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Criminal Liability for Failure to Rescue:  A Brief Survey of French and American Law

Touro International Law Review

Notes and Comments

[Cite as: 8 Touro Int'l L. Rev. 93 (1998)]
[*X = page number in printed version] 

Peter M. Agulnick [FNa1]
Heidi V. Rivkin [FNaa1]


  On August 30, 1997, Princess Diana's speeding Mercedes-Benz crashed in France, killing her and critically injuring other passengers in the car. Before medical help arrived for the Princess and her companions, photographers who had arrived at the scene allegedly snapped photographs of her body instead of assisting her and the others trapped in the car. As a result, the seven photographers were investigated for possibly violating, among other things,  [FN1] France's "Good-Samaritan" law, [FN2] which requires that onlookers lend aid to victims in peril. 

  Thirty-three years before Princess Diana's fatal crash, a woman named Catherine "Kitty" Genovese, an American, was stalked and repeatedly stabbed by an assailant in a middle-class *94 New York City neighborhood. [FN3] Although thirty-eight neighbors either heard or saw Genovese being attacked, no one came to her aid or even called the police until thirty-five minutes after the attack, by which time Genovese was dead. [FN4] In contrast to the legal action contemplated against the photographers present at Princess Diana's crash scene, no one was investigated or prosecuted for failing to help Genovese because it was not a crime in New York. 

  These two events reflect the differences between the French and the American treatment of one type of omission, specifically, the failure to help another who is in danger. [FN5] This Comment will examine these differences. 

  Part II of this Comment discusses the American rule that the majority of states follow. The majority rule, barring seven narrowly tailored exceptions, imposes no duty on bystanders to rescue someone in peril. Part III discusses the minority American rule, which is largely similar to the French Rule. Part IV traces the origins, development, and rationale of the French "Good Samaritan" law, [FN6] which generally does require one to rescue another in peril. 

  Part V outlines those instances where all three approaches (the French rule, the American majority rule exceptions, and the American minority rule), impose a duty to rescue. Ultimately, however, this Comment remains purely explanatory and leaves it to the reader to decide which system is more socially desirable. 


  *95 Since antiquity, [FN7] Anglo-American law has required that two elements be present before imposing criminal liability for the commission of criminal acts. First, there must be an affirmative act, known as an actus reus. [FN8] Second, for more serious crimes, there must be a culpable mental state, known as mens rea. [FN9] Absent such requirements, a criminal prosecution cannot be supported. Because an actus reus is a strict requirement under American law, it is a logical extension that a person's inaction should not be punished. 

  Contrary to French law, the American rule on omissions is as follows: there is no legal duty to rescue another in danger, even though a moral obligation might exist. [FN10] This is true even "when that aid can be rendered without danger or inconvenience to" the potential rescuer. [FN11] 

  *96 James Fitzjames Stephen, in A History of the Criminal Law of England, illustrates the Anglo-American rule in a hypothetical: "A number of people who stand round a shallow pond in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the pond, are, no doubt, shameful cowards, but they can hardly be said to have killed the child."  [FN12] As evidence of the Anglo-American rule's longevity, Stephen's illustration, written over a hundred years ago, is still applicable today. 

  As noted previously, the rule against criminalizing omissions is not absolute. First, there are a number of well-established common-law exceptions to the general majority rule of not punishing individuals for omissions; these exceptions apply to special classes of people. As this Comment later discusses, if people in these classes fail to act, they will incur criminal liability. Second, there is a minority American rule with respect to omissions. States that follow the minority rule have, in fact, created statutes that criminalize omissions, albeit with less severe penalties than are imposed under French law. 

A. Rationale for the Majority American Rule Against Punishing Omissions 

  Deeply ingrained in the American psyche is the individual's desire to live free from governmental interference. [FN13] Accordingly, American law has long respected the autonomy of the individual and has been reluctant to punish for failure to rescue. For proponents of the American rule, the imposition of a duty to help the victim is an encroachment upon the would-be rescuer's personal freedom. 

  *97 In addition, it has been said that a duty-to-rescue rule is simply unnecessary. [FN14] Such a rule, it is argued, will not affect enough cases to render it "worthwhile." [FN15] These concerns, together with the vagueness of the concept of moral duty, [FN16] might, in the extreme, lead to undesirable results. One commentator has asked the question, "Does everyone who knows of the existence of a starving person have a moral duty to give that person food?" [FN17] Regarding the Genovese incident, although thirty-eight people witnessed the assailant attack and ultimately kill Genovese, should those thirty-eight witnesses be charged with a crime? [FN18] 

  Moreover, in a multiple-witness scenario, a duty-to-rescue rule may hinder police efforts to apprehend criminals. For instance, if failing to act was a criminal offense at the time of Genovese's plight, the thirty-eight witnesses might never have come forward to identify Genovese's attacker after he was apprehended. These witnesses might have feared that they themselves would be prosecuted for not reporting the crime when it occurred. This, ironically, might have resulted in the attacker never being caught. In addition, suppose that only one of the thirty-eight witnesses had come forward after Genovese's murder. Would it be fair to punish this one person who reported the crime and not the remaining thirty-seven who kept silent? [FN19] 

