“Should Bystanders Have a Legal Duty To Intervene?” Of Course Not, But It’s Worth Thinking About Why It’s A Terrible Idea

The real mystery is why a law professor would ever conclude that it was a good idea.

Amos N. Guiora, a professor at the University of Utah’s S.J. Quinney College of Law, has authored The Crime of Complicity: The Bystander in the Holocaust, In it, he addresses the   bystander-victim relationship, focusing on the Holocaust. He comes to the remarkable conclusion that a society cannot rely on morality, ethics and compassion alone to move its members to come to the assistance of another human being in danger. He insists that it is a legal issue, and that society should make the obligation to intervene a legal duty, and  non-intervention a crime.

Wow. Here is a shining example of how bias can make smart people not only stupid, but blind. I have not read the book (I did listen to this podcast), because his contention is self-evidently anti-ethical, and typifies the attitude that has led to the criminalizing of so much in U.S. society that rigorous enforcement of the law would make the nation a police state. The Holocaust is the worst possible starting point for this issue: to state the most obvious absurdity, if the government is the victimizer, who would enforce the laws against not assisting victims? I get it, though: the professor is angry and bitter that the international community and Christians didn’t forcefully intervene before Hitler was on the verge of liquidating Non-Aryans from the face of the earth. But no law within imagination would have prevented this unique catastrophe. Nor would the kinds of laws he advocates improve the fate of most victims, or be practically enforceable.

Ethics Alarms has discussed the duty to rescue often and in great detail, and often notes, “when ethics fail, the law steps in.” The second stage of that statement is “and usually makes a mess of it.”  This is the compliance/ethics divide so exposed by corporate compliance rules, regulations and laws, which have done little to improve corporate conduct, and have provided cover for complainant and creative misconduct, like Wall Street leading up to the 2008 crash. Giving up on the teaching and strengthening of ethical values in society in favor of mandating what the state regards as “right” by inflicting punishment degrades society and insults humanity, treating it as if it is incapable of learning to care about others and society at large.  It also seldom works. The duty to rescue exists, but society must encourage and foster it by nurturing ethical society members, not by threatening them with punishment.

Society cannot mandate compassion—a law requiring charity?—kindness—a ticket for not rescuing an abandoned dog or helping a blind man across the street?—honesty–fines for telling a date that you’ll call the next day when you won’t?—-or courage —Sweep that child up whose in the path of a semi, or to jail. Of course it can’t. Increasing reliance on the state to force what a powerful group regard as “good behavior” is the catalyst of the current totalitarian bent of the American Left. Doesn’t the professor realize that what he is advocating leads directly to the Holocaust, and not away from it?

This is one slippery slope that needs a fence around it.

Guiora is obviously not a “Seinfeld” fan, or he would have immediately seen the parallel between his argument and the series’ (sadly unfunny)  final episodes. Jerry and his friends were prosecuted for not intervening to help  an overweight man as he was carjacked at gunpoint. Instead of helping him, they cracked jokes what was occurring. The victim reported this to an officer who arrested them under a new  duty to rescue law in the town that required bystanders to intervene. After a trial that consisted of a return of many characters from past episodes to testify to the well-documented ethical bankruptcy of Jerry, Kramer, George and Elaine, the four were convicted, and imprisoned.

Under certain circumstances, failing to rescue can have civil consequences in the US, but not to mere bystanders. Many countries, including Canada,  formally require citizens to assist people in distress, unless doing so would put themselves or others in harm’s way. This boils down to requiring them to call the local emergency number. Albania, Andorra,Argentina, Austria, Belgium, Brazil, Bulgaria, Croatia,Czech Republic, Denmark, Estonia, Finland, France, Germany,Greece, Hungary, Iceland, Israel, Italy, the Netherlands, Norway, Poland, Portugal, Russia, Serbia, Spain, Switzerland and Tunisia have such laws, but they are seldom enforced, and this is not what the professor is advocating. He wants those who fail to intervene to prevent harm to be regarded as and treated as complicit in the harm to the victim.

The enforcement problems for such a law would be overwhelming, as illustrated in this post (one of my favorites, I confess) regarding the failure of Mike McQueary to intervene when he found Penn State child predator Jerry Sandusky with a young boy in the showers.

My immediate interest, however, is exploring the theory that McQueary was absolutely obligated to physically intervene to stop the crime in progress.

