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