  Finally, the common law has long distinguished a moral obligation from a legal duty. The latter, of course, is the only one that comes "within the sphere of judicial cognizance." [FN20] While courts have commented on the atrociousness of not fulfilling one's moral obligation to rescue, they have not *98 incorporated these sentiments into the rule of law. [FN21] For instance, Judge Smith, in Union Pacific Ry. Co. v. Cappier, [FN22] did not find criminal liability, but he did imply that the would-be rescuer's omission would be better left punished by the Creator. As Judge Smith observed, 
    withholding relief from the suffering, for failure to respond to the calls of worthy charity, or for faltering in the bestowment of brotherly love on the unfortunate, penalties are found not in the laws of men, but in that higher law, the violation of which is condemned by the voice of conscience, whose sentence of punishment for the recreant act is swift and sure.  [FN23] 

In line with this court's philosophy, Judeo-Christian tradition requires one to rescue another person in distress. [FN24] 

B. Exceptions to the General American Rule--When One Must Act 

  American criminal law makes an exception to the general rule and imposes a duty to rescue in a number of circumstances. Where there is a significant relationship between a victim and potential rescuer, the law steps in and requires a bystander to act. In the absence of such action, the bystander commits a crime. Such duties that arise from relationships consist of the following: 1) a duty based on a personal relationship; 2) a duty based on a contract; 3) a duty based on creating the risk; 4) a duty based *99 upon voluntary assumption of care; 5) a duty based on statute; 6) a duty to control the conduct of others; and 7) a duty based on being a landowner. [FN25] 

1) Duty Based on a Personal Relationship 

  The common law imposes a duty to act on individuals who have dependent or interdependent relationships. Society deems such relationships to be so complex and natural that they are worth the added imposition of a duty to act.  [FN26] 

  The parent-child relationship is most illustrative of this type of personal relationship. The common law has long recognized that parents who fail to aid or protect their children are criminally liable. [FN27] Today, it is not just the common law that imposes a duty on parents. In fact, every state has enacted statutes to specifically punish parents who fail to maintain their children's health. These statutes require parents to provide food, shelter, clothing, and medical attention for their children. [FN28] The reason for imposing such a duty on parents is, according to the court in Commonwealth v. Konz, [FN29] "[t]he inherent dependency of a child upon his parent to obtain medical aid, i.e., the incapacity of a child to evaluate his condition and summon aid by himself, supports imposition of such a duty upon the parent." [FN30] 

  *100 Although the law recognizes that children of tender years are, as the Konz court also said, "helpless," [FN31] no duty to rescue exists unless the would-be rescuer is either a legal parent or he has agreed to care for the child. [FN32] Even if the potential rescuer falls into one of these categories, the duty to care for a child is not unlimited; once the child reaches the age of majority or is emancipated, the parents' duty to act is discharged. [FN33] 

  Another interpersonal relationship recognized by the common law as imposing a duty is that between husband and wife. [FN34] Older cases originally spoke of a husband's duty to his wife. [FN35] However, in keeping with modern Equal Protection Clause jurisprudence, [FN36] courts would likely assign this duty to both spouses. [FN37] 

  This obligation to one's spouse, however, is less than the obligation of parents to their children. [FN38] Unlike children, adult spouses are far from "helpless." [FN39] Generally speaking, courts are not likely to impose a duty to act on a spouse unless the other is in a helpless condition.  [FN40] In addition, courts have held that a *101 couple must be legally married for the spousal duty to apply. [FN41] Thus, one court held that a defendant had no duty to summon medical help for his mistress, who was staying in his house for the weekend, when she took a lethal dose of morphine in the defendant's presence. [FN42] 

  Finally, the common law recognizes several other personal relationships to be worthy of imposing a duty to act. Examples include a master to his servant,  [FN43] a ship captain to his seaman, [FN44] and--as one treatise hypothesized--two mountain climbers, journeying together, to each other.  [FN45] 

2) Duty Based on a Contract 

  The common law also recognizes certain contractual relationships to be based on dependence and interdependence. As a result, contractual parties sometimes have a duty to rescue victims in peril--especially those whom they contracted to protect. Thus, a physician has a duty to his patient, [FN46] and a baby- *102 sitter has a duty to protect a minor child under his care. [FN47] A Canadian case even imposed a duty on an employer to care for his injured employee. [FN48] Any omission of these duties is usually criminal. 

  It should be noted that the contracts principle of third-party beneficiary   [FN49] applies in some way to the criminal realm. This means that one can be guilty for failing to rescue another, even though the victim in peril was not a contracting party. For instance, if a municipality contracts with a lifeguard to watch a beach, [FN50] the lifeguard owes a duty to the swimmers even though he has not contracted with each individual swimmer. [FN51] 

3) Duty Based on Creating the Risk 

  A bystander is charged with a reasonable duty to rescue if he creates the risk or causes the dangerous situation that the victim faces. This is true whether the bystander's endangering acts were intentional, [FN52] negligent, or, as some courts have held, completely innocent. [FN53] In People v. Fowler, [FN54] a defendant intentionally battered a victim and left him on the side of the road. [FN55] The victim, lying unconscious, was run over and killed by a car. [FN56] *103 The court affirmed the defendant's murder conviction for failure to help the man. [FN57] 

  The English case of Green v. Cross [FN58] amply illustrates a duty that results from someone innocently creating a danger. In Green, the defendant lawfully laid a vermin trap. [FN59] Later, a dog became trapped in it.  [FN60] After discovering the trapped dog, the defendant failed to release the dog or call for help until several hours later. [FN61] The Green court found the defendant to be guilty of cruelty to animals--a statutory offense-- because the defendant delayed assisting the dog. [FN62] 

4) Duty Based on Voluntary Assumption of Care 

  A duty may be imposed when a bystander voluntarily undertakes responsibility for another. More specifically, one who begins a rescue must continue to assist if a subsequent omission would put the victim in a worse position than if the rescuer had not helped the victim in the first place. [FN63] This rule applies even if the rescuer had no initial duty to aid the victim. 

