A person can walk down the street, see another person being mugged, and have no responsibility to help or seek help on the victim’s behalf. Similarly, a person can be crossing a bridge, see another person drown- ing in the river, and have no responsibility to throw a life preserver to the victim. In fact, in some states, such as California, Good Samari- tans can be sued if they interfere and harm the persons they seek to rescue.


Bystanders 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 apart- ment 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


“In some states, Good Samari- tans can be sued if they interfere.”


attack lasted so long that the defendant stabbed Kitty, left in his car, returned, and stabbed her again and sexually as- saulted 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, Massachusetts.


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 two hours, while the bar’s 15 other patrons cheered. None of the spectators were pros- ecuted, although they could have stopped the terrible assault. Under American law, they


52


Justification is No Excuse It is also unlikely that our general common


voluntary manslaughter would be constructed as it is if women had been the primary drafters of the laws, a de- fendant who kills “in the heat of passion” is only guilty of manslaughter, not murder. The classic common law voluntary manslaughter would involve a man who dis- covers his wife in an act of adultery.


had no responsibility. Finally, in 1997, Jeremy Strohm- eyer sexually assaulted and murdered a 7-year-old girl in a bathroom of a Las Vegas casino as his friend,


"Horrendous cases led some ju- risdictions to change their laws to report criminal behavior."


David Cash, peered over the toilet stall. Strohm- eyer 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 ju-


risdictions to change their laws and add limited duties to report 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? Giv-


en the historical role of women as caregivers, it seems unlikely that the criminal law would favor au- tonomy 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 at-


tention 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.


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