Should We Legislate a Duty to Rescue?

Some countries have “Good Samaritan” laws in place that penalize individuals who fail to provide assistance to strangers in trouble, and at least one state—Minnesota—has a similar statute. Our legal affairs columnist wonders whether such laws are practical, and enforceable.

A recent viral video shows a group of strangers forming a human chain on a Florida beach to save a family that had been caught in a riptide and pulled away from the shore.

Another video from Florida—taken just one day after the above rescue—sadly provides a stark contrast.

A group of five teenagers saw Jamel Dunn, a 32-year-old disabled man, drowning in a pond and screaming for help. Rather than trying to save him or calling 911, they videotaped his struggles while mocking and laughing at him.

When Dunn went under the water one last time, one youth can be heard saying, “Oh, he just died.” The teens laughed and then just left.

They never reported the incident to the authorities, opting to post their grim video on social media instead. Dunn’s badly decomposed body wasn’t discovered until three days later.

While the general public widely applauded the actions of the bystanders who saved the family off the Panama City Beach, condemnation of the teenagers was just as widespread.

The condemnation included calls for their arrests. But did the teens commit a crime?

Because there’s no general duty to rescue someone enshrined in Florida’s statutes, there isn’t any crime—or at least any felony—with which to charge the teens. (The police did eventually charge them with the misdemeanor of failing to report a death, and prosecutors are investigating whether any other criminal statutes might apply.)

Robin Barton

How is it possible that there’s no legal obligation to try to help someone in danger, such as a woman being mugged or a man trapped in a building on fire?

Florida isn’t alone in lacking a law imposing a legal duty to rescue. In fact, across the U.S., there’s no general duty to render aid to someone in distress.

As Supreme Court Justice Anthony Kennedy explained during oral arguments on a 2012 case involving the Affordable Care Act, “[Y]ou don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.”

A few countries, however, do impose a legal duty to rescue.

For example, in France, anyone who willfully fails to offer assistance to a person in danger—assistance which he could provide without risk to himself or to third parties, or by initiating rescue operations—violates “the duty to assist” and may face both civil and criminal liability.

The French duty-to-assist law was arguably triggered at the scene of the Aug. 31, 1997 car accident in which Diana, Princess of Wales, Dodi al-Fayed, and a bodyguard were killed. Some photographers who had been following the couple tried to open the car doors and help the victims, while others took pictures.

The latter were investigated for violating this duty, but no charges were ultimately filed against them.

However, the countries and handful of states that do impose a duty to rescue usually limit it to designated situations, such as at the scene of an accident or during the commission of a sexual assault or other serious crime.

In addition, the duty is typically limited to circumstances in which you can provide help without endangering yourself or others.

For example, in Minnesota, “a person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person.”

Note that although we use the phrase “duty to rescue,” you generally aren’t required to physically try to save an individual yourself by, say, running into a burning building to rescue someone. You can fulfill this duty simply by calling for appropriate assistance, such as activating a fire alarm.

For instance, the Minnesota statute specifies that “reasonable assistance” includes obtaining or attempting to obtain help from law enforcement or medical personnel.

There are some additional circumstances in which a duty to rescue may exist.

As Justice Kennedy alluded, there might be such a duty because of the relationship between the parties, such as parent-child or teacher-student. For example, all states have “mandatory reporting” laws that require certain individuals such as teachers and doctors to report suspected child abuse or domestic violence to the authorities.

Also, if you’re the one who puts another person in danger, you may then be obligated to assist that person. So, if the teens had pushed Dunn into the pond, then they would have a duty to try to save him.

Dunn’s needless death has resulted in calls for a law imposing a general duty to rescue in Florida. But even if such a law had been in effect at the time of the tragedy and the teens were charged under it, it’s unlikely that Dunn’s survivors would feel that justice had been served.

Violating the duty to rescue is usually only a minor offense, subject to fines or perhaps a year in jail. For example, violating Minnesota’s duty to rescue statute is a petty misdemeanor.

How do we explain the apparent disconnect between society’s perceived moral duty to help someone in trouble and the lack of a broad legal duty to do so coupled with serious sanctions for violations of this duty?

The failure to provide assistance feels especially heightened now because people’s first inclination when someone is in trouble seems to be to whip out their cell phones and document what’s happening rather than intervene. It’s as if they forget that what’s happening isn’t on a “reality” TV show, but is actually occurring in real life and that a real person is in real danger.

This misperception of reality is even more pronounced when an individual witnesses a crime via live streaming video online.

For example, earlier this year, the gang rape of a 15-year-old girl in Chicago was streamed on Facebook Live. Although investigators concluded that about 40 people watched this criminal act in real time, none of the viewers called the authorities.

Of course, you can’t completely blame modern technology for any general disinclination not to intervene in an emergency or crime.

The classic example of bystanders failing to act is the infamous Kitty Genovese case from 1964.

As the 28-year-old bar manager was headed home from work, she was attacked twice by Winston Moseley, who stabbed her at least 14 times and raped her. Although it was initially reported that 38 people had heard or witnessed these attacks but didn’t call the police, in fact, that figure was exaggerated.

Yes, some people ignored Genovese’s calls for help. However, two people did call the police.

I think it’s useful to consider why people don’t make an attempt to help someone in need.

In some situations, bystanders may not realize what’s going on or recognize that someone is in trouble. After all, it might be easy to think that a swimmer who’s drowning is merely goofing around in the water.

For example, in the Genovese incident, some witnesses reportedly didn’t realize what was actually happening, thinking the cries from the street were from drunks or due to a lovers’ quarrel.

In addition, people may be afraid that they themselves will get hurt—or worse—if they try to intervene. Thus, we might forgive a person who’s a poor swimmer for not trying to save a drowning man.

But, as noted above, if the duty to rescue only requires you to call for help, there’s really no excuse for shirking this duty because, in most instances, you’re not placing yourself in any danger by making a phone call. So we’d expect the poor swimmer to at least flag down a lifeguard or call for assistance.

(Of course, after the recent incident in which Justine Damond was fatally shot by a Minneapolis police officer after calling 911 to report a possible sexual assault near her home, some would-be good Samaritans may be afraid to take even that simple step to aid someone in trouble.)

In our litigious society, would-be rescuers may also be afraid of getting sued by the person they’re trying to help should things go wrong, such as if the individual is injured in the rescue attempt.

However, Good Samaritan laws protect those who do help, so fear of possible civil liability is no excuse. It’s no coincidence that the duty-to-rescue provisions are usually included in the same section of the relevant statute as the Good Samaritan provisions.

For example, in Minnesota, the same statute that imposes the duty to rescue also protects Good Samaritans who provide such assistance with immunity from civil liability for doing so unless they acted “in a willful and wanton or reckless manner in providing the care, advice, or assistance.”

Yet even with these concerns addressed, people are still reluctant to do the right thing.

It seems harder to require individuals to take certain actions than it is to prohibit them from doing certain things. And when the law does require people to act, it sets the bar very low—hence, the fact that simply calling 911 is enough to satisfy one’s duty to rescue.

In short, just because there’s a moral or ethical duty to rescue doesn’t mean there’s a legal duty to do so. So to the extent that the laws should mirror our morality, this discrepancy is inexplicable.

Ideally, we shouldn’t need to have laws in place to compel people to help those in need; they should choose to act because it’s the right thing to do.

As Victor Hugo said, “Initiative is doing the right thing without being told.”

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.

from https://thecrimereport.org