State Legislatures Magazine: March 1999

Editor's Note: These articles appeared in the March 1999 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Help Your Neighbor- It's the Law

No Action to Avert Tragedy
Duty to Assist

Help Your Neighbor—It’s the Law

After a particular heinous crime during which a young man stood by while a child was murdered, lawmakers in many states are considering "duty to assist" laws.

By Donna Lyons

Good Samaritans who come to the aid of a crime victim have long enjoyed immunity from civil liability under state laws. A new twist on altruism is being considered in at least five states this year with bills introduced that would punish the person who sees a crime being committed and fails to report it or assist or summon help for the victim. Most of the proposals specify serious crimes that put a victim in peril of serious bodily injury; some specify child victims.

A little girl who was murdered last summer in a casino near the Nevada-California border has become something of a poster child for these measures. Seven-year-old Sherrice Iverson was molested and strangled in a restroom stall at the Primadonna Casino in Primm, Nev. Jeremy Strohmeyer, a 19-year-old student from California, pled guilty to the crime and is now serving a life sentence without possibility of parole.

NO ACTION TO AVERT TRAGEDY
Disgust at this heinous crime against a child became outrage when it was reported that a friend of Strohmeyer’s, David Cash Jr., was with him at the casino that night and apparently knew the crime was taking place but did nothing to avert the tragedy. California and Nevada are among states now considering legislation that would give the state a chargeable offense in such a case.

Legislation being sponsored by Nevada Assemblyman Richard Perkins is patterned after the state’s law requiring that certain professionals report suspected child abuse. The new law would extend that duty to report to everyone who observes crimes against children. The assemblyman said that supporters would review the criminal code definition for "principal to a crime" to consider how a David Cash could be charged with the same crime as the perpetrator under that law.

A measure introduced in the California Assembly would make it a felony to observe and fail to report crimes of murder, manslaughter, rape, sexual assault or any assault that appears reasonably likely to cause serious bodily harm. And a Senate bill in California specifies minor victims as those for whom a duty to assist would exist under state law. Other states that early this year had similar measures introduced include Florida, New Jersey, New York and Texas.

Traditionally, the American legal system has not required people to assist victims. Good Samaritan laws found in every state provide civil immunity for those individuals who do jump in to help at the scene of a crime or emergency. The duty to render aid under state law generally has been limited to special relationships between the injured and observing parties—driver of a vehicle and passenger, owner of property and a visitor; school official and student.

And state laws have, of course, broadly established a duty to report by professionals and others who work with, supervise and care for children, in cases of suspected child abuse or neglect. A few states have included misdemeanor offenses under duty to render aid in certain other circumstances. Wisconsin law, for example, provides a penalty for failing to render aid to a peace officer; and Minnesota has incorporated in its "good Samaritan" tort law wording that makes it a petty misdemeanor to fail to provide reasonable assistance at the scene of an emergency.

DUTY TO ASSIST
The proposed laws have sparked debate over whether creating a duty to assist in criminal law can prompt desirable behavior. Duty-to-assist legislation and the situations to which such measures might apply are likely to be too ambiguous to be a practical response, suggests Washington, D.C., attorney Elisabeth Semel, a member of the board of directors of the National Association of Criminal Defense Lawyers.

"As a society, we have increasingly and wrongly come to believe the only response to morally offensive behavior is to criminalize it," she said.

But to proponents, such a law to protect children from danger does not go too far. "As human beings we have a fundamental duty to protect those who cannot protect themselves," said Nevada Assemblyman Perkins. "Children are certainly high on that list."

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