The Richmond Rape, in which a 15 year old girl was gang raped for more than two hours in front of crowd of fellow high school students, has received surprisingly little attention in the blawgosphere. Not only did the crowd do nothing to stop the horrific crime, but they cheered it on.
The phenomenon has been explained as the “bystander effect,” the anonymity of the crowd, a reflection of the death of morality and responsibility of our youth.
Although shocking, the “bystander effect” is a common social phenomenon that occurs when more than one person witnesses an emergency. People fail to act not because they lack empathy but because the presence of others can sometimes give us a false sense of security.
Perhaps the most shocking finding is that the more people that are around, the less likely any individual is to call for help. While the number of witnesses at Richmond High has made the story morally outrageous, it also, ironically, might explain why the horror went on for so long.
But the question for lawyers is whether those who not only stood by, but cheered the perpetrators of the rape, can be prosecuted. This question was batted about between conspirators Eugene Volokh and Orin Kerr. First Eugene:
Probably yes, on the grounds that the cheering tends to encourage the criminal and thus constitutes “abet[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006).
Orin responds:
The debate between Eugene and Orin, on the other hand, raises the more interesting definitional problem. Had the crowd around the gang rape started screaming at the perpetrators to “stop it, we’re calling the cops,” it seems to me that the perpetrators would have stopped and headed for the hills. But this crowd cheered the rape, and not only encouraged its continuance, but emboldened the rapists.
I can’t help but wonder whether one or more of the rapists would not have committed the crime but for the crowd’s encouragement. That there was a large gathering around them, cheering them on, prompting them to continue, pushing them forward, made any of the rapists who might otherwise have been reluctant to have acted for fear of having been viewed as afraid, unmanly perhaps, in front of their friends. A screaming throng of bystanders will do that to a person.
The question to me, therefore, is how passive a role did the cheering play in this gang rape? It strikes me as an integral part of the overall crime. In New York, the archaic word “importune” is included in the definition of accomplice liability. To “beset with insistent or repeated requests; entreat pressingly.” It’s inclusion recognizes that a perpetrator of a crime can be influenced by those who push for it, beg for it, applaud it. The angel sitting on his shoulder is no match for a crowd of devils cheering its commission onward.
But this is about group dynamics, the impact of a crowd of people who can influence the commission of a crime. It’s the action of the group, the crowd, in pushing the perpetration of the crime forward that importuned the ongoing rape. The same influences that affect the rapists affect the individuals in the crowd, the dynamic of all the others cheering influences the individuals in the crowd who are offended or outraged by the rape, and they leave their own morality behind to be part of the group.
It would take a very strong person to have spoken out against the cheering crowd, to have come forward and cry that this horrific crime must stop. Few high school students have anywhere near this sense of inner strength and personal self-esteem that they can stare down their friends and classmates and oppose them. After all, the thing most teenagers and young adults want more than anything is to be accepted by their peers, and they will do whatever they must to gain group acceptance.
It seems unlikely that any individual in the cheering crowd bears criminal liability for the conduct of the group as a whole, despite my agreement with Eugene that the conduct of group, as a whole, did aid and abet the commission of this gang rape. Other than the first person in the crowd, the one who decided that cheering the rapists onward rather than screaming for them to stop, who set the dynamic in motion to encourage this horrific crime rather than stop it, the individuals who ultimate comprise the group are unlikely to possess, or at least be proven to possess, the intent of encouraging the commission of the crime. Rather, their intent was to be part of the group, as terribly sad as that may be.
That the reaction of the crowd to seeing a 15 year old girl gang raped was to cheer, rather than take the opposite tack and stop this crime from happening before their eyes, is different matter, one better explained by sociologists than lawyers. Nothing here provides a moral justification for their conduct, and there is no moral justification. The kids who cheered on this gang rape for hours will spend the rest of their lives knowing that they, as a group and individually, could have done something to stop this crime from happening and didn’t. Worse still, they will know that they encouraged it, no matter that they will never be prosecuted. Their failure to act is something that should haunt them for a very long time.
