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DavidFrydmanFirstPaper 5 - 12 Aug 2012 - Main.EbenMoglen
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| | | When viewed from an ethical perspective, there are two social values inherently at stake in the choice about whether to criminalize the omission to attempt a reasonable rescue of an imperiled person. The first social value is based in morality: society should encourage rescue actions, not omissions to act, when other members of the society are in danger. The second is based in logic: criminals should be punished because that punishment will deter the original criminal and future actors from behaving criminally. | |
>
> | Why does the discussion
have to be so schematic here? Evidently there are many other values
that can be involved, if we were trying to be analytically
exhaustive. You're giving a false sense of
exactitude. | | | In the context of duty to rescue laws, these values are in conflict with one another. Rescue statutes encourage individuals to approach the bystander dilemma from the perspective of Oliver Wendell Holmes Jr.’s “bad man.” Rather than encourage the “positive” social value of rescuing a distressed neighbor, the statutes give a negative construction to the value by relating them to the rationalization of the utilitarian purposes of punishment. The difference between bystander laws and most other criminal statutes is that bystander laws impose penalties for failure to act morally, not the decision to act immorally. If one takes the limited view of morality as a simple dichotomy—an act or omission is either moral or immoral—then the difference between these forms of punishment is negligible or even nonexistent. But morality is not a simple dichotomy. And the decision to act immorally is one deserving of punishment, while the decision to not act in a moral way based on a judgment of the personal dangers inherently involved in doing so is not deserving of similar punishment. | |
>
> | Are you sure you thought
this argument through when you added it? Did no instances of
punishing criminal neglect occur to you? | | | Instead of addressing positive social activity with positive reinforcement, rescue statutes instead take the inverse of the activity to be encouraged (the bad man’s approach) and discourage that activity by criminalizing it and attaching criminal punishment to it. The result is not an image of a society that values its members who reflect the overarching morality or ethos of that society.
Why We Don’t Like Duty to Rescue Statutes | |
<
< | Statutes imposing similar duties to behave morally, for example the duty of physicians and other professionals to report instances of child abuse, are far more commonly instituted and accepted than duty to rescue statutes because the actions they require are in a more protected, private realm, and because the duties they impose are in direct relation to the professional capacity of the individuals on which they are imposed. These statutes impose duties to report, not to take immediate (and often public) action. Reporting can be done fully in the privacy of one’s office or workplace, and the confidentiality of the reports is often statutorily protected (see Ohio Revised Code § 2151.421(H)(1), linked above). | >
> | Statutes imposing similar duties to behave morally, for example the duty of physicians and other professionals to report instances of child abuse, are far more commonly instituted and accepted than duty to rescue statutes because the actions they require are in a more protected, private realm, and because the duties they impose are in direct relation to the professional capacity of the individuals on which
they are imposed. These statutes impose duties to report, not to take immediate (and often public) action. Reporting can be done fully in the privacy of one’s office or workplace, and the confidentiality of the reports is often statutorily protected (see Ohio Revised Code § 2151.421(H)(1), linked above). | | | On the other hand, duty to rescue statutes impose duties on all individuals equally, regardless of their professional or otherwise personal capacity to address the particular harm giving rise to the duty. Furthermore, such statutes require these individuals to act immediately, and often publicly, to avoid penalty. Simply put, one can assume the risk of being charged, prosecuted, and fined for not intervening to stop a public attack that one witnesses, or one can intervene and thereby assume the risks of retaliation by the felonious assailant, ridicule by non-intervening bystanders, and time-consuming long-term involvement with law enforcement and legal institutions as a witness or potential party to a criminal lawsuit. Prohibiting an individual from valuing such dangers to himself over the dangers faced by the victim, and punishing that value-judgment by imprisonment and/or fine, is inherently unjust. | |
>
> |
In the end, it's inherently unjust to you, because you just know it
is. The rest of us need something more, however. And your pile of
rhetorical flourishes here is beside the point. This is a criminal
statute you're talking about, like all such acts addressed to the
discretion of the prosecutor. Whose enthusiasm for bringing charges
under this act will at all times hover below zero. When you were
preparing this essay, did you look for figures on prosecutions in MN,
WI, RI, or VT? I cannot find any.
Are you surprised that all the systems descendant (according to them)
from the Roman law, under which approximately 300 million Europeans
live, have a duty to rescue that can be criminally enforced? I would
have expected you to mention it, if you are not surprised. I would
also have expected you to mention, there too, the absence of all
these railroaded, hounded, broken people that someone's libertarian
musings have counterfactually led you to expect will follow from the
adoption of this misguided legislation.
