Normally, any compulsion to testify will bring with it a grant of immunity, but here the person is required to proactively report. Would you be expected to go to the police and say: “The crime reporting law requires that I report a crime to you, but I invoke my 5th amendment right and refuse to provide any details whatsoever unless you legally compel me to anwser thereby attaching immunity”

Just subpoena me to one of your cases. I will become a 3rd rate economics major and lack recollection in short order.

And this statement will be shown as proof of contempt. A key feature in “forgetting” is not announcing ahead of time what facts you are likely to forget.

[ That tip is free, the next one will cost ya. ]

David Welker:
Fascism? Really??Nice substantive response to the argument. Exactly what I would expect from a second-rate economics major. =)

Substantive response to threats of prison time for refusing to submit to a coercive speech doctrine?

Just subpoena me to one of your cases. I will become a 3rd rate economics major and lack recollection in short order.

If there were a “second chance” component, such as a witness who initially doesn’t come forward, but then voluntarily comes forward later would not be subject to penalty, this would mitigate a lot of that impediment.

Sounds reasonable.

Wow. Soft fascism has just become hard fascism

Fascism? Really??

Nice substantive response to the argument. Exactly what I would expect from a second-rate economics major. =)

I am very open to attacks on my philosophical and political stands, but here we are talking about someone simply calling me, purely ad hominem, a “sociopath and/or liar,” without argument or substantiation. I have not attacked anyone personally.

Seems to me like an accurate assessment of your philosophical and political stands, although you haven’t posted here long so maybe there are more gems to come.

Will it take a libel lawsuit to wake y’all up?

Yes. Please. Oh god, that would be endless amusement.

PS. Pretty hilarious to be a libertarian with a litigious streak against speech you don’t like. Go for it dude, you’re all aces.

David Welker
Excellent point. This is why failure to report a violent felony should, in many cases, be itself a felony. Civil liability might sound really bad. But once you realize you will be spending time in prison if you do not cooperate with police, you might have second thoughts about where your concerns should really lie.Finally, it should be kept in mind that, in all probability, most people who are potentially so-called passive and delayed Samaritans will never get around to transitioning to actually cooperating on their own. However, the threat of criminal liability might just do the trick.Now it is time to pull out the big guns.

Wow. Soft fascism has just become hard fascism, and just that quickly. Apparently they didn’t teach much history at the Harvard Law school.

Professor Volokh,

I think your argument rests even better on economic grounds than ideological ones. It seems you’ve used the ever-popular law and economics to show how a law’s unintended consequences are, at least theoretically, the opposite of what is desired from the law.

If there were a “second chance” component, such as a witness who initially doesn’t come forward, but then voluntarily comes forward later would not be subject to penalty, this would mitigate a lot of that impediment.

I am very open to attacks on my philosophical and political stands, but here we are talking about someone simply calling me, purely ad hominem, a “sociopath and/or liar,” without argument or substantiation. I have not attacked anyone personally.

Will it take a libel lawsuit to wake y’all up?

Somehow, I doubt that the majority of law enforcement would protest against such laws on the grounds that they would harm their ability to investigate.

First, I definitely do not agree with any libertarian argument against a duty to report it definitely unpersuasive. The state protects your person and property from crime and foreign aggression and certainly can expect certain duties from you in exchange.

That said, much of Volokh’s argument is not libertarian, but instead utilitarian. However, I think the utilitarian argument that duty to report laws will hinder law enforcement fails.

But real people aren’t so neatly divisible into these two internally homogeneous categories. Rather, Samaritans come in at least five different stripes:

Coming up with five different static categories is nearly as simplistic and as unrealistic as just having two. In fact, a significant number of people are likely to fluctuate between categories depending on the context. I think it is amusing how Volokh criticizes having two categories on realism grounds, and then replaces it with a set of five static categories that are nearly as simplistic and unrealistic. Furthermore, it should be noted while we are talking about what is “real,” that Volokh does not appear to basing his analysis on empirical data or interviews with law enforcement and instead his entire analysis, at least the portions excerpted here, are both highly theoretical and speculative. (I have not read anything not excerpted here, however.)

The Hopelessly Bad Samaritan refuses to help — perhaps because of loyalty to the criminal, unreasonable fear of retaliation, or callousness coupled with a perceived improbability of being identified and prosecuted under the duty-to-rescue/report law — and can’t be budged from this by conscience, the threat of punishment, or the law’s normative force.

Is this even a significant category? If they are loyal to the criminal and take some sort of action out of that loyalty, they are already guilty of another crime. But certainly someone who is concerned with being identified and prosecuted on the law would be PRECISELY the sort of person who would be willing to talk and cooperate in implicating the main target in exchange for a lesser punishment.

