omissions of the surgeon and the bystander lies in an analysis of the risk created by the omission." Id.

n64 Id.

n65 Id.

n66 Kearney, supra note 59, at 408-09.

n67 Samuel Freeman, Criminal Liability and the Duty to Aid the Distressed, 142 U. PA. L. REV. 1455, 1463 (1994) (footnotes omitted).

n68 Id. at 1463 (footnote omitted).

n69 See WAYNE R. LaFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON CRIMINAL LAW 26, at 183 (1972) [hereinafter LaFAVE & SCOTT].

n70 See infra notes 74-77 and accompanying text. Wisconsin, Rhode Island, Massachusetts, Vermont, Florida, and Washington have enacted statutes that require some form of a duty to either aid, assist or both.

n71 See infra notes 74-75.

n72 See Biggs, supra note 25, at 231.

n73 See infra notes 74-77.

n74 See, e.g., WIS. STAT. ANN. 940.34 (2)(a) (West Supp. 1999) (requiring that "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.").

n75 See, e.g., VT. STAT. ANN. tit. 12, 519(a) (1967 & Supp. 1999) (demanding that any "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 . . . give reasonable assistance to the exposed person unless that assistance or care is being provided by others."); R.I. GEN. LAWS ANN. 11-56-1 (Michie 1994) (explaining that "any person at the scene of an emergency who knows that another person is exposed to, or has suffered, [sic] grave physical harm shall, to the extent that he or she can do so without danger or peril to himself . . . give reasonable assistance to the exposed person."); MINN. STAT. ANN. 604A.01(1) (West 1998) (requiring any "person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person.").

n76 See, e.g., WASH. REV. CODE ANN. 9.69.100(1)(b)-(c) (West 1998) (indicating that any "person who witnesses the actual commission of a sexual offense or assault against a child or . . . an assault . . . that appears reasonably likely to cause substantial bodily harm to the child" has a duty to report the incident to "the prosecuting attorney . . . or other public official."); FL. STAT. ANN. 794.027 (West 1998) (specifying that any "person who observes the commission of the crime of sexual battery and . . . (2) has the present ability to seek assistance for the victim or victims by immediately reporting such offense to a law enforcement officer; [but] (3) fails to seek such assistance . . . is guilty of a misdemeanor of the first degree.").

n77 MASS. GEN. LAWS ANN. ch. 268, 40 (West 1998) (requiring any person with knowledge "that another person is a victim of aggravated rape, rape, murder, manslaughter or armed robbery and is at the scene of said crime shall, to the extent that said person can do so without danger or peril to himself or others, report said crime to an appropriate law enforcement official as soon as reasonably practicable."); OHIO REV. CODE ANN. 2921.22 (A) (Anderson 1998) (imposing on any person with the knowledge "that a felony has been committed . . . to report such information to law enforcement authorities.").

n78 Of the seven jurisdictions mentioned that impose a duty to act, roughly 13 reported appellate cases were found. States that impose a milder duty to assist constituted roughly six of the total number of cases: Washington (1), Florida (0), Massachusetts (1-District Court), Ohio (3+). Although Ohio had the largest number of citations to their duty statute, few involved bodily injury. Interestingly, states that require a higher duty or actual assistance had slightly more reported appellate cases, seven of the thirteen cases: Wisconsin (5), Vermont (1), Rhode Island (1), and Minnesota (0). See supra notes 74-77 and accompanying citations.

n79 998 F. Supp. 998 (1998). Plaintiffs Robert and Mercedes Logarta, the surviving parents of Ronald Logarta, sued the parents of D.V.G. in a wrongful death cause of action. See id. at 999. On January 11, 1995, D.V.G. invited Ronald to his parents' home. See id. While at the Defendants' home, the two began discussing handguns. See id. Ronald gave D.V.G. $ 5.00 and a credit card in exchange for one of D.V.G.'s father's handguns. See id. at 1000. Ronald then mentioned the idea of shooting himself. See id. At some later point, D.V.G. and Ronald went into a cornfield behind the house. See id. D.V.G left the cornfield and returned approximately one hour later to find Ronald motionless and bleeding from a single bullet wound to the head. See id. Ronald went home and summoned his father's assistance. See id. By the time law enforcement authorities arrived, Ronald was dead. See id.

n80 See id. at 1001.

n81 Id. at 1001 (citation omitted).

n82 See id. at 999.

n83 Id. at 1002 n.2.