Would it not be reasonable to expect you to address some attention to
the conclusion, which the evidence seems to support, that the
presence or absence of such a duty in any particular society's legal
system doesn't make a damn bit of difference, probably because law is
a weak form of social control?
| | | If the consequences of action still outweigh the consequences of omission even for the bad man, how can the statute possibly act to encourage action by discouraging omission in the average citizen? Where the idealized “morality” behind a criminal statute does not match with such real-world assessments made by the denizens of society who are required to act, the criminal law is not functioning justly or rationally.
This injustice exemplifies the weakness of the law as a form of social control. In jurisdictions that do not impose duty to rescue statutes, citizens are encouraged (or even obligated) to act based on other social mores that do not impose criminal stigma to a basic value judgment about one's safety and privacy in relation to that of a total stranger. The decision to rescue, when framed by religious, familial, or neighborly motivations, is a decision that reflects the morality of the individual who engages himself to rescue another. These other social forces operating without the law--and therefore without the stigmatizing effects of criminal punishment--are more readily accepted as a source of control over human actions and omissions because the law "holds us not at all." Imposing a duty to rescue is effectively handled in most of the country by extra-legal forms of social control, and the legislatures should leave the duty in the hands of the social forces most capable of imposing it. | |
>
> | Really? | | | \ No newline at end of file |
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DavidFrydmanFirstPaper 4 - 15 May 2012 - Main.DavidFrydman
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| | | Statutes imposing similar duties to behave morally, for example the duty of physicians and other professionals to report instances of child abuse, are far more commonly instituted and accepted than duty to rescue statutes because the actions they require are in a more protected, private realm, and because the duties they impose are in direct relation to the professional capacity of the individuals on which they are imposed. These statutes impose duties to report, not to take immediate (and often public) action. Reporting can be done fully in the privacy of one’s office or workplace, and the confidentiality of the reports is often statutorily protected (see Ohio Revised Code § 2151.421(H)(1), linked above). | |
<
< | On the other hand, duty to rescue statutes impose duties on all individuals equally, regardless of their professional or otherwise personal capacity to address the particular harm giving rise to the duty. Furthermore, such statutes require these individuals to act immediately, and often publicly to avoid penalty. Simply put, one can assume the risk of being charged, prosecuted, and fined for not intervening to stop a public attack that one witnesses, or one can intervene and thereby assume the risks of retaliation by the felonious assailant, ridicule by non-intervening bystanders, and time-consuming long-term involvement with law enforcement and legal institutions as a witness or potential party to a criminal lawsuit. Prohibiting an individual from valuing such dangers to himself over the dangers faced by the victim, and punishing that value-judgment by imprisonment and/or fine, is inherently unjust. | >
> | On the other hand, duty to rescue statutes impose duties on all individuals equally, regardless of their professional or otherwise personal capacity to address the particular harm giving rise to the duty. Furthermore, such statutes require these individuals to act immediately, and often publicly, to avoid penalty. Simply put, one can assume the risk of being charged, prosecuted, and fined for not intervening to stop a public attack that one witnesses, or one can intervene and thereby assume the risks of retaliation by the felonious assailant, ridicule by non-intervening bystanders, and time-consuming long-term involvement with law enforcement and legal institutions as a witness or potential party to a criminal lawsuit. Prohibiting an individual from valuing such dangers to himself over the dangers faced by the victim, and punishing that value-judgment by imprisonment and/or fine, is inherently unjust. | | | If the consequences of action still outweigh the consequences of omission even for the bad man, how can the statute possibly act to encourage action by discouraging omission in the average citizen? Where the idealized “morality” behind a criminal statute does not match with such real-world assessments made by the denizens of society who are required to act, the criminal law is not functioning justly or rationally. | |
<
< | What have you added to this? What central idea would you propose to
offer the reader that will take the conversation past where all the
classroom back and forth in all the torts classes leaves it?