First, and most obvious, duty-to-rescue/report laws by definition won’t do much about the Hopelessly Bad Samaritan.

Except punish them. Which I submit in the case of the Richmond High School gang rape or other violent felonies, would be a very excellent thing. It would also make an example out of them, which may discourage others from following a similar path.

The laws will affect those who are Bad enough that they don’t do the right thing on their own but are nonetheless so sensitive to the law’s normative or coercive effect that they’re Legally Swayable to being Good (or at least acting as the Good do). Some people will fall into this category, but I doubt many will: Those who don’t respond to the social norm of helping those in distress — at least by calling 911 — probably aren’t that likely to be swayed by the normative effect of a new duty-to-rescue/report law; and the law’s coercive force will usually be rather low because the witnesses know they’re generally unlikely to be conclusively identified if they just stay quiet.

I think this is entirely speculative and assumes a sort of constancy of character that, in many cases, simply does not exist. In fact, character and the duties we owe to others is at least partially socially defined for many people. Hence the disgusting fact that you can have a group of people watch a gang rape and do nothing in the false anonymity of a crowd. But people would think twice about the wisdom of this lack of character if they knew that the heavy hand of the law would fall on them if all they did was watch the crime. Especially if they knew that any member of the crowd who also watched the gang rape might go to police and report them in exchange for a better deal. Can you say prisoner’s dilemma with impossibly high transactions costs to overcome?

It must be remembered that these categories are completely made up out of thin air by Eugene Volokh. Why would we expect people to statically adhere to any one of them? Some people may, but others would be very likely to fluctuate. Also, what makes you think that people are not taught character and the difference between right and wrong based on the law? There may be a distinction between right and wrong that exists outside of the law, but many people will fail to perceive those distinctions unless those distinctions exist within the law and lead to punishment for failing to obey them. Laws against undesirable behavior can be morally transformative, as the effects of the Civil Rights laws demonstrate in transforming the culture of the South.

Witnesses who are more concerned by the risk of civil liability than of the likely rather modest criminal liability may thus remain silent even in the face of the prosecutorial threat, reckoning that the risks of talking and thus implicitly admitting conduct that could lose them their savings and homes far exceed the risks of silence and possible petty misdemeanor prosecution.

Excellent point. This is why failure to report a violent felony should, in many cases, be itself a felony. Civil liability might sound really bad. But once you realize you will be spending time in prison if you do not cooperate with police, you might have second thoughts about where your concerns should really lie.

Finally, it should be kept in mind that, in all probability, most people who are potentially so-called passive and delayed Samaritans will never get around to transitioning to actually cooperating on their own. However, the threat of criminal liability might just do the trick.

Now it is time to pull out the big guns. Eugene Volokh is making an argument that law enforcement would have a harder time rather than an easier time catching criminals. But, if you have a big stick to use with those who fail to report, then you can get much more cooperation than merely having the witness tell you what they know. You can get the witness to record the conversations of the main targets of your investigation. Furthermore, I think Eugene Volokh is a lot more confident that police would not be able to figure out who the people who watched the crime are than the bystanders themselves would be. A lot of so-called passive and delayed Samaritans would cooperate because they wanted better deals when before they would not cooperate at all.

How big is the category of passive and delayed Samaritans who later come forward? Probably very small. Would more passive and delayed “Samaritans” come forward out of fear (sometimes rational fear and sometimes irrational fear) that they will be identified and criminally prosecuted if they do not come forward? Probably. Isn’t their a sort of prisoner’s dilemma here? If there are multiple witnesses to a violent crime, the first one to come forward could get a better deal for identifying the others.

Eugene Volokh worries about the credibility of such witnesses. But, it would be difficult for a criminal defendant to overcome the credibility of multiple witnesses, all of whom are corroborating each others’ stories. Also, often identification by sources that may have credibility issues in front of a jury is the first step to obtaining physical evidence that does not have such credibility problems. Also, more heavy cooperation could lead to recording conversations with the violent perpetrator, rendering such credibility less important.

The bottom-line is this. Ultimately I think Eugene Volokh’s utilitarian analysis of the likely affects of duty to report laws is likely way off. I think the power to prosecute witnesses who fail to report would enable law enforcement to get a much deeper level of cooperation out of such witnesses (such as recording conversations with the main violent felon targets of an investigation in return for leniency). Ultimately, Eugene Volokh’s utilitarian argument that duty to report laws would harm law enforcement investigations is probably the exact opposite of the truth. Somehow, I doubt that you would the majority of law enforcement protesting such laws on the grounds that they will harm their ability to investigate.

Why is it that you allow posters to post 100% unsubstantiated verbal attacks on posters who are victims of abuse, as did Neurodoc at 7:35pm?