If he was, then there needs to be a law. That is what laws define: moral imperatives according to the culture and society. Is that a standard we want to mandate for all citizens—that any citizen seeing a child—that is, an individual below the age of consent—being sexually violated by an adult must, under pain of indictment, trial and imprisonment, physically interrupt the act to the extent of physical violence?

Any adult? I don’t think so, and I don’t think all those “knights of the keyboard” (Ted Williams’ term, not mine) who claim that they would have rushed into the shower fists flailing think so either. So let us see if we can determine when it is an absolute moral imperative to resort to violence in defense of a child, shall we?

Here is a hierarchy of potential rescuer categories, ranked by the degree to which they should be expected to do the right thing and intervene. If it is an absolute moral imperative to do so, then all 39 are equally blameworthy if they do something instead, like call 911:

1. Superman, or another super-hero
2.  Chuck Norris, John Wayne, Jackie Chan, or equivalent male human hero
3.  Lara Croft, Emma Peel, Buffy the Vampire Slayer, or equivalent female human hero.
4.  Navy Seals or other special combat military personnel.
5. Large, muscular, active male athletes in their prime (Michael Vick)
6. Large, muscular, active female athletes in their prime (See photo)

7. Active male athletes in their prime of average build and height. (Tiger Woods)
8. Active female athletes in their prime of average build and height.
9. Young off-duty police officers, fire fighters and retired military personnel, male.
10.Young off-duty police officers, fire fighters and retired military personnel, female.
11. Middle-aged off-duty police officers, fire fighters and retired military personnel, female.
12. Middle-aged, out of shape off-duty police officers, fire fighters and retired military personnel, male.
13. Large, fit, inactive, former or non-competing male athletes (Mike McQueary)
14 . Large , fit, inactive, former or non-competing female athletes
15.  18-35-year-old fit male of normal build.
16.  35-45 -year-old fit male of normal build
17.  18-35-year-old fit female of normal build.
18.  18-35-year-old fit male of normal build.
19.  35-45 -year-old fit male of normal build
20.  45-60 -year-old fit male of normal build
21.  35-45-year-old fit female of normal build.
22.  60-75 -year-old fit male of normal build
23. A fat, weak,18-35-year-old male
24.  A 45-60 -year-old fit female of normal build
25.  A fat, weak,35-45-year-old male
26. A fat, weak, 45-60 -year-old male
27. A fat, weak,18-35-year-old female
28. A man 5’5” or less of normal build
29.  A fat, weak,35-45-year-old female
30. A fat, weak, 45-60 -year-old female
31. A slight woman of 5’2” or less
32. Any male over 75
33. Any woman over 75
34. A morbidly obese man or woman
35. Any woman over 75
36. Vern Troyer (right)
37. Paris Hilton, or equivilent.
38. Steven Hawking, or equivilent.
39. The President of the United States

There are other variations, of course: individuals who have a phobia of showers, perhaps. What would be the obligation of Jerry Sandusky’s mother, to take another example? The same as anyone else in her category (37), higher because of the unlikelihood that he would fight her, or lower, because it is unfair to expect a mother to attack her own son?

These will do, however, to look at the problem. We will all agree, can’t we, that 1, the super-heroes, do have an absolute moral obligation. They are guaranteed of success, they have nothing to fear, and rescuing people is their job. We can also agree, can we not, that 13-38 would be acting with exemplary ethics, at very least, to try to stop the attack….but there are limits. The President would be violating his duty to do so; he cannot risk his welfare for one individual, even a child (especially with Joe Biden as Vice-President).  [Interesting thought exercise: which Presidents, while in office, would have come to the rescue of the boy anyway? Teddy is obvious. Jackson, Washington…who else? Reagan? Ike? George Bush the Elder? Bill?]

If we accept that of POTUS, who else can consider personal consequences without deserving our condemnation? Someone with an incipient heart condition? A pacifist? Would Gandhi (probably around 20)be obligated to fight Sandusky? What if someone at 15 or more has a large family of which he or she is the sole support? Can he or she consider that, even if it makes them hesitate, or opt to call the police instead (which still allows the rape to continue, perhaps to completion)?

