§ 9.06 OMISSIONS: GENERAL PRINCIPLES

• Jurisdiction: United States

§ 9.06. Omissions: General Principles⁹¹

[A] General Rule

Consider the following two incidents. First, in People v. Beardsley,⁹² a married man failed to come to the aid of the woman with whom he was having a sexual relationship after she took a lethal dose of poison in his presence. She died. Second, in a heavily reported after-midnight 1964 assault in Queens, New York, a young woman, Kitty Genovese, purportedly cried out for help for approximately 30 minutes as she was attacked and ultimately killed outside her apartment building. It was later suggested that 38 of her neighbors heard her cries and saw the attack in progress from their apartment windows, but did nothing.⁹³

In both situations, a human being died. In both situations, one or more persons knew that a life was in jeopardy. In both situations, the harm that occurred might have been prevented or mitigated at no apparent physical risk of harm to t hose aware of the victim's plight. Nonetheless, adulterer Beardsley was not held criminally responsible for his omission; and none of Genovese's neighbors were prosecuted in relation to her death.

The lesson to be learned from these two incidents is that not every moral obligation to act creates a concomitant legal duty.⁹⁴ Subject to a few limited exceptions, a person has no criminal law duty to act to prevent harm to another, even if she can do so at no risk to herself, and even if the person imperiled may lose her life in the absence of assistance.

In essence, the criminal law distinguishes between an act that affirmatively causes harm, on the one hand, and the failure of a bystander to take measures to prevent harm, on the other hand. As Professor Woozley has described the principle: "[T]he law should see to it that we do not do harm, but not see to it that, in the absence of a specific statutory duty, we do things to prevent harm."⁹⁵ As a matter of criminal law doctrine, we are not our brothers' and sisters' keepers.

[B] Criticisms of the General Rule

Many critics of the omission rule, as set out in italics in the preceding paragraph, consider the rule morally repugnant. As one scholar stated in relation to Beardsley, "[i]n a civilized society, a man who finds himself with a helplessly ill person who has no other source of aid should be under a duty to summon help, whether the person is his wife, his mistress, a prostitute or a Chief Justice."⁹⁶ The implication is that there is no meaningful moral difference between an act and an omission — there is no meaningful difference between slamming shut one's open door to bar entry of a child trying to escape a wild animal, and failing to open a closed door for the same child.⁹⁷ It is all one and the same.

The effect of the omission rule is to exonerate people, such as Beardsley-the-adulterer and Kitty Genovese's neighbors in Queens, who are guilty of moral indifference. The rule may even absolve one who is guilty of an extremely culpable state of mind. For example, imagine S, an Olympic-level swimmer, who stands by and watches an infant (not her own) drown in a wading pool. According to the general no-liability rule, S is not criminally responsible for the death, although she could have saved the child at no risk to herself, and even if she failed to act because she...