5) Duty Based on Statute 

  Legislatures often impose a statutory duty upon certain individuals. Perhaps the most common of these laws are the "hit-*104 and-run" statutes, which, at present, all states have enacted. [FN64] "Hit-and-run" statutes require drivers involved in car accidents to stop and help injured parties at the scene. If a driver fails to stop he will be guilty of violating the hit-and-run statute. In addition, if the driver fails to stop and a victim dies, courts will often find the driver guilty of manslaughter. [FN65] 

6) Duty to Control Conduct of Others 

  As discussed earlier, the relations between individuals may be so significant that the law imposes a duty on these persons to aid each other. [FN66] Parents, like others charged with a duty based on a relationship, may also have a duty to protect third parties from harm caused by their children, according to some renowned commentators. [FN67] Other examples include an employer's duty to protect third parties from harmful acts of his employees, and a car- owner's duty to regulate the speed his chauffeur drives lest the car injure third parties. [FN68] 

7) Duty Based on Being a Landowner 

  A landowner sometimes has a duty to protect the safety of those who are on his land. [FN69] For instance, the failure of a landowner to use proper fire precautions on his premises may create criminal liability in the event that guests are killed. [FN70] 


  Following Vermont's lead, [FN71] several states have enacted statutes that diverge from the well-established American rule, which precludes punishment for omissions. These statutes, all adopted within the past thirty years, extend the legal obligation beyond the narrowly defined classes of people within the seven exceptions listed immediately above. They impose a duty on all persons, regardless of their relationship to the victim. In effect, this approach to criminal omissions is closer to that of France. 

  For instance, in some states, such as Vermont, all onlookers are required to rescue endangered victims: 
    A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others. [FN72] 

Other states, such as Massachusetts, only require bystanders to report violent or sexual crimes that they witness: 
    Whoever knows that another person is a victim of aggravated rape, murder, manslaughter or armed robbery and is at the scene of said crime shall, to the extent that said person can do so without danger or peril to himself or others, report said crime to an appropriate law enforcement official as *106 soon as reasonably practicable. Any person who violates this section shall be punished by a fine of not less than five hundred or more than two thousand five hundred dollars. [FN73] 

  Quite similar to minority American duty-to-rescue statutes, French law requires onlookers to aid endangered victims and to report crimes being perpetrated against a victim. However, the French penalty for non-compliance is far greater than penalties that American statutes prescribe. Because of less severe penalties, one commentator referred to the American duty-to-rescue statutes as "toothless tiger[s]." [FN74] Perhaps the rationale for the majority American rule, that one should be punished for an act rather than an omission, influenced lawmakers when they adopted duty-to-rescue statutes and their respective penalties. 


A. A Brief History 

  French law differs from American law in its treatment of omissions, though this has not always been the case. The original French Penal Code of 1810 contained no provision by which to punish individuals for a failure to act, no matter how morally repugnant one's omission may have been. [FN75] In effect, French criminal law with respect to omissions was essentially the same as *107 the American approach and, in fact, may have been more conservative than the American rule. For example, in one well-known French case, parents stood trial for violences and voies de fait (violence and assault) against their mentally ill daughter. [FN76] Though the parents had allowed their daughter to stay in a room without air and light, seriously compromising the girl's health, the appeals court said the parents were free from guilt because they committed an omission rather than an act. [FN77] The court held that an omission could not be punished unless the French Penal Code specifically prohibited it. [FN78] Since there was no French law governing the inaction of these parents, they had committed no crime and were freed. [FN79] Under American law, the outcome of this case would likely have been different since the common law charges parents with a duty to care for their children.  [FN80] 

  French law with respect to omissions started to take its present form in 1941 when the Vichy government, under pressure from German occupation authorities, [FN81] enacted a statute charging its citizens with two affirmative duties. First, the statute required citizens to report would-be criminals and, second, it required citizens to rescue persons in danger.  [FN82] 

  After the Allied forces liberated France in 1945, the French legislature re- codified the 1941 laws on omissions, which take their present form in Articles 62 and 63 of the French Penal Code. [FN83] 

B. French Law Today 

  *108 Modern French law on omissions has made moral obligation a legal requirement by implementing Articles 62 and 63 of the French Penal Code.  [FN84] In addition, French law does not require a relationship to exist between the bystander and endangered victim. As a result, French law requires each person on French soil to rescue an individual in peril if it can be done without danger to the potential rescuer. This concept has been codified in Article 62 of the French Penal Code: "Any person who willfully fails to render or to obtain assistance to an endangered person when such was possible without danger to himself or others, shall be subject to [punishment]." [FN85] 

