Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!1
Criminal liability has typically been reserved for those who have both actus reus and mens rea. Liability for true omissions is infrequent in modern criminal codes and even less frequently enforced. Despite wide public support for aiding those in peril, Western democracies have historically refused to impose any penalty upon those who fail to aid someone in danger.
But recent high profile abuse scandals—including those of the USA gymnastics team, University of Michigan, and the Catholic Church—have caused scholars and policymakers to rethink these assumptions. In recent years, some jurisdictions have slowly come to criminalize those who witness another in peril and fail to provide aid. Governments, however, remain silent on whether to punish actors not present who learn of ongoing peril to someone they have power to protect but nevertheless choose not to act on their behalf. Indeed, unlike other threats to society, current legislation does not effectively criminalize these enablers of crime.
What is more, the failure of governments to recognize omission as a crime has directly led to the phenomenon of institutional complicity. Institutional complicity, as defined in this Article, is where an individual turns a blind eye to abuse out of a sense of duty to an institution. This Article proposes a legal framework and definitional language to allow prosecution of actors who discover sexual assault and yet fail to contact law enforcement. It also distinguishes between enablers and bystanders of crime and facilitates the consideration of these issues of omission by legislatures.
In examining the issue from the perspective of the person in peril, this Article provides a path towards more effectively redressing the harms suffered by crime victims.
a. Professor of Law, S.J. Quinney College of Law, University of Utah. I owe many thanks to Eric Thorne (SJ Quinney, JD expected 2022) whose significant contributions to this Article are deeply appreciated, to Joe Stroud and Clare Leaney from the In Good Faith Foundation (Australia) for their very helpful and honest feedback, and to my friend and colleague Professor/Associate Dean Shima Baughman for her encouragement and wise counsel, as well as valuable feedback form Professor Zachary Kaufman. I thank Abby Thorne for her copy-editing contribution. I also wish to thank a number of anonymous readers who graciously commented and provided invaluable feedback; one reader correctly noted the inherent challenges of imposing a bystander requirement in minority communities where there is inherent suspicion of law enforcement. Another reader expressed concerns over anonymity in reporting. These are both very valid concerns which cannot be addressed by this Article alone. This Article is part of a larger project initially undertaken when my book, Crime of Complicity: The Bystander in the Holocaust, was published in 2017. In its aftermath, a second book, Armies of Enablers: Survivor Stories of Complicity and Betrayal in Sexual Assaults, was published September 2020. Furthermore, a co-authored law review Article (with Jessie Dyer), “Bystander Legislation: He Ain’t Heavy, He’s My Brother,” was published, September 2020. A third co-authored (Jon Vaughn) book, tentatively entitled, Piercing the Veil: The Myth of the Michigan Man, addresses the culture of enabling at the University of Michigan. In addition, I have been involved in legislative efforts regarding the criminalization of the bystander and enabler in a number of states, particularly in Utah where I have worked closely with State Representative Brian King.
The full text of this Article is available to download as a PDF.