Tag Archives | Richmond gang rape

Can Bystanders Who Cheer on a Criminal Be Prosecuted?

Probably yes, on the grounds that the cheering tends to encourage the criminal and thus constitutes “abett[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006).

This having been said, convictions based on solely encouragement-by-cheering, without any more tangible help, are apparently rare. Unless I’m mistaken, this theory was tried as to some bystanders in the infamous New Bedford barroom rape case, but they were acquitted. And though I think there’s no legal bar to such a conviction, I suspect that it’s often hard to pin down just who was cheering, and likely sometimes hard to persuade a jury to convict based on cheering alone. [...]

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Duties to Report, and Duties to Testify

I note below one argument against duties to promptly report crimes that you’ve witnessed. (I speak here about such duties imposed on the public at large, rather than on particular professionals.) More broadly, I generally don’t support such duties.

I should note, though, that such duties are not conceptually far different from duties to testify about such crimes when subpoenaed to testify. To be sure, they kick in considerably more often; but as a matter of libertarian principles, the gulf between them is not particularly large, I think. (I do think that a general presumption in favor of liberty should allow such impositions only when they’re especially necessary, and that a duty to testify probably is necessary, but a duty to report is not. But that’s a mixed pragmatic-libertarian argument, and not a purely libertarian one.)

So I’d like to ask the more solidly libertarian among our readers: What do you think about duties to report, duties to testify, and the relationship between the two of them? Is the duty to testify, when properly subpoenaed, whether on behalf of a criminal defendant, the prosecution, or a civil party, an acceptable constraint on liberty? Is the duty to report? If the answer is different for the two, why is it different?

I’m not asking what is constitutionally permissible; the duty to testify certainly is — subject to the privilege against self-incrimination, when the testimony would risk incriminating you — and I think the duty to report would be, too. (One can argue that the duty to report is a constitutionally impermissible speech compulsion, but for complicated reasons I don’t think this argument ought to prevail.) I’m asking how we should think about whether these are permissible interferences with one’s liberty. [...]

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Duties to Rescue (or Report) and the Anticooperative Effects of Law

The horrific Richmond gang rape incident has led some people to ask again whether the law should punish people for refusing to report a crime (which is what most “duties to rescue” end up reducing to, given that risky rescues are never required, and that intervening in a crime is almost always rescue). In light of this, I thought I’d blog about one facet of the problem that I discussed in Duties to Rescue and the Anticooperative Effects of Law, 88 Geo. L.J. 105 (1999). This isn’t the only facet by any means, but it’s one that hasn’t been much discussed; for footnotes, see the full article, which I just linked to. (I would also recommend our own David Hyman’s Rescue Without Law: An Empirical Perspective on the Duty to Rescue.)

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The Good Samaritan rescues the crime victim, or at least promptly reports the crime to the police; the Bad Samaritan stands idly by. Discussions about laws that require bystanders to help a crime victim or report the crime “to the extent that [they] can do so without danger” generally divide people into these two groups. Surely it would be good, the argument goes, to pressure Bad Samaritans into acting Good.

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

The Good Samaritan helps the victim by calling the police. He might even help by physically interceding while the crime is happening, but this is almost never required even under laws that require “assistance” and not just “report[ing]”; these laws explicitly do not mandate any intercession that would pose “danger or peril to [s]elf or others.” Duty-to-rescue and duty-to-report laws are thus interchangeable for my analysis.

The Hopelessly Bad Samaritan refuses to [...]

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