A person can walk down the street, see an- other person being mugged, and have no respon- sibility to help or seek help on the victim’s behalf. Similarly, a person can be crossing a bridge, see another person drowning in the river, and have no responsibility to throw a life preserver to the victim. In fact, in some states, such as California, Good Samaritans can be sued if they interfere and harm the persons they seek to rescue.
By-Standers Had No Responsibility The absence of a Good Samaritan rule has led to several troubling cases. Consider the case of Kitty Genovese, a New York woman, who was stabbed to death in front of her apartment building as neighbors safely watched from their apartments. Although they could have called for help, none of them did, at least not in a timely man- ner. The attack lasted so long that the defendant stabbed Kitty, left in his car, returned, and stabbed her again and sexually assaulted her as she lay dying. While the attacker certainly had criminal responsibility, the neighbors bore none. American laws did not require them to be Good Samaritans. Similarly, in 1983, a woman was gang raped
in Big Dan’s tavern in New Bedford, Massachu- setts. The 21-year-old mother of two was raped a woman was gang raped in Big Dan’s tavern in New Bedford, Massachusetts. The 21-year-old mother of two was raped by a half-dozen men over the course of twohours, while the bar’s 15 other patrons cheered. None of the spectators were prosecuted, although they could have stopped the terrible assault. Under American law, they had no legal responsibility to interfere. Finally, in 1997, Jeremy Strohmeyer sexually assaulted and murdered a 7-year-old girl in a bath- room of a Las Vegas casino as his friend,
“In some states, Good Samaritans can be sued if they interfere.”
David Cash, peered over the toilet stall. Strohmeyer was convicted of murder; David Cash walked free. Again, the law did not require that he make any attempt to stop his friend or report his conduct.
While these horrendous cases have led some juris-
dictions to change their laws and add limited duties to re- port criminal behavior, the standard rule remains the same. So long as one does not affirmatively harm another, he or she need not prevent the other person’s harm.
What if women had written the laws? Given the
historical role of women as caregivers, it seems unlikely that the criminal law would favor autonomy over the safety of another person. Women have long had the responsibility of caring for others.
In fact, one of the exceptions to the general rule
that a failure to help is not a criminal act, is when one, such as a mother, has a duty to help a child or spouse. This duty reflected societal expectations for women. The rule has been applied even when the women is herself an abused spouse, but nonetheless must protect her children from abuse. Women have long embraced a duty to help others that is not reflected in our general criminal laws. Eleanor Roosevelt once remarked, “So much atten-
tion is paid to the aggressive sins, such as violence and cruelty and greed with all their tragic effects, that too little attention is paid to the passive sins, such as apathy and laziness, which in the long run can have a more devastat- ing effect.” This is a perspective often lacking in the law.
Justification is No Excuse It is also unlikely that our general common volun-
tary manslaughter would be constructed as it is if women had been the primary drafters of the laws. Under common
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