“Can the Law Make ‘Bad Samaritans’ Decent?”

So asks the Web title of this New York Times op-ed from yesterday (thanks to Rick Schwartz for the pointer). The op-ed argues for a statute such as the following,

A sensible statute might read like this: “Any person who knows that another is in imminent danger, or has sustained serious physical harm, and who fails to render reasonable assistance shall be fined up to $5,000, imprisoned for up to three months, or both.” Civil liability could also be established, as in other countries.

I think there are various objections to this law (including our own David Hyman’s), but here I’d like to focus on a practical one — might a duty-to-rescue law make some “potentaily good” Samaritans bad? Here’s the problem, which I discuss in my Georgetown Law Journal article on Duties to Rescue and the Anticooperative Effects of Law; the problem is particularly severe when the law applies to failure to help crime victims (something the op-ed’s proposal would do) and not just disaster victims:

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 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.

The Legally Swayable Samaritan would be Bad in the absence of the duty-to-rescue/report law, but would be swayed by such a law’s normative or coercive effect.

The Delayed Samaritan initially fails — because of loyalty, panic, hurry, fear, or uncertainty — to help or to report, but later changes his mind and wants to come forward with information about the incident, perhaps prompted by a day’s contemplation or by hearing that the police are looking for evidence about the crime.

The Passive Samaritan never calls the authorities, but when the police come to his door looking for witnesses, is willing — because of remorse, a felt duty to answer questions, fear of lying to the police, or just the natural tendency to respond to questions asked by those in authority — to tell them what he saw.

This typology tells us two things. First, and most obvious, duty-to-rescue/report laws by definition won’t do much about the Hopelessly Bad Samaritan. 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. This suggests the laws will do relatively little good, something the laws’ supporters don’t deny; the laws, they often agree, will influence only a few people, but they argue that even this small benefit is justification enough.

The trouble, though, is that as to the two other varieties of Samaritan — the Delayed Samaritan and the Passive Samaritan, two groups usually forgotten in the public outrage at the genuinely Bad — the laws may actually cause harm. Imagine a man who sees a neighbor seriously abusing the neighbor’s child. The Good Samaritan would intervene or at least call the authorities, but some otherwise decent people fail to do this.

Some might be afraid, reasonably or not, that the abusive parent will physically hurt them too if they intervene or even if they call the police. Others may wrongly feel a sense of loyalty to their neighbor, or wrongly conclude it’s none of their business. Others may misperceive the magnitude of the abuse and hesitate to call the police over what they think might be permissible discipline; people are often reluctant to get the police involved in such matters unless they’re sure that a serious crime is taking place. Still others may be paralyzed with indecision when confronted with an unusual situation.

These are generally unworthy responses, but fortunately after reflection or after observing other events, the witnesses may well change their minds. A gnawing conscience may move them to call the police a day later. Seeing a second (or tenth) incident of abuse may finally steel them to action. Seeing the child the next day with a black eye may convince them that the abuse was in fact serious, and that they have a moral obligation to act to stop it. And even if they don’t volunteer, a visit from the police or from child welfare officials investigating the matter may prompt them to tell the truth about what they saw, thus helping save the child from further abuse.

People who react this way may still be morally culpable for their initial failure to aid or to report, but the more practically important fact is that the legal system — and the victim and possible future victims — can nonetheless use their help. Delayed Samaritanism and Passive Samaritanism aren’t as good as Good Samaritanism, but they are much better than nothing, and shouldn’t be discouraged.

Under a duty-to-rescue/report law, though, both the Delayed and the Passive Samaritans have committed a crime by not helping or responding “as soon as reasonably practicable.” By the time the remorse sets in, the Delayed and Passive Samaritans are legally guilty, and either volunteering or honestly answering police questions will incriminate him.

The Delayed and Passive Samaritans therefore have a choice: continue keeping quiet, and likely never be conclusively found out to have been a witness, or speak up and risk a criminal conviction (and perhaps a civil lawsuit) for the initial failure to act. And when silence or “I didn’t see anything, officer” is legally cheap (though morally expensive) and volunteering or even answering police questions risks even a modest legal cost, many will stay mum. The same can happen in many other situations, for instance when a person sees a robbery or killing outside his window and at first doesn’t report the crime (out of fear, indecision, or a habit of mistrusting the police), or when a frat boy happens to see a friend raping an unconscious girl, and initially keeps quiet out of misguided loyalty.

