Imposing duties on witnesses to child sexual abuse: A futile response to bystander indifference

Fordham Law Review

Volumn 67, Issue 6, 1999, Pages 3169-3203

  Givelber, Jessica R ^a  

^a NONE

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EID: 0033449461     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (288)

1. Buch v. Amory Mfg. Co., 44 A. 809, 810-11 (N.H. 1898) (citation omitted); see also id. at 810 ("In dealing with cases which involve injuries to children, courts have sometimes strangely confounded legal obligation with sentiments that are independent of law." (citation omitted)). Scholars who write about the "no duty to rescue" rule frequently cite Buch for the proposition that "[w]ith purely moral obligations the law does not deal." Id.; see, e.g., David C. Biggs, "The Good Samaritan is Packing": An Overview of the Broadened Duty to Aid Your Fellowman, with the Modern Desire to Possess Concealed Weapons, 22 U. Dayton L. Rev. 225, 228 n.10 (1997) ("[T]he priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved." (quoting Buch, 44 A. at 810)); Steven J. Heyman, Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673, 679 n.21 (1994) (citing Buch for the proposition that the law cannot appropriately enforce moral obligations); Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247, 247 (1980) (citing Buch in explaining why courts refuse to impose a general duty to rescue).
2. Buch v. Amory Mfg. Co., 44 A. 809, 810-11 (N.H. 1898) (citation omitted); see also id. at 810 ("In dealing with cases which involve injuries to children, courts have sometimes strangely confounded legal obligation with sentiments that are independent of law." (citation omitted)). Scholars who write about the "no duty to rescue" rule frequently cite Buch for the proposition that "[w]ith purely moral obligations the law does not deal." Id.; see, e.g., David C. Biggs, "The Good Samaritan is Packing": An Overview of the Broadened Duty to Aid Your Fellowman, with the Modern Desire to Possess Concealed Weapons, 22 U. Dayton L. Rev. 225, 228 n.10 (1997) ("[T]he priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved." (quoting Buch, 44 A. at 810)); Steven J. Heyman, Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673, 679 n.21 (1994) (citing Buch for the proposition that the law cannot appropriately enforce moral obligations); Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247, 247 (1980) (citing Buch in explaining why courts refuse to impose a general duty to rescue).
3. Buch v. Amory Mfg. Co., 44 A. 809, 810-11 (N.H. 1898) (citation omitted); see also id. at 810 ("In dealing with cases which involve injuries to children, courts have sometimes strangely confounded legal obligation with sentiments that are independent of law." (citation omitted)). Scholars who write about the "no duty to rescue" rule frequently cite Buch for the proposition that "[w]ith purely moral obligations the law does not deal." Id.; see, e.g., David C. Biggs, "The Good Samaritan is Packing": An Overview of the Broadened Duty to Aid Your Fellowman, with the Modern Desire to Possess Concealed Weapons, 22 U. Dayton L. Rev. 225, 228 n.10 (1997) ("[T]he priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved." (quoting Buch, 44 A. at 810)); Steven J. Heyman, Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673, 679 n.21 (1994) (citing Buch for the proposition that the law cannot appropriately enforce moral obligations); Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247, 247 (1980) (citing Buch in explaining why courts refuse to impose a general duty to rescue).
4. Buch v. Amory Mfg. Co., 44 A. 809, 810-11 (N.H. 1898) (citation omitted); see also id. at 810 ("In dealing with cases which involve injuries to children, courts have sometimes strangely confounded legal obligation with sentiments that are independent of law." (citation omitted)). Scholars who write about the "no duty to rescue" rule frequently cite Buch for the proposition that "[w]ith purely moral obligations the law does not deal." Id.; see, e.g., David C. Biggs, "The Good Samaritan is Packing": An Overview of the Broadened Duty to Aid Your Fellowman, with the Modern Desire to Possess Concealed Weapons, 22 U. Dayton L. Rev. 225, 228 n.10 (1997) ("[T]he priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved." (quoting Buch, 44 A. at 810)); Steven J. Heyman, Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673, 679 n.21 (1994) (citing Buch for the proposition that the law cannot appropriately enforce moral obligations); Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247, 247 (1980) (citing Buch in explaining why courts refuse to impose a general duty to rescue).
5. 60 Minutes: The Bad Samaritan? David Cash Faces Hostility From Public for Not Taking Action to Prevent the Rape and Murder of Sherrice Iverson by His Friend Jeremy Strohmeyer (CBS television broadcast, Sept. 27, 1998) [hereinafter 60 Minutes] (quoting David Cash, Jr.'s response to questions about the brutal attack of a sevenyear-old child whom he chose not to "rescue").
6. See, e.g., Biggs, supra note 1, at 232 (suggesting that terrible human events that result in the death of "vulnerable victim[s]" often inspire legislation); Talk of the Nation (National Public Radio broadcast, Oct. 1, 1998) (interview with law professor Peter Aranella) (discussing the sexual assault and murder of Sherrice Iverson). For a discussion of state legislation responding to popular moral outrage, see infra Part III.
7. See John M. Glionna, Strohmeyer Partly Blames Others, Courts: Girl's Killer Admits 'Monstrous' Deed, But Says Casinos, Internet, Cash Share Responsibility, L.A. Times, Oct. 15, 1998, at A1. Sherrice's father, Leroy Iverson, took his daughter and her older half-brother to the casino that evening. See id. Mr. Iverson, however, was apparently gambling elsewhere in the casino when Strohmeyer assaulted and murdered his daughter. See Patrick Rogers et al., Scot Free: Though He Might Have Stopped a 7-Year-Old Girl's Murder, David Cash Gets on with His Life, Untouched by the Law, People, Sept. 28, 1998, at 139, 141.
8. See John M. Glionna, Strohmeyer Partly Blames Others, Courts: Girl's Killer Admits 'Monstrous' Deed, But Says Casinos, Internet, Cash Share Responsibility, L.A. Times, Oct. 15, 1998, at A1. Sherrice's father, Leroy Iverson, took his daughter and her older half-brother to the casino that evening. See id. Mr. Iverson, however, was apparently gambling elsewhere in the casino when Strohmeyer assaulted and murdered his daughter. See Patrick Rogers et al., Scot Free: Though He Might Have Stopped a 7-Year-Old Girl's Murder, David Cash Gets on with His Life, Untouched by the Law, People, Sept. 28, 1998, at 139, 141.
9. See John M. Glionna, Strohmeyer Partly Blames Others, Courts: Girl's Killer Admits 'Monstrous' Deed, But Says Casinos, Internet, Cash Share Responsibility, L.A. Times, Oct. 15, 1998, at A1. Sherrice's father, Leroy Iverson, took his daughter and her older half-brother to the casino that evening. See id. Mr. Iverson, however, was apparently gambling elsewhere in the casino when Strohmeyer assaulted and murdered his daughter. See Patrick Rogers et al., Scot Free: Though He Might Have Stopped a 7-Year-Old Girl's Murder, David Cash Gets on with His Life, Untouched by the Law, People, Sept. 28, 1998, at 139, 141.
10. See Glionna, supra note 4. Cash maintains that he initially followed Strohmeyer and Sherrice into the restroom. See 60 Minutes, supra note 2. Strohmeyer forced Sherrice into a stall and locked the door. See id. Cash entered the adjoining stall and peered over the top. See id. He observed Strohmeyer restraining Sherrice and holding his hand over her mouth in an attempt to muffle her screams. See id. Cash tapped his friend on the head but received no response. See id.
11. See 60 Minutes, supra note 2.
12. See id.
13. See id.
14. See id.
15. See id.
16. See id.
17. See Glionna, supra note 4.
18. See id.
19. Rogers et al., supra note 4.
20. See Caren Benjamin, Lawyers Say Care Needed in Writing Good Samaritan Laws, Las Vegas Rev.-J., Sept. 13, 1998, at IB (describing the reaction by state and federal legislators as a "national gag reflex over . . . [David Cash's] deadly inaction").
21. S. 2452, 105th Cong. (1998).
22. See id.
23. See 42 U.S.C. §§ 5101-5106 (1994). The federal government first enacted the Child Abuse Prevention and Treatment Act ("CAPTA") in 1974. See id. The Act grants money to the states for the identification, prevention, and treatment of child abuse. See id. § 5104(b)(1), amended by CAPTA Amendments of 1996, Pub. L. No. 104-235, § 104, 110 Stat. 3063, 3066. A state's eligibility for such funding depends on the statutory implementation of mandatory reporting of suspected or known child abuse. See id. § 5106a(b)(1)(A). The statute must provide the reporter with immunity from civil and criminal liability. See id. § 5106a(b)(1)(B). It must also provide for the investigation of reports by the proper state authorities, and in the case of substantiated reports, the statute must provide for the welfare of the abused children. See id. § 5106a(b)(2); see also Caroline T. Trost, Note, Chilling Child Abuse Reporting: Rethinking the CAPTA Amendments, 51 Vand. L. Rev. 183, 207-08 (1998) (arguing that CAPTA's 1996 amendments, including a "'good faith' immunity provision" and a "new emphasis on assessment," will have a "chilling effect on child abuse reporting").
24. See S. 2452.
25. See id.
26. See S. 793, 106th Cong. (1999).
27. See Talk of the Nation, supra note 3 (interview with criminal defense attorney Elizabeth Semil) ("[A] piece of legislation . . . must be in response . . . to a systemic problem. . . . [W]ith regard to people's failure to act in a situation such as the Sherrice Iverson case, [it is unclear] that we have a system-wide problem.").
