THE CASE FOR A DUTY TO REPORT: A UTILITARIAN AND RETRIBUTIVIST ANALYSIS

By Kevin Frazier^*

INTRODUCTION

The absence of a legal duty to rescue in California and nearly all other states is "so deeply interwoven into the fabric of Anglo-American law that it cannot be altered without radically transforming that law."¹ However, advocates for a duty to rescue make strong utilitarian and retributivist arguments in favor of more states imposing a statutory obligation to help someone in need.² "[A] utilitarian believes that justification lies in the useful purposes that punishment serves" and "a retributivist claims that punishment is justified because people deserve it."³ The utilitarian argument for enforcing a duty to rescue posits that the duty imposes a low cost—simply responding to a criminal stimulus—to generate a high benefit—the preservation of a life or prevention of serious harm. The retributivist argument asserts that a failure to rescue is a moral wrong that deserves criminal sanction.

This paper concludes that a duty to report, rather than a duty to rescue, better aligns with utilitarian and retributivist values. A duty to rescue would result in less utility than forecasted for two reasons: one, because the probable costs on unwilling bystanders, such as physical and mental injury, are likely higher than advocates admit; and, two, because of the likelihood that willing bystanders will rescue with or without the law’s nudge. In a similar way, advocates overestimate the moral culpability of a bystander’s inaction because a failure to act to save someone more likely reveals a rational response to an ambiguous situation. A narrowly-tailored duty to report, in contrast, would capture the best of both sides of the argument: it would leave the "fabric of Anglo-American law" intact, while offering better odds of achieving the utilitarian and retributivist aims underlying support for a duty to rescue.⁴