Criminal liability and the duty to aid the distressed.

• Author: Freeman, Samuel
• Position: Symposium: Act & Crime

The aim of this Article is to address some of the normative, as opposed to the purely metaphysical, issues raised by Michael Moore's analysis of the criminal law's act requirement. On several occasions, Professor Moore himself recognizes the role of ethics in finally settling issues of the application of the metaphysics of action to the criminal law. For example, he acknowledges that, ultimately, moral criteria are needed to determine whether an event is the consequence of a basic act or its circumstance.(1) Moreover, he explains that the orthodox view of Bentham and Austin (that in addition to a basic action, all crimes involve but two dimensions: circumstance and result)(2) is based on practical, and not metaphysical, concerns.(3) Moore argues that it is compatible with his metaphysical realism to accept that the categories of actions applied by the criminal law-killing, mayhem, assault, theft, fraud, etc.--are conventional: they do not denote natural events or kinds, but rather are concepts that have their origins in the practical interests of beings of our kind.(4)

Moore's appreciation of the role of ethics and practical concerns in this area is commendable. Given the practical ends of the criminal law in a democracy, it is not only expedient but also desirable to avoid using the metaphysics of action as much as possible in the public realm. High metaphysics, including the metaphysics of action, is one area on which citizens in a democracy (including those within the legal community) cannot agree, even under the best of circumstances. Insofar as it is necessary to turn to metaphysics, it should be as a last resort, and then only to the degree necessary to resolve judicial and moral issues. Metaphysics should be seen not as the guide, but as the handmaiden to democratic adjudication and legislation. It should be used to resolve conceptual difficulties in principles and norms which themselves have their bases not in metaphysical considerations, but in the practical necessities and interests of democratic citizens. Moore seems to have a more robust view of the role of metaphysics in a democracy. This accounts for his wonderfully extensive treatment of the metaphysics of action as applied to the criminal law.

The goal of this discussion is to make a stronger case for the criminalization of certain omissions than that presented by Moore. In particular, I shall argue for a version of what is known as the duty to rescue, or sometimes "good samaritan" laws. As Moore indicates, in Anglo-American law, certain specific failures to take action are punishable and are therefore exceptions to the general act requirement.(5) Criminal liability is imposed for the failure to aid within special relationships such as those between parents and their small children, husbands and wives, or employers and their employees.(6) Criminal liability is also imposed for neglect of professional duties, as in the case of physicians or nurses and their patients, lifeguards and the swimmers they are paid to watch, and railroad gatemen and approaching motorists.(7) There are also other exceptions to the general rule.(8) However, there is generally no common law duty (and in the absence of statute, no duty whatsoever) to rescue a stranger in distress, even if one can do so without risk or inconvenience to oneself.(9) This contrasts with the continental rule, which has long held that one is liable for the failure to come to the assistance of others in distress.(10)

Professor Moore, in his discussion of the act requirement in the criminal law, "raises the possibility that perhaps Anglo-American criminal law is mistaken in those rare instances where it genuinely imposes omission liability. Perhaps there ought not to be such crimes, recognizing that presently they do exist."(11) Nonetheless, although he considers this possibility, he does not, in the end, subscribe to it. He seems to conclude that the few exceptions to the act requirement that presently exist are justified on the ground that the moral wrong of omission in these few cases warrants retribution,(12) and that the Anglo-American rule of not punishing strangers for failure to rescue is generally sound.(13)

I aim to reconsider Moore's conclusion. Some cases of failure to rescue those in distress are sufficiently wrong to warrant retribution. Moreover, retribution is compatible with maintaining a liberty worth having.(14) The problem then becomes that of defining a positive legal duty to aid the distressed that is sufficiently specific to escape the usual objections of vagueness, unfairness, etc.(15) Resorting to Kant's typology of duty, the aim here will not be to specify such a statute--that is a job for the drafters--but rather to provide a philosophical justification and framework for statutes, existing or imagined, which impose a legal duty to aid the distressed. The argument throughout is guided by the resources of the democratic social contract tradition, as expounded in the works of the major proponents of that tradition.(16) In terms of this tradition, a legal duty to aid the distressed is, under certain circumstances, compatible with democratic liberty and the good of all individuals.