Starting there will very much improve this draft.
| >
> | This injustice exemplifies the weakness of the law as a form of social control. In jurisdictions that do not impose duty to rescue statutes, citizens are encouraged (or even obligated) to act based on other social mores that do not impose criminal stigma to a basic value judgment about one's safety and privacy in relation to that of a total stranger. The decision to rescue, when framed by religious, familial, or neighborly motivations, is a decision that reflects the morality of the individual who engages himself to rescue another. These other social forces operating without the law--and therefore without the stigmatizing effects of criminal punishment--are more readily accepted as a source of control over human actions and omissions because the law "holds us not at all." Imposing a duty to rescue is effectively handled in most of the country by extra-legal forms of social control, and the legislatures should leave the duty in the hands of the social forces most capable of imposing it. |
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DavidFrydmanFirstPaper 3 - 25 Apr 2012 - Main.DavidFrydman
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| | | When viewed from an ethical perspective, there are two social values inherently at stake in the choice about whether to criminalize the omission to attempt a reasonable rescue of an imperiled person. The first social value is based in morality: society should encourage rescue actions, not omissions to act, when other members of the society are in danger. The second is based in logic: criminals should be punished because that punishment will deter the original criminal and future actors from behaving criminally. | |
<
< | In the context of duty to rescue laws, these values are in conflict with one another. Rescue statutes encourage individuals to approach the bystander dilemma from the perspective of Oliver Wendell Holmes Jr.’s “bad man.” Rather than encourage the “positive” social value of rescuing a distressed neighbor, the statutes give a negative construction to the value by relating them to the rationalization of the utilitarian purposes of punishment. Just like the bad man, the bystander in Minnesota, Rhode Island, and Vermont does not commission a rescue because it is morally the correct thing to do, but because the social force will fine and/or imprison him for failing to do so. | >
> | In the context of duty to rescue laws, these values are in conflict with one another. Rescue statutes encourage individuals to approach the bystander dilemma from the perspective of Oliver Wendell Holmes Jr.’s “bad man.” Rather than encourage the “positive” social value of rescuing a distressed neighbor, the statutes give a negative construction to the value by relating them to the rationalization of the utilitarian purposes of punishment. The difference between bystander laws and most other criminal statutes is that bystander laws impose penalties for failure to act morally, not the decision to act immorally. If one takes the limited view of morality as a simple dichotomy—an act or omission is either moral or immoral—then the difference between these forms of punishment is negligible or even nonexistent. But morality is not a simple dichotomy. And the decision to act immorally is one deserving of punishment, while the decision to not act in a moral way based on a judgment of the personal dangers inherently involved in doing so is not deserving of similar punishment. | | | | |
<
< | On that argument, all
criminal regulations intended to prevent immoral action are "in
conflict" with their intended objects. | >
> | Instead of addressing positive social activity with positive reinforcement, rescue statutes instead take the inverse of the activity to be encouraged (the bad man’s approach) and discourage that activity by criminalizing it and attaching criminal punishment to it. The result is not an image of a society that values its members who reflect the overarching morality or ethos of that society. | | | | |
<
< | Instead of addressing positive social activity with positive reinforcement, rescue statutes instead take the inverse of the activity to be encouraged (the bad man’s approach) and discourage that activity by criminalizing it and attaching criminal punishment to it. The result is not an image of a society that values its members who reflect the overarching morality or ethos of that society. It is an image of a society that only knows how to encourage morality among its members by rationalizing the punishment of amorality. | | | | |
<
< | I think it is this rationalization that is repulsive to most American jurisdictions and legislatures. People do not like the negativist approach, do not like the creation of legal duty where none previously existed, and do not like the imposition of imprisonment as a penalty for neglecting to perform that duty.
So you would consider
rescue reward statutes ethical, but statutes imposing duties to
behave morally to be "repulsive"? Is this also true, for example, of
statutes requiring teachers to report evidence of child abuse, or
physicians to report instances of infectious disease? If not, why
not? | >
> | Why We Don’t Like Duty to Rescue Statutes | | | | |
<
< | | >
> | Statutes imposing similar duties to behave morally, for example the duty of physicians and other professionals to report instances of child abuse, are far more commonly instituted and accepted than duty to rescue statutes because the actions they require are in a more protected, private realm, and because the duties they impose are in direct relation to the professional capacity of the individuals on which they are imposed. These statutes impose duties to report, not to take immediate (and often public) action. Reporting can be done fully in the privacy of one’s office or workplace, and the confidentiality of the reports is often statutorily protected (see Ohio Revised Code § 2151.421(H)(1), linked above). | | | | |
<
< | Why We Don’t Like Duty to Rescue Statutes | >
> | On the other hand, duty to rescue statutes impose duties on all individuals equally, regardless of their professional or otherwise personal capacity to address the particular harm giving rise to the duty. Furthermore, such statutes require these individuals to act immediately, and often publicly to avoid penalty. Simply put, one can assume the risk of being charged, prosecuted, and fined for not intervening to stop a public attack that one witnesses, or one can intervene and thereby assume the risks of retaliation by the felonious assailant, ridicule by non-intervening bystanders, and time-consuming long-term involvement with law enforcement and legal institutions as a witness or potential party to a criminal lawsuit. Prohibiting an individual from valuing such dangers to himself over the dangers faced by the victim, and punishing that value-judgment by imprisonment and/or fine, is inherently unjust. | | | | |
<
< | The problem is that we want to view the law as a reflection of our morality until that purported morality interferes with our daily lives. When viewed from the perspective of the bad man, the consequences of obeying the law might still be worse than the consequences of disobeying it. This is because the moral reflected by duty to rescue statutes is an ideal, not a practical expression of common sentiment. | >
> | If the consequences of action still outweigh the consequences of omission even for the bad man, how can the statute possibly act to encourage action by discouraging omission in the average citizen? Where the idealized “morality” behind a criminal statute does not match with such real-world assessments made by the denizens of society who are required to act, the criminal law is not functioning justly or rationally. | | | | |
<
< | No, it's because in real
life we weigh dangers to ourselves against efforts to assist
strangers, and a law prohibiting us from doing so on penalty of
punishment or loss appears unjust.
