Maxwell 1

Jeff Maxwell
LSTU E-103A
26 October 2015
Prompt 3
The concept of the Good Samaritan is constructed out of the arising of a scenario in which a
person encounters an other who is in a situation of physical peril. The Good Samaritan, in turn,
elects to intervene in order to render aid to the endangered person, a person to whom he is not
previously related. Furthermore, the Good Samaritan and the victim are assumed not to be in a
contractual or personal relationship that would create a special duty to act as established by
common law (Understanding Criminal Law 9.07 Omissions: Exceptions to the No-Liability
Rule). It is also to be assumed that the Good Samaritan has neither voluntarily assumed the
care of another and so secluded the helpless person (Kleinig 191) nor has he or she culpably
created the risk of harm to the person in peril (196).
The question posed is whether a Bad Samaritan should be held criminally responsible
for his or her non-action. Laws based on omissions, rather than voluntary acts, are unique in that
they criminalize omissions that have no corresponding common law duty to act; therefore, a duty
to act must be imposed by law so that the failure to perform the duty may be deemed a violation
of a statutory duty to act offense (9.07 Omissions: General Principles). The question
becomes whether there should exist statutes that impose a duty to aid a stranger in peril, the
violation of which results in a punishment for specifically failing to be a Good Samaritan and not
for the resulting harm. Bad Samaritan laws are dependent on the notion of non-action as being
conceived of as an attempt to cause harm in the same way an action can be considered an attempt
to cause harm.

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In this essay I argue that the failure to act in the way a Good Samaritan would act should
in fact be made criminal by means of statute in the penal code. When argued as such, the law
should not be construed as imposing a moral obligation, but rather it should be understood as an
expectation of the subject to perform a particular action in a particular circumstance. The legal
requirement to perform an act of Good Samaritanism would not require that the actor assume a
corresponding mindset expressive of virtue or a particular moral code; the law would not actually
make a person a Good Samaritan.
By constructing an argument for the statutory enactment of Bad Samaritan laws in this
way, the counterargument that a law making it an offense to fail to act as a Good Samaritan
would somehow deprive a genuine Good Samaritan of his or her distinguishing virtue is thereby
dispensed with. So, too, would the argument that a law forcing a person to be virtuous would
deny all persons praise for virtuous acts be made invalid.
If a Bad Samaritan statute made it so that people in perilous situations and in need of aid
who do not now receive that aid would receive it, or at least be more likely to receive it, then
arguments against its enactment should be made to carry substantial weight. One such objection
that an advocate for Bad Samaritan laws must dispel is the issue of selective prosecution (190).
The argument against Bad Samaritan laws that relies on the danger of granting overly
broad discretionary powers to law enforcement and the prosecution makes the claim that persons
who may in fact be guilty of Bad Samaritanism can avoid conviction with relative ease. The
argument proceeds by stating that because of the expanded scope of power granted to the
prosecutor resulting from the issue of vagueness, the identification of criminal responsibility can
be unreliable (i.e. imprecise identification of conduct of the accused, failure to identify the
precise harm caused by the conduct) (188).

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The prosecutor must identify the person, or persons, liable for not aiding the party in
danger. It would be an overwhelming burden on law enforcement to perform investigations
where every possible witness or intervener in every possible crime, and now every possible
accident, was not only interviewed but identified as a person who could have helped the victim
but did not. Inevitably, law enforcement would be able to identify only some of the Bad
Samaritans. The prosecutor would then have to select who to charge. In fact, the prosecutor may
only charge one out of what may have been a multitude of Bad Samaritans.
An argument asserting the unfairness of selective prosecution in cases of Bad
Samaritanism is weakened by the fact that selectivity in prosecution is not an uncommon
occurrence, and it is not always to be considered unfair. Unfairness does not reside in the fact
that only a selection of those culpable are prosecuted, but rather it occurs when an innocent
person is convicted of an offense that he or she did not commit. In the case where a person has
committed a crime and is selectively prosecuted because of race, gender, ethnicity, etc. then a
case for unfairness can be more effectively argued. If, however, law enforcement was able to
identify only some of the Bad Samaritans associated with a crime or accident due to limited
resources and time, then lodging an argument for the unfairness of selective prosecution becomes
a more daunting task. In such a case, the claim that the prosecution of one Bad Samaritan out of
what may have been innumerable Bad Samaritans is unfair to the one prosecuted can only stand
on shaky grounds.
The strongest argument, or at least the argument requiring the most nuanced refutation to
be made by the advocate for Bad Samaritan laws, is perhaps the objection that Bad Samaritan
laws will substantially diminish freedom (189). The foundation of this argument rests on the
claim that positive duties, or a law requiring a person to do something (the duty to aid), places

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undo restraints on individual freedom. That is to say, a law that requires a person to do something
simultaneously restricts that person from doing anything other than that one thing required by the
law. Negative duties (duties not to harm), on the other hand, are represented by laws that compel
a person not to do something and leave that person free to do anything other than that one thing
excluded by the law (9.06 Omissions: General Principles). It is argued that Bad Samaritan
statutes, traditionally conceived of as positive duties, unreasonably interfere with personal liberty
(Kleinig 189).
It is, however, possible to outline an argument showing the legal duty imposed by a Bad
Samaritan statute to in fact be a negative duty. Demonstrating the Bad Samaritan law to be a
negative duty serves to dissociate it from the threat-inspiring moniker of positive duty and its
allegedly tyrannical nature.
If a person were to encounter an injured driver at the scene of an automobile accident,
that person, in doing nothing to help the victim, would have neither made the situation any worse
nor any better than if he had not been there in the first place. The Samaritan in this case has not
failed to not harm the victim by allowing him to die; he or she has done no harm by allowing the
injured driver to die. If the notion of doing harm to another is reconsidered, however, it can be
made evident that not helping the injured driver, as in the case above, constitutes the failure of
the Samaritan to fulfill a negative duty. Jeremy Bentham offers an account of negative duty: In
cases where the person is in danger, why should it not be made the duty of every man to save
another from mischief, when it can be done without prejudicing himself, as well as abstain from
bringing it on him? (Kleinig 187). Negative duty, when considered in light of Benthams
account, can be rephrased as the duty not to perform an act which would work to the prejudice of
the other person.

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In accord with this revised definition of negative duty, the action of the person who
ignores the injured driver in the example above would be considered an action working to the
prejudice of the injured driver. The Samaritan in such a scenario as this has failed to perform an
act that he has the duty to do: he is guilty of an omission by allowing the driver to die. A
Samaritan could have also allowed the driver to die by means of committing an act that made the
situation worse than if he had not been there, such as stabbing the driver. The idea of allowing
a person to die can consist of an action or an omission. Therefore, a Bad Samaritan law would be
a negative duty to not do something that makes the situation worse for the victim. That
something can consist of either an act or an omission. The basis of the negative duty is the
prevention of harm, and the person who does not help the injured driver when he or she could
halt the advancement of injury or increased peril has failed to do something to prevent harm.
The presence of Bad Samaritan laws make the person prevent harm, which is better than
not having laws and having the person not prevent harm. The case for Bad Samaritan laws is
strengthened as the pragmatic and principled objections to it are shown to simply not outweigh
the benefits to be derived from such laws. While I have asserted the viability of Bad Samaritan
laws by means of mostly negative arguments, it is evident that the laws have the potential to be
life-saving. In the absence of great cost to the individual or the state, the question posed at the
outset of this paper can be re-stated as, Why shouldnt the failure to be a Good Samaritan be
criminalized? and the burden of proof can be shifted to the opponent of Bad Samaritan laws.
Good paper, but see comments.
A-

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