In Defense of the 'Duty to Report' Crimes
86 UMKC Law Review 361 (2017)
42 Pages Posted: 5 Aug 2019
Date Written: 2017
With the intensifying division of labor and interdependency of social activities, legislatures have strengthened regulatory duties of the private sector to report crimes. The laws increasingly require a wider range of the private sector to act in a more proactive manner to detect and deter crime while penalizing its failure to report crimes. However, focus on instrumental incentive for crime deterrence has led to a neglect of traditional culpability-based limits in criminal punishment eroding the value of fairness and proportionality. Not only a third party who witnessed the crime, but an offender who could be vicariously liable for the crime, and even a victim harmed by the crime could be criminalized for his/her omission (i.e. failure to report crime).
In legal academia, normative theory for the duties to report crimes has not kept pace with the laws. This paper provides a theoretical framework to enhance understanding and justifiability of the duties to report crimes. By developing culpability factors, I categorize the duties by the position of the reporter vis-a-vis the crime reported significantly varying the culpability of non-reporting. I suggest substantive principles and corresponding modifications of each category of the laws that are imperative if these laws are to be morally justified. Enactment of such laws properly expressing our moral code would eventually encourage compliance and decrease enforcement cost.
Keywords: Duty to Report Crimes, Good Samaritan, Criminalization of Non-compliance, Overciminalization, Mala in se, Mala Prohibita, Moral Culpability, Law Enforcement, Efficiency, Offender, Third party, Victim
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