Turning Bystanders into Upstanders Amid Sexual Crimes

The #MeToo movement has shown not only how rampant sexual abuse is, but also how often third parties disregard—or even enable—it. At least 16 individuals admitted witnessing or knowing of Harvey Weinstein’s sexual abuse; his behavior was notorious within Miramax and the Weinstein Company. Officials from the F.B.I., the U.S. Olympic Committee, U.S.A. Gymnastics, and Michigan State University were slow to act on allegations against Larry Nassar. There are many other examples in today’s news of bystanders who did not report illegal behavior. Stanford Law School Lecturer in Law and Fellow Zachary D. Kaufman’s article, “Protectors of Predators or Prey: Bystanders and Upstanders amid Sexual Crimes,” forthcoming in the Southern California Law Review, confronts this issue.

Here Kaufman discusses his research on these actors, reviews current state and federal “Bad Samaritan” and “Good Samaritan” laws, and offers recommendations to prompt would-be bystanders to act instead as upstanders.

What motivated you to write about bystanders and upstanders in the context of sexual crimes?

Most of my past scholarship—including my latest book, United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics—concentrates on suspected perpetrators of heinous offenses. As I have learned through my research, many crimes, including those of a sexual nature and especially where they are widespread, require indifference of or facilitation by third parties. In cases like Harvey Weinstein’s and Larry Nassar’s, if bystanders had acted instead as upstanders, perhaps these and other cases of sexual crimes would have been thwarted or at least mitigated.

What is the difference between a “bystander” and an “upstander”?

When a person is in need, an “upstander” intervenes whereas a “bystander” does not. After a grassroots campaign led by two American high school students, the Oxford English Dictionary added the term “upstander” in 2016.

What is the difference between “Good Samaritan laws” and “Bad Samaritan laws”?

“Good Samaritan laws” provide legal protection for those who assist others in peril. In contrast, “Bad Samaritan laws” impose a legal duty to assist others in need. “Bad Samaritan laws” include direct intervention (known as the “duty to rescue”), notifying authorities (known as the “duty to report”), or both.

Which states have “Bad Samaritan laws”?

Some professionals across 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 intervene in any crimes or crises. “Bad Samaritan laws”—whether duties to rescue, to report, or both—that do apply to most witnesses in the jurisdiction exist in 13 states: Alaska (here and here), California, Colorado, Florida, Hawaii, Massachusetts, Minnesota, Ohio, Rhode Island (here and here), Texas, Vermont, Washington, and Wisconsin.

Are there federal “Bad Samaritan laws”?

No general federal Bad Samaritan law exists in the United States. “Misprision of felony,” codified at 18 U.S.C. § 4, requires concealment of a known felony rather than mere failure to report or otherwise intervene in a crime. “Action for neglect to prevent,” codified at 42 U.S.C. § 1986, applies only to the civil rights listed in 42 U.S.C. § 1985. Inspired by the crimes of Larry Nassar, who molested hundreds of child athletes, our state’s own senior U.S. senator and the Ranking Member of the U.S. Senate Judiciary Committee, Senator Dianne Feinstein, sponsored a new federal duty-to-report law: the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017. In February, President Trump signed the bill into law, which applies only to victims who are children.

Why haven’t more “Bad Samaritan laws” been adopted at the state or federal level?

While dozens of foreign countries have national laws requiring bystander intervention, such statutes are less popular here in the United States. “Bad Samaritan laws” face pointed criticism.

First, they are often criticized for their potential negative effects, including that they may increase false reporting of crime, that authorities may apply them in a discriminatory fashion, that they may exacerbate the problem of mass incarceration (where violations lead to imprisonment), and that they may prompt unconstitutional self-incrimination if the witness is involved in the same or a related crime. Second, the very nature of these statutes is often condemned, including that they typically are vague, that they punish character rather than conduct, and that they impinge on individual human liberty. Finally, the effectiveness of these statutes is often questioned, including that they may be too cost-prohibitive to investigate and prosecute (in cases with numerous bystanders), that they are unlikely to compel upstanderism (because such prosecutions are rare, convictions are even rarer, and punishment, usually as a misdemeanor, is minimal), that they may be counterproductive (where a Good Samaritan harms herself, the person she is trying to help, or others), and that they may be irrelevant (because genuinely Good Samaritans will intervene even in the absence of Bad Samaritan laws and others will not intervene even in the presence of such laws).

