Bystander Legislation: He Ain't Heavy, He's My Brother
29 Kan. J.L. & Pub. Pol’y 291
38 Pages Posted: 3 Sep 2020
Date Written: 2020
In this article we address the bystander with a particular focus on legislating-criminalizing the bystander. In doing so we focus on bystander responsibility from the perspective of the individual in peril. Why and how the individual is in that condition is irrelevant to the recommendation that a duty to act be imposed on the bystander. The circumstances that directly, or indirectly, led to the distress are insignificant to the legal obligation to intervene on behalf of the person in immediate physical peril.
The bystander is the person who observes another individual in distress, knows of that person’s travail, and has the capability to act on their behalf. The bystander is present at the moment of another person’s acute need. The question is whether the bystander will act on behalf of that person or not act by choosing to walk away. Re-stated, will the bystander provide assistance or deliberately and knowingly ignore, thereby committing a crime of omission?
We define assistance narrowly: just dial “911,” thereby alerting the authorities as to the dire circumstances of another individual. Adoption of legislation would punish the bystander for failing to provide the victim with concrete assistance. Commensurate with a significant educational undertaking, it would also serve as a deterrent to the broader public: failure to provide assistance to the person in peril will result in criminal prosecution.
Keywords: Bystander, Duty to Act Legislation, Person in Peril, Crime of Omission, To Whom is Duty Owed, Capability to Act, Knowledge of Harm, Deterrence in the Criminal Law
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