Criminal Law, Empirics, and the Duty to Rescue
posted by Max Minzner
Around this time of year new professors start to think about their courses and I thought I would add in my contribution. One of the struggles of teaching criminal law is that the doctrine is often divorced from reality. This is hardly a new observation, but I am always struck by the divide between the practice of criminal law and the course we teach to first year students. As a simple example, the standard criminal law class spends little or no time on narcotics prosecutions, even though drug cases are an important, if not the dominant, feature of the practice of criminal law. One way to overcome that divide is to bring some empirical work into the classroom so I thought I would share some of the items I have used or plan to use in the future.
The first installment is on the duty to rescue, a standard part of a criminal law course. Most states do not impose a general duty to rescue. If a stranger about to drown in a lake, most states will not charge someone who fails to rescue him with murder. Of course, in some situations courts will impose a duty. For instance, you cannot let your spouse or your child drown. Similarly, a nurse hired to care for someone who is ill is obliged to intervene if the patient seems to be having a heart attack. After introducing the general rule and exceptions, my class spends time analyzing and breaking down these distinctions as well as arguing about the reasons to either impose or not impose a general duty to rescue.
Without some understanding of rescue rates in the real world, though, the discussion is very abstract. I have found this paper by David Hyman to be a very nice addition to the class. He finds that even in a world without a duty to rescue, rates of non rescue are very low. Far more people die risking their lives to rescue strangers than die from failing to be rescued by someone who could have helped but did not. The relatively aberrant nature of non-rescue helps shape and ground the discussion of this issue.
It also provides a hook to compare punishment and reward. While we do not punish a failure to rescue, we do reward rescue. We take the same approach with reporting crime and serving as a cooperating witness. There are financial rewards available for reporting crime and if you are charged with a crime, there are rewards available in the form of reduced jail time for testifying against co-defendants. We do not, though, punish those who fail to report crime (aside from the rare misprision statute) or decide to remain silent. My experience is that students find these comparisons interesting and helpful.