Reward ‘upstanders’ for intervening in crimes
The crucial — maybe even essential — role of an onlooker’s viral video in convicting George Floyd’s killer compels us to revisit an age-old question: In a time of crisis, what, if any, duties should we owe each other? Darnella Frazier is rightly receiving recognition as a “hero” for bearing witness to Derek Chauvin’s heinous offense. Other recent spectators to violent crimes have not been so helpful. Our laws should impose a duty to intervene in such serious misconduct when it would be safe and reasonable for a civilian witness to do so.
First, though, we should correct our terminology. Commentators have been referring to Frazier as a “bystander” and to her footage as “bystander video.” That language obscures important distinctions among witness conduct and minimizes Frazier’s personal contribution to accountability. A “bystander” is a passive spectator. If a witness actively intervenes, including by recording an incident in order to document and raise public awareness of it, then they are no longer a mere “bystander.” Rather, they have become an “upstander.” When Brandon Elliot attacked Vilma Kari, a 65-year-old Asian American woman, in New York City on March 29, two unnamed doormen declined to intercede at all, even by calling 911 or recording a video, and then one of them shut the door on Kari. Those witnesses are properly referred to as “bystanders” — and especially cowardly, callous ones. Quite the contrary, the courageous, consequential Frazier should be characterized as an “upstander” and her film as “upstander video.”
We should celebrate upstanders through ceremonial, financial or other rewards, as some are already doing for Frazier via a GoFundMe campaign. Honoring upstanders expresses a community’s gratitude for their good deeds. This recognition could also inspire and induce potential bystanders to act instead as upstanders. While awarding upstanders incentivizes undeserving individuals to misrepresent their conduct, such prizes could be conditioned on corroboration.
Although some spectators may be motivated to help by carrots, others may be more responsive to sticks. Certain witnesses should be held criminally accountable for failing to report specified violent offenses of which they are aware, as I argue in a new law review article. This culpability flows from “Bad Samaritan laws”: statutes that impose a legal duty to assist others in peril through intervening directly (also known as “the duty to rescue”) or notifying authorities (also known as “the duty to report”). These laws are far more prevalent than most people — including even many law enforcement officials — realize, as I documented in a recent law review article. In fact, these statutes already exist to varying degrees in 29 U.S. states, Puerto Rico, U.S. federal law, dozens of
foreign countries and multiple subfields of international law. For example, Minnesota, where Chauvin committed his lethal abuse of force, requires the following: “A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel.” Ironically, though, it was law enforcement itself in Minnesota that created Floyd’s emergency.
Texas has three Bad Samaritan laws, one of which is a duty to report felonies in which a reasonable person would believe that serious bodily injury or death may have resulted; another is a duty to rescue or report in the context of aggravated sexual assault of a child; and the third is a duty to report child abuse or neglect.
Bad Samaritan laws are highly controversial for
legal and logistical reasons. Critics claim that these statutes punish character rather than conduct, impinge unacceptably on individual liberty, may exacerbate crises, could cause self-incrimination and are difficult to enforce. Proponents counter that these laws express moral revulsion about bystanderism, can prompt helpful intervention (especially where witnesses have undergone “bystander intervention training”) and can be written to address counterarguments, such as by explicitly exempting anyone who would otherwise incriminate themselves in a crime.
As the benefits of Bad Samaritan laws outweigh any drawbacks, every U.S. state and territory should feature such a statute. Specifically, all of these jurisdictions should, if they don’t already, require reporting murder, kidnapping, sexual and aggravated assault and child and elder abuse. These statutes should include reasoned exemptions, such as for interventions that involve police brutality or, as in Minnesota, would physically imperil the witness or someone else. Spectators
would be understandably reticent to intercede in an inherently dangerous situation or notify the very entity whose misconduct they observe, for fear of retribution and doubt that reporting would be effective.
Even though — and especially because — a Bad Samaritan law didn’t (and shouldn’t) require Frazier to have documented Chauvin killing Floyd, her brave, impactful upstanderism should be celebrated and emulated. For other situations in which certain witnesses observe and could safely report serious violent crimes, society should prod these onlookers to help by praising them when they do and punishing them when they don’t. Positive and negative incentives should both be used to motivate these spectators to alert authorities, thereby promoting justice, mitigating injuries and saving lives.