The Case for a Duty to Report: a Utilitarian and Retributivist Analysis

• Publication year: 2020
• Author: By Kevin Frazier

THE CASE FOR A DUTY TO REPORT: A UTILITARIAN AND RETRIBUTIVIST ANALYSIS

By Kevin Frazier^*

INTRODUCTION

The absence of a legal duty to rescue in California and nearly all other states is "so deeply interwoven into the fabric of Anglo-American law that it cannot be altered without radically transforming that law."¹ However, advocates for a duty to rescue make strong utilitarian and retributivist arguments in favor of more states imposing a statutory obligation to help someone in need.² "[A] utilitarian believes that justification lies in the useful purposes that punishment serves" and "a retributivist claims that punishment is justified because people deserve it."³ The utilitarian argument for enforcing a duty to rescue posits that the duty imposes a low cost—simply responding to a criminal stimulus—to generate a high benefit—the preservation of a life or prevention of serious harm. The retributivist argument asserts that a failure to rescue is a moral wrong that deserves criminal sanction.

This paper concludes that a duty to report, rather than a duty to rescue, better aligns with utilitarian and retributivist values. A duty to rescue would result in less utility than forecasted for two reasons: one, because the probable costs on unwilling bystanders, such as physical and mental injury, are likely higher than advocates admit; and, two, because of the likelihood that willing bystanders will rescue with or without the law's nudge. In a similar way, advocates overestimate the moral culpability of a bystander's inaction because a failure to act to save someone more likely reveals a rational response to an ambiguous situation. A narrowly-tailored duty to report, in contrast, would capture the best of both sides of the argument: it would leave the "fabric of Anglo-American law" intact, while offering better odds of achieving the utilitarian and retributivist aims underlying support for a duty to rescue.⁴

SHORTFALLS OF A DUTY TO RESCUE

This section illustrates, first, that a duty to rescue does not generate enough benefit to satisfy utilitarian objectives and, second, that a failure to adhere to a duty to rescue does not rise to the level of moral culpability required for punishment from a retributivist perspective. On the whole, a duty to rescue would generate more costs than benefits. Mandating a duty to rescue would add an unnecessary crime to our penal code given that Americans already fulfill this duty. Empirical evidence shows that jurisdictions with a statutory duty to rescue attempt to solve a non-existent problem. Americans perform at least 1,000 non-risky rescues and approximately 260 risky rescues a year.⁵ What's more, instances of confirmed rescues outnumber cases of non-rescue by more than 800:1.⁶ Duty to rescue proponents may point to stories such as those of Kitty Genovese to evidence that, regardless of the statistics, the status quo—the majority of Americans being free from a duty to rescue—is not working and cannot be tolerated so long as innocent Americans go unsaved. A traditional, "though flawed," retelling of the Genovese case recounts that "[f]or more than half an hour 38 respectable, law-abiding citizens watched a killer stalk and stab [her] in three separate attacks."⁷ The story has long served as a means to debate "the responsibilities of citizens who witness a crime."⁸ But advocates should focus on a different aspect of this case and others like it in which the public falls short of rescuing someone in need.

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Though the Genovese example (whether accurate or not) illustrates that people occasionally fail in their duty to rescue, it also illustrates that law enforcement is better situated to respond to criminal activity.⁹ If the traditionally accepted facts of the Genovese stories are believed, then 38 people failed to stop a series of attacks.¹⁰ In a duty to rescue jurisdiction, the inaction of all 38 individuals would result in 38 different defendants entering the criminal justice process. It's easy to hypothesize other situations in which perfect enforcement of a duty to rescue would lead to a strange use of law enforcement resources: forcing law enforcement officers to allocate finite resources to "catching" bystanders who may have had good reason to doubt their ability to safely and adequately intervene. That's why a more useful upshot from Genovese case is a focus on how bystanders can expediate aid from law enforcement, especially when the case is analyzed from a modern perspective. If the case were to occur again in this day in age, it would be particularly shocking if 38 individuals all failed to use any of their likely numerous means of contacting law enforcement to notify them of the attacks.

A focus on quickening law enforcement response to criminal activity aligns with utilitarian thinking. Though utilitarian thinkers acknowledge that people and society at large may not always explicitly weigh the costs and benefits of potential acts, such calculations will occur when it comes to "matters of importance."¹¹ Surely rescuing an individual and specifying who or what institution bears that burden qualifies as such a matter. The utilitarian calculation related to these matters is based on "the degrees of his[/her] information, and the power of the motives that actuate him[/her]."¹² A bystander contemplating a rescue likely lacks the information necessary to accurately determine the costs and benefits of action. For instance, a bystander may not know the extent to which the individual in question actually needs assistance and, if they do, whether the bystander can provide it. Furthermore, external circumstances, such as the presence of other bystanders may amplify the uncertainty in a rescue situation. Consequently, even if a bystander has societally-encouraged motives in mind—namely, the preservation of life—the lack of information in a rescue situation renders a bystander's utility calculation indeterminable.

Comparatively, law enforcement officials can complete their utility analysis much more easily and accurately. For one, law enforcement officials have more information about the situation at hand, perhaps from prior experience in similar situations. What's more, law enforcement officials have a motive and mandate to intervene assigned to them by society. The theoretical utility calculation for law enforcement in a rescue situation results in positive outcome. However, a similar calculation for law enforcement pursuit of "violators" of a duty to rescue is less clear for two reasons: first, a lack of information about who observed what and when; and, second, a less strong motive to sanction bystanders. By permitting law enforcement to maximize their resources toward reducing crime rather than holding laypeople to the high and potentially dangerous standards of a duty to rescue, crime may decrease and fewer people will need rescuing in the first place.

Beyond the utilitarian rationale against a duty to rescue, such a duty would violate the retributivist idea that punishment should only correct for moral deserts; a failure to rescue is not a moral desert so much as a normal response to situations in which untrained aid may likely make things worse.¹³ Humans naturally refrain from action in situations in which they have little information and little preparation.¹⁴ It follows that a bystander-turned-rescuer goes far beyond human instinct by attempting to save another. Several institutions have recognized that such displays of selflessness are atypical and, consequently, worthy of admiration and accolades.¹⁵ The combination of an evolutionary bias against action in a rescue situation and societal recognition of rescues as rare and rarified indicates that performing a rescue is beyond community expectations. Therefore, the absence of action is far from criminal but rather understandable and, hence, perceived as unsanctionable. Yet, retributivist thinking...