I have a somewhat different take. I don’t know of any cases on this, but my sense has been that the answer is probably “no.” The reason is that an “aider and abettor” must aid and abet, not merely abet. A bystander who merely cheers on a criminal is not actually aiding the criminal, at least absent unusual circumstances. That is, he is not engaging in an act or omission that assists the crime. So I have tended to think that the bystander has not satisfied the act requirement of accomplice liability and therefore isn’t liable.The difference seems to be in how one distinguishes passive versus active involvement. Notably, In the immediate aftermath of the crime, the “former prosecutor” talking heads were unanimous in proclaiming that the bystanders couldn’t be prosecuted, no matter how morally offensive their behavior. Though they sought to explain this as stemming from no duty to act when seeing a felony committed in front of them, the undertone was the they would never get a conviction anyway so it wasn’t worth the bother. Probably true, but the discussion was less than illuminating.
It’s true that some courts say that “encouraging” the crime can satisfy the act requirement of accomplice liability. But when I’ve looked for cases that purport apply this, I encountered cases in which the encourager was actually helping the crime. It wasn’t just encouragement in the sense of an innocent bystander saying, “Run, OJ, run!,” but stuff more like co-conspirators giving the bad guy a pep talk to override his doubts and make sure he would go ahead with the crime. So my tentative sense of it is that the encouragement has to actually help the crime occur or the bad guys to escape.
The debate between Eugene and Orin, on the other hand, raises the more interesting definitional problem. Had the crowd around the gang rape started screaming at the perpetrators to “stop it, we’re calling the cops,” it seems to me that the perpetrators would have stopped and headed for the hills. But this crowd cheered the rape, and not only encouraged its continuance, but emboldened the rapists.
I can’t help but wonder whether one or more of the rapists would not have committed the crime but for the crowd’s encouragement. That there was a large gathering around them, cheering them on, prompting them to continue, pushing them forward, made any of the rapists who might otherwise have been reluctant to have acted for fear of having been viewed as afraid, unmanly perhaps, in front of their friends. A screaming throng of bystanders will do that to a person.
The question to me, therefore, is how passive a role did the cheering play in this gang rape? It strikes me as an integral part of the overall crime. In New York, the archaic word “importune” is included in the definition of accomplice liability. To “beset with insistent or repeated requests; entreat pressingly.” It’s inclusion recognizes that a perpetrator of a crime can be influenced by those who push for it, beg for it, applaud it. The angel sitting on his shoulder is no match for a crowd of devils cheering its commission onward.
But this is about group dynamics, the impact of a crowd of people who can influence the commission of a crime. It’s the action of the group, the crowd, in pushing the perpetration of the crime forward that importuned the ongoing rape. The same influences that affect the rapists affect the individuals in the crowd, the dynamic of all the others cheering influences the individuals in the crowd who are offended or outraged by the rape, and they leave their own morality behind to be part of the group.
It would take a very strong person to have spoken out against the cheering crowd, to have come forward and cry that this horrific crime must stop. Few high school students have anywhere near this sense of inner strength and personal self-esteem that they can stare down their friends and classmates and oppose them. After all, the thing most teenagers and young adults want more than anything is to be accepted by their peers, and they will do whatever they must to gain group acceptance.
It seems unlikely that any individual in the cheering crowd bears criminal liability for the conduct of the group as a whole, despite my agreement with Eugene that the conduct of group, as a whole, did aid and abet the commission of this gang rape. Other than the first person in the crowd, the one who decided that cheering the rapists onward rather than screaming for them to stop, who set the dynamic in motion to encourage this horrific crime rather than stop it, the individuals who ultimate comprise the group are unlikely to possess, or at least be proven to possess, the intent of encouraging the commission of the crime. Rather, their intent was to be part of the group, as terribly sad as that may be.
That the reaction of the crowd to seeing a 15 year old girl gang raped was to cheer, rather than take the opposite tack and stop this crime from happening before their eyes, is different matter, one better explained by sociologists than lawyers. Nothing here provides a moral justification for their conduct, and there is no moral justification. The kids who cheered on this gang rape for hours will spend the rest of their lives knowing that they, as a group and individually, could have done something to stop this crime from happening and didn’t. Worse still, they will know that they encouraged it, no matter that they will never be prosecuted. Their failure to act is something that should haunt them for a very long time.
