We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.
The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel
In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.
Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.
The Law and Its Rationale
Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.
Hmmm. Only parents and spouses. Why not grandparents, cousins, siblings? We think the answer has something to do with the fact that parental and spousal relations are the two familial relationships that persons enter into with some degree of real voluntariness. I can’t choose to have a grandfather or a sister. But I can avoid marriage — notwithstanding the subtle pressures or inducements from Jewish mothers or the government’s social policies. Similarly, obligations to one’s child might be legitimate in part because it’s largely a choice to have a child — at least in an age and polity where contraception, abortion, and the chance to terminate one’s parental rights exist.
Thus, despite the general common law rule in favor of maximizing personal autonomy, the government’s imposition of an obligation to rescue spouses and children is not so illiberal; it reflects the fact that the underlying conduct of having a spouse or child is such that it can be avoided without much difficulty.
What are the rationales offered for penalizing a failure to rescue between spouses? Usually, they are 1) saving human lives in danger and 2) affirming the significance of marital obligations.
The problem with the first interest is that the means used here — spousal obligations to rescue each other, policed through the criminal law — is woefully underinclusive, so much so that it’s hard to take seriously the idea that this is what’s motivating the use of this family-ties burden.
The second objective, by contrast, makes relatively more sense. Although the obligation to undertake easy rescues is not specifically articulated in many wedding vows, it reasonably falls under the language that is often used in those vows.
The problem with relying principally on wedding vows in these contexts is that the state ends up drawing weird and inexplicable lines. For example, why do the partners of a newly married heterosexual couple have duties to rescue each other but not those in the long-term homosexual couples living in states that won’t recognize their unions? If the key feature of the spousal relationship (for purposes of assigning omissions liability) is the voluntary assumption of caregiving responsibilities, then we don’t see why the breach of other voluntarily assumed caregiving obligations are not similarly subject to criminal law sanction.
As we argue in greater detail in our book, any potential prosecution of a person for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot or choose not to enter a spousal relationship sanctioned by the state. For example, these laws currently do not clearly give the family members of homosexual couples the comfort of knowing that omissions liability is parceled out in a non-discriminatory fashion.
One way to see this discrimination is through analogy: if omissions liability were distributed on the basis of race, such that whites had a duty to rescue their spouses but blacks did not unless they separately contracted for that duty, what message would that send? Our sense is that it exhibits a lack of respect of the value of the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state. Why should a heterosexual man have an obligation to protect his spouse from harm while a gay man in a similarly meaningful and voluntary partnership does not? In both instances, imposing liability serves the same valuable functions: increasing safety and promoting an ethos of caregiving relations triggered by voluntary choices. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly underinclusive; it leaves out those who cannot get married because of a plainly troubling moral choice made by the state.
For the most part, we do not have much problem with marriage being an overinclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we think several options should be explored.
Some Options For Designing Policy
One solution would be to decouple omissions liability from marriage altogether, and instead ask parties to any relationship to register with a state registry. This would treat all persons the same and without favor. But a no-duty-to-rescue rule in marriage could act like a penalty default rule. On the one hand, it would probably encourage more people outside of marriage to think about whom they wish to rescue. On the other hand, it might also add needless costs associated with persons who by virtue of marriage would already be willing to undertake a duty to rescue.
A better solution, based on reducing the social costs of the scheme, would be to require duties to rescue in marriages and to create a registry for all others who want to participate in a “compact of care” such that they have a duty to perform easy rescues. Marriages would simply have the implicit term of duty to rescue built into them and others outside marriage (including those in polyamourous relationships) could opt into it. This would also allow persons to insist on seeing evidence of opt-in by another person before they decide to jointly acquire property, cohabit, or perform caregiving tasks for one another.
Some might raise concerns that we are too focused on spouses and parents as paradigmatic relationships here. The concern here would be that we are insisting that the sexual family or marriage be the normative ideal for adult interactions with each other. We respectfully disagree. Indeed, the point of our registry system is to obviate this concern entirely. People who are not married but “act” as though they are do not have to register, but they may choose to do so; or just one may decide to do so for the other since the registry is a place of declaring one’s assumption of obligation — it is not predicated on norms of reciprocity, nor does it require contractual formalities. To be sure, our slight preference for assigning duties to rescue in the context of marriage and custodial parenting is responsive to what we think of as the specific features of caregiving written into the “scripts” of marriage, but no one should be forced into those roles.
What’s more, people should be free to and encouraged to assume these obligations outside the scripts of marriage. The registry we endorse permits siblings or cousins or roommates or friends to enter into compacts of care, but the idea is not to require it through the criminal law outside voluntary choices or the specific circumstances of the parent-child or spousal relationships. Indeed, we would resist any state’s attempt to impose a legally enforceable relationship of caregiving or a duty to rescue on those persons outside the parent-child or spousal context because we simply cannot say these relationships have been entered into voluntarily.
In the context of platonic roommates, imposing a duty of care through the criminal law would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of caregiving through the use of a registry. This allows individuals to signal their commitment both to each other and to those around them.
It is, of course, possible that very few individuals will choose to register; why would they voluntarily assume the risk of a legal liability that they currently do not face? But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability. If, on the other hand, some individuals do choose to undertake an obligation to rescue, the benefits that decision conveys in terms of promoting safety and promoting an ethos of care and compassion certainly seem worth the effort.
We can also imagine the state incentivizing such registrations through small tax breaks; alternatively, perhaps norm entrepreneurs (private employers or faith groups) will start “opt-in days” to foster solidarity among members of their communities. Of course, because peoples’ relationships ebb and flow, the registry would have to permit people to withdraw from these compacts of caregiving if notice is given to the affected parties. Crazy? Feel free to let us know (gently) in the comments. Thanks again to our wonderful hosts for letting us share our freaky, if not quite freakonomical, ideas.