Can (and Should) the Law Compel Compassion?

Sushila Rao 

Video footage depicting a two-year old girl in China being run over twice by the same mini-van driver, and then once again by a light truck – while as many as 18 passersby ignored her plight – has sparked off the latest round of moral outcry and introspective reflection on modern societies’ lack of  a sense of community. It bears emphasis that such chilling tales of apathy regularly surface across the world, including in America (remember Kitty Genovese?). This situation encapsulates a universal quandary: What role can the law play in structuring a more compassionate society?  The focus here is not on cases of medical or emergency personnel like firefighters, but on the everyday “citizen-hero-rescuer,” who bears no special relationship to victim apart from being a witness to his/her peril.

The most common solution being proffered in the blogosphere is for China to enact a “Good Samaritan” law. These claims obfuscate the basic fact that “Good Samaritan” laws come in different shapes and sizes, and reflect fundamentally disparate policy objectives and outcomes. In order for this round of soul-searching to be productive and hopefully conclusive, participants must clarify the parameters of the discourse, and understand the nuances of different positions along the spectrum of Good Samaritan law—so that each society may determine for itself the optimal balance to be struck between respect for autonomy and institutionalized disapproval of apathy.

The majority of people appalled by the onlookers’ indifference and calling for the law to “stop the heartlessness” are probably envisaging a system akin to the “duty of rescue” that is codified in certain civil law countries such as France and Germany. So, for instance, French law imposes an affirmative duty on everyone to rescue an individual in peril, if this can be done without danger to the potential rescuer. Article 62 of the French Penal Code penalizes any person who “willfully fails to render or to obtain assistance to an endangered person” when possible without danger to himself or others.

On the other hand, the Anglo-American rule is illustrated by this well-known 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.” (Cited on Page e 3.) Exceptions exist – for instance, where a “special relationship” exists, either because of contract or the inherently personal nature of the relationship  (such as between parents and children or spouses). Accordingly, Good Samaritan laws in these common law jurisdictions normally connote laws that seek to protect those who volitionally choose to intervene and tend to injured or sick victims. These measures aim at reducing bystanders’ hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death.

Weighty arguments of policy can be adduced on either side of the spectrum. While the French rule will arguably be more stringent in reducing incentives for odious indifference, the Anglo-American rule is shored up by more than just enhanced sensitivity to individual autonomy. For instance, commentators point out that a duty-to-rescue rule may hinder police efforts to apprehend criminals. So, if failing to act was a criminal offense, the thirty-eight witnesses in the Kitty Genovese rape-cum-murder case might never have come forward to identify Genovese’s attacker after he was apprehended, for fear of being themselves prosecuted for not intervening. Needless to say, there are also substantial arguments from a slippery slope perspective against permitting penalties on the basis of perceived moral disapproval.

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