The conflict is simple: one can assume the risk of being charged, prosecuted, and fined $100 for not intervening to stop a violent attack that one witnesses outside of one’s apartment window, or one can intervene and thereby assume the risks of retaliation by the felonious assailant, ridicule by non-intervening bystanders, and time-consuming long-term involvement with law enforcement and legal institutions as a witness or potential party to a criminal lawsuit. If the consequences of action still outweigh the consequences of omission for Holmes’s bad man, how can the statute possibly act to encourage action by discouraging omission?
Duty to rescue laws are an over-rationalization of an idealized moral principle that conflicts with the reasonably prudent man’s worldview. Supporters of duty to rescue statutes claim they are based in morality. Rather, they are actually based on rationalization of an idealistic moral principle about civic duty. This chasm is what distinguishes duty to rescue statutes from other criminal laws. It is easy to accept a rationalization about murder. Every person properly convicted of murder in this country was found by a trier of fact to have demonstrated an intent and desire to kill. The link between the amoral act (the act to be discouraged by deterrence and other utilitarian principles) and the punishment is transparent, even through the cloudiness caused by transcendentally nonsensical expressions like malice. The same is not true in this instance. In the case where carrying on one’s normal activity (i.e. walking home from work) is turned from innocent action into a criminal omission by the commission of a harmful or criminal act by a third party, the link between the amorality of the act and the punishment grows too murky to remain effective.
This doesn't make any
sense. You need to state clearly and simply what you mean, in one
sentence.
One is not amoral for subscribing to the idea that the only omissions that should be punishable by criminal conviction (especially by the possibility of prison sentencing) are those omissions for which a legal duty to aid already exists. The duty should not be both created and punished out of thin air. Rather, it should reflect the actual social ideology and morality of the society it aims to protect.
It's an old dispute, to
which this draft added only unclarity, so far as I could see. Can't
we say adequately in a sentence or two that duty to rescue statutes
are a communitarian response to predictable failures of voluntarism
that might save lives, but which are objected to on philosophic
grounds by libertarians, and which are suspected of pointlessness by
realists? The former believe no general duty should be imposed, and
the latter believe people won't concern themselves with small
penalties, almost never extracted, in situations where attempted
rescue would be dangerous or costly. Both parties believe rewards
function better than penalties in such situations. | | | | |
<
< | What have you added to this? What central idea would you propose to | >
> | What have you added to this? What central idea would you propose to | | | offer the reader that will take the conversation past where all the
classroom back and forth in all the torts classes leaves it?
Starting there will very much improve this draft. |
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DavidFrydmanFirstPaper 2 - 23 Apr 2012 - Main.EbenMoglen
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| META TOPICPARENT | name="FirstPaper" |
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| | | In the context of duty to rescue laws, these values are in conflict with one another. Rescue statutes encourage individuals to approach the bystander dilemma from the perspective of Oliver Wendell Holmes Jr.’s “bad man.” Rather than encourage the “positive” social value of rescuing a distressed neighbor, the statutes give a negative construction to the value by relating them to the rationalization of the utilitarian purposes of punishment. Just like the bad man, the bystander in Minnesota, Rhode Island, and Vermont does not commission a rescue because it is morally the correct thing to do, but because the social force will fine and/or imprison him for failing to do so.
| |
>
> | On that argument, all
criminal regulations intended to prevent immoral action are "in
conflict" with their intended objects.
| | | Instead of addressing positive social activity with positive reinforcement, rescue statutes instead take the inverse of the activity to be encouraged (the bad man’s approach) and discourage that activity by criminalizing it and attaching criminal punishment to it. The result is not an image of a society that values its members who reflect the overarching morality or ethos of that society. It is an image of a society that only knows how to encourage morality among its members by rationalizing the punishment of amorality.
