Protectors of Predators or Prey: Bystanders and Upstanders Amid Sexual Violence

64 Pages Posted: 3 Apr 2018  

Zachary D. Kaufman

Yale University - Law School; Harvard University - Harvard Kennedy School (HKS); Stanford Law School

Date Written: April 1, 2018

Abstract

In the wake of widespread revelations about sexual misconduct by President Donald Trump, Harvey Weinstein, Larry Nassar, and many others, the country is reckoning with the past and searching for the means to prevent and punish such crimes in the future. In many of these cases, third parties knew about the abuse and did not try to intervene. Scrutiny of such bystanderism is increasing, including in the legal world. But the scourge of sexual violence—and the failure of those aware of it to intervene—goes far beyond instances perpetrated by powerful men; sexual crimes are rampant throughout the United States.

This Article proposes a more comprehensive, aggressive approach to addressing third parties who are aware of specific instances of sexual violence in order to align law and society more closely with morality. The Article begins by providing an overview and assessment of Bad Samaritan laws: statutes that impose a duty to assist others in peril and include direct intervention, reporting the emergency to law enforcement, or both. Such laws exist in some U.S. states and many foreign countries.

Drawing on historical research, trial transcripts, and interviews, the Article then describes four of the most prominent cases in the United States to date involving witnesses to sexual violence. Each case provides insight into the range of conduct of both bystanders and upstanders.

Because not all such witnesses are equal, grouping them together under the single, general category of “bystanders” obscures distinct roles, duties, and culpability for violating those duties. This Article thus presents an original typology of bystanders and upstanders that introduces greater nuance into these categories and this Article’s proposed range of legal responsibilities.

Finally, the Article prescribes a new approach to the duty to report on sexual violence and possibly other crimes and crises. Legal prescriptions concern strengthening, spreading, and standardizing duty-to-report laws at the state level and introducing them at the federal level. Social prescriptions include raising public awareness of duty-to-report laws and creating what the Article calls “upstander prizes” and “upstander commissions” to identify, honor, and reward upstanders, including for their efforts to mitigate sexual crimes. This combination of carrots and sticks may help reduce the sexual violence epidemic.

Keywords: sexual violence, rape, sexual misconduct, sexual abuse, Bad Samaritan laws, duty to report, duty to rescue, bystanders, upstanders, punishment, prevention, deterrence, incentives, self-incrimination, Donald Trump, Harvey Weinstein, Larry Nassar, Holocaust, Syria, Rwanda, Genovese, Araujo, Iverson

Suggested Citation

Kaufman, Zachary D., Protectors of Predators or Prey: Bystanders and Upstanders Amid Sexual Violence (April 1, 2018). Southern California Law Review, 2019 Forthcoming. Available at SSRN: https://ssrn.com/abstract=3153253

Zachary D. Kaufman (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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