28. See Steve Chapman, Should Doing Nothing About a Crime Be a Crime?, Las Vegas Rev.-J., Aug. 31, 1998, at 7B.
29. See A. D. Woozley, A Duty to Rescue: Some Thoughts on Criminal Liability, 69 Va. L. Rev. 1273, 1276 (1983).
30. Improving the Well-Being of Abused and Neglected Children: Hearings Before the Senate Committee on Labor and Human Resources, 104th Cong. (1996) (statement of Olivia A. Golden, Acting Asst. Secretary for Children and Families, U.S. Dep't of Health and Human Servs.), available in 1996 WL 669985.
31. See infra Part II.A.2.b.
32. For a discussion of these eight statutes, see infra Part III.B.
33. The "no duty to rescue" rule is the term used to describe the phenomenon whereby the law holds individuals responsible for only their actions, not for their failure to act. See Logarta v. Gustafson, 998 F. Supp. 998, 1001 (E.D. Wis. 1998) (citing Restatement (Second) of Torts § 314 (1965) and various scholars in an effort to set out a brief history of the rule's origins). Good Samaritan laws effectively abrogate the "no duty to rescue" rule.
34. Buch v. Amory Mfg. Co., 44 A. 809, 811 (N.H 1898).
35. See id.; see also Restatement (Second) of Torts § 314 (1965) (setting forth the basic tort law principle behind the traditional rule: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 203 (2d ed. 1986) (justifying the traditional rule by describing the corresponding criminal law principle behind it, namely, that "one has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvenience to himself" (footnote omitted)).
36. See People v. Donelson, 359 N.E.2d 1225, 1227 (Ill. App. Ct. 1977) (observing that no "case in any American jurisdiction directly hold[s] that a person commits an offense by merely remaining silent as to the commission of an offense").
37. See Buch, 44 A. at 811.
38. See, e.g., W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56, at 373 (5th ed. 1984) [hereinafter Prosser & Keeton] (arguing that the distinction affects the imposition of a duty); Francis H. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217, 219 (1908) (positing that the distinction between action and inaction has a fundamental place in the common law).
39. See, e.g., W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56, at 373 (5th ed. 1984) [hereinafter Prosser & Keeton] (arguing that the distinction affects the imposition of a duty); Francis H. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217, 219 (1908) (positing that the distinction between action and inaction has a fundamental place in the common law).
40. See Bohlen, supra note 33, at 219; Weinrib, supra note 1, at 247.
41. Chapman, supra note 23; see also id. ("OJ Simpson's acquittal doesn't mean we should scrap the jury system, and our inability to punish David Cash doesn't mean we should abandon a fundamental principle of Anglo-Saxon legal systems."); infra Part I.B. (discussing the arguments challenging the assumption that punishing someone for declining to help would require the abandonment of a fundamental principle of the Anglo-Saxon system).
42. Weinrib, supra note 1, at 258.
43. See Heyman, supra note 1, at 675.
44. See Prosser & Keeton, supra note 33, § 56, at 374-75.
45. See Bohlen, supra note 33, at 220-21; John T. Pardun, Comment, Good Samaritan Laws: A Global Perspective, 20 Loy. L.A. Int'l & Comp. L.J. 591, 603 (1998) (citing Lawrence C. Wilson, The Defense of Others - Criminal Law and the Good Samaritan, 33 McGill L.J. 756, 811 (1988)).
46. See Bohlen, supra note 33, at 220-21; John T. Pardun, Comment, Good Samaritan Laws: A Global Perspective, 20 Loy. L.A. Int'l & Comp. L.J. 591, 603 (1998) (citing Lawrence C. Wilson, The Defense of Others - Criminal Law and the Good Samaritan, 33 McGill L.J. 756, 811 (1988)).
47. See Prosser & Keeton, supra note 33, § 30, at 164-65.
48. See id. at 165.
49. See id.
50. See Richard A. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151, 200-01 (1973) (arguing that because the absence of causation results in immunity from liability, one does not have a duty to alleviate danger that one did not cause). But see John M. Adler, Relying Upon the Reasonableness of Strangers: Some Observations About the Current State of Common Law Affirmative Duties to Aid or Protect Others, 1991 Wis. L. Rev. 867, 912-14 (arguing that the causation argument fails to justify the "no duty to rescue" rule because none of the special relationship exceptions to the rule require causation). For a discussion of these special relationship exceptions to the rule, see infra Part H.A.
51. See Richard A. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151, 200-01 (1973) (arguing that because the absence of causation results in immunity from liability, one does not have a duty to alleviate danger that one did not cause). But see John M. Adler, Relying Upon the Reasonableness of Strangers: Some Observations About the Current State of Common Law Affirmative Duties to Aid or Protect Others, 1991 Wis. L. Rev. 867, 912-14 (arguing that the causation argument fails to justify the "no duty to rescue" rule because none of the special relationship exceptions to the rule require causation). For a discussion of these special relationship exceptions to the rule, see infra Part H.A.
52. Heyman, supra note 1, at 676. Heyman asserts that libertarian writers such as Richard Epstein, as well as others critical of liberalism's preoccupation with violations of personal autonomy, articulate this objection to the "no duty to rescue" rule most forcefully. See id. at 676 nn.11-12.
53. See id. at 676. Some who advocate for legislating morality, however, believe that the power of good samaritan laws to articulate a community's attitude toward misbehavior and to teach right and wrong sufficiently justifies the laws' enactment. See Daniel B. Yeager, A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers, 71 Wash. U. L.Q. 1, 56-58 (1993). To these advocates, a good samaritan law might "reinforce and value the deeds of those who already practice the ethic involved, while encouraging the broader development of similar behavior and attitudes." Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 88 (1991).
54. See id. at 676. Some who advocate for legislating morality, however, believe that the power of good samaritan laws to articulate a community's attitude toward misbehavior and to teach right and wrong sufficiently justifies the laws' enactment. See Daniel B. Yeager, A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers, 71 Wash. U. L.Q. 1, 56-58 (1993). To these advocates, a good samaritan law might "reinforce and value the deeds of those who already practice the ethic involved, while encouraging the broader development of similar behavior and attitudes." Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 88 (1991).
55. See infra notes 214-15 and accompanying text.
56. See infra note 225 and accompanying text.
57. See infra note 229-31 and accompanying text.
58. See Heyman, supra note 1, at 677.
59. See id. at 685. In 1907, the Supreme Court of Nevada, in dicta, observed that "it is the duty of a man who sees a felony attempted by violence to prevent it if possible." State v. Hennessy, 90 P. 221, 226 (Nev. 1907). Ironically, if this had been the state of the law in Nevada in 1997, prosecutors might have been able to charge David Cash, Jr. with a crime.
60. See Heyman, supra note 1, at 677.
61. Id. at 678. This historical duty to prevent felonies provides a basis for a duty to rescue grounded in an individual's obligations as a member of a community. See id. at 680. Relational-feminist legal scholars propose a similar justification for a duty to rescue rule. They consider the victim in need of rescue as an interconnected human being. See Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3, 32-35 (1988). Therefore, when one rescues another in trouble one does so out of an obligation to one's community, not just to an individual. See id. ("Why should our autonomy or freedom not to rescue weigh more heavily in the law than a stranger's harm and the consequent harms to the people with whom she is interconnected?").
62. Id. at 678. This historical duty to prevent felonies provides a basis for a duty to rescue grounded in an individual's obligations as a member of a community. See id. at 680. Relational-feminist legal scholars propose a similar justification for a duty to rescue rule. They consider the victim in need of rescue as an interconnected human being. See Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3, 32-35 (1988). Therefore, when one rescues another in trouble one does so out of an obligation to one's community, not just to an individual. See id. ("Why should our autonomy or freedom not to rescue weigh more heavily in the law than a stranger's harm and the consequent harms to the people with whom she is interconnected?").
63. See Heyman, supra note 1, at 689; see also Jack Wenik, Note, Forcing the Bystander to Get Involved: A Case for a Statute Requiring Witnesses to Report Crime, 94 Yale L.J. 1787, 1796 (1985) (suggesting that imposing a duty to rescue on individuals might interfere with the work of criminal justice officials). Recently, however, society has recognized that private citizens may need to assist police officers in preventing crime. See Heyman supra note 1, at 689 (discussing how the prevention of crime requires more than society's reliance on the police); Wenik, supra, at 1787 (arguing that a duty to report significantly increases the chance of apprehending criminals). The passage by certain states of good samaritan legislation that imposes both a duty to report and to rescue exemplifies this recognition. See Heyman, supra note 1, at 689 n.66; infra Part III (discussing these laws in depth).
64. See Yeager, supra note 45, at 30; see also Wenik, supra note 53, at 1791 (arguing that disagreement about misprision of felony is not limited to how the defense is defined, but whether the offense ever existed in the first place).
65. See Jay Silver, The Duty to Rescue: A Reexamination and Proposal, 26 Wm. & Mary L. Rev. 423, 427 n.35, 428 (1985) (observing that the reporting statutes most "closely resemble the common law ban against 'misprision of felony'"). For a discussion of the duty to report statutes of Rhode Island, Massachusetts, Florida, Washington, and Ohio, see infra Part III.
66. See LaFave & Scott, supra note 30, at 600 n.53.
67. Yeager, supra note 45, at 30 (footnotes omitted); see also Wenik, supra note 53, at 1792 (explaining the offense's virtual disappearance as a product of its vague definition and because of its "incompatibil[ty] with modern society").
68. See Yeager, supra note 45, at 32.
69. See Heyman, supra note 1, at 685.
70. At common law, an action on the case, or the writ of trespass on the case, lay for tangible injuries to person or property, other than those injuries considered "direct and forcible." Prosser et al., Cases and Materials on Torts 3-4 (9th ed. 1994) [hereinafter Prosser et al., Torts]. Actions for negligence, nuisance, and defamation, among others, all developed out of the common law action on the case. See id. at 3.