I think it is this rationalization that is repulsive to most American jurisdictions and legislatures. People do not like the negativist approach, do not like the creation of legal duty where none previously existed, and do not like the imposition of imprisonment as a penalty for neglecting to perform that duty. | |
>
> | So you would consider
rescue reward statutes ethical, but statutes imposing duties to
behave morally to be "repulsive"? Is this also true, for example, of
statutes requiring teachers to report evidence of child abuse, or
physicians to report instances of infectious disease? If not, why
not?
| | | Why We Don’t Like Duty to Rescue Statutes
The problem is that we want to view the law as a reflection of our morality until that purported morality interferes with our daily lives. When viewed from the perspective of the bad man, the consequences of obeying the law might still be worse than the consequences of disobeying it. This is because the moral reflected by duty to rescue statutes is an ideal, not a practical expression of common sentiment. | |
>
> | No, it's because in real
life we weigh dangers to ourselves against efforts to assist
strangers, and a law prohibiting us from doing so on penalty of
punishment or loss appears unjust. | | | The conflict is simple: one can assume the risk of being charged, prosecuted, and fined $100 for not intervening to stop a violent attack that one witnesses outside of one’s apartment window, or one can intervene and thereby assume the risks of retaliation by the felonious assailant, ridicule by non-intervening bystanders, and time-consuming long-term involvement with law enforcement and legal institutions as a witness or potential party to a criminal lawsuit. If the consequences of action still outweigh the consequences of omission for Holmes’s bad man, how can the statute possibly act to encourage action by discouraging omission?
Duty to rescue laws are an over-rationalization of an idealized moral principle that conflicts with the reasonably prudent man’s worldview. Supporters of duty to rescue statutes claim they are based in morality. Rather, they are actually based on rationalization of an idealistic moral principle about civic duty. This chasm is what distinguishes duty to rescue statutes from other criminal laws. It is easy to accept a rationalization about murder. Every person properly convicted of murder in this country was found by a trier of fact to have demonstrated an intent and desire to kill. The link between the amoral act (the act to be discouraged by deterrence and other utilitarian principles) and the punishment is transparent, even through the cloudiness caused by transcendentally nonsensical expressions like malice. The same is not true in this instance. In the case where carrying on one’s normal activity (i.e. walking home from work) is turned from innocent action into a criminal omission by the commission of a harmful or criminal act by a third party, the link between the amorality of the act and the punishment grows too murky to remain effective. | |
<
< | One is not amoral for subscribing to the idea that the only omissions that should be punishable by criminal conviction (especially by the possibility of prison sentencing) are those omissions for which a legal duty to aid already exists. The duty should not be both created and punished out of thin air. Rather, it should reflect the actual social ideology and morality of the society it aims to protect.
(927 words) | >
> | This doesn't make any
sense. You need to state clearly and simply what you mean, in one
sentence. | | | | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
| >
> | One is not amoral for subscribing to the idea that the only omissions that should be punishable by criminal conviction (especially by the possibility of prison sentencing) are those omissions for which a legal duty to aid already exists. The duty should not be both created and punished out of thin air. Rather, it should reflect the actual social ideology and morality of the society it aims to protect. | | | | |
<
< | Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. | >
> | It's an old dispute, to
which this draft added only unclarity, so far as I could see. Can't
we say adequately in a sentence or two that duty to rescue statutes
are a communitarian response to predictable failures of voluntarism
that might save lives, but which are objected to on philosophic
grounds by libertarians, and which are suspected of pointlessness by
realists? The former believe no general duty should be imposed, and
the latter believe people won't concern themselves with small
penalties, almost never extracted, in situations where attempted
rescue would be dangerous or costly. Both parties believe rewards
function better than penalties in such situations.
What have you added to this? What central idea would you propose to
offer the reader that will take the conversation past where all the
classroom back and forth in all the torts classes leaves it?
