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Failure to Prevent Crime: Should it be Criminal?

NCJ Number
Criminal Justice Ethics Volume: 20 Issue: 2 Dated: Summer/Fall 2001 Pages: 3-30
Miriam Gur-Arye
Date Published
28 pages
This article poses the question of whether a failure to prevent a crime should be a criminal offense.
The common law imposes criminal responsibility for omissions when the person involved is in some way connected to the situation. Such a connection may arise from a duty of care related to one’s function or status, or may stem from some connection to the source of the threat, as where one has created the danger, or is responsible for the safekeeping of harmful goods or substances. Good Samaritan laws that impose a duty upon bystanders to come to the aid of endangered persons are relatively rare in common-law legal systems. The common-law duty to report crimes is a product of the Middle Ages when the public bore responsibility for apprehending criminals and for bringing them to justice. The drafters of the Model Penal Code felt no need to incorporate an independent offense of misprision of felony, which is an offense of omission that imposes a duty to inform the police of another’s intention to commit a felony or a duty to take other reasonable steps to prevent that felony. Imposing a duty to inform raises the specter of totalitarianism. Among those legal systems that impose a notification duty, quite a few grant an exemption of varying degrees to family members. Society is not interested in motivating individuals to gather information about the plans of others, even if those plans are of a negative character. It appears that there is justification for imposing a duty--at least upon anyone present at a place where a serious crime like murder is about to be committed--to take reasonable measures to prevent the completion of the crime. Using Israeli law as a test case, it appears that despite the broad scope of the duties to prevent felonies in Israeli law, the number of convictions for the breach of those duties is limited. 193 notes