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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. | |
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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. | >
> | 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. | | | | |
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< | 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. | | | | |
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< | 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. | | | | |
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< | 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 | | | | |
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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). | | | | |
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< | 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. | | | | |
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< | 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. | | | | |
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< | 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. | | | | |
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< | 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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