71. See Heyman, supra note 1, at 684.
72. See id.
73. See id. at 684-85.
74. See id.
75. Prosser & Keeton, supra note 33, § 56, at 375.
76. Weinrib, supra note 1, at 258.
77. Jean Elting Rowe & Theodore Silver, The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance from the Fifteenth Through the Twentieth Centuries, 33 Duq. L. Rev. 807, 830 n.95 (1995). One legal scholar in favor of the rule's abrogation notes that because of the law's utilitarian function, it follows that laws exist to serve society's needs. See Heyman, supra note 1, at 674-76. A more utilitarian law would require an individual to come to the aid of another if one could do so easily. See id. at 674-75. As another commentator has observed: Critics of the common-law position have generally proposed that the courts ought to recognize a duty to effect what might be termed an easy rescue, that is, a duty that would arise whenever one person is caught in a dangerous situation that another can alleviate at no significant cost to himself. Weinrib, supra note 1, at 250 (footnote omitted). A duty to rescue rule, therefore, would ultimately serve the needs of society more efficiently. See Heyman, supra note 1, at 674-75. But see William M. Landes & Richard A. Posner, Salvors, Finders, Good Samaritans and Other Rescuers: An Economic Study of Law and Altruism, 1 J. Legal Stud. 83, 119-21 (1978) (arguing that a "no duty to rescue" rule is efficient because potential rescuers would otherwise avoid rescue situations if a duty requiring rescue existed). No recorded case categorically accepts the notion of imposing a legal duty on an individual even if carrying out that duty requires little effort. See Adler, supra note 43, at 868. Adler observes, however, a trend in the law toward imposing duties, for before 1962 only three recorded cases implicated § 314 of the Restatement - the section concerned with duties - but from the mid-1980s until 1991, twenty cases per year implicated this same section. See id. at 877 & n.41.
78. LaFave & Scott, supra note 30, at 203.
79. See, e.g., Model Penal Code § 2.01(3) (1962) (stating that "[l]iability for the commission of an offense may not be based on an omission unaccompanied by action unless . . . a duty to perform the omitted act is otherwise imposed by law").
80. See, e.g., Restatement (Second) of Torts § 314A (1965) (describing special relationships that give rise to a duty to aid). The Restatement sections on exceptions to the "no duty to rescue" rule include §§ 314A, 314B, 315, 321, 322, and 324. Excerpts from the exceptions are provided below because of the important role they play in determining whether an individual has a duty to aid in the absence of an affirmative act. The relevant parts read as follows: § 314A. Special Relationships Giving Rise to Duty to Aid or Protect (1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against . . . harm . . . (b) . . . . (2) An innkeeper is under a similar duty to his guests. A possessor of land who holds it open to the public is under a similar duty to members of the public . . . (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other. § 314B. Duty to Protect Endangered or Hurt Employee (1) If a servant . . . comes into a position of imminent danger of serious harm . . . the master is subject to liability for a failure . . . to exercise reasonable care . . . . . . . . § 315. [Duty to Control Conduct of Third Persons] There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person . . . or (b) a special relation exists between the actor and the other . . . § 321. Duty to Act When Prior Conduct is Found to be Dangerous (1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect (2) . . . . § 322. Duty to Aid Another Harmed by Actor's Conduct If the actor knows or has reason to know that by his conduct . . . he has caused such bodily harm to another . . . the actor is under a duty to exercise reasonable care to prevent . . . further harm. § 324. Duty to One Who Takes Charge of Another Who is Helpless One who, being under no duty to do so, takes charge of another who is helpless . . . is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other . . . or (b) the actor's discontinuing his aid or protection.
81. See Adler, supra note 43, at 886.
82. See Biggs, supra note 1, at 228-30 (discussing criminal penalties imposed when a special relationship exists); Mary Kate Kearney, Breaking the Silence: Tort Liability for Failing to Protect Children from Abuse, 42 Buff. L. Rev. 405, 411-14 (1994) (discussing the special relationship exceptions in the context of tort law).
83. See Adler, supra note 43, at 886-87.
84. See Restatement (Second) of Torts § 314A(1).
85. See id. § 314A(2).
86. See id. § 314A(3).
87. See id. § 314A(4).
88. Adler, supra note 43, at 886.
89. See Restatement (Second) of Torts § 321.
90. See id. § 322.
91. See id. § 324.
92. See Biggs, supra note 1, at 228.
93. See id. at 229-30
94. See id. at 228-29; see also Restatement (Second) of Torts § 315 ("There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless . . . a special relation exists between the actor and the third person . . . .").
95. Marc A. Franklin, Vermont Requires Rescue: A Comment, 25 Stan. L. Rev. 51, 52 (1972); see also Cal. Bus. & Prof. Code § 2395 (West 1990) (relieving licensees who render "emergency care at the scene of an accident of liability for civil damages").
96. See Franklin, supra note 85, at 51-52.
97. See id. at 52 n.12.
98. See Biggs, supra note 1, at 232-33 n.40 (listing the physician good samaritan statutes of a number of states).
99. Silver, supra note 55, at 428. While some of these states' statutes apply only to doctors, others apply to all licensed medical personnel and to all individuals who volunteer aid. See Franklin, supra note 85, at 52 n.12.
100. See infra Part III.
101. See Trost, supra note 18, at 194-95 n.63 (providing an exhaustive list of these statutes).
102. See supra Part II.A.1.
103. Marjorie R. Freiman, Note, Unequal and Inadequate Protection Under the Law: State Child Abuse Statutes, 50 Geo. Wash. Rev. 243, 243 (1982).
104. Mary Harter Mitchell, Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion, 71 Minn. L. Rev. 723, 725 (1987).
105. See C. Henry Kempe et al., The Battered Child Syndrome, 181 J. Am. Med. Ass'n 17, 17 (1962); see also Margaret H. Meriwether, Child Abuse Reporting Laws: Time for a Change, 20 Fam. L.Q. 141, 142 (1986) (suggesting that Kempe's article "stimulated" widespread concern about child abuse); Trost, supra note 18, at 191 (discussing the significance of Kempe's article); Victor I. Vieth, Passover in Minnesota: Mandated Reporting and the Unequal Protection of Abused Children, 24 Wm. Mitchell L. Rev. 131, 135 (1998) (observing that Kempe's work inspired consideration of the first model child abuse reporting statute).
106. See Meriwether, supra note 95, at 142.
107. See id.
108. See Mason P. Thomas, Jr., Child Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Social Perspectives, 50 N.C. L. Rev. 293, 332 (1972).
109. See Leonard Karp & Cheryl L. Karp, Domestic Torts: Family Violence, Conflict and Sexual Abuse § 10.03, at 397 (1989); see also Mitchell, supra note 94, at 727 (observing that since the 1960s, most states have amended their reporting statutes at least once).
110. See Vieth, supra note 95, at 135.
111. See id.
112. See Robin A. Rosencrantz, Note, Rejecting "Hear No Evil Speak No Evil": Expanding the Attorney's Role in Child Abuse Reporting, 8 Geo. J. Legal Ethics 327, 340-41 (1995).
113. See Vieth, supra note 95, at 135.
114. See Meriwether, supra note 95, at 143.
115. See, e.g., Alaska Stat. § 47.17.290(2) (Michie 1998) (defining reportable conditions broadly to include "physical injury or neglect, mental injury, sexual abuse . . . or maltreatment"); see also Idaho Code § 16-1602(a) (1979 & Supp. 1998) (defining reportable conditions more precisely to include specific injuries such as "skin bruising" or "burns").
116. See, e.g., Cal. Penal Code §§ 11165.7-11165.10 (West 1992 & Supp. 1999) (mandating that child care custodians, medical practitioners, child protective agency personnel, and commercial film and photographic print processors report abuse). In most states, the statutory list of reporters includes teachers, day-care personnel, foster parents, physicians, nurses, dentists, social workers, psychologists, marriage and family counselors, and law enforcement officers. See Inger J. Sagatun & Leonard P. Edwards, Child Abuse and the Legal System 37 (1995). Essentially, the statutory list of reporters includes all professionals who work with children. See id. at 10. State legislators widened the category of reporters to "arrest the tremendous increase in child abuse" during the 1980s. Raymond C. O'Brien & Michael T. Flannery, The Pending Gauntlet to Free Exercise: Mandating that Clergy Report Child Abuse, 25 Loy. L.A. L. Rev. 1, 4 (1991).
117. See, e.g., Cal. Penal Code §§ 11165.7-11165.10 (West 1992 & Supp. 1999) (mandating that child care custodians, medical practitioners, child protective agency personnel, and commercial film and photographic print processors report abuse). In most states, the statutory list of reporters includes teachers, day-care personnel, foster parents, physicians, nurses, dentists, social workers, psychologists, marriage and family counselors, and law enforcement officers. See Inger J. Sagatun & Leonard P. Edwards, Child Abuse and the Legal System 37 (1995). Essentially, the statutory list of reporters includes all professionals who work with children. See id. at 10. State legislators widened the category of reporters to "arrest the tremendous increase in child abuse" during the 1980s. Raymond C. O'Brien & Michael T. Flannery, The Pending Gauntlet to Free Exercise: Mandating that Clergy Report Child Abuse, 25 Loy. L.A. L. Rev. 1, 4 (1991).
118. See, e.g., Cal. Penal Code §§ 11165.7-11165.10 (West 1992 & Supp. 1999) (mandating that child care custodians, medical practitioners, child protective agency personnel, and commercial film and photographic print processors report abuse). In most states, the statutory list of reporters includes teachers, day-care personnel, foster parents, physicians, nurses, dentists, social workers, psychologists, marriage and family counselors, and law enforcement officers. See Inger J. Sagatun & Leonard P. Edwards, Child Abuse and the Legal System 37 (1995). Essentially, the statutory list of reporters includes all professionals who work with children. See id. at 10. State legislators widened the category of reporters to "arrest the tremendous increase in child abuse" during the 1980s. Raymond C. O'Brien & Michael T. Flannery, The Pending Gauntlet to Free Exercise: Mandating that Clergy Report Child Abuse, 25 Loy. L.A. L. Rev. 1, 4 (1991).