Thus, in trying to achieve a “procooperative effect” — cooperation with the social goal of helping crime victims — duty-to-rescue/report laws inadvertently cause an “anticooperative effect”: They deter Delayed Samaritans from coming forward, and deter Passive Samaritans from helping the police who knock on their doors looking for witnesses.

Of course, many people won’t know about the duty to rescue or to report, and some who know about it won’t think much about it in making their decisions; the risk of punishment for having violated this duty thus wouldn’t deter them from coming forward belatedly. But the same ignorance or lack of concern would equally weaken the law’s supposed positive effect — people who don’t know or don’t care about the law won’t be led by it to promptly help or report.

Some others may assume prosecutors will decline to prosecute them for the initial failure to help so long as they come forward with help later. But not all Delayed or Passive Samaritans will have such faith in prosecutorial mercy, given that they know their actions were less than noble and that their own skins are at stake. Even a small chance of being prosecuted may be enough to scare off many witnesses who, by hypothesis, aren’t public-spirited Good Samaritans in any event. (Conversely, if one defends the duty-to-rescue/report laws by stressing that people will expect them to remain unenforced, then one must also acknowledge that the laws will also have virtually zero coercive effect, and probably relatively little normative effect.)

In some cases, prosecutors could avoid the anticooperative effect by offering an important witness immunity from prosecution for failure to aid or report, but this will work only for witnesses whom the prosecutor knows to be important. Many witnesses may never come to the prosecutor’s attention precisely because they’ll keep quiet to avoid any risk of prosecution.

Moreover, a witness who does testify under grant of immunity would tend to be somewhat less credible to the jury than a witness who, in the absence of a duty-to-rescue/report law, testifies without need for immunity. (“Isn’t it true, Mr. Witness, that the prosecution has agreed to drop criminal charges against you in exchange for your testimony against the defendant?”) Likewise, categorically exempting anyone who tardily comes forward with information will encourage the cooperation of the Delayed Samaritans but will provide no safe harbor for the Passive Samaritans, who’ll still be deterred from answering questions when the police come around.

More radical changes to duty-to-rescue/report laws may indeed avoid the anticooperative effect, but only by dramatically reducing the scope of liability. My colleague Peter Arenella, for instance, suggests that drafters should include a “second chance” defense, which would exempt from liability anyone who either volunteers information or responds to police questions; this would in effect change the law from a duty-to-rescue/report law to something that it will in practice more resemble a “duty to cooperate” law.

I have rather little objection to such a law, largely because it isn’t terribly different from the situation today, where prosecutors may (at least in theory) use subpoenas and the threat of contempt prosecution to require witnesses to tell what they saw. For the same reason, the law should arouse less libertarian opposition than orthodox duty-to-rescue/report laws would — the burden it imposes on private liberty is not much greater than that imposed by the general duty to testify when called on to do so. But in any event, such a law differs considerably from the duty-to-rescue/report laws that have been enacted and proposed so far.

Sometimes, the existence of a duty-to-rescue/report law may give the prosecutor extra leverage over the witness: If the prosecutor can prove that a reluctant witness saw the crime but failed to promptly help or report, the prosecutor can use this as pressure — “tell us what you saw, or we’ll prosecute you for failing to rescue or report.”

But I suspect there will be few such cases relative to the others I describe, because without the witness’s cooperation, failure-to-rescue/report cases will usually be hard to make stick. Too often there will be uncertainty about whether the witness was really at the scene, whether he really knew there was a crime in progress, and possibly whether he was afraid of retaliation for rescue or for reporting. This is especially so because other witnesses who could shed light on these questions may themselves be guilty of failing to promptly report and thus be reluctant to come forward. Sometimes, the victim or someone else can identify the witness and testify that the witness must have known what was going on; but often the witness will only be put in legal jeopardy if he comes forward and admits he was a witness, which is why the Delayed and Passive Samaritans are particularly likely to be scared off by such laws.

Moreover, a prosecutor’s offer of immunity wouldn’t provide immunity from possible civil liability, if the duty-to-rescue/report regime allows such liability. 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.

Finally, some Delayed and Passive Samaritans could try to act on their remorse while minimizing their legal exposure, for instance by calling in an anonymous tip. But such tips are much less useful to the police than are witnesses who actually come forward, and some risk-averse witnesses might be reluctant even to call in an anonymous tip, fearing that it won’t stay anonymous.

