Rethinking: Violence of non-doing
Written by: Petra Šprem
Fletcher rephrasing the opening lines of Anna Karenina: Every person who kills, does so in a different manner, but all those who ‘let die’ do so in the same way.
What is the difference between killing and letting someone die?
At first glance, one might think that taking someone’s life in one way or another presents the same thing, the same level of violence. In both scenarios, another person dies. However, can we really claim that the wrongdoing contained in an act and in the absence of an act is the same thing? Or should the passivity of an actor be perceived as less harmful, less ‘wrong’ and therefore, less violent regardless of the same consequences it might cause? In German literature, in particular, omissions are described as the “negation” of acts. Topics related to these questions have been unduly neglected in criminal law literature (Martinović, 2015). However, the difference between doing and non-doing as a ‘motionless’ activity is undeniable and is being recognized in different criminal law systems (for example, German criminal law dogmatic also envisages specific solutions for Unterlassungsdelikte).
Before we go deeper into this topic, it is important to differentiate between 2 types of non-doing. Firstly, intentionally causing harm or death by non-doing and secondly, failing to intervene and help someone in distress which then ultimately leads to harm.
Killing by doing nothing
Let us take an example of the first case. Case A: parent kills his own baby with a gun and case B (a typical textbook example of an omission): a parent lets a baby starve to death. Let’s assume that in both cases, a parent behaves with an intention to kill a baby, but the difference is in what way (modus operandi). In one case the lethal consequence is carried out by committing a wrongful act, by affirmative conduct, an action, yet in other cases – by failing to intervene and prevent harm that law requires to prevent. Killing someone by letting him die, is exactly that – killing, just in a different manner. Perhaps, sometimes, it might be considered even more violent, more harmful than pulling a trigger, because it can be more painful for the victim, but also more ‘wicked’ from the perspective of a criminal.
Another problem is that the field of ‘commission by omission’ is marked by a problematic causal link. The party who fails to intervene and does not rescue someone in distress “causes” death in the sense that there is no liability if the intervention would not have saved the life of the victim anyway (Fletcher, 2000.). The concept of causation here shares the semantic model as in cases of commission when applying condition sine qua non-formula (similar to the so-called ‘but for’ test in the common law). This formula is based on the following rule: in order to determine the causal link between human acts and relevant consequences we must hypothetically eliminate (in cases of commission) or add (in cases of omission) a human action into the chain of events and answer the question whether the same consequence would have occurred or not. If the answer is yes, there is no causal link between human behavior and consequence, and if the answer is no, it means that the human activity was a necessary condition for the specific consequence, therefore there is a causal link.
Failing to help a person in distress
Let us now imagine another scenario, a stranger passes by the road and spots a small baby crying. Since an actor in this situation is a complete stranger, without this duty to intervene he would not be held liable for homicide, because he is not imposed for example by the law or contract to take care of the child. In this case, a stranger might be held liable for failure to render assistance since the actor is not duty-bound to prevent the harm. The actor, in this case, has no intention to kill another person, but he does not help a person in distress either.
It is undeniable that punishing for omissions in these cases raises questions related to morals, liberty and interference.
Simple logic would suggest that still there is a certain difference between killing and letting die. Standing by and letting someone who fell off a bridge drown is not the same as pushing a person from a bridge and pushing his head into the water. Also, it cannot be that creating, taking and running a risk is the same as tolerating the risk but where does this differentiation come from and where does it stop? The difference is one of the principles that set the framework for assessing moral responsibility (Fletcher, 2000.). So why, as a matter of moral principle, should the law distinguish so sharply between killing and not helping to survive. Why is the former always prima facie forbidden and the latter subject to the additional scrutiny whether there is a duty to prevent death? (Fletcher, 2000.).
From a criminological point of view when looking at delinquency of violence, omissions should also be perceived as violence if committed with intent. The reasoning behind it lies in the fact of intentionally harming someone, regardless of the way of doing it. The whole concept of acting violently towards someone is based on the premise that one person wants to harm another and does it, actively or passively. We cannot deny that in cases of omission, there is still a manifestation of aggression. Doing nothing means actually doing something – violating the duty of law which obligates to action when seeing someone facing dangerous circumstances.
What is so problematic in cases of not helping a person in distress? Is that kind of ignorance and social recklessness, in fact, violent behavior in disguise, deprived of any ‘Good Samaritan’ compassion? Another important question is, where does this duty to help come from? From morality? From law?
In these cases, there is a lack of intent to harm or kill someone. How do we compare the costs and benefits of failing to allocate aid? What is the required level of solidarity that criminal law should put before society? How does one weigh a person’s fear of involvement against the occurrence of harm? Failing to render assistance is an even more complexed topic and it cannot be easily subsumed under the label of ‘violence’. The case of Kitty Genovese is an interesting case of failing to render assistance. This event was extreme to a certain point that it created the so-called bystander effect whereas the studies of bystander behavior have eventually evolved logically as an outgrowth of victimology (Sheleff, 1978).
Kitty Genovese was stabbed to death in an alleyway outside her home, the friends and neighbors she had lived next to for several years stood by, choosing not to get involved as she lay there dying.
Back then, the New York Times ran an article with the headline “37 Who Saw Murder Didn’t Call the Police,” and a quote from an unidentified neighbor that claimed he didn’t call the police because he “didn’t want to get involved.” This fear of involvement prompted 37 people in New York City passively to witness the murder of Kitty Genovese and decided not to help. Can their choice not to interfere be perceived as violence? In my opinion, yes.
Solidarity means awareness. Awareness of another person’s life should be the first basic premise of creating social ties and building a peaceful society. Solidarity creates cohesion and eventually, it can create peace. Argumentum a contrario, lack of solidarity can impose violence. Not helping a person in distress is not just a matter of morality or decency, it is and it should be a criminal offense and it should be perceived as violent to some extent. This is one of the reasons why Violence Research Lab included a criminal offense “Failure to render assistance” in its research. Additionally, according to the criminal law, the difference between ‘Failure to render assistance’ and ‘Killing by non-doing’, is to be found in the offender’s intent. The latter only means that it comes down to what can one prove before the court. It seems that ‘killing or letting die’ dilemma becomes more and more complexed when thinking about it. Or, is it as simple as Kant once said: Do the right thing because it is right?
Non-doing as violence? Violence in sophisticated disguise, I would say.
Martinović, I. (2015). O kriteriju razlikovanja pravih i nepravih kaznenih djela nečinjenja. Zbornik PFZ, 65 (1), pp. 115-135.
Stets, J.E. (2011). Applying Identity Theory to Moral Acts of Commission and Omission, in Shane R. Thye Edward J. Lawler (ed.) Advances in Group Processes (Advances in Group Processes, Volume 28). Emerald Group Publishing Limited, p. 97.
Fletcher, G.P. (2000). Rethinking Criminal Law. Oxford University Press, New York.
Sheleff, L.S. (1978). Bystander – behavior, law, ethics. Lexington Books, New York.