Many of these criticisms can be addressed through careful drafting or amendment, as I discuss in my forthcoming article.

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Zachary Kaufman

Are “Bad Samaritan laws” effective?

In my forthcoming article, I argue that “Bad Samaritan laws” can be effective in two ways. They can stimulate upstanderism where penalties and publicity for violations compel compliance. Alternatively, a prosecutor can use such laws to elicit witness cooperation by offering immunity if the person agrees to testify.

It is unclear how many individuals have been charged with violating Bad Samaritan laws or offered immunity-for-testimony deals. In Massachusetts, which has a duty-to-report law, no such cases have been reported to Westlaw, the state’s Attorney General declined to respond to my inquiry on the record, and a spokesperson for the office of the Suffolk County District Attorney (which has jurisdiction over Boston) told me that the office could not recall ever filing a charge under the law. In Ohio, which also has a duty-to-report law, three witnesses to the rape of a 16-year-old girl in Steubenville in 2012 were granted immunity in exchange for testifying, which helped convict the two perpetrators. Those three witnesses could have been charged with violating the state’s duty-to-report law but prosecutors prioritized gathering evidence against the rapists. While the deal struck with these witnesses became known since the case was so famous and scrutinized, many other immunity deals involving the possibility of charging Bad Samaritan laws are unknown.

What are some of your recommendations?

Given how often sexual abuse occurs with the tacit knowledge of third parties, it requires a collective response. A combination of carrots and sticks could prompt would-be bystanders to act instead as upstanders.

First, as I discuss in my forthcoming article, Bad Samaritan laws should be carefully crafted or amended to ensure their reasonableness and effectiveness. No laws should require reporting where doing so risks harm to the witness. Existing duty-to-report laws, in California and elsewhere, already carve out this exception. To avoid exacerbating the problem of mass incarceration, Bad Samaritan laws should restrict punishments to a fine, probation, or community service. Victims’ age restrictions should be eliminated. The existing duty-to-report law here in California applies only where the victim is under 14 years old. In 2009, a 15-year-old girl was gang raped in Richmond, California, in the presence of several people. Because the victim’s age even minimally exceeded the law’s limit, bystanders to the crime could not be charged with a violation or offered immunity from such a charge in exchange for testimony. As I previously noted, the new federal Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 similarly 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.

Second, as I also discuss in my forthcoming article, duty-to-report laws should be introduced where they don’t yet exist at the state and federal levels. Third, duty-to-report laws should actually be charged or leveraged to obtain testimony. Fourth, instead of or in addition to violating a legal duty to report, prosecutors should more consistently charge what I call “enablers” (third parties whose actions go beyond those of passive bystanders) with other crimes, such as accomplice liability.

Fifth, we should create what I call in my forthcoming article “upstander prizes” and “upstander commissions” to identify, honor, and reward upstanders, including for their efforts to thwart sexual crimes. Of course, upstander prizes, like Bad Samaritan laws, come with their own challenges and controversy. I address these arguments in my forthcoming article.

Finally, Bad Samaritan laws and upstander prizes are ineffective if unknown. The federal and state governments should thus raise public awareness about these laws where they currently exist or are introduced and these prizes where they are created.

Learn more about bystanders and upstanders from Kaufman:

  • The Pixel Project (a global non-profit organization combatting violence against women and girls) hosted Kaufman for an online discussion of his research and recommendations.
  • The Boston Globe recently published Kaufman’s op-ed distilling his research and recommendations contained in his forthcoming article, Protectors of Predators or Prey.
  • Kaufman previously published two essays, both in Foreign Policy, about bystanders and upstanders amid genocide and other atrocity crimes. The first piece is about Muslim upstanders throughout history and the second piece is about Aung San Suu Kyi’s role in atrocity crimes perpetrated against the Rohingya in Myanmar.
  • Kaufman is currently writing a book about the law and politics of bystanders and upstanders.