A Failure to Prevent Crime-Should It Be Criminal?

Article excerpt

Thou shalt not go up and down as a talebearer among thy people; neither shalt thou stand idly by the blood of thy neighbor.

--Leviticus 19:16

Introduction

On the fourth of November 1995, Israeli Prime Minister Yitzhak Rabin was assassinated. Yigal Amir was convicted of the murder. (1) Margalit Har-Shefi was convicted of misprision of felony (2) for not informing the police of what she knew concerning Amir's intention to assassinate the Prime Minister. (3) Har-Shefi's conviction represents one of the few instances under Israeli Law in which a defendant was convicted solely of the offense of misprision of felony. (4) If we could divorce ourselves from the social trauma following the assassination and surrounding these trials, (5) we might well ask what justification there is for an offense that requires a person who knows that another is planning to commit a crime to inform the police or to take reasonable steps to prevent it.

The offense of misprision of felony, as defined in Israeli law, is exceptional in being an offense of omission that imposes a duty to inform the police of another's intention to commit a felony or a duty to take other reasonable steps to prevent that felony. As a rule, the criminal law proscribes active conduct that creates harm to individuals or society. Imposing criminal responsibility for refraining from acting to save another from harm (omission) requires special justification.

Generally speaking, the common law imposes criminal responsibility for omissions when the person involved is in some way connected to the situation. Such a connection may arise from a duty of care related to one's function (for example, a lifeguard or doctor) or status (for instance, a parent), or may stem from some connection to the source of the threat, as where one has created the danger, or is responsible for the safekeeping of harmful goods or substances. Good Samaritan laws that impose a duty upon bystanders to come to the aid of endangered persons are relatively rare in common-law legal systems. (6) European legal systems are more disposed to imposing a general Good-Samaritan duty. (7) However, even they tend to limit the duty to instances of immediate threats to life, limb, or liberty (but not property), and they do not require that a person endanger herself in order to aid another. The penalty for a breach of the duty is relatively light, (8) and a person who refrains from coming to the aid of another is not deemed liable for the consequences that she could have prevented.

In this light, how can one explain and justify the existence of offenses like misprision of felony that impose a duty to inform, or to take other reasonable measures, upon any person who knows of a plan to commit a felony, even when that person is in no other way connected to the situation? (9) In this paper, I shall attempt to provide answers to both parts of this question.

In the first part of this article, I will concentrate on explaining the existence of an offense that imposes a duty to report crimes. Because the offense is so exceptional in common-law legal systems, I shall first examine its historical background in those systems (primarily England and the United States). I will then compare the existing common-law legal situation with the European approach to imposing a criminal-law duty to report crimes. The picture that will emerge will show that most legal systems imposed--and many still impose--a duty to report crimes, although the nature of the offense differs from time to time and from system to system.

Following the comparative and historical surveys, and in the light of their results, the second part will discuss the justification for imposing a criminal-law obligation to report crimes. I will proceed from two basic assumptions. On the one hand, even if we believe that reporting a crime--at least a serious crime--in order to prevent its commission is the morally correct thing to do, and that there is redeeming social value in creating an atmosphere of solidarity with the war against crime and the protection of victims, these do not constitute sufficient justification for imposing a legal obligation and an ensuing criminal stigma for breach. …