Duties to Rescue and the Anticooperative Effects of Law
Georgetown Law Journal, Vol. 88, 1999
Posted: 6 Apr 1999
Should the law punish those who fail to help the victims of crimes that they witness, or at least report the crimes to the police? Some have argued that the coercive and normative force of such requirements will motivate some otherwise Bad Samaritans to turn into Good Samaritans. No-one claims this effect would be very strong, but, the argument goes, even a little bit helps.
But these debates have ignored a countervailing force, which this article calls the "anticooperative effect." Many people may at first hesitate to intervene or report (out of fear, panic, mistake, hurry, misguided loyalty, or a desire not to get involved), but later feel remorse. Without duty-to-rescue/report laws, these Remorseful Samaritans may belatedly report the crime, or at least answer questions if the police come to their door. But they might refuse to cooperate if they know that their initial failure to help or report has already made them into criminals; the duty-to-rescue/report law might thus deter some people from reporting. And while this effect may be diminished by revising the laws somewhat (which itself would be a significant outcome of considering this effect), such revisions would also diminish any benefits that the laws might have.
More broadly, this short article hopes to focus attention on anticooperative effects -- of criminal laws as well as of tort doctrines -- which should generally be considered alongside more familiar effects, such as the normative, deterrent, coercive, and incapacitative effects. The legal system often relies on public cooperation, and this cooperation can be much harder to get from people whom the law has marked (even mildly) as outlaws.
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