119. See, e.g., Fla. Stat. Ann. § 415.504 (West 1998) (requiring that a reporter "know[] or ha[ve] reasonable cause to suspect" that a child has suffered abuse); see also Idaho Code § 16-1610 (Supp. 1998) (requiring that reporters have "reason to believe" or actually "observe[]" the reportable condition). When a statute mandates that a reporter have a "reasonable suspicion" about the suspected abuse, an objective standard is applied to the reporter's determination. See Meriwether, supra note 95, at 146. If the statute does not provide that the reporter's belief or suspicion be reasonable, a subjective standard applies. See id. The application of one standard versus the other has a major impact on a prosecutor's ability to charge an individual with failure to report. See id. A statute implementing an objective standard provides the prosecutor with a greater chance of conviction. See id.
120. See, e.g., R.I. Gen. Laws § 40-11-6.1 (1990) (defining the penalty for a failure to report as a misdemeanor with a fine of not more than $500 and/or a prison sentence of not more than one year, or both).
121. See, e.g., N.Y. Soc. Serv. Law § 419 (McKinney 1992 & Supp. 1999) (providing civil or criminal immunity for good faith reporting, the good faith of which is presumed).
122. See, e.g., Ariz. Rev. Stat. Ann. § 13-3620 (G), (H) (West Supp. 1998) (abrogating all privileges but that of attorney-client). The statutes eliminate certain confidential communication privileges to facilitate effective reporting. See O'Brien & Flannery, supra note 106, at 26. Most of them abolish the doctor-patient privilege and the spousal privilege. See id. Other states specifically eliminate the privileges of psychotherapists, psychologists, and social workers. See id. at 26-27 & nn.137-41 (listing examples of these statutes). For an article focusing on the abrogation of the privilege between psychotherapists and their patients, see, for example, Murray Levine, A Therapeutic Jurisprudence Analysis of Mandated Reporting of Child Maltreatment by Psychotherapists, 10 N.Y.L. Sch. J. Hum. Rts. 711, passim (1993) (arguing that the mandated reporting requirement on psychotherapists has both negative and positive consequences for the psychotherapy relationship). States tend to abrogate the attorney-client privilege and the clergy-communicant privilege only under certain circumstances. See O'Brien & Flannery, supra note 106, at 27-28. For articles focusing on the abrogation of these two privileges within child-abuse reporting statutes, see Mitchell, supra note 94, at 724 (arguing that the conflict between mandatory reporting statutes and the clergy privilege is not "a choice between protecting secrets and protecting children"); O'Brien & Flannery, supra note 106, at 6 (contending that the state's interest served by the clergy privilege outweighs its interest in protecting children through mandatory reporting statutes); Rosencrantz, supra note 102, at 327 n.2 (suggesting that attorneys should be included in list of mandatory reporters); Lisa M. Smith, Lifting the Veil of Secrecy: Mandatory Child Abuse Reporting Statutes May Encourage the Catholic Church to Report Priests Who Molest Children, 18 Law & Psychol. Rev. 409, 409 (1994) (arguing that mandatory reporting statutes should be used as a legal tool to stop Catholic Church officials from protecting priests who molest children).
123. See, e.g., Ark. Code Ann. §§ 12-12-502-12-12-515 (Michie 1995 & Supp. 1997) (requiring, among other things, immediate report by telephone, followed by a written report within 48 hours).
124. See supra notes 4-21 and accompanying text.
125. See Nev. Rev. Stat. Ann. § 432B.220(2)(a)-(j) (Michie 1996).
126. See id. § 432B.220(2)(a)-(e), (i). Attorneys need not report the abuse or neglect of a child if they "acquired the knowledge of the abuse or neglect from a client who is or may be accused of the abuse or neglect." Id. § 432B.220(2)(i).
127. See id. § 432B.220(3). Some argue that the majority of reports of those who do so voluntarily are often unsubstantiated. See Karp, supra note 99, at 398. The statutes of 16 states consider all individuals who suspect child abuse to be mandatory reporters. See Del. Code Ann. tit. 16, § 903 (1995); Idaho Code § 16-1610 (1979 & Supp. 1998); Ind. Code Ann. §§ 31-33-5-1-31-33-6-3 (Michie 1997); Ky. Rev. Stat. Ann. § 620.030 (Michie 1990 & Supp. 1996); Md. Code Ann., Family Law § 5-705 (1991 & Supp. 1998); Miss. Code Ann. § 43-21-353 (1993 & Supp. 1998); Neb. Rev. Stat. § 28-711 (1995); N.J. Stat. Ann. § 9:6-8.10 (West 1993); N.M. Stat. Ann. §§ 32A-4-1-32A-4-22 (Michie 1995); N.C. Gen. Stat. § 7A-543 (1995); Okla. Stat. Ann. tit. 21, § 846 (West 1983); R.I. Gen. Laws § 40-11-3 (1990 & Supp. 1998); Tenn. Code Ann. § 37-1-403 (1996); Tex. Fam. Code Ann. § 261.101 (West 1996 & Supp. 1999); Vt. Stat. Ann. tit. 33, § 4913 (1991 & Supp. 1998); Wyo. Stat. Ann § 14-3-205 (Michie 1997). These statutes are effectively duty to report statutes not unlike those discussed below. See infra Part III.B.4.
128. Nev. Stat. Ann. § 432B.220(1).
129. See id.
130. See id. § 432B.160(1)(a).
131. See id § 432B.160(2).
132. See id. § 432B.250.
133. State v. Williquette, 385 N.W.2d 145, 151 (Wis. 1986).
134. Prosser & Keeton, supra note 33, § 56, at 374.
135. See supra Part I.B.
136. See Heyman, supra note 1, at 677-85.
137. See, e.g., Prosser & Keeton, supra note 33, § 56, at 377 (proposing that the broadening of the category of exceptions to the "no duty to rescue" rule may result in a general imposition of a duty); Adler, supra note 43, at 869 (suggests that although courts "pay lip service to these traditional common law rules," they ultimately distort the rules to reach decisions that comply with public policy concerns); Kearney, supra note 72, at 410 (arguing that exceptions to the "no duty to rescue" rule manifest the problems inherent in the distinction between malfeasance and nonfeasance); Weinrib, supra note 1, at 279 (observing that the recognition of the existence of a moral duty to rescue by those who defend the rule suggests the inevitability of the rule's further erosion). In contrast to the United States, most European countries impose a duty to rescue. See Aleksander W. Rudzinski, The Duty to Rescue: A Comparative Analysis, in The Good Samaritan and the Law 91, 91-92 (James M. Ratcliffe ed. 1966). Some of these countries include Portugal, the Netherlands, Italy, Norway, Russia, Turkey, Denmark, Poland, Germany, Rumania, France, Hungary, Czechoslovakia, Switzerland, and Belgium. See id. Some commentators conclude that Europe's "long and widespread use" of good samaritan laws supports the implementation of similar laws in the United States. Woozley, supra note 24, at 1290.
138. See, e.g., Prosser & Keeton, supra note 33, § 56, at 377 (proposing that the broadening of the category of exceptions to the "no duty to rescue" rule may result in a general imposition of a duty); Adler, supra note 43, at 869 (suggests that although courts "pay lip service to these traditional common law rules," they ultimately distort the rules to reach decisions that comply with public policy concerns); Kearney, supra note 72, at 410 (arguing that exceptions to the "no duty to rescue" rule manifest the problems inherent in the distinction between malfeasance and nonfeasance); Weinrib, supra note 1, at 279 (observing that the recognition of the existence of a moral duty to rescue by those who defend the rule suggests the inevitability of the rule's further erosion). In contrast to the United States, most European countries impose a duty to rescue. See Aleksander W. Rudzinski, The Duty to Rescue: A Comparative Analysis, in The Good Samaritan and the Law 91, 91-92 (James M. Ratcliffe ed. 1966). Some of these countries include Portugal, the Netherlands, Italy, Norway, Russia, Turkey, Denmark, Poland, Germany, Rumania, France, Hungary, Czechoslovakia, Switzerland, and Belgium. See id. Some commentators conclude that Europe's "long and widespread use" of good samaritan laws supports the implementation of similar laws in the United States. Woozley, supra note 24, at 1290.
139. See Franklin, supra note 85, at 52.
140. See id. at 52-53.
141. Meriwether, supra note 95, at 149.
142. See Sagatun & Edwards, supra note 106, at 37.
143. See Rosencrantz, supra note 102, at 341-42.
144. See Vieth, supra note 95, at 135.
145. See Sagatun & Edwards, supra note 106, at 37. Further, evidence suggests that the reports of individuals acting under pain of statutory penalty produce the highest number of substantiated investigations. See Vieth, supra note 95, at 137.
146. See Wenik, supra note 53, at 1800.
147. See supra note 45 and accompanying text. These advocates also suggest that a duty to rescue is no more intrusive on one's autonomy than current impositions such as testifying as a witness to a crime, serving on a jury, or paying taxes. See Yeager, supra note 45, at 47-48.
148. Adler, supra note 43, at 870. But see Rowe & Silver, supra note 67, at 845 (criticizing Adler for proposing nothing more than an elimination of the distinction between malfeasance and nonfeasance and a suggestion that its replacement be "better"). In Lombardo v. Hoag, 566 A.2d 1185 (N.J. Super. Ct. 1989), the court drew a similar conclusion to Adler when considering the duty of a passenger who gave the keys to a car over to its intoxicated owner: An enlightened society should no longer excuse the immoral and outrageous conduct of a person who allows another to drown, simply because he doesn't wish to get his feet wet. Society demands more than that of its citizens. It demands that a person exercise a duty of care towards another person in order to insure that the other person remains free from harm, if he can do so without peril to himself. And it demands an atmosphere in which all persons will expect that others will conduct themselves in such a manner. Id. at 1189. A discussion of whether the "no duty to rescue" rule should be replaced with a general duty of reasonable care under the circumstances is beyond the scope of this Note. Applying negligence principles to these situations, however, arguably provides a better solution than the creation of a new federal criminal law.