Most Americans, even those who grow up large and athletic, are conditioned to avoid physical violence. Does that matter in deciding “absolute moral obligation”? If McQueary has never had a physical altercation in his life, can he be excused from avoiding one when a child is being raped? Does avoiding it make him a coward? Why? His gender? His age? His weight? His fat to muscle index? I am not even sure that 5-8 aren’t ranked unfairly high. Why do we assume that athletes are comfortable with physical violence off the playing fields and arenas?

I think the list makes clear that we do not, would not and should not hold all witnesses of a child rape equally deficient ethically for failing to intervene.

The same is true of rescue situations generally.  There are too many variables. In the infamous Kitty Genovese episode, would all of the apartment dwellers who heard her screams be arrested and charged? If one of them called, would that let the others off the hook, even if they didn’t know that? What if one called and got a busy signal? What kind of law determines criminal liability based on what someone other than the criminal does?

An ethical duty to rescue is vital to a society, and it should be encouraged and taught.  A criminal law mandating such a duty, however, would be oppressive, arbitrary, and impossible to enforce consistently.

This really should be clear to a law professor, or anyone who thinks about the matter for more than a minute or two. That this professor could write a book that concludes such laws are desirable is troubling, but sadly typical of the utopian tendencies of academia.


Pointer: ABA Journal


40 thoughts on ““Should Bystanders Have a Legal Duty To Intervene?” Of Course Not, But It’s Worth Thinking About Why It’s A Terrible Idea

  1. California imparts a duty of care to all persons and for all persons. That law has been around a while and hasn’t been controversial. It’s enforced in civil action, though, and like other nations’ similar laws usually only requires summoning assistance mostly.

    • Is this the law? (Because it doesn’t reach a duty to rescue…)

      California Civil Code Section 1714

      Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.  The design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill that is required by this section.  The extent of liability in these cases is defined by the Title on Compensatory Relief. – See more at: http://codes.findlaw.com/ca/civil-code/civ-sect-1714.html#sthash.bymjXNIK.dpuf

      • Ah, you’re right. California does have a limited duty to rescue (children who are victims of specific crimes) in California Penal Code § 152.3, but the ordinary civil duty of care just allows actions for negligence​. Sorry about that.

        While checking, I ran across Eugene Volokh’s list of state duty to rescue and report statutes, which you may find interesting: http://volokh.com/2009/11/03/duty-to-rescuereport-statutes/

  2. Jack wrote, “”That this professor could write a book that concludes such laws are desirable is troubling, but sadly typical of the utopian tendencies of academia.”

    I think this is as clear example as you’re ever going to get of a person (this professor) having an preconceived conclusion, using tunnel vision, presenting only the things that he thinks support his conclusion, and ignoring all other facts, reasoning, and logic.

  3. Mike McQueary should have physically intervened with Sandusky considering the age difference. This is not a case that should be a legal requirement but a moral imperative. I would let somebody like Billy Barty (rip) or twiggy off the hook although they could have at least called the cops.

  4. Laws of this sort lead to the exact opposite effect than what is intended.

    For instance, a small bird was determined by the EPA to be endangered. The bird supposedly only lived in certain areas, in a certain environment, in Central Texas. (This was debunked later, but in the 1980s this was the unfounded assumption) The rules of the day encumbered the landowner to make no changes to their private property, and effectively could not sell the property once the bird was found there. You lost all land rights yet had to either pay the taxes forever, or lose the land to the taxing entity.

    Ranchers in the area were apprised through rural associations (Grange, FFA, etc.) of the situation. Each landowner came to the same conclusion: kill any of the birds they came across before big brother found out. “Shoot, Shovel, and Shut Up” was a common phrase. That was not the EPA’s intention, but it was predictable the moment they made the rule.

    What will happen with THIS law? People will suddenly walk the other way if they think a crime is in progress, rather than place themselves in danger. Don’t be in the area is the best defense against complicity. You could be shot, for instance, during a robbery or murder. You could be robbed also. Wonder if you could be sued, like today?

    Let’s examine how this could play out. What will be next? Say you attempted to help, but failed, either totally or in part. Would you be liable in that case? Would a responsibility to help turn into liability if your help was not up to the standards of the victim or the government? “I still suffered a broken arm because you did not arrive in time,” “The criminal still stole my money/car and I want you to reimburse me, since you did not stop it” or “The criminal beat you unconscious then beat me again” (okay, that one is extreme.)

    People today get sued for helping, unless (like Texas) there are ‘good Samaritan’ laws. Why not in this dystopian future?

