If you are a bystander and witness a crime, should it be a legal obligation for you to intervene? Or is moral responsibility enough?
I have come to view the bystander, who fails to act, as complicit in harm that befalls the victim. This has compelled me to create a workable legal requirement whereby duty can be imposed on the bystander. Relying on the oft-repeated phrase that “people will do the right thing” is appealing and compelling, but the moral obligation model is, for me, tenuous and soft.
There is a powerful disconnect between the aspirational and reality where the unwillingness of the bystander to intervene greatly emboldens the perpetrator. If the consequences of nonintervention are actual injury, then the consequences of inaction must also be actual. If I were to say that failure to intervene must be made a crime, prosecutable and punishable with the full force of the law, this would be controversial because the bystander is not the initiator of the crime. However, failure to implement such a recommendation would fail victims of bystander complicity. It also ensures our individual and collective acquiesce in the face of violence and racism. Bystander complicity, after all, was essential to the “Final Solution.”
These are profound questions and responses and affect the bystander-victim relationship from a deeply personal and legal perspective. By focusing on the Holocaust, in which, my mother expressed herself as being a “victor” of, not a “victim” of, I have direct knowledge of the devastating effects of complicity. With these events as a model, we can then explore cases in the current heated state of contemporary society.
The Holocaust Center for Humanity uses education as a foundation for creating a more compassionate society, one based on mutual respect and civic responsibility. This is vital and necessary work. Through my book, The Crime of Complicity: The Bystander in the Holocaust, and a companion book, Armies of Enablers: Survivor Stories of Complicity an Betrayal in Sexual Assaults, I argue that in addition, we must also make the obligation to intervene a prerequisite of the law, making non-intervention a crime. To do less is to encourage a society that is itself complicit.
The litmus test for society is binary and basic: Did you act or not?
On March 9, I will be presenting a virtual CLE program on the “Crime of Complicity: The Law and the Bystander from the Holocaust to Today,” focusing on the aspects of the law and the bystander in a program for the Holocaust Center for Humanity. We’ll examine one of the most important questions of a legal or ethical dilemma, with my proposition that the most appropriate lens is that of a strict legal examination. The presentation will address this conflict by presenting the competing tensions between law and ethics.
Amos N. Guiora. Guiora is a professor of law at the S.J. Quinney College of Law, University of Utah. Professor Guiora has an A.B. in history from Kenyon College, a J.D. from Case Western Reserve University School of Law, and a Ph.D from Leiden University. He has published extensively both in the United States and Europe on issues related to national security, limits of interrogation, religion and terrorism, the limits of power, multiculturalism, and human rights.
