The Kindness of Strangers and the Limits of the Law: The Moral and Legal Obligations of Bystanders to a Vulnerable Person in Need of Emergency Assistance

Abstract

Reports of how some bystanders interact with victims on the scene of an emergency are shocking: instead of assisting or calling for help they take pictures of the victims on their cell phones. In the common law of torts law much of the discourse regarding bystander interaction with victims needing help has focused on the relationships or circumstances that could render actionable the failure to aid. While the analysis of this Thesis is informed by this commentary, this issue is not its focus. Instead, it concentrates on the question of whether a bystander’s interaction with the victim in these circumstances, conduct which often consists in taking a picture, might constitute a distinct and legally actionable harm.

To illustrate the focus with a familiar hypothetical scenario: a passerby walking along a dock over shallow water comes upon a person drowning in the water below, shouting for help. The bystander notices a life-preserver at hand, but decides to sit on a bench, light a cigarette, and calmly watch as the person drowns. This Thesis does not focus on the question of whether the passerby had an obligation to rescue the drowning person or to call for help. Instead, it locks into that stare—which I imagine as steely and cold—and, from an observer’s perspective, the sense that it is a grievous wrong on the part of the bystander to turn a vulnerable person’s urgent and life-threatening need for assistance into a source of entertainment.

Fifty years ago, when Kitty Genovese was murdered in New York City, it would have been difficult to show proof of that stare, its underlying intent, and the distinct harm that it may have caused. But now, in many circumstances, potential proof is in the hands of just about every ordinary passerby. Now it would not be rare in these circumstances for the bystander to take a picture, and for evidence of what is analogous to the stare to be locked into the memory of a cell phone. Evidence of what? It could be an indication of presence, time and date-stamped; of that fact that the bystander was paying attention long enough to engage the scene; of what the bystander actually saw; and in many circumstances, also an indication that the means to call for help were literally in hand, but the bystander chose not to use those means.

This Thesis argues that this conduct—treating a vulnerable person in need of emergency assistance as an object for one’s bemusement or entertainment—should be considered a legally cognizable harm and recognized with a new cause of action: an intentional tort of “exploitative objectification of a vulnerable person in need of emergency assistance.”

It is cognizant of the difficulties in the history of tort law in theorizing both the obligation between strangers and this form of intentional dignitary harm. For this reason it draws broadly on interdisciplinary resources from philosophy, theology, art and culture, to lay the foundations as well as to cabin its application to manageable limits. It is also cognizant of concerns about over-breadth and moral overload. The Thesis clearly distinguishes between those who cross the line of engaging the scene and the victim (“engaged spectators”) and those who do not (“pure bystanders”). It argues for ample space for discretion in making the decision whether to engage, respecting subjective assessments of risks and priorities as grounded in the emotional and interior life of the bystander. Drawing on the resources of civil recourse theory, the Thesis also highlights the rhetorical frameworks that are particularly appropriate to articulate the nature of this form of dignitary harm and its remedy.

On this basis the Thesis then considers how the new tort might offer a strategic “end run” around some of the doctrinal difficulties in theorizing dignitary harm when the victim was unconscious at the time of an assault. In contrast to claims for infliction of emotional distress that often hinge on the reaction or response of the victim, the victim’s lack of consciousness would not pose an obstacle when the engaged spectator’s conduct can be articulated as objective assault on the victim’s dignity and personality.

Finally, the Thesis acknowledges circumstances in which the act of taking photographs of a person in need of emergency assistance may embody respect for the victim’s person and other social goods, as may be evident in the work of photojournalists engaged with the reality of human suffering. Thus the Thesis develops criteria to delineate these differing intentions and to distinguish these circumstances from “exploitative objectification,” providing a complete defense to liability under this tort.