    • Slick, keep in mind that our ‘Good Samaritan’ law also requires reporting known or suspected child abuse or neglect and senior abuse or neglect if known or suspected. It does not, and I would not encourage, physical intervention. As my ol’ granddaddy once told me “Never pick a fight with somebody you don’t know. You have no idea what he knows or what he can do.

        • Ah. Gotcha. And a good point, too. Poses a question in my mind…does this stricture make it more likely that someone will intervene? I’m betting it does.

  5. If anything, Nazi Germany was guilty of not enforcing the laws that already existed on its books. There were laws against assault, battery, robbery and arson even there.

    But, if Jews were the victims, those laws stopped being enforced. It didn’t take many times for the German people to realize that they wouldn’t be punished for beating up a Jew or setting fire to a synagogue.

    You see, that’s how selectively enforcing laws works. You get to pick who you consider to be a victim and who you don’t. The Nazis claimed that the Jews provoked the violence against themselves and the government couldn’t be expected to prevent every excessive act committed by Aryans whose national pride had been wounded. They also used euphemisms like “protective custody” and “deportation” to describe what was happening to Jews who were disappearing.

    It was a philosophy called “Working Toward the Fuehrer”. Everyone knew that Hitler’s goals were to make Germany Jew-free. He didn’t have to say, “Harass them, rob them blind and send them off to be murdered”. Any action taken to promote the idea of a Jew-free Germany was considered to be “Working Toward the Fuehrer”. Or, as Jack has pointed out, the fish rots from the head down. The Germans got the idea.

    The whole premise of legally requiring the German people to step in and assist their Jewish neighbors who were being victimized by those breaking laws that weren’t being enforced is a ridiculous fantasy.

    • And then there are things like the fact the SS summarily executed ten local for every German soldier executed by the local resistance. (Something for the Democrats’ faux “resistance” when they call Trump Hitler.)

      • I guess my first question for the professor would be, if the law had been in place: “If I were a German citizen who was caught helping a Jew, would I be praised for complying with the duty to assist law before, or after, I was summarily executed?”

      • Yes, the Nazis specialized in hostage taking and victim punishing. When the international community protested the treatment of Jews, the treatment got worse. When the Vatican protested, priests and nuns were arrested for “sex crimes”. And, in the end, with Berlin burning, the government threatened to shoot every inhabitant of any building in which an able-bodied German male was found (even as young as 13).

          • A country of 50 Million people declaring war on Russia, with 150 million people. In an era of wars of attrition. Not to mention France and the UK. Brilliant.

            • When Russia had NO plans to attack, either. Hitler wanted to fight WWI again, I suppose. He was pretty much over the hump in Europe, though, with only a lack of will saving GB from invasion. Maybe he thought he could turn his back on the US with a staging area just off France? That was just silly in hind sight, but the USA was not a power house during the depression, so perhaps he underestimated the middle class resolve. He would not be the first or last!

              • Russia would have lost the war against Germany without Lend-Lease. Congress authorized 1000s of aircraft, tanks and trucks to be transported to the Soviet Union to save Stalin’s ass. Did they ever return or pay for any of them? The answer is a resounding no!

                • Russia is different, as the diplomats say. Always has been. Although the US may have provided the materiel, Stalin provided the millions of young and not so young Russian guys to go into the meat grinder and never come out until the Germans had been hectored all the way back to Berlin, just like Napoleon and his troops.

                  But yes of course, the US war effort was mind boggling. My favorite stat on that: Number of Japanese carriers built during the War: 0. Number of US carriers build during the war; 14.

              • FDR very much wanted to get the U.S. into the war in Europe, but it was a really unpopular belief over here. When Japan attacked Pearl Harbor, he had an excuse to ask Congress to declare war on Japan, but not on Germany which had not attacked us.

                The German High Command believed that the war with Japan would distract us for awhile until we built up our military strength again which would take a year or two, giving Germany enough time to push Britain out of the war and then concentrate all of her forces on Russia. Then Hitler declared war on the U.S. which gave FDR exactly the reason he needed to enter the war in Europe.

                There is some belief that Hitler was behind the flight of Hess to Scotland, but who knows whether he was or wasn’t, in order to get the UK to agree to a peace settlement right before he invaded the USSR. Certainly, his failure to knock the UK out of the war remained a thorn in his side for the rest of the war. But he also made several strategic mistakes by taking control of the army himself, refusing to budge at Stalingrad which cost him almost 100, 000 men and, of course, declaring war on the U.S. when he could not hope to marshal the same resources against us that we could bring to bear on him.