149. See Adler, supra note 43, at 896-97; see also Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 343 (Cal. 1976) (holding that a therapist owed a duty of care, not to control the conduct of a dangerous patient, but to the victim of that patient); Soldano v. O'Daniels, 190 Cal. Rptr. 310, 317 (Ct. App. 1983) (holding a bartender owed a duty to the plaintiff's decedent to permit a patron to call the police in an emergency or to place the call himself); Farwell v. Keaton, 240 N.W.2d 217, 222 (Mich. 1976) (holding that the relationship between two friends was within the special relationship exception to the "no duty to rescue" rule because they were "companions on a social venture" when one was seriously injured).
150. See Restatement (Second) of Torts §§ 321-322, 324 (1965).
151. See Adler, supra note 43, at 898-99; Kearney, supra note 72, at 411-13.
152. See Adler, supra note 43, at 922.
153. See Yeager, supra note 45, at 9-11 (advocating for a duty to rescue rule, though acknowledging the difficulties in enforcing such rules and the lack of proof regarding their deterrent effect).
154. See Franklin, supra note 85, at 53.
155. See Cal. Bus. & Prof. Code § 2395 (West 1990).
156. See Franklin, supra note 85, at 52-53.
157. See id. at 53; see also Woozley, supra note 24, at 1276 (noting that more than 20 years after California passed its law, "there [was] no known case in the United States of a malpractice suit being brought against a doctor who responded to a roadside or other emergency outside his office; and to anyone who appreciates what trigger-happy litigants Americans are that is a significant fact" (footnote omitted)).
158. See Meriwether, supra note 95, at 141; see also Freiman, supra note 93, at 268-71 (concluding that existing reporting laws are inadequate to protect a growing number of abused children).
159. See Meriwether, supra note 95, at 141.
160. See Jean Peters-Baker, Note, Punishing the Passive Parent: Ending a Cycle of Violence, 65 UMKC L. Rev. 1003, 1003 (1997).
161. See id.
162. See Freiman, supra note 93, at 267-68. Problems of drafting also arise in the context of the eight good samaritan laws discussed below. See infra Part III.
163. Meriwether, supra note 95, at 143.
164. See Frieman, supra note 93, at 251-52.
165. See id. at 248-49.
166. See id. at 248-50.
167. See Mitchell, supra note 94, at 729-32. Other statutory provisions that vary considerably from state to state are the speed with which reporters must report after they originally suspect the abuse and the agencies to which reporters deliver their suspicions. See Freiman, supra note 93, at 260-61. Those that allow reporting to more than one agency "invite[] confusion and lack of coordination." Id. Additionally, some states only require the reporting of children abused by their caretakers, see Vieth, supra note 95, at 133-34, while others require reports only of very recent abuse. See Sagatun & Edwards, supra note 106, at 37-38.
168. See Meriwether, supra note 95, at 149-50 (pointing out that if the statutory definition is too narrow, abused children risk going unprotected, but if it is too broad, the state risks an unwarranted intrusion into a family's privacy); see also Freiman, supra note 93, at 268 (concluding that many states' statutes have "unclear definitions of reportable conditions"). The Supreme Court of Texas criticized its state's broad reporting statute because the statute "conditions the requirement to report on these difficult judgment calls [and] does not clearly define what conduct is required in many conceivable situations." Perry v. S.N., 973 S.W.2d 301, 307-08 (Tex. 1998).
169. See Freiman, supra note 93, at 262 (arguing that over-reporting puts too great a demand on a state's investigative services).
170. See Meriwether, supra note 95, at 150; see also Sagatun & Edwards, supra note 106, at 38 (arguing that over-reporting occurs not only because reporters do not know what child abuse "means," but also because they fear criminal or civil liability if they fail to report).
171. See Meriwether, supra note 95, at 150-52; see also Vieth, supra note 95, at 137 (listing other reasons for under-reporting, such as ambiguity in the law and lack of training of reporters); see also Freiman, supra note 93, at 262 (arguing that ignorance of the laws leads to under-reporting).
172. See Meriwether, supra note 95, at 153-54.
173. Id. at 165.
174. Id. at 166.
175. Freiman, supra note 93, at 268; see also Levine, supra note 110, at 735 ("Protecting children depends on the availability of resources to serve children and families adequately after a case is identified.").
176. Though some differences exist, the statutes of the eight states are essentially the same. In 1989, the Minnesota Court of Appeals described the history of Minnesota's abrogation of the traditional rule beginning with the enactment of its physician good samaritan law. See Tiedeman v. Morgan, 435 N.W.2d 86, 88-89 (Minn. Ct. App. 1989). The court could have been describing the history of the good samaritan laws of any its seven sister states: Recognizing the absence of a Good Samaritan duty, the Minnesota Legislature first addressed the topic with a declaration of immunity for those who volunteer to render emergency care. The declaration of immunity was later accompanied by a statutory duty to volunteer reasonable assistance. It is evident to us that these enactments deal with the historic Good Samaritan law topic of volunteering assistance to one with whom a person has no special relationship. Until modified by statute in 1983, no duty to volunteer assistance existed. This statutory duty contrasts markedly with established common law duties. Id. (citations omitted).
177. Vt. Stat. Ann. tit. 12, § 519 (1973) (effective Mar. 22, 1968).
178. Although one commentator claims that the murder of Kitty Genovese in 1964 in the Kew Gardens section of Queens inspired Vermont's 1968 bill, he cites no authority for this proposition. See Pardun, supra note 39, at 608. Furthermore, the article cited most frequently as the leading authority on the history of Vermont's statute mentions only the physician-inspired good samaritan legislation as the "primary motivation behind the Vermont bill." Franklin, supra note 85, at 52 n.13. Another commentator cited frequently for his work on the good samaritan laws of all eight states, however, concludes that the 1983 rape of a woman on a pool table in a New Bedford, Massachusetts bar inspired the laws passed after that year. See Yeager, supra note 45, at 24 & n.114. Presumably, if one infers from the dates of enactment that the laws were inspired by highly publicized events, then the Kitty Genovese case may well have motivated the laws enacted in the late 1960s and very early 1970s. See Minn. Stat. Ann. § 604A.01 (Supp. 1999) (originally enacted as § 604.05 (1971); § 604.05(1) (effective Aug. 1, 1983)); Vt. Stat. Ann. tit. 12, § 519; Wash. Rev. Code Ann. § 9.69.100 (West 1998) (effective 1970). Minnesota's 1971 statute offered immunity to those who volunteered to render emergency aid. See Minn. Stat. Ann. § 604.05 (West 1971). Presumably, it was merely a slightly broader version of a physician-good samaritan law. Genovese's murder, however, may have played a part in its passage. In 1983, Minnesota's legislature added a subdivision to the law that imposed an actual duty to volunteer reasonable aid. See id. § 604.05(1) (West 1983). The aforementioned barroom rape, observed by numerous bar patrons, inspired the 1983 change to the statute. See infra note 206; see also Biggs, supra note 1, at 234 ("In Minnesota, an expanded duty to aid statute's sponsor was moved to introduce the bill by reports of the gang rape . . . of a woman in a New Bedford, Mass., barroom . . . ." (footnote omitted)).
179. See, e.g., Biggs, supra note 1, at 236 (questioning how the witnesses to Genovese's murder would have been prosecuted if a duty to rescue law had existed in New York in 1964); Heyman, supra note 1, at 677 (positing that "the traditional common law may well have recognized a duty to act in cases like the murder of Catherine Genovese"); Silver, supra note 55, at 423 (observing that Genovese's murder brought "national attention" to "the issue of a legal duty to assist those in distress"); Woozley, supra note 24, at 1276 & n.12 (questioning whether those who heard Genovese's screams would be liable under a good samaritan law for failing to rescue, or only those who saw her attacked); Yeager, supra note 45, at 20 n.94 (citing the murder of Kitty Genovese as "the best-known case of bystander indifference"); Pardun, supra note 39, at 608 (concluding that the murder of Genovese inspired the passage of Vermont's good samaritan law).
180. See supra note 165 and accompanying text.
181. See Martin Gansberg, 37 Who Saw Murder Didn't Call the Police, N.Y. Times, Mar. 27, 1964, at 1; see generally A.M. Rosenthal, Thirty-Eight Witnesses passim (1964) (offering a detailed account of Kitty Genovese's murder and a discussion of Gansberg's New York Times article).
182. See Martin Gansberg, 37 Who Saw Murder Didn't Call the Police, N.Y. Times, Mar. 27, 1964, at 1; see generally A.M. Rosenthal, Thirty-Eight Witnesses passim (1964) (offering a detailed account of Kitty Genovese's murder and a
183. See Gansberg, supra note 168.
184. See id.
185. See Silver, supra note 55, at 423.
186. See supra note 3, 67 and accompanying text.
187. Vt. Stat. Ann. tit. 12, § 519 (1973) (effective Mar. 22, 1968).
188. See Minn. Stat. Ann. § 604A-01(1) (Supp. 1999) (originally enacted as § 604.05 (1971); § 604.05(1) (effective Aug. 1, 1983)).