  Moreover, Article 63 imposes a duty to aid potential victims who face danger from would-be criminals: "Any person who, by his immediate action and without danger to himself or others, could have prevented either a felonious act or a misdemeanor against the person, and willfully fails to do so, shall be punished...." [FN86] Paragraph 1 of Article 63 also requires individuals to report crimes--or aid victims of crimes--that place another person in danger.  [FN87] This provision essentially requires one to either fend off an attacker or report an on-going crime immediately to the authorities. Anglo- American law classifies the *109 failure to meet this requirement as "misprision of felony," [FN88] a common-law crime which has unequivocally been rejected by American courts. [FN89] 

C. Rationale for the French Rule 

  Perhaps the most visceral argument in favor of a rule requiring one to rescue another is that without such a rule, shocking legal results might occur. For example, consider a situation where a seasoned swimmer chooses not to rescue a baby who is drowning in the middle of a pool because the swimmer does not wish to dampen his clothing. [FN90] Such a person may be morally repugnant, but in the majority of American jurisdictions, the swimmer incurs no criminal liability. Proponents of the French rule cite this irrational legal outcome in support of the imposition of a duty to assist or rescue. [FN91] 

  Another rationale for the French rule might derive from France's socialist background, which, to a certain extent, favors the group over the individual. Certainly individualism, in the context of a duty-to-rescue rule, is considered secondary to the greater interests of society. In enacting France's duty-to- rescue rule, French lawmakers have employed utilitarian balancing, weighing the evil of encroaching on personal liberty against the good that a life-saving duty-to-rescue rule would yield to an endangered individual. [FN92] The latter, French lawmakers believed, was more important. 

  Still other proponents of the French rule argue that a duty to rescue is a general human duty that every person owes to another. *110 American law only recognizes a duty to rescue when a relationship, based on dependence or interdependence, exists; advocates of French law, too, employ this rationale, but they feel that, in instances of extreme danger, this duty is extended to cover all humanity, not just those with whom one shares a special relationship. [FN93] 


  As discussed above, French law requires the presence of four elements in order to impose criminal liability on a would-be rescuer. There must be: 1) an endangered person; 2) knowledge of the existence of the endangered person; 3) the ability to rescue the endangered person; and 4) an absence of danger to the rescuer or others. American law requires essentially the same elements in instances when a duty is imposed (that is, under the seven exceptions to the majority rule or in a state that follows the minority American rule). [FN94] Because French and American law have almost identical requirements in order for liability to be found, it would be beneficial to discuss these elements in the contexts of both legal systems. 

1) An Imperiled Person Who Suffers a Harm 

  The French Penal Code requires the existence of an "endangered person."   [FN95] So too does American law. [FN96] *111 Consequently, non-human objects require no such assistance. [FN97] Moreover, French courts have required the danger to the victim to be "imminent and continuous," [FN98] and it must necessitate "immediate action" [FN99] in order to protect the physical safety of the victim. This element also requires that the victim suffer a harm that ordinarily would not have occurred but for the omission. This means that if a victim has not been harmed by the omission, a crime cannot be predicated. [FN100] Along this same line of reasoning, French courts have held that if a victim is dead when discovered, he is no longer "endangered" within the meaning of the statute, and no duty to rescue exists. [FN101] 

2) Knowledge that a Person is in Danger (Mens Rea) 

  Although a person may be in danger, a potential rescuer must have knowledge of the peril for him to be culpable. Accordingly, a person who mistakenly believes a person is not in peril cannot be guilty of a criminal omission under either French [FN102] or American law. [FN103] 

  To illustrate this, consider the following French case: a defendant strolled past an old-age home where he encountered an elderly man sitting on top of a wall. [FN104] The elderly man, who appeared intoxicated to the defendant, was a resident of the home. Unknown to the defendant, the old man had become stuck *112 on the wall by his belt while trying to escape. Ignorant of the elderly man's plight, the defendant failed to offer help, and the old man later died of exposure. [FN105] Though the defendant was charged with failure to rescue, he was ultimately held not criminally liable because he was unaware of the danger. [FN106] 

  American cases have yielded identical legal results. In Fabritz v. Traurig, [FN107] a parent, ignorant of the abuse her daughter was enduring at the hands of another, was not criminally liable because she had no knowledge of her daughter's abusive situation. [FN108] In another American case, a court held that a driver was not guilty of failing to rescue another injured in an accident in which the driver was involved since he had neither knowledge of the accident nor the resulting injury. [FN109] 

3) Ability to Perform the Rescue 

  A potential rescuer must have the physical ability to perform a rescue, otherwise his or her omission is not criminal. [FN110] In American cases, this "ability" is interpreted broadly. Only the impossibility of performing a rescue will shield the potential rescuer from criminal liability. [FN111] To understand this concept, consider the following hypothetical: A non-swimmer bystander sees another person drowning in the middle of a large deep pool. Because he cannot swim, the bystander is unable to make a rescue, and therefore the "ability" element, on initial reflection, would be unsatisfied. However, in French and in American *113 cases, the bystander would be still exposed to criminal liability. The bystander could have made other efforts at rescue, such as summoning help or throwing a life preserver. Thus, if these options are available, they must be exercised. 