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The prosecution of bystanders for cheering on a rape was portrayed in the movie The Accused, starring Jodie Foster. In the movie, the cheering bystanders were convicted. It’s surprising to me that the “former prosecutor” talking heads opined that the prosecution of the cheering bystanders to the Richmond rape would be hopeless. If the law on aiding and abetting is as ambiguous as Eugene and Orin and you indicate it is, it seems a jury would be likely to resolve any such ambiguity in favor of punishing the cheering bystanders morally despicable and arguably criminal behavior.
That’s why judges rarely cite movies as precedent.
You forgot to mention the analysis by …
[Ed. Note: Blog promotion and link deleted.]
This was a solid analysis, in my opinion, & fairly dealt with both sides of the argument. As a physician, I must disagree with your statement, “The kids who cheered on this gang rape for hours will spend the rest of their lives knowing that they, as a group and individually, could have done something to stop this crime from happening and didn’t.” Actually, no they won’t. This would, indeed, be true, if the rabid onlookers were teenagers within the bell curve of stable mental health. But, by definition, they aren’t. Their chilling & detached behavior is consistent with those of major personality disorders, specifically Anti-Social (formerly Sociopathic / Psychopathic) & Narcissistic. The former tends to be notably more pronounced in males, & has a profound genetic penetrance from father to son (90%). Worse, the Nature / Nurture phenomenon further aggrandizes the problem, in that affected fathers overwhelmingly are poor to severely dysfunctional parents. Anti-Socials are emotional incapable of relating emotively to another person, & most certainly not in a manner that is commensurate with mood. Meanwhile, Narcissists are essentially megalomaniacs, who are wired to use people as personal tools, who are then tossed when no longer beneficial. Finally, realize that even those these are among the most severe–& dangerous–of the personality disorders, that these individuals essentially appear perfectly normal. They can be persuasive, be ostensibly emotive, & disarmingly charming. If one needs to have the inner satisfaction that these amoral human beings will someday have to live with profound remorse over their actions & inaction, then by all means, choose to believe it. Unfortunately, you will be choosing a lie.
They’re all narcissistic today. Let an old man enjoy his delusions that they aren’t all borderline, one way or another.
No I didn’t. Comments are not the place to try to promote a blog, and links are not permitted in comments.
Okay, then. Perhaps one or two have a tiny sliver of insight. Into this clerestory window, a top-drawer psychologist (with an academically rigorous Ph.D.), may manage to introduce a ray of sunlight & thereby spend years helping to developing an emotionally functioning psyche. It is within the realm of possibility, although I am being exceedingly generous even with this description. As for the cretins cheering on the violent sexual assault, who have elements of Borderline Personality Disorder admixed with either Anti-Social & / or Narcissistic, frankly, there is no hope, whatsoever. God help us.
That’s a mighty thin thread you’re giving me. For everyone’s sake, I hope it’s not that bad.
Unfortunately, it is true (re no hope/cure for sociopaths). I recommend the book “The Sociopath Next Door” for people who want to learn how to protect themselves. PS–Great post. Thank you.
It is a thin thread, indeed. I know. However, remember that this is still a minority within society, at large. A larger minority than many people realize, but a minority, nonetheless. The average high schooler would not have cheered on this madness. Recall from your Stats class in grad school (or college)the phenomenon of ‘Selection Bias.’ The thugs who clustered about, staring at & cheering a brutal rape, with all of the attendant horror, screams, pleas for mercy, nakedness, & everything else, had already selected THEMSELVES out to actually be there. Who was NOT present were the vast majority of teens who avoided the scene like the plague. Yes, here is where teens will be teens, not wanting to get involved, fearing how they may appear, fearing having to act alone or heroically, and so on…but that is all within the ‘normal’ mental health of a teenager. Therefore, it seems as though this act of violence was within a group of simple, teen on-lookers, but it was not. The ‘simple, teen on-lookers’ were anything but simple, & actually represented the above-described minority. As opposed to fleeing from the violence, they embraced it, and in so doing, ended up clustered together. Interestingly enough, one of the only deterrents to Anti-Social maladaptive behavior, is the awareness of significant consequences that will be shelled out for said behavior. For example, “If I put this meat cleaver into my stupid-ass English teacher’s face, I won’t get to come to school tomorrow & smoke reefer behind the gym with my buddies.” It is utterly pointless to try to understand the mental pathways that exist within the minds of the Sociopath, the Narcissist, or the Borderline. It’s hard enough for behaviorists to understand. Therefore, simple treat the what, & don’t torture yourself with the why.