Guilt by (More Than) Association: The Case for Spectator Liability in Gang Rapes

Abstract

This Note argues for a new form of criminal liability, called “spectator” liability, for spectators in gang rapes. I argue that individuals who knowingly and intentionally watch a gang rape, but do not physically participate in the rape, should be held criminally liable as spectators (but not as rapists). Forty-eight states have criminalized knowing and intentional presence as a spectator at a dog fight, and three states and numerous municipalities have criminalized spectatorship at drag races. The justification for spectator liability in both instances is that the spectators play a motivating role in the crime. Spectators at gang rapes play the same motivating role; for that reason, criminal liability is similarly justified. Furthermore, this Note addresses potential criticisms of spectator laws - in particular, that they criminalize “mere presence” at the scene of the crime by not requiring a culpable mindset or not providing notice of the conduct proscribed. Where these laws require an element of knowledge or intent, however, they are safe from constitutional scrutiny. This Note also argues that spectator gang rape laws are justified on other grounds - because they express societal disapproval of the behavior, because they are likely to deter the behavior, and because such laws are fundamentally just. Finally, this Note applies the principles of spectator liability to a famous gang rape case to show how such a law would be implemented.

Keywords: rape, gang rape, spectators, spectator liability