pageok
pageok
pageok
Ethical Duty to Report Crimes and Argument by Epithet:

When should people report crimes to the police, especially when the crimes are done by people who are (1) friends, (2) associates, or (3) others who inform the person in his professional capacity, and expecting confidentiality? That's a really tough question, but here is an example, from a Slate column last week, of how not to deal with it (emphasis added):

In maintaining his silence, Woodward, more than anyone else in the Plamegate scandal, has upheld the highest standards of journalistic integrity and discretion. Perhaps this is because, more than anyone else, Woodward understands the tenuous and often strained relationship between a powerful government and its citizens. (Whether Woodward—who has made his career as a journalistic watchdog, attentively patrolling executive power run amok—had some special obligation to his editor is a different question.) Woodward's critics are essentially arguing that he should have volunteered information (whether directly to the prosecutor or functionally to the prosecutor via publication) before being asked —- that is, he should have become an informant.

We have laws in this country that designate precisely when citizens are required to rat on other people. The laws, for instance, require doctors who witness injuries consistent with child sex abuse to call authorities; and social workers are obligated to snitch if they confront someone clearly about to physically harm another. Certain other professionals are also deemed by law to be "mandatory reporters." But outside these narrow confines, there is no law in our country imposing an obligation to begin or to assist in a criminal prosecution -— not in drug cases, not in mob cases, not even in murder cases.

And rightly so. America has been through McCarthyism before, and we have seen what a culture of informants can produce.

In America, it is the prosecutor's job to get information, not the citizen's to volunteer it -- and this is for good reason. Many of our other important values -- such as journalistic integrity, the right to privacy, or the right to be free from unwarranted searches and seizures -- compete directly with an obligation to volunteer information. The value of our freedom from governmental authority is invariably tested during troubled times and generally faces its greatest challenges in the context of highly charged issues. But although it is chic to be patriotic, particularly in wartime, a vogue for cooperation with prosecutors shouldn't be confused with good policy. It is true that we prize honesty and integrity in America, and certainly we expect those summoned before a tribunal to testify completely and truthfully, but this is only required when someone is questioned by federal agents or compelled to testify. We may be a nation of Honest Abes, but we are not a nation of snitches. . . .

To begin with, this is argument by epithet; instead of showing that something is bad, it just calls it names. "To rat"; "snitch" (said twice); even "informant" (said twice) -- these are pejorative terms for what might be equally well called "helping catch criminals," "protecting innocent victims," or (in some instances) "whistle-blowing." Would we really call someone who calls the police when "someone [is] clearly about to physically harm another" a "snitch"? Someone who tries to protect a child from future sex abuse a "rat"? (The column gives doctors' calling authorities about possible sex abuse as a "for instance" in the category of "rat[ting] on other people.")

I should think not. And even in more morally ambiguous situations, when the crime is less serious or less imminent, or the personal connects with the criminal are closer, denouncing the person who calls the police as a "snitch" or a "rat" (as opposed to a "public-spirited citizen," who may help advance justice at considerable personal cost, for instance when someone turns in a criminal who's a family member, as in the Unabomber case) should be the conclusion of an argument, not a premise.

But beyond this, the argument fudges a person's legal duties and his moral duties. It's true that the rule in American law is that people don't have to report crimes (at least until they're subpoenaed to do so); legal duties to report are the exception. But the rule in American law is also that people may report crimes; legal prohibitions on reporting are the exception. So appealing to the "laws in this country that designate precisely when citizens are required to rat on other people" as evidence of whether Woodward should have volunteered the information is misleading: To the extent that the laws influence our ethical obligations, they simply tell us when we must come forward (rarely) and when we must not come forward (rarely) -- they don't answer when we should come forward in those situations where we may but need not.

Of course, there are plausible reasons why journalists shouldn't voluntarily reveal their sources, even when the revelation can help investigate a crime. (There are also plausible reasons why people shouldn't voluntarily call the police about conduct that we might think shouldn't be a crime, or is at most a minor crime.) But those reasons may have to do with this particular case, and may have to do with the special role of journalists (a matter that the Slate column discusses, but in too little detail, in my view) and the special values that can be served by journalists' confidentiality.

They have little to do with the proposition -- in my view an outrageous proposition -- that the rest of us, including "doctors who witness injuries consistent with child sex abuse" and "social workers . . . [who] confront someone clearly about to physically harm another" are "rat[s]" and "snitch[es]." Nor do they have much to do with the broader proposition that people's willingness to help fight crime by calling the police when they have evidence of crime would make us a "nation of snitches."

Anon7:
I agree that "snitch" and "rat" are needless pejoratives in a piece like that, but "informant" sounds neutral to me.

I think people that report a crime should be supported rather than denigrated.
11.29.2005 3:04pm
A Blogger:
The author of that slate piece is a former public defender. To lots of public defenders, those who speak out about crimes are rats and snitches.
11.29.2005 3:10pm
guest:
Anyone know how misprision of felony plays into all this?
11.29.2005 3:23pm
JohnAnnArbor:
I just find it amazing that people, like the article writer, think it's somehow OK to keep quiet when you know something about a crime. I guess he's the kind of guy who, if he happened upon a gang-rape in the back room of a bar, would just say "oh, well" and resume looking for the bathroom.
11.29.2005 3:24pm
Steve:
I still find it hard to believe that grown adults refer disparagingly to "snitches" and "tattletales" as though we were still in grade school.

