Article | Criminal Law
Protectors of Predators or Prey: Bystanders and Upstanders amid Sexual Crimes
by Zachary D. Kaufman*
From Vol. 92, No. 6 (September 2019)
92 S. Cal. L. Rev. 1317 (2019)
Keywords: Bad Samaritan Laws, Bystanders, Sexual Violence Prevention
In the wake of widespread revelations about sexual abuse by Harvey Weinstein, Larry Nassar, and others, the United States is reckoning with the past and present and searching for the means to prevent and punish such offenses in the future. The scourge of sexual crimes goes far beyond instances perpetrated by powerful men; this misconduct is rampant throughout the country. In some of these cases, third parties knew about the abuse and did not try to intervene. Scrutiny of—and the response to—such bystanderism is increasing, including in the legal world.
In order to align law and society more closely with morality, this Article proposes a more holistic, aggressive approach to prompt involvement by third parties who are aware of specific instances of sexual crimes in the United States. This Article begins by documenting the contemporary scope of sexual crimes in the United States and the crucial role bystanders play in facilitating them.
The Article next provides an overview and assessment of “Bad Samaritan laws”: statutes that impose a legal duty to assist others in peril through intervening directly (also known as the “duty to rescue”) or notifying authorities (also known as the “duty to report”). Such laws exist in dozens of foreign countries and, to varying degrees, in twenty-nine U.S. states, Puerto Rico, U.S. federal law, and international law. The author has assembled the most comprehensive global database of Bad Samaritan laws, which provides an important corrective to other scholars’ mistaken claims about the rarity of such statutes, particularly in the United States. Despite how widespread these laws are in the United States, violations are seldom, if ever, charged or successfully prosecuted.
Drawing on historical research, trial transcripts, and interviews with prosecutors, judges, investigators, and “upstanders” (people who intervene to help others in need), the Article then describes four prominent cases in the United States involving witnesses to sexual crimes. Each case provides insight into the range of conduct of both bystanders and upstanders.
Because not all such actors are equal, grouping them together under the general categories of “bystanders” and “upstanders” obscures distinct roles, duties, and culpability for violating those duties. Drawing on the case studies, this Article thus presents original typologies of bystanders (including eleven categories or sub-categories), upstanders (including seven categories), and both kinds of actors (including four categories), which introduce greater nuance into these classifications and this Article’s proposed range of legal (and moral) responsibilities. These typologies are designed to maximize generalizability to crimes and crises beyond sexual abuse.
Finally, the Article prescribes a new approach to the duty to report on sexual abuse and possibly other crimes and crises through implementing a combination of negative incentives (“sticks”) and positive incentives (“carrots”) for third parties. These recommendations benefit from interviews with sexual violence prevention professionals, police, legislators, and social media policy counsel. Legal prescriptions draw on this Article’s typologies and concern strengthening, spreading, and standardizing duty-to-report laws at the state and territory levels; introducing the first general legal duty to report sexual crimes and possibly other offenses (such as human trafficking) at the federal level; exempting from liability one of the two main bystander categories the Article proposes (“excused bystanders”) and each of its six sub-categories (survivors, “confidants,” “unaware bystanders,” children, “endangered bystanders,” and “self-incriminators”); actually charging the other main bystander category the Article proposes (“unexcused bystanders”) and each of its three sub-categories (“abstainers,” “engagers,” and “enablers”) with violations of duty-to-report laws or leveraging these statutes to obtain testimony from such actors; and more consistently charging “enablers” with alternative or additional crimes, such as accomplice liability. Social prescriptions draw on models and lessons from domestic and foreign contexts and also this Article’s typologies to recommend, among other initiatives, raising public awareness of duty-to-report laws and creating what the Article calls “upstander commissions” to identify and “upstander prizes” to honor a category of upstanders the Article proposes (“corroborated upstanders”), including for their efforts to mitigate sexual crimes. A combination of these carrots and sticks could prompt would-be bystanders to act instead as upstanders and help stem the sexual crime epidemic.
*. Associate Professor of Law and Political Science, University of Houston Law Center, with additional appointments in the University of Houston’s Department of Political Science and Hobby School of Public Affairs. J.D., Yale Law School; D.Phil. (Ph.D.) and M.Phil., both in International Relations, Oxford University (Marshall Scholar); B.A. in Political Science, Yale University. Research for this Article, including fieldwork, was generously facilitated by a grant from Harvard University as well as institutional support from Stanford Law School (where the author was a Lecturer from 2017 to 2019) and the Harvard University Kennedy School of Government (where the author was a Senior Fellow from 2016 to 2019).