  There is sometimes an obligation to provide indirect assistance. For instance, American courts have routinely found that impoverished parents have an obligation to make every possible effort to provide food and medical care for their minor children. [FN112] Parents who cannot provide for their children must seek help elsewhere, such as through the government or a charity. [FN113] 

  The French interpretation of the ability element is perhaps even more liberal than the American position in this regard. For instance, one case held a pharmacist criminally liable for not notifying a doctor that his prescription was incorrect. This was true even though the error came to light after a patient had consumed the incorrect medicine and her death was unavoidable.  [FN114] 

4) Absence of Danger to the Would-Be Rescuer or Others 

  The French Penal Code will only impose criminal liability if the bystander can perform the rescue "without danger to himself or others." [FN115] Thus, in one French case a defendant failed to immediately help a mechanic whose clothing caught fire while he was fixing the defendant's car. Instead, the defendant first extinguished the flames on his car before assisting the mechanic. *114 The defendant was held not criminally liable because, as the defendant argued, the burning car might have exploded, placing the defendant and the mechanic in greater danger. [FN116] 

  American law also limits the imposition of a duty if a certain degree of risk is involved. For example, one North Carolina court emphasized that a bystander need not place himself in danger of "death or great bodily" harm in order to effectuate a rescue. [FN117] Thus, if one witnesses a fight, he need not break it up lest he sustain an injury. [FN118] Undertaking serious risk is not a requirement even for parents who are faced with having to rescue their child. "To require such," said one judge, "would require every parent to exhibit courage and heroism which, although commendable in the extreme, cannot realistically be expected or required of all people." [FN119] Naturally, if parents are not obligated to incur such risk, the same must certainly be true of persons engaged in less significant relationships. 


  Contrary to the French Penal Code, the majority of states in the United States refrain from punishing individuals for not helping endangered victims, be it by rescue or by summoning the authorities. France's approach, which is widely followed throughout Europe, punishes individuals for non- intervention, provided that four requisite elements are met. [FN120] 

  As discussed, the majority American rule does not punish for non-intervention except under seven exceptions. Under these seven exceptions, one is criminally liable only if four requisite elements (which French law also requires) are satisfied. Finally, *115 a number of minority jurisdictions have fairly recently enacted French-inspired duty-to-rescue statutes. 

[FNa1]. B.A. 1994, Syracuse University; J.D. Candidate 1998, Touro Law Center. By the time of publication, this author had received his J.D. 

[FNaa1]. B.A. 1994, Claremont McKenna College; J.D. Candidate 1999, Touro Law Center. 

[FN1]. The photographers were also placed under investigation for  "involuntary homicide," which is the French equivalent of manslaughter. See Jocelyn Noveck, Seven Paparazzi Remain Under Scrutiny, LOS ANGELES DAILY NEWS Sept. 3, 1997, at N11. 

[FN2]. THE FRENCH PENAL CODE, art. 63, reprinted in 1 GERHARD O.W. MUELLER, THE AMERICAN SERIES OF FOREIGN PENAL CODES (Gerhard O.W. Mueller & Jean F. Moreau trans. 1960). Many American states have "Good Samaritan" laws on the books. Although they share the same name, they are quite different than their French counterparts. Instead of imposing a duty to rescue, American "Good Samaritan" laws generally protect would-be rescuers from civil liability in the event that the victim they attempt to rescue sustains further injuries as a result of a negligent rescue attempt. 

[FN3]. See generally A.M. ROSENTHAL, THIRTY-EIGHT WITNESSES (1964). 

[FN4]. See id. at 36. 

[FN5]. BLACK'S LAW DICTIONARY 1086 (6th ed. 1990) defines an "omission," in relevant part, as "the intentional or unintentional failure to act which may or may not impose criminal liability depending upon the existence ... of a duty to act ...." An omission occurs when a bystander fails to help an endangered person, even when that help can be given without any danger to the bystander. 

[FN6]. THE FRENCH PENAL CODE, art. 63, reprinted in 1 GERHARD O.W. MUELLER, THE AMERICAN SERIES OF FOREIGN PENAL CODES (Gerhard O.W. Mueller & Jean F. Moreau trans. 1960). 

[FN7]. For a history of the Anglo-American approach to omissions, see generally Lionel H. Frankel, Criminal Omissions: A Legal Microcosm, 11 WAYNE L. REV. 367, 371-84 (1965); Jay Silver, The Duty to Rescue: A Reexamination and Proposal, 26 WM. & MARY L. REV. 423, 424 (1986); P.R. Glazebrook, Criminal Omissions: The Duty Requirement in Offences Against the Person, 76 THE L. Q. REV. 386 (1960). 


[FN9]. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 3.4 (1986). Some less serious crimes, known as strict liability crimes, do not require the mens rea element to be satisfied. Therefore, for these lesser crimes, the mere action alone is enough to impose criminal liability. For more general information on strict liability crimes see generally id. at § 3.8. 

[FN10]. Pope v. State, 396 A.2d 1054, 1064 (Md. 1979) (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 183 (1972)); see Buck v. Armory Mfg. Co., 44 A. 809, 810 (N.H. 1898); Union Pacific Ry. Co. v. Cappier, 72 P. 281, 282 (Kan. 1903). 

[FN11]. Pope, 396 A.2d at 1064 (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 183 (1972)). Few courts, commentators, or statutes, if any, obligate a potential rescuer to act if he is faced with danger. Arguably, if the danger is significant, the bystander has far less moral obligation. The greater the danger, the more heroic and less obligatory society finds one's actions. 

[FN12]. 1 JAMES F. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 10  (1883); see also Cappier, 72 P. at 282, which employs a similar hypothetical. 