Got any good reason they aren’t entitled to express their positions, besides the fact that you don’t like them?

I don’t think anyone here likes you, maybe we should shut you up? Or we could just let everyone speak their mind. You know, whichever.

In any event, coercion is not the only reason we pass laws. Sometimes we pass laws because people feel that a given act is harmful and morally condemnable and ought to be punished. It would be nice if the law had the effect of coercing people into behaving properly, but even if you could show that no one at all would change their behavior as a result of the law against child rape, we should still have a law against child rape.

Why is it that you allow posters to post 100% unsubstantiated verbal attacks on posters who are victims of abuse, as did Neurodoc at 7:35pm?

If you don’t remove his post, you will be just another contributor to this pervasive Amerikan atmosphere of bigotry.

He was apparently, as a Roman Catholic, enraged at my singing a couple of bars of Tom Lehrer’s songs “Plastic Jesus,” ["the whole damn holy family, sittin' on the dashboard of my car"] and “Vatican Rag,” ["fiddle with your rosary... genuflect, genuflect, genuflect]. I had never spoken with him and had no idea of his religion.

No fan of cops or of enraged old white guys, I asked folks around me to call 911. None of the white folks around lifted a finger. I then went to the local on-site park representative and asked her to call 911. She didn’t lift a finger, either. I finally had to call 911 myself to summon the cops.

If I’d been a young, black rape victim, I’d have been dead by then, probably. If I’d been white, however, imagine how many gummint helicopters would have come to my aid!

The cops did come. I know how to deal with the blustery assholes, having already sued and filed numerous disciplinary complaints against local cops for civil rights abuses. Though as a libertarian, I am much opposed to the idea of “hate crimes,” I am pressing a “hate crime” complaint against the white guy for attacking me based on, who knows, his animus against atheists or Hispanics.

I’m doing so because I’m fully aware that no justice will come to this nationalistic, homophobic, sexist, racist, pro-natalist, christianist, Amerikan society until heterosesxual, Roman Catholic, white breeders go to prison for acting on their bigoted impulses. Keep on commenting, white boy.

Jimbino: I fall into various categories of persons regularly persecuted by this society, and in particular by cops and the Amerikan moralists. Think: gay, activist atheist, libertarian, single, childfree, foreign-born, black hispanic

…sociopath and/or liar too.

First, and most obvious, duty-to-rescue/report laws by definition won’t do much about the Hopelessly Bad Samaritan.

Except exact just retribution for their hopelessly immoral action. A man that stands by idly while a teenager is raped deserves to be hurt, in my moral calculus. YMMV, of course.

Jimbino, what justifies transference of your rage against “this society” towards the innocent victim in this case? Isn’t she just as much oppressed as you are — probably more actually, considering she is being violently raped? Moreover, do any anarchists really believe that violent gang rape is the proper state of nature to which we ought to aspire?

Putting that aside, you’re also not considering the fact that prosecutors and the police on the street would presumably have discretion regarding when these laws would be enforced. Assuming perfect knowledge, if Delayed Samaritans knew that if they came forward later, they would not be prosecuted for failure to report, but that if they did not come forward at all, they would likely be prosecuted, then the law would make them more likely to report.

One potential response would be that Delayed Samaritans would be unknown to law enforcement if they didn’t report. However, unless there is only one witness to the crime, the Delayed Samaritan has to be concerned about other witnesses not only fingering the perpetrator, but also giving their name. Even if all Delayed Samaritans would be better off if no one reported anything, the fear that the others will report would cause them all to report.

I fall into various categories of persons regularly persecuted by this society, and in particular by cops and the Amerikan moralists. Think: gay, activist atheist, libertarian, single, childfree, foreign-born, black hispanic.

Daily persecuted by both local and national do-gooders and the Nanny State, I have learned to hate cops and the Amerikan gummint, and the last thing I want to do is cooperate with them or with our fascist socialist government in any way.

Though my natural instinct is to help others in distress, until I can live in a free country, I will spend my time gaming the system and intentionally acting to bring down the government. Not coming to the aid of a crime victim or another in distress is just one of the ways to act on my hope of bringing down the Amerikan system. Others are to fill recycling bins with water, sue individual cops, file complaints with ombudsmen, appeal every gummint decision, and so on.

The Hopelessly Bad Samaritan refuses to help — perhaps because of loyalty to the criminal,

Does disagreeing with the law in question get conflated with “loyalty to the criminal”? I’m not particularly loyal to the people who perpetrate victimless crimes, (I think some of them are pretty scuzzy, but a free society needs room between “scuzzy” and “illegal”.) but I’ve got no inclination to report any I witness.

And I don’t think is makes me “bad”, let along “hopelessly” so.