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September 3, 2010

Does (or should) Ohio have a "duty to aid" statute like Wisconsin?

Here is a research (or advocacy) assignment/question for the long weekend:

Does (or should) Ohio have a "duty to aid" statute like Wisconsin?

Here is a related question to consider: If you were to be tasked with drafting such a statute for a state's legislature to consider, what provisions of the Wisconsin approach would you preserve and what provisions might you want to tweak?

For anyone eager to do some more (totally optional) reading on this interesting topic, consider checking out an article in the Spring 2010 issue of the Georgia Law Review by Ken Levy, which is titled "Killing, Letting Die, and the Case for Mildly Punishing Bad Samaritanism."

UPDATE:  Here is a sad story via CNN about what sounds like a case like a New York version of the Jones case in 2010.  The piece is headlined "Girl, 4, weighed 15 pounds at death," and starts this way:

The mother of a 4-year-old girl found dead in her Brooklyn home Thursday morning was charged Friday with second-degree assault, reckless endangerment and endangering the welfare of a child, according to police.

Marchella Pierce weighed just 15 pounds and had marks on her hands and ankles when police found her unconscious in her family's apartment, according to CNN affiliate WABC-TV.

September 3, 2010 in Class reflections, Recommended scholarship, Reflections on class readings | Permalink

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Comments

I just kind of thought this was interesting to look at given our assgt., esp. starting on page 70/71.

Posted by: Mrs President | Sep 3, 2010 1:17:37 PM

Hey, it didn't post my link. Well, here it is then http://www.legislature.state.oh.us/BillText128/128_HB_371_I_Y.pdf

Posted by: Mrs President | Sep 3, 2010 1:19:30 PM

That CNN story is disgustingly sad. With my very limited legal research skills at this point, I don't think that Ohio has a statute specifically for a "duty to aid", however Ohio does have a duty to report a crime statute. Ohio Revised Code 2921.22 (http://codes.ohio.gov/orc/2921.22) is the Failure to report a crime or knowledge of a death or burn injury.

The statute states in (A) (1)"...no person, knowing that a felony has been or is being committed, shall knowingly fail to report such information to law enforcement authorities." So whereby Wisconsin combines both a Duty to Aid Victim or Reporting a Crime, Ohio just provides for a requirement to report a crime.

To the question of should Ohio have a statute like Wisconsin? I say absolutely. What if the utility workers in Jones would have seen the condition the 2 boys were living in and just decided it wasn't any of their business and left? I think, as a society, we have a moral obligation to help those in need - assuming, as stated in Wisconsin's statute, that compliance won't place us in danger or interfere with duties owed to others.

Posted by: Luke@CrimLaw | Sep 6, 2010 8:41:09 AM

I find it extremely saddening that even today we see cases that are very similar to Jones. Even worse is that there may have been an intentional infliction of these conditions, and as such, is more morally blameworthy in my opinion. Whereas Jones appears to be a case of utter disregard for the children, this one seems to have a greater "guilty mind" component, if the child was, indeed, tied to the bed.

Posted by: Brandon Frank | Sep 6, 2010 2:22:59 PM

I don't think Ohio needs a 'duty to aid' statute. At least to me it seems that the cases that disgust us the most, like the one above, fit most neatly into the common law test we discussed in class. If we attempted to codify the "duty to aid" we would limit prosecutors discretion, and some of the "fringe" cases might be swung in the opposite direction as the public would like.

Posted by: JT | Sep 6, 2010 11:02:07 PM

I am in agreement with Luke, that there should be a statute in Ohio like there is in Wisconsin. In general, it seems as though a lot of criminal law stems from what society constitutes as morally right and morally wrong (mala in se, I believe), and so I believe that it is morally right to help someone in need, if you have it in your power to do so.

My opinion is substantiated by a maxim stated by Peter Singer, in which he states "if it is in our power to prevent something bad from happening, without thereby sacrificing anything morally significant, we ought, morally to do it". An example of this would be that you are walking past a shallow pond and see a child drowning in it. You ought to save the child, even though your clothes will get muddy. The sacrifice of getting your clothes muddy is insignificant compared to the life of a child.

In the case of Jones and the poor 4 year old girl who was potentially tied to her bed and starved, I believe anyone who came in contact with those children (friends of the family, house cleaner, plumber) had the duty to report it. This past year I worked in the Athens School District, and was obligated to report anything that I believed was compromising the innocence of the children I worked with. While I do not expect everyone to report every incident to Children's Services, I believe that people have a gut instinct when something is wrong and a child is in danger, and over-reporting potential problems is worth it if it can save the life of a child.

A related, and horrific, story is about three brothers living in a foster home who were starved by their foster parents for years. The most upsetting part of this case was that the home was regularly visited by a caseworker (as with all foster children) and the caseworker reported nothing regarding the emaciated appearance of all of the foster children. While I do believe that the foster parents deserved the punishment that they received, I also believe that the caseworker, who should always be looking for foul play, should be punished for failing to look further into the reasons why the brothers, ages ranging from 9-19, all weighed under 45 pounds. The story can be found here:
http://www.cbsnews.com/stories/2010/03/02/eveningnews/main6260271.shtml

In conclusion, while creating a statute similar to Wisconsin's would be difficult, in that there has to be provisions protecting citizens from saving others at their own expense, I do believe that helping others is a moral duty, and can and should be translated into a legal duty.

Posted by: Paia LaPalombara | Sep 6, 2010 11:04:26 PM

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