This anticooperative effect should give us real reason to worry. True, delayed reports, which can usually at most help solve the crime and prevent future crimes, are less valuable than rescues and prompt reports, which can sometimes interrupt a crime or save an injured victim’s life. Still, delayed reports are important; the criminal is likely to act again, either against the same victim or against another. And crimesolving is a difficult business, one that often requires cooperation from bystanders who have little to gain from helping. It would be made even harder if delayed cooperation became legally costly.

The laws’ positive effect, I argue above, is likely to be quite modest — few people, I think, expect the contrary. But the anticooperative effect could be quite substantial, probably more than enough to outweigh whatever practical benefit the laws may provide. At the very least, supporters of duty-to-rescue laws must confront this anticooperative effect in making their arguments, something they have not done so far.

One could of course try to justify the duty-to-rescue/report laws primarily on retributive or denunciatory grounds, not pragmatic ones: Under this theory, those who failed to rescue or promptly report simply deserve punishment, even if such punishment may ultimately make other criminals harder to catch.

I’m unpersuaded by this approach, though; even if one accepts that failure to rescue or report is so immoral that it deserves criminal punishment — a point that’s at least controversial — it hardly seems so grievous that it demands punishment even when the punishment interferes with solving other crimes. And the lack of prosecutions under the existing duty-to-rescue/report laws suggests that, at least in prosecutors’ minds, such failures to rescue or report aren’t loudly crying for retribution. The practical costs created by the anticooperative effect seem to me quite adequate to outweigh any retributive benefits of the law.

Looking at the matter more broadly, the problem is that duty-to-rescue/report laws focus on a single time — the time the bystander witnesses a crime — and criminalize certain conduct in order to change bystander’s behavior at that particular time. But citizens have a continuous relationship to the legal system, a relationship from which the system can benefit at many times. Making the legal system into the citizen’s adversary rather than his protector and servant jeopardizes this relationship, and can deprive the legal system of the citizen’s assistance.

* * *

This analysis doesn’t show that all duties to rescue or report are unjustified. In fact, it helps explain why some such narrow duties may be sensible while other, broader ones, are counterproductive (though I don’t claim that this is the reasoning historically used to determine when such duties should be imposed).

Consider doctors’ duty to report to the police any gunshot or stab wounds they treat. Doctors who fail to comply with this duty are more likely to be found out than the typical witness would be: There will often be records that describe the treatment, and other hospital personnel who will testify about it; moreover, the doctor would usually know that failing to report puts his fate in the hands of the patient, who will often be a rather unreliable character. If the patient does turn out to be a criminal, and the police capture him, he may well implicate the doctor, especially when questioned by the police about the wound. The doctor, realizing his potential exposure, will be particularly likely to promptly comply with the law.

Furthermore, the normative impact of the law should be considerably greater than the normative impact of more general duty-to-rescue/report laws. Most witnesses who fail to rescue or report act out of callousness, fear, or deep-seated loyalty to family, friends, or confederates; it’s unlikely that knowing about a legal duty to rescue or report will have much of a normative effect on their behavior. Doctors who fail to report gunshot wounds, on the other hand, are more likely to be acting that way not because they are callous but because they feel a professional norm of loyalty to their patients. So long as this norm exists, conscience alone might not push doctors to report the wound, but a duty-to-report law is especially likely to effectively undermine this norm because the norm isn’t as deeply seated as are more personal norms of loyalty to family or friends.

Sometimes the legal duty to report could indeed have an anticooperative effect, for instance when a doctor performs the surgery alone, keeps no records, and thinks that if the matter eventually comes to light he can plausibly (though falsely) claim that he hadn’t realized the wound was made by a gunshot. In such a case, a doctor who, out of loyalty or unreasonable fear or hesitation, initially fails to report but later changes his mind could indeed be deterred from reporting by the risk of punishment for his initial silence. But I suspect the cases where all these factors are present would be rare, and the procooperative effect of the law would thus exceed its anticooperative effect.

My analysis also doesn’t apply to the less common duties to help victims of accidents or natural disasters. In these situations, late reporting will usually do no good, because there’s no criminal to be caught. It’s either prompt rescue (or at least a prompt call for help) or nothing, so the anticooperative effect of a duty to rescue becomes largely irrelevant. This isn’t to say that legal duties to help accident victims are a good idea; they may still be improper on libertarian grounds or for other practical reasons. But my argument doesn’t say much about them.

