| | |
|
DavidFrydmanFirstPaper 4 - 15 May 2012 - Main.DavidFrydman
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| | | 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. |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |