In a disturbing video released last week, four Florida teenagers laughed and watched as they filmed and mocked a disabled man as he drowned in a pond. When the video first came to light, the Police in Florida announced that they were not going to press any charges against the teenagers because they were not involved in the death of the disabled man. However, the teens have now been charged with an offence – not reporting the death of a person to authorities.
Some of you may remember the Parable of the Good Samaritan (Luke 10:25-37). The message from the Parable was that we must love our neighbour as ourselves. But who then is this neighbour? Quite simply, our neighbour is any person who is in need. We are to act like the Good Samaritan and come to the aid of any person who is in peril and needs help.
Centuries later, in a matter unrelated to victims of robbery, Lord Atkin put forth a legal definition of our neighbour, which helped to develop and shape the law of torts:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” (Donoghue v Stevenson )
Note that the above definition of the legal neighbour includes our “acts” or “omissions” that affect our neighbour. This is the definition in the law of torts, which seeks to compensate people for injuries they suffer as a result of the actions or omissions of their legal neighbours. Criminal law on the other hand seeks to punish wrongdoers, but generally, it does not rely on this definition of a neighbour.
Generally, criminal law is only concerned with our positive acts. Very few laws punish us for our “omissions” or failure to act. Under criminal law, you have no obligation to be your neighbour’s keeper. In fact, it is said in criminal law that you are under no obligation to do anything if you are walking by and see a child drowning in shallow water, even if the only harm that may come upon you should you decide to rescue the child is getting your feet wet and aggravating your problem with athlete’s foot for a day or two… you can just walk on by. This may sound harsh but the rationale behind this is that one of the purposes of criminal law is to penalise people who inflict harm on others, not to compel people to do good — that is left to ethics, religion, education, etc. The second reason why criminal law generally avoids making our failure to act a crime is to respect our personal freedom and autonomy. And also, because there are many practical difficulties involved in writing laws that penalise our failure to act. It is not impossible to enact “Good Samaritan” laws requiring people to come to the rescue of others in trouble or act in the interest of the common good because countries like France have such laws in the penal code, and the UK has laws related to Terrorism where it is a criminal offence not to report any threats of terrorism you are aware of to the authorities. These, however, are exceptions to the general way we think of criminal liability being punishment for our actions.
Having said that, there are exceptions to the general rule such as if you have a contractual duty to do something and you do not, for example if you are a lifeguard, contracted to watch over swimmers at a beach or pool and you sit back and watch someone drown in those waters. Other exceptions include parental duty (parents must act for the welfare of their child, and if they fail to act and the child comes to harm, they may be held criminally liable); note that the requirement to act is not as clear when it comes to other relationships like with spouses, partners and siblings. If you assume responsibility for someone and subsequently fail to act, you may be criminally liable for what harm befalls them. For instance, if you assume responsibility for an old lady who lives down your street by taking food to her every day, and then you take off on holiday and make no provision for her feeding and she ends up dying from starvation, you may have to answer to some criminal charges. Another exception is when you create a dangerous situation and on becoming aware of that dangerous situation and the harm consequent, you do nothing to stop the chain of events that cause harm.
In essence, while it may disturb our moral senses that people do not come to the rescue of others in situations as I described above, it is not a criminal offence. In fact, in some cases, “Good Samaritans” have found themselves injured, killed or facing litigation because they came to the rescue of their biblical neighbour.
When situations like the case of these Florida teenagers arise, we find ourselves asking whether it may be time for us to expand the situations under which people are duty-bound to act. However, as the law stands, even in Nigeria, what these teenagers did, by standing by and doing nothing, was shocking, reprehensible even, but not criminal.