The recent rape of a woman on a train in Pennsylvania has shocked and disgusted the nation, particularly after passengers did nothing to help the woman as she was allegedly attacked by Fiston Ngoy, 35. Now police are reportedly considering criminal charges against passengers who filmed the rape and did not call the police.
The woman was reportedly harassed by Ngoy for a long period before he raped her in front of the other passengers.
The question is the basis for such criminal charges. There is first the failure to call police. Then there is the filming of the attack. While passengers could claim that they were recording the crime, police say that the passengers did not call them or share the videos.
Generally there is no duty to rescue or to call police under the common law. Some states have moved to penalize those who do not call police. For example, Washington state allows for the charging of a misdemeanor.The law covers violent crimes, sexual assault, and assault of a child. The law requires that individuals “shall as soon as reasonably possible notify the prosecuting attorney, law enforcement, medical assistance, or other public officials.” The law further states “The duty to notify a person or agency under this section is met if a person notifies or attempts to provide such notice by telephone or any other means as soon as reasonably possible.”
I am unaware of such a law in Pennsylvania, but these laws are rarely enforced.
We have seen criminal charges for videotaping crime scenes in other countries. We also discussed a torts case involving a delay in calling police, but that case involved people who were deemed partially responsible for a death.
In 2009, the New York courts ruled that Metro workers were not legally required to assist a woman being raped at a station.
In torts, there is no duty to rescue rule. That was the holding in the famous ruling in Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959), where a man watched another man drown without taking any efforts to assist him. Even though Bigan dared Yania to jump into the hole full of water, the court found that this made no difference. Since these taunts were “directed to an adult in full possession of all his mental faculties [it] constitutes actionable negligence is not only without precedent but completely without merit.” On the rule itself, the Court wrote:
Lastly, it is urged that Bigan failed to take the necessary steps to rescue Yania from the water. The mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal, although a moral, obligation or duty to go to his rescue unless Bigan was legally responsible, in whole or in part, for placing Yania in the perilous position: Restatement, Torts, § 314. Cf: Restatement, Torts, § 322. The language of this Court in Brown v. French, 104 Pa. 604, 607, 608, is apt: “If it appeared that the deceased, by his own carelessness, contributed in any degree to the accident which caused the loss of his life, the defendants ought not to have been held to answer for the consequences resulting from that accident. … He voluntarily placed himself in the way of danger, and his death was the result of his own act. … That his undertaking was an exceedingly reckless and dangerous one, the event proves, but there was no one to blame for it but himself…The complaint does not aver any facts which impose upon Bigan legal responsibility for placing Yania in the dangerous position in the water and, absent such legal responsibility, the law imposes on Bigan no duty of rescue.
Europeans have always criticized our rule and many countries have long recognized a duty to rescue - though usually that obligation ends with any physical risk.
New York was the scene of perhaps the most infamous example of citizens failing to act to protect a victim. Kitty Genovese (right) was stabbed to death near her home in Queens on March 13, 1964. She was stabbed twice in the back by Winston Moseley and screamed, “Oh my God, he stabbed me! Help me!” While someone yelled, “let that girl alone” and Moseley ran, no one called the police. Genovese crawled away, but Moseley returned ten minutes later and searched for her. Over the course of half an hour, he raped her and then murdered her. Somewhere between 12 and 38 people are estimated as having heard the assault. When witness Karl Ross finally called the police, they arrived within minutes.
I am unaware of a criminal provision that would allow a charge for the other passengers in Pennsylvania. Indeed, I know of no law requiring an intervention in a violent crime scene anywhere in the country. Perhaps some of our Pennsylvania lawyers could help out. Requiring people to take such a risk is unlikely to be upheld in court. The failure to call 911, as discussed above, is a crime in a few states but only treated as a misdemeanor in those rare cases of prosecution.