[FN13]. See Andrew Ashworth, The Scope of Criminal Liability for Omissions, 105 THE L. Q. REV. 424, 427 (1989); cf. DECLARATION OF INDEPENDENCE (U.S. 1776). 

[FN14]. See A.D. Woozley, A Duty to Rescue: Some Thoughts on Criminal Liability, 69 VA. L. REV. 1273, 1276 (1983) (explaining why the common law has been reluctant to adopt duty-to-rescue laws). 

[FN15]. Id. 

[FN16]. See LAFAVE & SCOTT, supra note 9, §3.3 (f). 

[FN17]. Id. 

[FN18]. DRESSLER, supra note 8, § 9.06 (b). 

[FN19]. Woozley, supra note 14, at 1290. 

[FN20]. Union Pacific Ry. Co. v. Cappier, 72 P. 281, 282 (Kan. 1903). 

[FN21]. See, e.g., id. 

[FN22]. 72 P. 281 (Kan. 1903). 

[FN23]. Id. at 282 (emphasis added). 

[FN24]. See Randy Lee, A Look at God, Feminism and Tort Law, 75 MARQ L. REV. 371, 386-407 (1992); see also Aaron Kirschenbaum, The Bystander's Duty to Rescue in Jewish Law, 8 J. RELIGIOUS ETHICS 204 (1980); Marc C. Alexander, Religiously Motivated Murder: The Rabin Assassination and Abortion, 39 ARIZ. L. REV. 1161, 1168-80 (1997). 

[FN25]. These seven categories were borrowed, generally, from LAFAVE & SCOTT, supra note 9, §3.3 (a). 

[FN26]. See David C. Biggs, "The Good Samaritan is Packing": An Overview of the Broadened Duty to Aid Your Fellow Man, with the Modern Desire to Possess Concealed Weapons, 22 U. DAYTON L. REV. 225, 229 (1997). 

[FN27]. State v. Walden, 293 S.E.2d 780, 785 (N.C. 1982); see  Commonwealth v. Howard, 402 A.2d 674, 676 (Pa. 1979). 

[FN28]. See, e.g., Cal. Penal Code §§ 270, 273 (a) (West 1988 & Supp. 1997). Modern law almost always imposes these duties by statute. 

[FN29]. 498 A.2d 638 (Pa. 1982). 

[FN30]. Id. at 641. Since parents are not inherently dependent on their minor child, presumably the minor children have no duty to act to save their parents in a dangerous situation. 

[FN31]. Commonwealth v. Konz, 498 S.E.2d 638, 641 (Pa. 1982). 

[FN32]. Pope v. State, 396 A.2d 1054, 1063-64 (Md. 1979). 

[FN33]. Cf. Konz, 498 A.2d at 641 (reasoning that children of tender years are "helpless"). Presumably a child who is emancipated or has reached the age of majority is no longer, as the Konz court said, in a "helpless" state. 

[FN34]. Id. at 641-42; see State v. Smith, 65 Me. 257 (1876); State v. Mally, 366 P.2d 868 (Mont. 1961). 

[FN35]. See, e.g., State v. Smith, 65 Me. 257 (1876). 

[FN36]. See U.S. CONST. amend. XIV, §1; see generally JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 14.20 (5th ed. 1995). 

[FN37]. DRESSLER, supra note 8, § 9.07 n.5. 

[FN38]. Cf. Westrup v. Commonwealth, 93 S.W. 646, 646 (Ky. 1906) (noting that a husband was criminally liable because he failed to call medical help for his wife who was in a "helpless state and unable to appeal elsewhere for aid" (emphasis added)). 

[FN39]. Konz, 450 A.2d at 641. 

[FN40]. See, e.g., Territory v. Manton, 19 P. 387 (Mont. 1888) (holding that a husband had a legal duty to care for and protect his wife); State v. Smith, 65 Me. 257 (1876) (holding a husband criminally liable for failing to provide clothing and shelter for his insane wife). 

[FN41]. See, e.g., People v. Beardsley, 113 N.W. 1128, 1131 (Mich. 1907). 

[FN42]. Id. at 1128. 

[FN43]. See, e.g., Rex v. Smith, 2 Car. & P. 449, 172 Eng. Rep. 203 (1826). 

[FN44]. See, e.g., United States v. Knowles, 26 F. Cas. 800, 802 (N.D. Cal. 1864) (No. 15,540). 

[FN45]. See LAFAVE & SCOTT, supra note 9, § 3.3 (a)(1), which provides: "If two mountain climbers, climbing together, are off by themselves on a mountainside, and one falls into a crevasse, it would seem that the nature of their joint enterprise, involving a relationship of mutual reliance, ought to impose a duty upon the one mountaineer to extricate his imperiled colleague." See also Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976); but cf. Beardsley, 113 N.W. at 1131 (holding that the "fact that [a] woman was in [[the defendant's] house created no such legal duty" to rescue her when she consumed poison). 

[FN46]. Cf. People v. Montecino, 152 P.2d 5 (Cal. Dist. Ct. App. 1944)  (holding that the defendant, who had a duty to care for an elderly man, was guilty of manslaughter because the elderly man had died from the defendant's lack of care). Note, however, that a physician's duty extends to maintaining a patient's health. But if a patient's health deteriorates to the point that he will surely die, and the physician believes all medically available treatment would be futile, then no such duty exists. See generally JOSHUA DRESSLER, supra note 8, § 9.07, at 84. 

