(This article was first published in The Boston Globe on August 3, 2018.)
The #MeToo movement has shown not only how rampant sexual abuse is, but also how often third parties disregard it — or even enable it. At least 16 people admitted witnessing or knowing of Harvey Weinstein’s sexual abuse; his behavior was notorious within Miramax and the Weinstein Company. Officials from the FBI, US Olympic Committee, USA Gymnastics, and Michigan State University were slow to act on allegations that physician Larry Nassar was sexually assaulting young gymnasts. The space where restaurateur Ken Friedman, chef Mario Batali, and others allegedly committed sexual misdeeds was commonly referred to among industry insiders as “the rape room.”
It’s striking how often sexual abuse occurs in situations where other people — sometimes many other people — have reason to suspect what’s going on. While punishing perpetrators and the institutions that shield them is overdue and essential, we should also consider what might prompt individual bystanders to act instead as “upstanders” — people who intervene to support others in need. What would it take to promote a culture in which bystanders speak up?
The law can help. I propose, in a forthcoming law review article, that we take a more comprehensive, aggressive approach to third parties aware of sexual abuse. We should use a combination of carrots and sticks, including state and federal laws that make it one’s legal duty to report sexual crimes to police. Such duty-to-report laws express a society’s revulsion at silence — treating it as a type of complicity.
The United States has a long, lurid history of bystanderism amid sexual crimes. Some individuals have been chillingly candid about why they didn’t help. Explaining his inaction during the 1983 gang rape of a 21-year-old woman in New Bedford, one of several witnesses stated he “didn’t want to get into problems.” The sole bystander to the molestation and murder of a 7-year-old girl in Primm, Nev., in 1997 justified his own passivity by declaring: “I’m not going to lose sleep over somebody else’s problems.” If either of these individuals had called the police in time, the sexual crimes might have been thwarted.
Some professionals in the United States are already legally mandated to report the mistreatment of vulnerable populations or certain injuries sustained by anyone. For instance, health care providers generally must report child and elder abuse as well as all gunshot and stab wounds. But these laws do not obligate most individuals to report sexual abuse (or, for that matter, any other crime). Duty-to-report laws that apply to all witnesses in the jurisdiction exist in only 12 US states (including Massachusetts).
Dozens of foreign countries already have national laws requiring bystander intervention. The enactment and enforcement of more duty-to-report laws in the United States could stimulate upstanderism here. Penalties and publicity for violations may compel compliance. When survivors themselves report sexual crimes, they often face skepticism. Corroborating reports would further bolster victims’ claims. A prosecutor can also use such laws to elicit witness cooperation by offering immunity if the person agrees to testify. Although prosecutors can compel testimony in other ways, such as through subpoenas for people who’ve witnessed a crime, those targeted techniques fail to establish a vital cultural norm: that a person who knows about a sexual crime should be expected to speak up.
Even where they are on the books, duty-to-report laws may go unused. It is unclear how many individuals, if any, have ever been charged with a violation of the Massachusetts law. No such cases have been reported to Westlaw, one of the most authoritative legal research services; the office of Suffolk County District Attorney Dan Conley could not recall ever filing a charge under the law, according to a spokesman.
Where duty-to-report laws already exist and may even be enforced, their scope should be expanded. The Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017, which requires the reporting of sexual abuse, became federal law in February. But it, like California’s duty-to-report law, applies only to children. While young people are most at risk of sexual violence, recent events emphasize that they are far from the only victims. Adults deserve protection, too.
Duty-to-report laws need not apply only to sexual crimes. Some already extend to other violent offenses, including murder (as in Massachusetts) or all felonies (as in Ohio). A recent tragedy raises questions about whether duty-to-report laws should apply even to non-criminal crises. Last year, in Florida, five teenagers recorded themselves mocking a man as he drowned and then uploaded the video to YouTube. Outrage over these teens’ failure to call for help led legislators in Florida and Arizona to consider introducing a duty-to-report law that would apply to such emergencies.
Of course, duty-to-report laws are ineffective if unknown. The federal and state governments should thus raise public awareness about these laws where they currently exist or are introduced. Instead of or in addition to violating a legal duty to report, prosecutors should more consistently charge enablers (third parties whose actions go beyond those of mere bystanders) with other crimes, such as accomplice liability.
To be sure, duty-to-report laws face pointed criticisms, but many can be addressed through careful drafting or amendment. For instance, no laws should require reporting where doing so risks harm to the witness . Existing duty-to-report laws, in Massachusetts and elsewhere, already carve out this exception. Laws that include jail time as a penalty, critics fear, could exacerbate the problem of mass incarceration; the solution would be to restrict punishments to a fine, probation, or community service. Advocates for adult victims of sexual violence may object to mandatory reporting, not least because it could make such victims more hesitant to confide in others. Duty-to-report laws could exempt these victims and their confidants.
Especially given the complexity of punishing bystanders, we also should consider rewarding upstanders. Such recognition would express society’s appreciation for upstanders’ good deeds and illustrate ideal conduct in emergencies. One model is the “Awards of Exceptional Recognition” annually issued by the police chief of Calgary, Canada. During the 2016 ceremony, four young men were honored for having stopped the sexual assault of a teenage girl. Of course, upstander prizes, like duty-to-report laws, come with their own challenges. Unscrupulous, undeserving individuals would have an incentive to misrepresent their actions. However, only corroborated upstanders should be eligible for such awards.
Given how often sexual abuse occurs with the tacit knowledge of third parties, it requires a collective response. A combination of rewards and duty-to-report laws could prompt would-be bystanders to get off the sidelines. #MeToo has been a powerful rallying cry, but upstanders also need to say #WeDo.
Zachary D. Kaufman, J.D., Ph.D., is a Lecturer in Law and Fellow at Stanford Law School, a Visiting Fellow at Stanford University’s Hoover Institution, and a Senior Fellow at Harvard University’s John F. Kennedy School of Government.