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

73 Pages Posted: 3 Apr 2018 Last revised: 4 Sep 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 abuse by Harvey Weinstein, Larry Nassar, and others, the United States is reckoning with the past 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 such bystanderism is increasing, including in the legal world.
This Article proposes a more holistic, aggressive approach to addressing third parties who are aware of specific instances of sexual crimes in the United States 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 legal duty to assist others in peril through direct intervention (also known as the “duty to rescue”), notifying authorities (also known as the “duty to report”), or both. Such laws exist in dozens of foreign countries and, to varying degrees, in twenty-nine U.S. states, Puerto Rico, and U.S. federal law. As part of this research, the author has assembled the most comprehensive global database of Bad Samaritan laws.


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) that introduce greater nuance into these classifications and this Article’s proposed range of legal (and moral) responsibilities. This Article features figures illustrating these typologies and their application to the case studies. 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 positive incentives (“carrots”) and negative incentives (“sticks”) on 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 prizes” and “upstander commissions” to identify, honor, and reward 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.

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 Crimes (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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