189. See Wis. Stat. Ann. § 940.34 (West 1996 & Supp. 1998) (effective Apr. 24, 1984).
190. See R.I. Gen. Laws § 11-56-1 (1994) (effective 1984).
191. See Ohio Rev. Code Ann. § 2921.22(A), (I) (Anderson 1996 & Supp. 1998) (effective Jan. 1, 1974).
192. See Wash. Rev. Code Ann. § 9.69.100(4) (West 1998) (effective 1970).
193. See Mass. Ann. Laws ch. 268, § 40 (Law Co-op. 1992) (effective 1983).
194. See Fla. Stat. Ann. § 794.027 (West 1992 & Supp. 1999) (effective 1984).
195. See id. § 794.027(4) (imposing a duty to report only when the reporter "[w]ould not be exposed to any threat of physical violence for seeking such assistance"); Mass. Ann. Laws ch. 268, § 40 (imposing a duty to report when one "can do so without danger or peril to himself or others"); Minn. Stat. Ann. § 604A.01(1) (Supp. 1999) (originally enacted as § 604.05 (1971); § 604.05(1) effective Aug. 1, 1983) (imposing a "duty to assist . . . to the extent the person can do so without danger or peril to self or others"); R.I. Gen. Laws § 11-56-1 (imposing a duty of "reasonable assistance" when one can do so "without danger or peril to himself or herself or to others"); Vt. Stat. Ann. tit. 12, § 519(a) (1973) (effective Mar. 22, 1968) (imposing a duty to "give reasonable assistance" only if it can be done so "without danger or peril to himself or without interference with important duties owed to others"); Wash. Rev. Code Ann. § 9.69.100(4) (imposing no duty to report on an individual who "has a reasonable belief that making such a report would place that person or another family or household member in danger of immediate physical harm"); Wis. Stat. Ann. § 940.34(2)(d)(1) (West 1996 & Supp. 1998) (effective Apr. 24, 1984) (imposing no duty if "[c]ompliance would place him or her in danger"). Ohio's statute is the only one that does not explicitly state that the duty it imposes is one of "easy rescue." See Ohio Rev. Code Ann. § 2921.22(A),(I).
196. Vt. Stat. Ann. tit. 12, § 519(a).
197. See id.; Wis. Stat. Ann. § 940.34(2)(d)(3).
198. See Vt. Stat. Ann. tit. 12, § 519(a); Minn. Stat. Ann. § 604A.01(1); R.I. Gen. Laws § 11-56-1.
199. See Vt. Stat. Ann. tit. 12, § 519.
200. See Minn. Stat. Ann. § 604A.01.
201. See R.I. Gen. Laws § 11-56-1.
202. Vt. Stat. Ann. tit. 12, § 519(a).
203. Acts of God are distinguished from human acts, i.e., criminal acts. Acts of God include "a raging river, a torrential downpour, a hurricane, tornado or earthquake. . . ." Biggs, supra note 1, at 244. One commentator has noted that while legal scholars have historically hypothesized about the "no duty to rescue" rule involving acts of God, "the criminal assault," like that of Kitty Genovese, is actually "[t]he paradigm case of a duty to rescue." Heyman, supra note 1, at 679. Another scholar, observing the same phenomenon, finds this remarkable because acts of God are the "most worthy of Good Samaritan [legislation]." Biggs, supra note 1, at 244. He believes the statutes predominantly focus on duties to victims of criminal acts, however, because of the common law desire to limit the coverage of the criminal law to "acts," rather than failures to act. Since one cannot control "Acts of God," perhaps society should not be involved in forcing action in response to them. Since no human conduct started the process that created victims of "Acts of God" requiring a duty to aid such victims should be beyond the reach of the criminal law. Id. at 245 (footnote omitted).
204. See Fla. Stat. Ann. § 794.027(1)(2) (West 1992 & Supp. 1999) (effective 1984) (imposing duties to victims of sexual battery); Mass. Ann. Laws ch. 268, § 40 (Law Co-op. 1992) (effective 1983) (imposing duties to victims of myriad crimes); Ohio Rev. Code Ann. § 2921.22(A) (Anderson 1996 & Supp. 1998) (effective Jan. 1, 1974) (imposing a duty to report on all those who know that a felony "has been or is being committed"); Wash. Rev. Code Ann. § 9.69.100(1)(a)-(c) (West 1998) (1970) (imposing duties to victims of a variety of crimes, but specifically mentioning victims of child sexual and physical abuse); Wis. Stat. Ann. § 940.34(2) (West 1996 & Supp. 1998) (effective Apr. 24, 1984) (imposing duties to victims of "a crime"). Rhode Island separates, by provision, its duty to rescue statute from its duty to report statute. Though its duty to rescue statute applies to victims of crimes and acts of God, see supra notes 187-89 and accompanying text, its duty to report statute applies only to victims of sexual assault. See R.I. Gen. Laws § 11-37-3.1 (1994) (effective 1983).
205. See Fla. Stat. Ann. § 794.027(1), (2).
206. See Mass. Ann. Laws ch. 268, § 40.
207. See Minn. Stat. Ann. § 604A.01(1) (Supp. 1999) (originally enacted as § 604.05 (1971); § 604.05(1) (effective Aug. 1, 1983)).
208. See R.I. Gen. Laws § 11-56-1 (1994) (effective 1983).
209. See Wash. Rev. Code Ann. § 9.69.100(1).
210. See Ohio Rev. Code Ann. § 2921.22(A) (Anderson 1996 & Supp. 1998) (effective Jan. 1, 1974); Vt. Stat. Ann. tit. 12, § 519(a) (1973) (effective Mar. 22, 1968); Wis. Stat. Ann. § 940.34(2)(a) (West 1996 & Supp. 1998) (effective Apr. 24, 1984).
211. The dearth of case law implicating these statutes provides that these conclusions are nothing more than conjecture. A case implicating Ohio's statute, however, is perhaps indicative of how other courts might consider the knowledge/witness element of the statutes. See In re Stichtenoth, 425 N.E.2d 957 (Ohio Ct. App. 1980). Although Ohio's statute requires only knowledge of a crime before one's duty to report is triggered, the court held that as long as events led to the notification of the authorities, the statute did not impose a duty to report on an individual. See id. at 958. The holding, narrowing the statute's scope, perhaps reflects the court's recognition of the inherent problems with an overly broad "knowledge" requirement.
212. See Vt. Stat. Ann. tit. 12, § 519(a).
213. See Minn. Stat. Ann. § 604A.01(1) (Supp. 1999) (originally enacted as § 604.05 (1971); § 604.05(1) (effective Aug. 1, 1983)).
214. See Wis. Stat. Ann. § 940.34(2)(a).
215. See R.I. Gen. Laws § 11-56-1 (1994) (effective 1984).
216. See Vt. Stat. Ann. tit. 12, § 519.
217. See Fla. Stat. Ann. § 794.027 (West 1992 & Supp. 1999) (effective 1984); Mass. Ann. Laws ch. 268, § 40 (Law Co-op. 1992) (effective 1983); Ohio Rev. Code Ann. § 2921.22 (Anderson 1996 & Supp. 1998) (effective Jan. 1. 1974); Wash. Rev. Code Ann. § 9.69.100 (West 1998) (effective 1970).
218. See Fla. Stat. Ann. § 794.027; Mass. Ann. Laws ch. 268, § 40; Ohio Rev. Code Ann. § 2921.22(A)(I); R.I. Gen. Laws § 11-56-1; Vt. Stat. Ann. tit. 12, § 519(a); Wash. Rev. Code Ann. § 9.69.100(4); Wis. Stat. Ann. § 940.34(2)(a). Only Minnesota does not impose a criminal penalty. See Minn. Stat. Ann. § 604A.01(1). A violation of Minnesota's statute, however, results in a fine of double the amount of that of Vermont's. A petty misdemeanor under Minnesota law carries a fine of not more than $200. See id. § 609.02(4a). Moreover, Wisconsin's bill imposes a more severe criminal penalty than the laws of either Vermont or Minnesota. An inactive bystander risks a fine of up to $500 and a prison sentence of up to thirty days. See Wis. Stat. Ann. § 939.51(3)(c) (defining the penalties imposed for a class (c) misdemeanor).
219. See, e.g., Wash. Rev. Code Ann. § 9.92.020 (defining the penalty for failure to report as a gross misdemeanor, which includes a fine of up to $5000 and a prison sentence of up to one year).
220. In 1983, patrons of Big Dan's bar in New Bedford, Massachusetts, observed for over an hour as four men raped and assaulted a 21-year-old woman. See The Tavern Rape: Cheers and No Help, Newsweek, Mar. 21, 1983, at 25, 25. Initial police statements and news accounts reported that at least 15 witnesses not only failed to intervene on the woman's behalf or call the police, but even cheered for her attackers. See id. Though these accounts proved exaggerated, see Jonathan Friendly, The New Bedford Rape Case: Confusion over Accounts of Cheering at Bar, N.Y. Times, Apr. 11, 1984, at A19, the public expressed outrage at news of the incident, and the legislatures of Massachusetts, Minnesota, and Rhode Island responded with good samaritan legislation. See Mass. Ann. Laws ch. 268, § 40; Minn. Stat. Ann. § 604A.01; R.I. Gen. Laws §§ 11-37-3.1, 11-56-1.
221. In 1983, patrons of Big Dan's bar in New Bedford, Massachusetts, observed for over an hour as four men raped and assaulted a 21-year-old woman. See The Tavern Rape: Cheers and No Help, Newsweek, Mar. 21, 1983, at 25, 25. Initial police statements and news accounts reported that at least 15 witnesses not only failed to intervene on the woman's behalf or call the police, but even cheered for her attackers. See id. Though these accounts proved exaggerated, see Jonathan Friendly, The New Bedford Rape Case: Confusion over Accounts of Cheering at Bar, N.Y. Times, Apr. 11, 1984, at A19, the public expressed outrage at news of the incident, and the legislatures of Massachusetts, Minnesota, and Rhode Island responded with good samaritan legislation. See Mass. Ann. Laws ch. 268, § 40; Minn. Stat. Ann. § 604A.01; R.I. Gen. Laws §§ 11-37-3.1, 11-56-1.