n84 Id. at 1001 (quoting RESTATEMENT (SECOND) OF TORTS 314 (1965)).

n85 521 N.W.2d 448 (Wis. Ct. App. 1994).

n86 Id. at 452.

n87 Id.

n88 See id.

n89 See id. at 449-51.

n90 See id.; see also discussion infra Part II.B.

n91 LaPlante, 521 N.W.2d at 451.

n92 Heyman, supra note 10, at 675.

n93 Biggs, supra note 25, at 228.

n94 See LaFAVE & SCOTT, supra note 69, 26, at 184.

n95 Biggs, supra note 25, at 228 (citations omitted).

n96 See id.

n97 See id.

n98 See id.

n99 See LaFAVE & SCOTT, supra note 69, 26, at 185.

n100 See Biggs, supra note 25, at 228.

n101 Id. at 229.

n102 Id.

n103 Id.

n104 See id.

n105 See id.

n106 See Biggs, supra note 25, at 229.

n107 LaFAVE & SCOTT, supra note 69, 26, at 186 (citing Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944)).

n108 See Biggs, supra note 25, at 229.

n109 See id. When the legislature has created a duty to assist, it has in fact made "us all 'our brother's keeper.'" Id. at 230.

n110 See Lipkin, supra note 1, at 262.

n111 See id. at 261-62.

n112 Id.

n113 Democrat - 9th District of Texas.

n114 U.S. House of Representatives Press Release, Lampson to Introduce Federal "Good Samaritan" Legislation (visited Jan. 2, 2000) <http://www.house.gov/lampson/pr090298_gsam.htm> [hereinafter Press Release].

n115 H.R. 4531, 105th Cong., 2d Sess. (1998). On September 9, 1998, the Sherrice Iverson Act was referred to the House Committee on Education and the Workforce. See id. There were 25 cosponsors of the Sherrice Iverson Act. See Bill Summary & Status for the 105th Congress - H.R. 4531 (visited Jan. 2, 2000) <http://thomas.loc.gov/cgi-bin/bdquery/z?d105:HR04531:@@@P>. Bills from the 105th Congress will have to be re-introduced in the 106th Congress in order to be considered. See id. There is a corresponding bill in the Senate, which was sponsored by California Senator, Barbara Boxer. See S. 2452, 105th Cong., 2d Sess. (1998). It was read twice and referred to the Committee on Labor and Human Resources. See id. There were no cosponsors and no floor actions. See Bill Summary & Status for the 105th Congress - S.4531 (visited Jan. 2, 2000) <http://thomas.loc.gov/cgi-bin/bdquery/z?d105:SN02452:>.

n116 Press Release, supra note 114.

n117 42 U.S.C. 5106a (b)(2) (1994).

n118 H.R. 4531, 105th Cong., 2d Sess. 2(a)(3)(E) (1998).

n119 Press Release, supra note 114.

n120 See Daniel B. Yeager, A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers, 71 WASH. U. L.Q. 1, 24 (1993).

n121 See H.R. 4531, 105th Cong., 2d Sess. 2(a)(3)(E) (1998):
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. (emphasis added).

n122 See id.

n123 Yeager, supra note 120, at 1.

n124 See id.

n125 Id.

n126 See id. at 26.

n127 See id. at 24-25.

n128 Lipkin, supra note 1, at 258.

n129 Id.

n130 See Yeager, supra note 120, at 25.

n131 Silver, supra note 1, at 431.

n132 Yeager, supra note 120, at 26.

n133 Id. at 24-25.

n134 Adler, supra note 42, at 867-68.

n135 Silver, supra note 1, at 428.

n136 See id. at 429.

n137 See id.

n138 See id.

n139 Id. at 428-29.

n140 The Act can be distinguished from existing statutes. Generally, state statutes have imposed duties to aid or to report for persons in need. However, as set forth below, it is apparent that no statute specifically is geared toward aiding children. For example, Wisconsin requires anyone having knowledge that a crime is being committed to notify a law enforcement officer or some other form of assistance. See WIS. STAT. ANN. 940.34 (2)(a) (West Supp. 1999). Vermont requires anyone who knows that another person is in grave physical danger to render reasonable assistance unless such efforts would endanger the rescuer. See VT. STAT. ANN. tit. 12, 519(a) (1967 & Supp. 1999). Whereas, Massachusetts requires witnesses of rapes, armed robberies, and homicides to immediately notify the police. See MASS. GEN. LAWS ANN. ch. 268, 40 (West 1998). See also Silver, supra note 1, at 427-28 (explaining the statutory reduction that has occurred in a majority of states of the standard of care for physicians who provide voluntarily medical care in emergency situations).