  6. My first reaction was to read about the man. He is not stupid. His resume/cv is kind of interesting. May want to read the book. He is a contemporary and sort of looks like Jack?!

  7. So, are you allowed to shoot the (believed) offender?

    You can start another list of 38 case studies if you like.

  8. There exist ethical structures that contend that intervention is unethical, as it “goes against God’s will”. These are apparently becoming increasingly popular. The sincere belief is that bad things only happen to those who deserve it.

      • No one (rational) I’ve heard of. Because claiming a person has enacted God’s will on bad person via some sort of crime is an immediate concession that God may use individuals to enact His will. In which case, it immediately leaves open the possibility that God’s will may be enacted though people doing good…

        Phenomenal how that argument would break down.

        Seriously. Who claims that?

        • “It’s God’s will” is a justification for apathy and a denial of accountability. When the Red Sox blew the 2011 play-offs with a disgraceful collapse, slugger Adrian Gonzalez, the team’s firstbaseman, responded to the final game flop by saying that it was all God’s will, man, so no reason to be upset, or words to that effect. Who wants a team mate like that? Gonzalez, the team’s alleged superstar, didn’t raise to the occasion during the collapse, and this gave him a reason to shrug it off.

          • Yeah. Be heard “it’s God’s will” all the time as that excuse. Iraqis used it all the time not just to shrug off a suicide bombings and not do anything about their own security but also as an excuse to stall on work they were contracted to do but hadn’t done in a timely manner.

            I’ve just never heard it in the form that Pseudonym “Sue Dunim” above used it.

            • There were discussions about how names would sound after we got married. We decided to go traditional anyway.

  9. This reminds me of the murder of Theo Van Gogh in the streets of Amsterdam & no one did anything. I think this lack of helping in such situations is more common countries like Sweden & Denmark. Not sure why. Could have to do with socialist influences or populations not mixing well or something. While forcing folks to intervene in crisis is a bad idea, apathy in communities isn’t great either.

    Using the Holocaust as an argument is lacking because it was very dangerous for anyone to intervene. Many Germans & non-Jews were murdered too & remembering this fact is important.

    Encouraging citizenship & honor & pride (not excessive, though I love bald eagles & fireworks on the 4th of July) in one’s home, neighborhood, and country goes a long way toward responsible behavior & helps mitigate tragedies both local & beyond.

    • “While forcing folks to intervene in crisis is a bad idea, apathy in communities isn’t great either.”

      Which is why instead of punishing those who do not help, we recognize, award and heroicize those who do help. So I don’t think we do nothing as a community to check apathy.

      • Agree completely. This is a case where we should have a preference for carrots in the form of praise and support, as opposed to sticks, in the form of legislating punishment.

      • Rewarding is fine however instilling the value to helping others to get rewarded can also lead to yucky results. Jim Jones is one example. He was a hero to many before he wasn’t.

        • WHich is why there is not nor can there be a system of “do this good receive this award”. All recognition of heroes ought be arbitrary and unpredictable, precisely because the value is in rescuing people because rescuing people is good. Not rescuing people because you’ll get preestablished “exemplary citizen 1st class” award.

  10. I could not agree more with you on this one.

    Apart from the (I would have thought) self-evident relationship between ethics and the law, let me add some empirical observations.

    1. You touch on this, but I have observed in my consulting practice on trust in corporations over the years that the death of trust is the establishment of “trust and compliance” offices and officers. People immediately conflate the two, and because of the general corporate bias toward behaviorism (and mindless responses), they default to compliance. Thereafter ethics is confused with whether or not you can avoid the sheriff. This alone describes the endemic unethical behavior we see in organizations like Wells Fargo.

    2. This conflation parallels a similar conflation in business – believing that yo can act your way into right thinking. This is valid for things like learning a golf swing, or conducting oneself with etiquette in social situations. But it doesn’t work when it comes to the higher order relationships like love, trust, honor, duty, respect, to name a few. In those situations, you actually have to mean it; understand it; feel it as a virtue, as a value; do it and treasure it for its own sake. None of that rhymes with following the law.

    You are 100% right to call this guy out.

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