222. See supra notes 171-72 and accompanying text.
223. But see Talk of the Nation, supra note 3 (interview with criminal defense attorney Elizabeth Semil) ("[I]t's extremely important for the public to understand that when laws like this are proposed, they are part of a political agenda for politicians who are gearing and measuring their points in the poll [and] that they will do little to aid . . . public problem[s], if indeed [they exist].").
224. See Vt. Stat. Ann. tit. 12, § 519(c).
225. See Franklin, supra note 85, at 55 n.30.
226. See Pardun, supra note 39, at 606. An original sponsor of Minnesota's bill "indicate[d] that its purpose was largely symbolic, consonant with Minnesota's vision of an ideal society." Id. (quoting Representative Bill Luther). According to Wisconsin prosecutors, their law has a symbolic component as well. See id. at 606-07. The citizens of Wisconsin, one prosecutor concluded, "would report [a serious] crime without [a law] on the books." Yeager, supra note 45, at 16 n.70 (quoting letter from James C. Babler, District Attorney, Barron County, Wis., to Yeager (Nov. 11, 1991) (on file with Yeager) (alterations in original)). A representative of Wisconsin's Attorney General's office insisted that although "it might be a little rosy-eyed to say this, I think the good people of Wisconsin generally aid victims when they see them in trouble." Dave Daley, Few Prosecuted Under State "Samaritan" Like France, Wisconsin Requires Residents to Help Crime, Accident Victims, Milwaukee J. Sentinel, Sept. 5, 1997, at 9A (quoting James Haney, director of research and information for Wisconsin Attorney General Jim Doyle).
227. See Pardun, supra note 39, at 606. An original sponsor of Minnesota's bill "indicate[d] that its purpose was largely symbolic, consonant with Minnesota's vision of an ideal society." Id. (quoting Representative Bill Luther). According to Wisconsin prosecutors, their law has a symbolic component as well. See id. at 606-07. The citizens of Wisconsin, one prosecutor concluded, "would report [a serious] crime without [a law] on the books." Yeager, supra note 45, at 16 n.70 (quoting letter from James C. Babler, District Attorney, Barron County, Wis., to Yeager (Nov. 11, 1991) (on file with Yeager) (alterations in original)). A representative of Wisconsin's Attorney General's office insisted that although "it might be a little rosy-eyed to say this, I think the good people of Wisconsin generally aid victims when they see them in trouble." Dave Daley, Few Prosecuted Under State "Samaritan" Like France, Wisconsin Requires Residents to Help Crime, Accident Victims, Milwaukee J. Sentinel, Sept. 5, 1997, at 9A (quoting James Haney, director of research and information for Wisconsin Attorney General Jim Doyle).
228. Franklin, supra note 85, at 61.
229. In the last 30 years, Vermont's courts have had only one opportunity to consider the civil liability the statute might impose, see Sabia v. State, 669 A.2d 1187, 1194 (Vt. 1995) (holding that if individuals are expected to provide "reasonable assistance" under this section, civil liability may be imposed if their acts are grossly negligent or if they expect to be compensated for their services), and one opportunity to confront the criminal liability it does impose. See State v. Joyce, 433 A.2d 271, 273 (Vt. 1981) (holding that Vermont's Duty to Aid the Endangered Act does not impose a duty to intervene in a fight). According to a spokeswoman for Vermont's attorney general, "no one has ever been cited under [Vermont's] law." Chapman, supra note 23. Similarly, according to an assistant attorney general in Minnesota, that state's good samaritan law "has never been used." Id.; see also Yeager, supra note 45, at 25 (noting the lack of "appellate decisions upholding the conviction of a defendant prosecuted under a contemporary easy-rescue statute"). This similar virtual lack of case law in Minnesota makes some question the utility of its law. See Pardun, supra note 39, at 597. Moreover, in Wisconsin as well, since the statute's passage more than 15 years ago, Wisconsin's prosecutors have used the state's good samaritan statute only once to convict an inactive bystander. See State v. La Plante, 521 N.W.2d 448, 452 (Wis. Ct. App. 1994) (rejecting a constitutional challenge to the bystander's conviction). The good samaritan laws of Rhode Island, Florida, Washington, and Massachusetts lie equally as dormant as the statutes of the three states mentioned above. Because Ohio's statute imposes a duty to report all felonies, it has a broader reach than the statutes of the other seven states and has produced more case law. See, e.g., State v. Miccichi, No. 86AP08066, 1987 WL 14481, at *2 (Ohio. Ct. App. July 20, 1987) (holding that a dentist's unreasonable delay in reporting the theft of drugs from his office constituted a violation of Ohio's duty to report statute); State v. Wardlow, 484 N.E.2d 276, 279 (Ohio Ct. App. 1985) (holding that a reporting statute gives a person fair notice that failing to report a serious crime which the person has knowledge about is forbidden); In re Stichtenoth, 425 N.E.2d 957, 958 (Ohio Ct. App. 1980) (holding that the statute does not require an individual to report if events have occurred that result in notification). But as the cases cited above indicate, Ohio's statute has not been applied to situations involving the good samaritan scenario whereby a stranger comes to the aid of another by making a phone call to the police or attempting an "easy rescue."
230. In the last 30 years, Vermont's courts have had only one opportunity to consider the civil liability the statute might impose, see Sabia v. State, 669 A.2d 1187, 1194 (Vt. 1995) (holding that if individuals are expected to provide "reasonable assistance" under this section, civil liability may be imposed if their acts are grossly negligent or if they expect to be compensated for their services), and one opportunity to confront the criminal liability it does impose. See State v. Joyce, 433 A.2d 271, 273 (Vt. 1981) (holding that Vermont's Duty to Aid the Endangered Act does not impose a duty to intervene in a fight). According to a spokeswoman for Vermont's attorney general, "no one has ever been cited under [Vermont's] law." Chapman, supra note 23. Similarly, according to an assistant attorney general in Minnesota, that state's good samaritan law "has never been used." Id.; see also Yeager, supra note 45, at 25 (noting the lack of "appellate decisions upholding the conviction of a defendant prosecuted under a contemporary easy-rescue statute"). This similar virtual lack of case law in Minnesota makes some question the utility of its law. See Pardun, supra note 39, at 597. Moreover, in Wisconsin as well, since the statute's passage more than 15 years ago, Wisconsin's prosecutors have used the state's good samaritan statute only once to convict an inactive bystander. See State v. La Plante, 521 N.W.2d 448, 452 (Wis. Ct. App. 1994) (rejecting a constitutional challenge to the bystander's conviction). The good samaritan laws of Rhode Island, Florida, Washington, and Massachusetts lie equally as dormant as the statutes of the three states mentioned above. Because Ohio's statute imposes a duty to report all felonies, it has a broader reach than the statutes of the other seven states and has produced more case law. See, e.g., State v. Miccichi, No. 86AP08066, 1987 WL 14481, at *2 (Ohio. Ct. App. July 20, 1987) (holding that a dentist's unreasonable delay in reporting the theft of drugs from his office constituted a violation of Ohio's duty to report statute); State v. Wardlow, 484 N.E.2d 276, 279 (Ohio Ct. App. 1985) (holding that a reporting statute gives a person fair notice that failing to report a serious crime which the person has knowledge about is forbidden); In re Stichtenoth, 425 N.E.2d 957, 958 (Ohio Ct. App. 1980) (holding that the statute does not require an individual to report if events have occurred that result in notification). But as the cases cited above indicate, Ohio's statute has not been applied to situations involving the good samaritan scenario whereby a stranger comes to the aid of another by making a phone call to the police or attempting an "easy rescue."
231. One commentator concludes that "even in the most wide ranging statutes covering the duty to aid, the language and the limitations written into the statutes allow for all but the easiest rescues to be aborted by the would-be Samaritan." Biggs, supra note 1, at 246. Another scholar, while acknowledging the difficulties a prosecutor would have in proving a bystander had knowledge that another person was in danger, that the danger was serious, etc., argues that the difficulty of proving these facts "poses no problems with which the criminal law is unfamiliar; questionable proof of 'knowledge' is routinely presented in criminal trials, and 'serious danger' commonly arises when a defendant claims to have justifiably harmed or killed another." Yeager, supra note 45, at 23 n.111; see also Silver, supra note 55, at 433 (arguing that although it is difficult to establish that a bystander "knew of injury or peril," establishing such knowledge is merely the problem of proving what was on a defendant's mind, a problem which "exists in nearly every criminal prosecution").
232. See, e.g., Yeager, supra note 45, at 25 (asking the question of what exactly is an "easy rescue").
233. See Joyce, 433 A.2d at 273.
234. See id. at 272-73.
235. See id. at 273.
236. Id. (quoting Vt. Stat. Ann. tit. 12, § 519(a) (1973) (effective Mar. 22, 1968)).
237. Id.
238. See id.
239. See id.
240. See id. Notably, if Kitty Genovese's murder had taken place in a state with a good samaritan law imposing a duty to rescue (as contrasted with a duty to report), the danger to a rescuer coming to her aid would have been far too great to warrant the imposition of any statutory duty as well. See, e.g., Vt. Stat. Ann. tit. 12, § 519(a) (1973) (requiring that a person render aid only "to the extent that [it] can be rendered without danger or peril to himself").
241. Although one commentator's research revealed virtually no charges brought by prosecutors under the duty to rescue laws of Vermont, Minnesota, Wisconsin, and Rhode Island, it did confirm that prosecutors employed the duty to report statutes of Rhode Island, Washington, Ohio, Massachusetts, and Florida. See, e.g., Yeager, supra note 45, at 32 & n.153 (discussing an instance of use of the Ohio statute). Prosecutors admitted, however, that the employment was limited. See id. at 35. A combination of few incidents and an inability to identify the perpetrating offenders contributed to this limitation. See id.; see also Wenik, supra note 53, at 1803 (arguing that the reporting statutes of Ohio, Washington, and Massachusetts are "plagued with serious defects as presently drafted" and observing that the Ohio statute's failure to adequately define "knowledge" may result in an individual reporting a rumor). The number of convictions under these reporting statutes remains negligible.