n141 See Silver, supra note 1, at 429.

n142 See id.

n143 Id. However, legal consequences did not seemingly affect the thirty-eight people ignoring Kitty Genovese's pleas.

n144 See id.

n145 Id. (quoting Anthony D'Amato, The "Bad Samaritan" Paradigm, 70 NW. U.L. REV. 798, 809 (1975)). When one does not observe morality, however, one conceivably does not learn morality. By analogy, if one never sees a person assist a child, that person conceivably does not know the consequences for not acting.

n146 See id.

n147 See United States v. Knowles, 26 F. Cas. 800, 801 (N.D. Cal. 1864) (No. 15,540). The Knowles court explained:
in the absence of such obligations, it is undoubtedly the moral duty of every person to extend to others assistance when in danger . . . and if such efforts should be omitted by any one when they could be made without imperiling his own life, he would, by his conduct, draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society.
Id.

n148 See Silver, supra note 1, at 429.

n149 See id.

n150 See supra Part III.A.2.

n151 See supra Part II.A.

n152 See LaFAVE & SCOTT, supra note 69, 11, at 83-85.

n153 See id. 27, at 191-92.

n154 See id. 25, at 177.

n155 Id. 26, at 183.

n156 See id.

n157 Id.

n158 See MODEL PENAL CODE 2.01(1). "A person is not guilty of any offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable." Id.

n159 See LaFAVE & SCOTT, supra note 69, 26, at 183.

n160 JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 9.06(C), at 87 (Matthew Bender & Co., 2d ed. 1995).

n161 See LaFAVE & SCOTT, supra note 69, 31, at 218.

n162 See id.

n163 See supra note 115.

n164 See LaFAVE & SCOTT, supra note 69, 31, at 218.

n165 342 U.S. 246 (1952).

n166 United States v. Flum, 518 F.2d 39, 42 (1975) (emphasis added) (quoting Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960)).

n167 See Press Release, supra note 114.

n168 See, e.g., Diaz, supra note 2, at 1.

n169 See id.

n170 Cathy Booth, The Bad Samaritan, TIME MAGAZINE, Sept. 7, 1998, available in 1998 WL 14835380. In 1993, Polly Klaas, then 12 years old, was abducted from her bedroom during a slumber party and murdered. Klaas Foundation for Children, The Polly Klaas Story (visited Jan. 2, 2000) <http://www.klaaskids.org/pg-stry.htm>. Since his daughter's death, Marc Klaas has become an activist in preventing crimes against children and has established a website, www.klaaskids.org, to inform the public of crimes against children, and help stop crimes against children. See id.

n171 LaFAVE & SCOTT, supra note 69, 31, at 218.

n172 MODEL PENAL CODE 2.05(1)(a).
"It is generally agreed that conviction for strict liability offenses should be insulated 'from the type of moral condemnation that is and ought to be implicit when a sentence of imprisonment may be imposed.' Thus, the Model Penal Code would permit strict liability only for 'offenses which constitute violations'; violations under the Code are not crimes and may be punished only by a fine, forfeiture, or other civil penalty, and may not give rise to any disability or legal disadvantage based on conviction of a criminal offense."
LaFAVE & SCOTT, supra note 69, 31, at 223 (footnote omitted).

n173 See DRESSLER, supra note 160, 10.02(B), at 102. "The defendant committed the actus reus of an offense with a morally blameworthy state of mind." Id.

n174 See id.

n175 Id. at 103.

n176 See id.

n177 Diaz, supra note 2, at 1.

n178 See LaFAVE & SCOTT, supra note 69, 28, at 194.
A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, if it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
MODEL PENAL CODE 2.02 (2)(a).

n179 See LaFAVE & SCOTT, supra note 69, 28, at 194.
A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
MODEL PENAL CODE 2.02 (2)(b).

n180 See LaFAVE & SCOTT, supra note 69, 28, at 194.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
MODEL PENAL CODE 2.02 (c).

n181 See LaFAVE & SCOTT, supra note 69, 28, at 194.
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
MODEL PENAL CODE 2.02 (d).

n182 H.R. 4531, 105th Cong., 2d Sess. 2(a)(3)(E) (1998).

