A student’s comment on last week’s post about Joe Paterno:
I came across an article that may be of interest to the student who inquired about Joe Paterno being used as a scapegoat: http://www.cnn.com/2011/11/15/us/penn-state-citadel/index.html Although this isn’t the main focus of the article, it does suggest that Paterno’s actions or lack thereof, are a classic example of the bystander effect, when “people may assume someone else is taking action, or that those above them are handling the situation” (Kirk Hanson, executive director of the Markkula Center for Applied Ethics and a social ethics professor at Santa Clara University in California). CNN senior legal analyst Jeffrey Toobin also points out that “Criminal law imposes very few affirmative obligations on people . . . criminal law is mostly about ‘don’t do this, don’t do that. Don’t kill somebody, don’t do drugs, don’t engage in fraud.” Technically Paterno did not break any law, and according to our textbook, “you have no duty duty to assist someone in peril unless you created the danger” under the bystander’s obligations rule (Business Law 74). Being that Paterno was not directly involved with the heinous crimes committed, perhaps he will remain safe under this general rule.
Though I do not subscribe to these views (for I cannot imagine neglecting to report such blatant crimes to the proper authorities), they raise an interesting point: is Paterno guilty in the eyes of the law? Or only in the moral sense? It goes back to the first day of lecture when you asked the distinction between law and ethics, which Toobin addresses in a similar fashion: “the difference between the legal and the moral (obligations), while important, obscures the fact that every individual who sees the abuse, who sees an evil like this, should feel morally obliged to act in order to protect the victim and future victims.”
Again, I propose this as merely food-for-thought, devil’s advocate kinda stuff, and am by no means defending Paterno’s shameful silence.
But if you do attend law school you can learn why it is perfectly lawful to watch idly while someone struggles not to drown: “People Offer No Help as Man Struggles in Water.” Fortunately passerby Paul Pinto, possessing the empathy gene lacking from others who were ready to let Dale McNulty drown because they thought he was a “jerk,” jumped into the surf and helped McNulty to safety.
Having discussed the bystander rule in the first week of Introduction to Law and with tort law coming up this week, this chart “of state statutes that impose a duty to rescue crime victims, or report crimes” from The Volokh Conspiracy is timely. The chart covers only ten statutes that apply to the general public, not special duties imposed by legislation on “doctors, teachers, and the like.” All of the statutes listed save Ohio’s exempt a bystander if rescuing or reporting would imperil the bystander. Thus in Vermont “a person who knows that another is exposed to grave physical harm shall . . . give reasonable assistance to the exposed person unless that assistance or care is being provided by others . . . to the extent that the [assistance] can be rendered without danger or peril to himself or without interference with important duties owed to others.” Remember the final episode of Seinfeld where Jerry, Elaine, George, and Kramer watch, video, and laugh about a nearby assault, and then are arrested and convicted for not coming to the victim’s aid? I was not aware there is a Massachusetts statute that might actually apply: “Whoever knows that another person is a victim of aggravated rape, rape, murder, manslaughter or armed robbery [or hazing] and is at the scene of said crime shall report said crime to an appropriate law enforcement official as soon as reasonably practicable to the extent that said person can do so without danger or peril to himself or others.” A violator faces a fine of up to $2,500 or, in a case of hazing, up to $1,000. Some statutes impose the duty only in situations involving crimes against children, others apply more generally to situations involving “bodily harm” or “grave physical harm.”