242. Biggs, supra note 1, at 236.
243. Yeager, supra note 45, at 35 n.162 (quoting a letter from Kitty-Ann van Doorninck, Admin. Deputy Office of Prosecuting Attorney, Pierce County Wash., to Yeager (Apr. 3, 1992) (on file with Yeager)).
244. Id.
245. Id. (quoting a letter from Gilbert J. Nadeau, Jr., First Assistant District Attorney for Bristol District, Mass., to Yeager (Nov. 13, 1991) (on file with Yeager)).
246. See Landes & Posner, supra note 67, at 96-97; Yeager, supra note 45, at 23 n.111; Pardun, supra note 39, at 605 ("The capital needed to investigate, arrest, and adjudicate violators of these laws could reach exorbitant amounts. . .. [T]he resources saved by not enacting Good Samaritan laws would result in the prosecution of offenders of more serious crimes instead of violators of a general duty to assist."). Some argue, however, that because incidents like Kitty Genovese's murder, which could have potentially produced 38 defendants, are "quite unusual," focusing on the problems of litigating mass-bystander situations is unnecessary. Silver, supra note 55, at 432 n.59. To conclude that the incidents are "quite unusual," however, begs the question of why good samaritan legislation is necessary in the first place.
247. See supra note 206.
248. See Silver, supra note 55, at 432-33 & n.61. Minnesota, Rhode Island, and Vermont all require "reasonable assistance." See Minn. Stat. Ann. § 604A.01(1) (Supp. 1999) (originally enacted as § 604.05 (1971); § 604.05(1) effective Aug. 1, 1983); R.I. Gen. Laws § 11-56-1 (1994) (effective 1984); Vt. Stat. Ann. tit. 12, § 519(a) (1973) (effective Mar. 22, 1968).
249. See State v. La Plante, 521 N.W.2d 448, 452 (Wis. 1994). Notably, La Plante is also the state's most recent conviction under the statute.
250. See id. at 449.
251. See id.
252. See id. "[S]everal individuals who were at defendant's party witnessed defendant standing idly by while victim was brutally beaten." Id. at 448. The fact that LaPlante was not alone when she observed the fight is telling, for prosecutors charged only LaPlante with a crime. See id. at 449.
253. See id.
254. See id.
255. Id. at 451.
256. For a discussion of tort law's special relationship exceptions, see supra Part II.A.1. Two sections of the Restatement (Second) of Torts may have influenced the court's determination that LaPlante owed a duty to her guest: § 315, which imposes a duty to control the conduct of a third person as to prevent him from causing physical harm to another person if a special relationship exists between the actor and the third person; and § 321, which imposes a duty on one who creates an unreasonable risk of causing physical harm to another. See Restatement (Second) of Torts §§ 315, 321 (1965). Similarly, in Tiedeman v. Morgan, 435 N.W.2d 86, 88 (Minn. 1989), the court relied on a special relationship exception to the "no duty to rescue" rule, rather than implicating the state's good samaritan law. The defendants in Tiedeman argued that the immunity provision of Minnesota's good samaritan law applied to them in a situation where they negligently failed to rescue a guest in their home. See id. at 88-89. The court held that the statute was inapplicable to the defendants' case, however, because a special relationship exception, not Minnesota's good samaritan law, imposed a duty on the hosts to their guest. See id. at 88. The court recognized: the existence of a common law duty of care for those who know or should know of the needs of one in circumstances under their control . . . . . . . . Based on both the meaning and the purpose of the Good Samaritan statute, we conclude it does not apply to the pre-existing duty of care asserted here. Id. Like La Plante, Tiedeman may suggest that in the rare case implicating a good samaritan law, a court may rely on the special relationship exceptions as a basis for its ruling.
257. See supra note 235 and accompanying text.
258. See supra note 211 and accompanying text.
259. See Franklin, supra note 85, at 58 ("[T]he legal requirement of rescue would, in moments of hesitation, tip the balance toward the desired action. Some rescuers might be moved initially by awareness of such a law."). A study indicates that if people know a legal duty to aid another exists, they judge more harshly the failure to act. See id. at 58-59. If told that a duty does not exist, people regard the failure as nothing more than distasteful. See id. at 59.
260. See Yeager, supra note 45, at 15-20.
261. See id. at 15-16.
262. See Biggs, supra note 1, at 234-35; Wenik, supra note 53, at 1788-89.
263. Bibb Latané & John M. Darley, Social Determinants of Bystander Intervention in Emergencies, in Altruism and Helping Behavior: Social Psychological Studies of Some Antecedents and Consequences 13, 14 (Jacqueline R. Macaulay & Leonard Berkowitz eds., 1970) (exploring the psychology behind those that do not get involved and concluding that "apathy," "indifference," and "unconcern" do not accurately describe their behavior).
264. See Silver, supra note 55, at 428.
265. See supra Part III.
266. S. 793, 106th Cong. § 2 (1999); S. 2452, 105th Cong. § 2 (1998). Currently, all 50 states have laws requiring certain individuals to report child abuse. See Trost, supra note 18, at 194. The child abuse reporting law that would be imposed on the states by the Sherrice Iverson amendment differs from the reporting laws presently imposed because the federal amendment would require all individuals over eighteen to report. Most reporting statutes require only certain professionals to report such as: physicians, teachers, child-care workers, social workers, psychologists, etc. The Sherrice Iverson Act also would differ from current reporting laws because it would impose a mandatory criminal penalty, and it addresses child sexual abuse specifically.
267. See S. 2452 (statement of Senator Boxer). Boxer misstated the number of states with such laws. See id. ("Only two states, Vermont and Minnesota, currently have such 'good Samaritan' laws."). There are actually eight states with such laws: Vermont, Minnesota, Wisconsin, Washington, Rhode Island, Massachusetts, Florida, and Ohio. For a discussion of these states' statutes, see supra Part III.
268. The Sherrice Iverson Act would be particularly similar to Washington's reporting statute. See Wash. Rev. Code Ann. § 9.69.100 (West 1998) (1970).
269. See Fla. Stat. Ann. § 794.027 (West 1992 & Supp. 1999) (effective 1984); Mass. Ann. Laws ch. 268, § 40 (Law Co-op. 1992) (effective 1983).
270. See supra note 15 and accompanying text.
271. New Bill Requires Reporting of Sex Crimes, Las Vegas Rev.-J., Sept. 10, 1998, at 4A.
272. Id.
273. Talk of the Nation, supra note 3.
274. See id. ("[I]f we can't grow up in our own lives, having the sense of right and wrong . . . then I believe that we have to have government respond to it.").
275. See supra Part III.
276. See supra note 249 and accompanying text.
277. See supra note 5 and accompanying text.
278. See supra notes 214-31 and accompanying text.
279. Yeager, supra note 45, at 35 n.162 (quoting letter from C. Marie King, Assistant State Attorney, 6th Jud. Cir., Fla., to Yeager (Nov. 25, 1991) (on file with Yeager)); Telephone Interview with Lawrence Bushing, Deputy Bureau Chief of the Family Violence and Child Abuse Bureau of the New York County District Attorney's Office, (Apr. 23, 1999) (concluding that witnesses to child sexual abuse are "rare, but not unprecedented"). Because child sexual abuse occurs most frequently in the home, such abuse is only "occasionally" witnessed. See id.
280. See Yeager, supra note 45, at 37 (quoting letter from C.W. Goodwin, Chief Assistant State Attorney, 2nd Jud. Cir., Fla., to Yeager (Nov. 25, 1991) (on file with Yeager)).
281. For a discussion of these reporting statutes, see supra Part II.A.2.b.
282. For a discussion of the problems inherent in the mandatory child abuse reporting statutes, see part U.C.
283. See Rosencrantz, supra note 102, at 341-42 (concluding that the increased number of abused children brought to the attention of public authorities over a twenty-nine-year period indicates the success of reporting statutes).
284. See supra Part III.D. In some circumstances, therefore, the statutes might provide even greater protection to children than the Sherrice Iverson Act would provide. For instance, these laws ostensibly require strangers to the child to report not only what they witnessed, but that to which they merely had knowledge. See, e.g., Fla. Stat. Ann. § 415.504 (West 1998 & Supp. 1999) (requiring that a reporter have knowledge of or reasonable cause to suspect the abuse); Minn. Stat. Ann. § 626.556 (West 1983 & Supp. 1999) (requiring reporter have knowledge of or reason to believe abuse exists).
285. Meriwether, supra note 95, at 159.
286. See id. at 154-60.
287. In questioning the constitutionality of the state's mandatory reporting statute, Nevada's Supreme Court emphasized the importance of clear statutory definitions: "Because a criminal penalty may be imposed on persons who fail to comply with the reporting requirements of [this section], the terms of that statute must be clear enough to inform those who are subject to the reporting provisions what conduct will render them liable to a criminal sanction." Washoe County v. Sferrazza, 766 P.2d 896, 897 (Nev. 1988). The court concluded that the statute's requirement that an individual report suspected abuse "immediately" vests in the prosecuting authorities unbridled discretion to determine whether a report of suspected child abuse was made quickly enough to satisfy the mandate of [this section. Therefore] a professional who . . . suspect[s] a child is being abused . . . report[s] his suspicions only at great risk to himself of prosecution for failing to make an "immediate" report. [This section] fails to inform [mandated reporters] what conduct will render them liable for criminal sanctions. Id.
288. Vieth, supra note 95, at 156.