Starting there will very much improve this draft.
|
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DavidFrydmanFirstPaper 1 - 14 Feb 2012 - Main.DavidFrydman
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| META TOPICPARENT | name="FirstPaper" |
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Morality and the Law: Duty to Rescue Statutes in American Jurisprudence
-- By DavidFrydman - 14 Feb 2012
The Bystander Effect & Duty to Rescue Statutes
The Bystander Effect is the phenomenon whereby persons witnessing another human in danger take no action to aid the distressed individual because they have been lulled into a state of pluralistic ignorance by the diminished sense of individual responsibility that results when many unrelated parties are witness to a single occurrence or event. Each individual allows himself to believe that the person next to him will assume the social responsibility of the group as a whole.
A few American jurisdictions sought to mitigate against the Bystander Effect by enacting statutes imposing a duty to rescue an imperiled person in certain circumstances, making it a misdemeanor punishable by fine, jail time, or both, to neglect this legal duty. Such laws are currently in effect in Minnesota, Rhode Island, and Vermont.
However, most American jurisdictions have not enacted similar statutes. Why is this so?
Conflicting Social Values at Stake
When viewed from an ethical perspective, there are two social values inherently at stake in the choice about whether to criminalize the omission to attempt a reasonable rescue of an imperiled person. The first social value is based in morality: society should encourage rescue actions, not omissions to act, when other members of the society are in danger. The second is based in logic: criminals should be punished because that punishment will deter the original criminal and future actors from behaving criminally.
In the context of duty to rescue laws, these values are in conflict with one another. Rescue statutes encourage individuals to approach the bystander dilemma from the perspective of Oliver Wendell Holmes Jr.’s “bad man.” Rather than encourage the “positive” social value of rescuing a distressed neighbor, the statutes give a negative construction to the value by relating them to the rationalization of the utilitarian purposes of punishment. Just like the bad man, the bystander in Minnesota, Rhode Island, and Vermont does not commission a rescue because it is morally the correct thing to do, but because the social force will fine and/or imprison him for failing to do so.
Instead of addressing positive social activity with positive reinforcement, rescue statutes instead take the inverse of the activity to be encouraged (the bad man’s approach) and discourage that activity by criminalizing it and attaching criminal punishment to it. The result is not an image of a society that values its members who reflect the overarching morality or ethos of that society. It is an image of a society that only knows how to encourage morality among its members by rationalizing the punishment of amorality.
I think it is this rationalization that is repulsive to most American jurisdictions and legislatures. People do not like the negativist approach, do not like the creation of legal duty where none previously existed, and do not like the imposition of imprisonment as a penalty for neglecting to perform that duty.
Why We Don’t Like Duty to Rescue Statutes
The problem is that we want to view the law as a reflection of our morality until that purported morality interferes with our daily lives. When viewed from the perspective of the bad man, the consequences of obeying the law might still be worse than the consequences of disobeying it. This is because the moral reflected by duty to rescue statutes is an ideal, not a practical expression of common sentiment.
The conflict is simple: one can assume the risk of being charged, prosecuted, and fined $100 for not intervening to stop a violent attack that one witnesses outside of one’s apartment window, or one can intervene and thereby assume the risks of retaliation by the felonious assailant, ridicule by non-intervening bystanders, and time-consuming long-term involvement with law enforcement and legal institutions as a witness or potential party to a criminal lawsuit. If the consequences of action still outweigh the consequences of omission for Holmes’s bad man, how can the statute possibly act to encourage action by discouraging omission?
Duty to rescue laws are an over-rationalization of an idealized moral principle that conflicts with the reasonably prudent man’s worldview. Supporters of duty to rescue statutes claim they are based in morality. Rather, they are actually based on rationalization of an idealistic moral principle about civic duty. This chasm is what distinguishes duty to rescue statutes from other criminal laws. It is easy to accept a rationalization about murder. Every person properly convicted of murder in this country was found by a trier of fact to have demonstrated an intent and desire to kill. The link between the amoral act (the act to be discouraged by deterrence and other utilitarian principles) and the punishment is transparent, even through the cloudiness caused by transcendentally nonsensical expressions like malice. The same is not true in this instance. In the case where carrying on one’s normal activity (i.e. walking home from work) is turned from innocent action into a criminal omission by the commission of a harmful or criminal act by a third party, the link between the amorality of the act and the punishment grows too murky to remain effective.
One is not amoral for subscribing to the idea that the only omissions that should be punishable by criminal conviction (especially by the possibility of prison sentencing) are those omissions for which a legal duty to aid already exists. The duty should not be both created and punished out of thin air. Rather, it should reflect the actual social ideology and morality of the society it aims to protect.
(927 words)
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. |
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