The analysis does, however, apply in spades to duties enforced through tort law. Many people rightly fear the risk of civil liability, which could mean the loss of their savings or even their homes, even more than the risk of prosecution under a rarely-enforced misdemeanor statute. Even if some Delayed or Passive Samaritans might expect a prosecutor to exercise his discretion not to go after them if they report late, they can have no such assurance about the victim, who may be angry, greedy, or both. The risk of civil liability will thus make them less likely to belatedly come forward or to answer police questions.

* * *

The anticooperative effect I describe is particularly present in duty-to-rescue/report laws, but it may arise elsewhere, too. Illegal aliens, for instance, are often thought to be especially vulnerable to criminal abuse, because the risk of being deported may deter them from reporting such crimes; likewise for prostitutes. Their reporting the crimes may help society, both by preventing future victimization of illegal aliens and prostitutes, and by helping catch criminals who may also prey on otherwise law-abiding citizens. But such cooperation often won’t be forthcoming, because of the anticooperative effects of laws that make it dangerous for illegal aliens and prostitutes to talk to the police.

These situations of course differ in some ways from bystanders’ duty to rescue or report. The anticooperative effect is increased by the fact that the likely penalty for prostitutes or illegal aliens who in reporting the crime incidentally confess their own criminality is much higher than the likely penalty for bystanders who didn’t rescue or report in time. On the other hand, the anticooperative effect is somewhat diminished by the fact that crime victims — unlike the mere bystanders — have a strong incentive to report the crime to the police, since otherwise the criminals could victimize them again. More importantly, if one thinks prostitution or illegal immigration really must be stamped out, the anticooperative effects in these cases might be outweighed by the perceived need for assiduous enforcement of prostitution and immigration laws.

Still, those who are ambivalent about these laws in the first place might conclude that the anticooperative effects sometimes weigh against maximally stringent enforcement. The police might thus, for instance, announce a policy of not going after prostitutes or illegal aliens who come to them as crime victims. Though this might seem counterintuitive at first, given our general assumption that more law enforcement is better than less, the concerns about anticooperative effects of certain kinds of law enforcement can explain this. Likewise, this concern about anticooperative effects of law explains why people announce rewards for the return of lost property with “No Questions Asked.”

Similarly, a woman who illegally carries a gun in her purse and uses it to scare off a robber or rapist probably isn’t going to report the attack on her, even if her testimony can help catch the criminal and thus make the streets safer for others; after all, if the criminal is caught, his story will incriminate her, too. Her only incentive to go to the police is public-spiritedness, and even a slight risk of prosecution on a weapons charge is more than enough to counteract that.

Again, if we think that law-abiding citizens can’t be trusted to carry guns, we might conclude that the carry ban’s positive effect exceeds the anticooperative effect. But if we think that it’s a close call whether such carrying actually poses a danger — in fact, [about 40] states now let pretty much all law-abiding adults carry concealed weapons, holders of concealed weapon permits very rarely abuse their guns, and a recent study suggests that allowing concealed carry may decrease violent crime — then the anticooperative effect of concealed carry laws may break the tie in favor of concealed carry liberalization.

More generally, all this illustrates the need to consider what happens when people refuse to comply with a proposed new law, rather than just evaluating the law on the assumption that they will comply. Returning to the duty to rescue/report, we see a proposed law that many think is morally proper. It at first seems to create a good incentive. If people reacted to laws simply by obeying them, such a law would probably increase social welfare (setting aside libertarian objections). But some people won’t obey the law, and this noncompliance won’t simply mean the law won’t affect their behavior: The law’s anticooperative effect — through which an initial violation of the law makes one less likely to act in certain socially useful ways later — will at least counteract the law’s positive effects, and may end up outweighing them.

When a law turns people into outlaws, even only modestly punishable ones, it naturally makes them less likely to cooperate with the legal system that is threatening to prosecute them, especially when their cooperation can alert the legal system to their misdeeds. This is an inevitable cost of using the threat of force to coerce people’s conduct; while it may often have to be paid, it ought not be ignored, and for some laws, such as duty-to-rescue/report laws, it may be dispositive.

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