The author primarily thanks the following individuals for helpful comments and conversations: Will Baude; Frank Rudy Cooper; John Donohue; Doron Dorfman; George Fisher; Richard Ford; Jeannie Suk Gersen; Hank Greely; Chris Griffin; Oona Hathaway; Elizabeth D. Katz; Amalia Kessler; Tracey Meares; Michelle Mello; Dinsha Mistree; Mahmood Monshipouri; Joan Petersilia; Camille Gear Rich; Mathias Risse; Peter Schuck; Kathryn Sikkink; David Sklansky; Kate Stith; Mark Storslee; Allen Weiner; Robert Weisberg; Lesley Wexler; Alex Whiting; Rebecca Wolitz; Gideon Yaffe; audiences at Yale Law School, Stanford Law School, Harvard University Kennedy School of Government, Stanford University Center for International Security & Cooperation, University of Virginia School of Law, University of Southern California Gould School of Law, Louisiana State University Paul M. Hebert Law Center, Penn State Law, University of Hawai’i Richardson School of Law, West Virginia University College of Law, University of Sydney Law School, University of Western Australia Law School, South Texas College of Law, University of Houston Department of Political Science and Hobby School of Public Affairs, and Colorado College; audiences at the 2018 conferences of the Harvard Law School Institute for Global Law & Policy, Law & Society Association, American Political Science Association, International Studies Association, and Policy History Association; and audiences at the 2019 conferences of the Law & Society Association, International Studies Association, CrimFest (at Brooklyn Law School), and the Southeastern Association of Law Schools. The author is especially indebted to his students in the reading group at Stanford Law School on “The Law of Bystanders and Upstanders” he led in spring 2019: Jamie Fine, Katherine Giordano, Bonnie Henry, Jeremy Hutton, Allison Ivey, Andrew Jones, Azucena Marquez, Camden McRae, Sergio Sanchez Lopez, and Spencer Michael Schmider. The author also thanks the following individuals for their valuable feedback: Fahim Ahmed, Matthew Axtell, Maria Banda, Adrienne Bernhard, Isra Bhatty, Charles Bosvieux-Onyekwelu, Sara Brown, Ben Daus-Haberle, Brendon Graeber, Melisa Handl, Janhavi Hardas, Elliot Higgins, Hilary Hurd, Howard Kaufman, Linda Kinstler, Chris Klimmek, Tisana Kunjara, Gabrielle Amber McKenzie, Noemí Pérez Vásquez, Tanusri Prasanna, and Noam Schimmel.
The author is grateful to the following individuals for granting interviews for this Article: an anonymous attorney involved in the Steubenville case; an anonymous employee of the Massachusetts Attorney General’s office; an anonymous employee of the Massachusetts Sentencing Commission; Jake Wark of the Suffolk County District Attorney’s office in Massachusetts; Manal Abazeed, Jehad Mahameed, Mounir Mustafa, and Raed Saleh of the White Helmets/Syria Civil Defense; Naphtal Ahishakiye of IBUKA in Rwanda; Holocaust survivors Isaac and Rosa Blum; Gili Diamant and Irena Steinfeldt of Yad Vashem in Israel; Alexandria Goddard; Martin Niwenshuti of Aegis Trust in Rwanda; Lindsay Nykoluk of the Calgary Police Service in Canada; Ruchika Budhraja, Gavin Corn, Neil Potts, and Marcy Scott Lynn of Facebook; Jessica Mason of Google; and Regina Yau of the Pixel Project.
For thorough, thoughtful research assistance, the author thanks Chelsea Carlton, Michelle Katherine Erickson, Jana Everett, Thomas Ewing, Matthew Hines, Ivana Mariles Toledo, and Allison Wettstein O’Neill. The author also thanks the following individuals for research assistance on particular topics: Kathleen Fallon, Alexandria Goddard, Josh Goldman, Farouq Habib, Naomi Kikoler, Mariam Klait, Shari Lowin, Riana Pfefferkorn, Kenan Rahmani, Yong Suh, Paul Williams, Regina Yau, and library staff at Harvard Law School (including Aslihan Bulut and Stephen Wiles), Stanford Law School (including Sonia Moss and Alex Zhang), and the University of Houston Law Center (including Katy Badeaux, Christopher Dykes, and Amanda Watson). Of these individuals, the author owes the most gratitude to Katy Badeaux.
Finally, the author thanks the editors of the Southern California Law Review (“SCLR”)—particularly Editor-in-Chief Kevin Ganley, Managing Editor Christine Cheung, Executive Senior Editor Rosie Frihart, Executive Editor Celia Lown, and Senior Editor Evan Forbes—for their excellent editorial assistance. The author was honored that SCLR selected this Article as the subject of its annual symposium held at the University of Southern California’s Gould School of Law on March 21, 2019.
The author’s public engagement on this topic has drawn on the research and recommendations contained in this Article. Those activities include advising policymakers on drafting or amending Bad Samaritan laws and other legislation (including the federal Harassment and Abuse Response and Prevention at State (HARPS) Act sponsored by Congressperson Jackie Speier) and publishing op-eds in the Boston Globe (When Speaking Up is a Civic Duty, on August 5, 2018) and the San Francisco Chronicle (No Cover for Abusers; California Must Close Gap in its Duty-to-Report Law, on June 23, 2019).
This Article is current as of September 27, 2019. Any errors are the author’s alone.