[FN47]. Pope v. State, 396 A.2d 1054, 1063 (Md. 1979). 

[FN48]. The Queen v. Brown [1893] 1 Terr. L.R. 475. 

[FN49]. See generally JOHN D. CALAMARI & JOSEPH M. PERILLO, CONTRACTS §§17-1 to 17-14 (3d ed. 1987); E. ALLAN FARNSWORTH, CONTRACTS §§ 10.1 to 10.9 (2d ed. 1990); ARTHUR L. CORBIN, CORBIN ON CONTRACTS §§ 772-781 (One Volume ed. 1952). 

[FN50]. LAFAVE & SCOTT, supra note 9, § 3.3 (a)(3). 

[FN51]. See id. 

[FN52]. See, e.g., People v. Fowler, 174 P. 892 (1918); Jones v. State, 43 N.E.2d 1017 (Ind. 1942). 

[FN53]. See, e.g., Commonwealth v. Cali, 141 N.E. 510 (Mass. 1923). 

[FN54]. 174 P. 892 (Cal. 1918). 

[FN55]. Id. at 896. 

[FN56]. Id. 

[FN57]. Id. at 897. 

[FN58]. 103 L.T.R. 279 (K.B. 1910) 

[FN59]. Id. at 282. 

[FN60]. Id. 

[FN61]. Id. 

[FN62]. Id. A simpler example involving humans would be a construction worker who leaves a manhole cover uncovered. If a pedestrian is about to fall through the hole, the construction worker has a duty to act reasonably, which would require him to shout a warning to the pedestrian. 

[FN63]. See Cornell v. State, 32 So.2d 610 (1947); Stehr v. State, 139 N.W. 676 (1913); see generally Paul H. Robinson, Criminal Liability for Omissions: A Brief Summary and Critique of the Law In the United States, 29 N.Y.L. SCH. L. REV. 101, 116 (1984). 

[FN64]. See, e.g., W. VA. Code § 17C-4-1 (Michie 1996). 

[FN65]. See People v. Steinbach, P.2d 147 (1958) (holding a defendant guilty of manslaughter for failing to stop and render aid after being involved in an accident that killed another driver). 

[FN66]. See supra Part II.B.1. 

[FN67]. LAFAVE & SCOTT, supra note 9, § 3.3 (a)(6); see W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 69 (5th ed. 1984) (noting that parental liability is analogous to the vicarious-liability doctrine). 

[FN68]. Id. (citing Moreland v. State, 139 S.E. 77 (Ga. 1927)). 

[FN69]. See Pridgen v. Boston Housing Auth., 308 N.E.2d 467, 476 (Mass. 1974). 

[FN70]. Commonwealth v. Welansky, 55 N.E.2d 902 (Mass. 1944). 

[FN71]. Vermont was the first state to diverge from the general American rule by enacting Vt. St. Ann., tit. 12 § 519 (a) (Equity 1973) in 1968. 

[FN72]. Id. Rhode Island has a similar statute. Gen. Laws R.I. § 11-56-1  (Michie 1994) (witnesses to an emergency who know that another person has suffered or is exposed to "grave physical harm" must, to the extent it can be done without danger to himself or third parties, give assistance to the endangered person). 

[FN73]. Mass. Gen. Laws Ann. ch. 268, § 40 (West 1990). The following statutes are similar: Rev. Code Wash. Ann § 9.69.100. (West 1998); Wis. Stat. Ann. § 940.34 (West 1996); Fla. Stat. Ann § 794.027 (West 1992). 

[FN74]. Woozley, supra note 14, at 1274 (referring to the Vermont statute). 

[FN75]. Jean Larguier, French Penal Law and the Duty to Aid Persons in Danger, 38 TUL. L. REV. 81, 81 (1966); see Andre Tunc, The Volunteer and the Good Samaritan, in THE GOOD SAMARITAN AND THE LAW 45 (James M. Ratcliffe ed. 1966). For a discussion of the ancient history and development of omissions in France, see generally Andrew Ashworth & Eva Steiner, Criminal Omissions and Public Duties: The French Experience, 10 LEGAL STUD. 153, 155 (1990). 

[FN76]. Larguier, supra note 75, at 81. (citing Judgment of Nov. 20 1901, Cour d'Appel et Tribunal de Poitiers, [1902] Dalloz Jurisprudence II. 81 (note Le Poittevin), [1902] Sirey Jurisprudence II. 305 (note Hemard)). 

[FN77]. Id. at 81-82. 

[FN78]. Id. at 82. 

[FN79]. Id. 

[FN80]. See supra Part II.B.1. 

[FN81]. Note, The Failure to Rescue: A Comparative Study, 52 COLUM. L. REV. 631, 639 (1952) (citing Tunc, Commentaire, Dalloz Legislation 33, 38 (1946)). 

[FN82]. See Ashworth & Steiner, supra note 75, at 157. 

[FN83]. Tunc, supra note 75, at 46. 

[FN84]. Indeed, most civil-law Western European countries follow an approach similar to the French rule on omissions. See generally Note, supra note 81. 

[FN85]. THE FRENCH PENAL CODE, art. 63, para. 2, reprinted in 1 GERHARD O.W. MUELLER, THE AMERICAN SERIES OF FOREIGN PENAL CODES (Gerhard O.W. Mueller & Jean F. Moreau trans. 1960). 

