Advances in technology enabling people to view, document and share online content that could ultimately become evidence of a crime have created a new legal category of “virtual” eyewitness who should be held criminally accountable for failure to report, according to a forthcoming paper in the Boston College Law Review.
Laws imposing penalties for a failure to intervene in a crime, known as “Bad Samaritan” statutes, exist in 29 states. The laws also impose a duty to report certain types of crimes to authorities.
But those statutes will need to be expanded to cover cyberspace, writes the author of the paper, Zachary Kaufman, an associate professor of law and political science at the University of Houston.
According to Kaufman, electronic transmission of content depicting illegal behavior — including through social media and mobile devices — raises legal, moral and practical questions about the responsibilities of spectators.
“In the digital age, will these actors be bystanders or upstanders?” Kaufman asks, referencing someone’s duty to report.
“What role can and should the law play in shaping their behavior?”
It’s slowly becoming evident that digital witnesses should be held criminally accountable for failing to report an online offense in the same way as witnesses who are physically present, Kaufman wrote.
He argued that not holding “digital Samaritans” to the same standard as physical witnesses limit the effectiveness of contemporary law aimed at protecting victims of “murder, kidnapping, sexual assault, aggravated assault, and felonious assault.”
“Not all virtual witnesses should be subject to liability,” Kaufman conceded, but he argued that adding a “virtual” dimension to the general duty to report is vital.
Such statutes should not be confused with “Good Samaritan Laws” which encourage acts of aid by mitigating civil liability; “Bad Samaritan Laws” require acts of aid to immediately threatened people.
While it’s unclear whether Bad Samaritan laws are effective at helping people presently in need, Kaufman writes that they nonetheless do little for victims when witnesses are not physically present; their ability to aid is even more diminished when the witness is behind a computer screen.
Nevertheless, modern technology offers avenues for communicating an online crime to authorities, such as national crime tip lines and social media tools.
The Lessons of the Gates-Lonina Case
One of the most notorious examples pointing to the need for virtual eyewitness accountability occurred in February 2016, when three supposed friends got together for an evening of socializing that ended in a brutal sexual crime being live-streamed via the social media app Periscope.
Raymond Gates, then 29, forced himself on the 17-year-old female victim while her 18-year-old friend Marina Lonina live-streamed the horrific event to 700 viewers.
“The more likes [Lonina] got as it was live-streaming, the decision to keep doing it continued,” recalled Franklin County Prosecutor Ron O’Brien, in an account reported by ABC News.
Despite the large audience — and thus the large number of criminal witnesses — Kaufman noted that only a single viewer, an 18-year-old in New York who recognized Lonina, reported the incident to law enforcement.
It was because of the witness’ swift action of taking screenshots and copying the live-streamed Periscope link that prosecutors were able to make a strong case against Gates and Lonina.
Moreover, considering the sexual assault took place in Ohio, one of the 29 states in the U.S. to have Bad Samaritan laws — Lonina was legally obliged to report the crime as Gates advanced on the underaged girl. Instead, she was complicit, and took part in the crime, warranting her felony charges, Kaufman wrote.
Applying Bad Samaritan laws to cyberspace would prod digital witnesses not to be bystanders or enablers, but “upstanders” who intervene helpfully and share evidence of crimes with authorities as they occur, Kaufman notes.
Ignoring the online world of potential witnesses, Kaufman noted, will also make online cases more difficult to prosecute as modern law enforcement agencies look to the digital world for crimes.
Kaufman recommended that policymakers consider expanding existing Bad Samaritan statutes in the following ways:
- Institute a reporting requirement for clearly viewed crimes online, like murder, kidnapping, or sexual assault;
- Outline reporting-exemption circumstances and situations, such as when someone would put themselves in danger or if they were themselves the victim;
- Institute penalties for those who don’t report digitally-viewed crimes; and,
- Establish that nothing contained in the digital model would impact the already existing laws.
“The cliché is true: one person can make a difference,” Kaufman concluded. “This observation is all the more accurate in the digital age, when witnesses—such as the Reporter in the Gates-Lonina case—often have easy, speedy, low-risk access to technology to document, raise awareness about, and report crimes.”
Zachary D. Kaufman, J.D., Ph.D., is an Associate Professor of Law and Political Science in the Law Center at the University of Houston.
The full forthcoming paper is available here.
Andrea Cipriano is a TCR staff writer.