1. MOORE ON OMISSIONS

   At the end of chapter 3 of Act and Crime, Moore summarizes his defense of the orthodox view of the act requirement, and with it Anglo-American law's current practice with regard to omissions, as follows:

   [1] There is and should be an act requirement, although it is and

   should be subject to an exception in the case of certain omissions.

   [2] Normatively, the retributive value of punishment justifies why

   we should punish actions and that value (sometimes in conjunction

   with the values of fairness and of liberty) also justifies why we

   should punish only actions and not character, emotions, or

   omissions. [3] The only exception to this is for those omissions

   that violate our duties sufficiently that the injustice of not

   punishing such wrongs outweighs the diminution of liberty such

   punishment entails.(17)

   How are we to understand propositions [21 and [3]? At one point in his discussion, Moore refers to Lord Thomas Macaulay's well-known example in which Macaulay attempts to justify why the penal code he proposed for India did not punish omissions:

   "It will hardly be maintained that a surgeon ought to be treated as

   a murderer for refusing to go from Calcutta to Meerut to perform

   an operation, although it should be absolutely certain that this

   surgeon was the only person in India who could perform it, and

   that if it were not performed, the person who required it would

   die."(18) Although Moore agrees with Macaulay, it would be a mistake to conclude that Moore's view is identical to Macaulay's. Macaulay believes that one can be held criminally liable for omissions only where there exists some special relationship (natural, institutional, or contractual) between the parties that is otherwise recognized by the criminal or civil law.(19) In this vein, Macaulay states:

   An omission is illegal ... if it be an offence, if it be a breach of

   some direction of law, or if it be such a wrong as would be a good

   ground for a civil action.

   We cannot defend this rule better than by giving a few

   illustrations of the way in which it will operate. A. omits to give

   Z. food, and by that omission voluntarily causes Z.'s death. Is this

   murder? Under our rule it is murder if A. was Z.'s gaoler [jailer],

   directed by the law to furnish Z. with food. It is murder if Z. was

   the infant child of A., and had therefore a legal right to sustenance,

   which right a Civil Court would enforce against A. It is

   murder if Z. was a bedridden invalid, and A. a nurse hire to feed

   Z. It is murder if A. was detaining Z. in unlawful confinement,

   and had thus contracted ... a legal obligation to furnish Z., during

   the continuance of the confinement, with necessaries. It is not

   murder if Z. is a beggar, who has no other claim on A. than that

   of humanity.(20)

   The reason it would be a mistake to interpret Moore as endorsing Macaulay's view is that the reasons Moore gives for not punishing omissions are not the same as those given by Macaulay. In Moore's view, a wrong committed by omission is punishable only if the wrong is sufficiently bad that morality and retributive justice require punishment, and only if the importance of retribution outweighs the interest in maintaining liberty.(21) Macaulay's condition on punishment for omissions, by contrast, does not refer to liberty and the degree of moral wrongness involved: where there is no legal duty otherwise enforced through civil or criminal liability, there should be no criminal liability for harmful omissions.(22) Hence, according to Macaulay, there is no liability, criminal or civil, for failure to assist mere strangers in distress:

   A. omits to tell Z. that a river is swollen so high that Z. cannot

   safely attempt to ford it, and by this omission voluntarily causes

   Z.'s death. This is murder, if A. is a peon stationed by authority

   to warn travellers from attempting to ford the river. It is murder

   if A. is a guide who had contracted to conduct Z. It is not murder

   if A. is a person on whom Z. has no other claim than that of

   humanity.(23)

   Now, as an answer to the question of whether the law should recognize a duty to warn or otherwise assist those who are, or are about to be, in distress and in need of immediate assistance, Macaulay's "special relationship" argument is quite unconvincing.(24) In effect, it merely asserts what we already know: that Anglo-American law imposes no general duty, civil or criminal, to rescue or give emergency assistance to strangers. The fact that the law recognizes no civil liability or action in damages is not an argument against the criminalization of such omissions. Perhaps there should be civil liability for such omissions as well.

   Moore's position, on the other hand, would seem to leave open the question of the criminalization of omissions...