[FN86]. THE FRENCH PENAL CODE, art. 63, para. 1, reprinted in 1 GERHARD O.W. MUELLER, THE AMERICAN SERIES OF FOREIGN PENAL CODES (Gerhard O.W. Mueller & Jean F. Moreau trans. 1960). 

[FN87]. THE FRENCH PENAL CODE, art. 63, para. 1, reprinted in 1 GERHARD O.W. MUELLER, THE AMERICAN SERIES OF FOREIGN PENAL CODES (Gerhard O.W. Mueller & Jean F. Moreau trans. 1960), provides: "Any person who by his immediate action and without danger to himself or others, could have prevented either a felonious act or a misdemeanor against the person, and willfully fails to do so, shall be punished...." 

[FN88]. Some sources define "misprision of felony" as the failure to report a crime or come to the aid of a victim having a crime perpetrated against him. See, e.g., Pope v. State, 396 A.2d 1054, 1069 (Md. 1979). Other sources define it as the concealment of a felony. See BLACK'S LAW DICTIONARY 1000 (6th ed. 1990). It is the former concept that American courts have rejected. 

[FN89]. See Pope, 396 A.2d at 1071. 

[FN90]. See DRESSLER, supra note 8, § 9.06 (employing a similar hypothetical). 

[FN91]. Id. 

[FN92]. Note, supra note 81, at 646. 

[FN93]. See Aleksander W. Rudzinski, The Duty to Rescue: A Comparative Analysis, in THE GOOD SAMARITAN AND THE LAW 91, 92-93 (James M. Ratcliffe ed. 1966). 

[FN94]. See supra Parts II.B and III. 

[FN95]. THE FRENCH PENAL CODE, art. 63, para 2, reprinted in 1 GERHARD O.W. MUELLER, THE AMERICAN SERIES OF FOREIGN PENAL CODES (Gerhard O.W. Mueller & Jean F. Moreau trans. 1960). 

[FN96]. See, e.g., Vt. St. Ann., tit. 12 § 519 (a) (Equity 1973). 

[FN97]. Tunc, supra note 75, at 47. 

[FN98]. Ashworth & Steiner, see supra note 75, at 158 (quoting Crim. May 31, 1949, D. [1949] 347, J.C.P. [1949] II 4995; Crim. January 21, 1954, D. [1954] 224, J.C.P. [1954] II 8050; Crim. November, 17, 1959, D. [1960] 398). 

[FN99]. Id. 

[FN100]. Ashworth & Steiner, supra note 75, at 157-58 (citing 1964 Bull. Crim. No. 113). 

[FN101]. Larquier, supra note 75, at 84. 

[FN102]. Ashworth & Steiner, supra note 75, at 157-58 (citing 1969 Bull. Crim. No. 113). 

[FN103]. see Westrup v. Commonwealth, 93 S.W. 646, 648 (Ky. 1906). 

[FN104]. Larguier, supra note 75, at 83 (citing Cass. crim., December 17, 1959, D. [1960] 398). 

[FN105]. Id. at 83 (citing Cass. crim., December 17, 1959, D. [1960] 398). 

[FN106]. Id.; see also Note, supra note 81, at 640 n.71 (citing Cass. crim., May 31, 1951, [1949] D. Jur. 347). 

[FN107]. 583 F.2d 697 (4th Cir. 1978); see also Westrup v. Commonwealth, 93 S.W. 646 (Ky. 1906). 

[FN108]. Id. 

[FN109]. State v. Tennant, 319 S.E.2d 395 (W.Va. 1984). 

[FN110]. See MODEL PENAL CODE § 2.01(1) (1962), which provides that an actor is only criminally liable if he fails to perform an act "of which he is physically capable." 

[FN111]. LAFAVE & SCOTT, supra note 9, § 3.3 (c). 

[FN112]. See Stehr v. State, 139 S.W. 676, 678 (Neb. 1913). 

[FN113]. See id. 

[FN114]. Note, supra note 81, at 640 n.71 (citing Trib. Corr. Nice, Nov. 2, 1949, [1950] D. Jur. 53); see also F.J.M. Feldbrugge, Good and Bad Samaritans: A Comparative Survey of Criminal Law Provisions Concerning Failure to Rescue, 14 AM. J. COMP. L 630, 640 (1966) (citing Aix, December 23, 1952, J.C.P. [1953] II 7429, D. [1953] 128). 

[FN115]. THE FRENCH PENAL CODE, art. 63, para 1, reprinted in 1 GERHARD O.W. MUELLER, THE AMERICAN SERIES OF FOREIGN PENAL CODES (Gerhard O.W. Mueller & Jean F. Moreau trans. 1960). 

[FN116]. Feldbrugge, supra note 114, at 642 n.48 (citing C.A. Riom, March 20, 1947, D. [1947] 304). 

[FN117]. State v. Walden, 293 S.E.2d 780, 785 (N.C. 1982). 

[FN118]. See State v. Joyce, 433 A.2d 271 (Vt. 1981) (holding that Vermont's duty-to-rescue statute does not require bystanders to intervene in a fight because of the risk of sustaining an injury). 

[FN119]. State v. Walden, 293 S.E.2d 780, 786 (N.C. 1982). 

[FN120]. See supra Part IV.