On that argument, all criminal regulations intended to prevent immoral action are "in conflict" with their intended objects.

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?

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.

This doesn't make any sense. You need to state clearly and simply what you mean, in one sentence.

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.

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.

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