n183 See LaFAVE & SCOTT, supra note 69, 28, at 198.

n184 See id.

n185 See id.

n186 H.R. 4531, 105th Cong., 2d Sess. 2(a)(3)(E) (1998).

n187 See supra note 179 and accompanying text.

n188 See LaFAVE & SCOTT, supra note 69, 28, at 198.

n189 A witness is generally defined as "one who, being present, personally sees or perceives a thing; a beholder, spectator, or eyewitness." BLACK'S LAW DICTIONARY 1603 (6th ed. 1990).

n190 See generally LaFAVE & SCOTT, supra note 69, 28, at 198.

n191 See id.

n192 See id.

n193 See supra note 179 and accompanying text.

n194 See generally LaFAVE & SCOTT, supra note 69, 35, at 249.

n195 DRESSLER, supra note 160, 14.01(B), at 160.

n196 See id. 14.01(C), at 162.

n197 Id. 14.02(A), at 162 (quoting Velazquez v. State, 561 So.2d 347, 350 (Fla. Ct. App. 1990)).

n198 LaFAVE & SCOTT, supra note 69, 35, at 249.

n199 DRESSLER, supra note 160, 14.02(A), at 162 n.14.

n200 Id. 14.02 (A).

n201 See id.

n202 See id.

n203 In fact, on October 13, 1998, Strohmeyer pled guilty to first degree murder, first degree kidnapping, and two counts of sexual assault on a minor. See Kathryn Rubenstein, Nevada v. Strohmeyer "Casino Child Murder Trial" (visited Jan. 2, 2002) <http://www.courttv.com /trials/strohmeyer/101398.html>. Strohmeyer was sentenced to life in prison without parole. See id.

n204 DRESSLER, supra note 160, 14.02(A), at 162.

n205 See id. 14.03 (A), at 166-67.

n206 See id.

n207 Id. 14.03 (B), at 167.

n208 Id.

n209 Id.

n210 DRESSLER, supra note 160, 14.03 (C), at 167.

n211 See Lipkin, supra note 1, at 267.

n212 See DRESSLER, supra note 160, 14.03 (A), at 166-67.

n213 See supra Part II.B for a discussion of proximate cause.

n214 DRESSLER, supra note 160, 2.03(B)(2), at 10.

n215 Id.

n216 See id.

n217 See generally id.

n218 See generally id.

n219 See supra Part III.A.2.

n220 See generally Yeager, supra note 120, at 16-18.

n221 See id. at 18-19.

n222 Id. at 15-16 (footnote omitted).

n223 Id. at 16.

n224 See id. at 16-17. One theorist suggests "people are more prone to respond to another's distress when alone than when accompanied by other witnesses." Id. at 17.

n225 Id. at 17 (citation omitted).

n226 See generally Yeager, supra note 120, at 17.

n227 Id.

n228 Id. at 16 (footnote omitted).

n229 Id. at 18.

n230 Id. at 18 (quoting Roberts v. United States, 445 U.S. 552 (1980) (Marshall, J. dissenting)).

n231 See generally DRESSLER, supra note 160, 2.03(B), at 9-10.

n232 See id.

n233 See id.

n234 See id.

n235 See H.R. 4531, 105th Cong., 2d Sess. 2(a)(3)(E) (1998).

n236 See generally DRESSLER, supra note 160, 9.06 (C), at 87.

n237 See supra Part III.B.2.

n238 See generally DRESSLER, supra note 160, 9.06 (C), at 87.

n239 See supra Part II.B.1.a.

n240 See DRESSLER, supra note 160, 9.06 (C), at 88.

n241 See supra note 63 and accompanying text.

n242 As discussed in the text of note 66, supra, even with the imposition of duty's in a minority states, the number of prosecutions was miniscule. This means that either people are assisting each other or prosecutors are not using the statutes. Either way, it appears no one is prepared to impose affirmative duties without special relationships.

n243 See H.R. 4531, 105th Cong., 2d Sess. 2(a)(3)(E) (1998).

n244 Inevitably attached to this discussion is the liability of Sherrice's father, Leroy Iverson, and his role in her death. It has been reported that Sherrice was left unattended in the Primmadonna Casino all night while Leroy Iverson gambled. Despite the length of time Sherrice was left unattended, the Nevada prosecutor determined that it was not possible to hold Leroy Iverson accountable for parental neglect.




Prepared: April 16, 2003 - 5:02:29 PM
Edited and Updated, April 17, 2003


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