On the issue of whether there should be a legal duty to report a crime, Rep. Sensenbrenner sponsored a bill (H.R. 1528) earlier this year, called the "Safe Access to Drug Treatment and Child Protection Act of 2005," which would have, among other things, made it a felony to fail to report certain drug transactions within 24 hours.

`SEC. 425. (a) It shall be unlawful for any person who witnesses or learns of a violation of sections 416(b)(2), 417, 418, 419, 420, 424, or 426 to fail to report the offense to law enforcement officials within 24 hours of witnessing or learning of the violation and thereafter provide full assistance in the investigation, apprehension, and prosecution of the person violating paragraph (a).

`(b) Any person who violates subsection (a) of this section shall be sentenced to not less than two years or more than 10 years. If the person who witnesses or learns of the violation is the parent or guardian, or otherwise responsible for the care or supervision of the person under the age of 18 or the incompetent person, such person shall be sentenced to not less than three years or more than 20 years.'.

(2) CLERICAL AMENDMENT- The table of sections for the Comprehensive Drug Abuse Prevention and Control Act of 1970 is amended by inserting after the item relating to section 423 the following new item:

`Sec. 425. Failure to protect children from drug trafficking activities.'.


I believe this bill, if passed, would go somewhere pretty unprecedented in terms of creating a legal duty to report crimes to the authorities.
11.29.2005 3:34pm
Goober (mail):
Sigh. More "outrage[]." This time over the word "snitch." Usually I have to slum over at Michelle Malkin's or watch some O'Reilly for that sort of overreaction. An intelligent conservative blogger, it appears, has more in common with an unintelligent conservative blogger than with a intelligent conservative non-blogger. Alas.

Professor Volokh, you are aware of the occasional technique of the English language called "rhetoric"? Are you really suggesting that the author of the Slate piece is casting doubt on the nobility of reporting child sex abuse? Such hyperbole, I feel, is not productive. And the infinite capacity of people who write on the internet to get exercised over everything is a joke that's really not funny anymore.
11.29.2005 3:38pm
Aaron:
JohnAnnArbor:

There is a distinction between witnessing a crime and getting help, and having knowledge of the event and assisting the investigation post-mortem. A more apt analogy would be, a friend of the perpetrators of the gang-rape, who learned of the crime, coming forward during the investigation to provide information.

That said, I'm saddened, but not surprised, that the same culture which has glorified gang ethics (Omerta, Sopranos, Godfather, Goodfellas)has rejected common decency for the tactics of thuggery.

Furthermore, the author misuses the terminology; "rat", "squeal", "snitch", "informant", all refer to inside players in the crime. The taboo is directed at the perceived disloyalty in a member of the gang turning on his confederates. Outside observers, witnesses, "civilians" are not rats, because they owe the wrongdoers no such loyalty. It is incumbent upon decent citizens to assist the authorities in ferreting out wrongdoing.
11.29.2005 3:42pm
Grant Gould (mail):
Surely one's personal judgement of the justice of the situation plays a part, though. I would certainly call a rat someone who told the cops about, for example, a friend dancing in violation of Massachusetts General Law 136 section 2. I would not apply the same epithet to someone who told the cops about a rapist.

The difference is that "rat" or "snitch" implies that someone has unnecessarily involved higher authorities in a private matter, or has done so in violation of a promise not to do so.

I think most people's intuition of the terms "rat" and "snitch" are that they refer to people who have involved public authorities in a private matter or who have violated norms of privacy or confidentiality. This intuition reflects a real moral belief that most people have that private and public spheres of life ought to be kept separate. It is perfectly reasonable for people to be surprised and alarmed by violations of this separation, and for them to decry the legal and cultural underpinnings of such violations.
11.29.2005 3:47pm
JohnAnnArbor:
OK, a more apt example: a frat boy who finds out after the fact that his "brothers" raped a comatose partygoer.

What's more important, reporting a crime or protecting the rapist "friends"?
11.29.2005 3:47pm
Robert Lyman (mail):
Such hyperbole, I feel, is not productive

But Slate's hyperbole is productive? Or is just so unobjectionable that it should pass without comment, unlike Volokh's "hyperbole," (I fail to see it) which deserves criticism?
11.29.2005 3:49pm
18 USC 1030 (mail):
It seems to me in theory this is a good idea; however, it also screams of a "Good Samaritan law." Though a Good Samaritan law would at first appear to be a good idea, the implications would be of concern. Obviously this isn't going so far as to say if you don't try to stop the behavior you will prosecuted; it only says that if you don't report the behavior, you will be prosecuted. This is still a matter of concern. What are the implications of an ostrich defense here? Can one intentionally not know, thereby eliminate their requirement to report; or, in doing so, are they violating the law?

For example, late at night, in a known drug area, a person witnesses a car parked down the street and sees another car pull up next to it, though the driver intended to continue down that road, he instead turns and goes around the block in order to stay away from whatever that might be that he might have seen; is this a failure to report?

It seems to me there are many occasions in which someone views something as "not right," yet not a crime; in order to maintain their safety, the average person would immediately leave the area. Are they now, by intentionally not witnessing a crime, culpable for not reporting?
11.29.2005 4:02pm
Defending the Indefensible:
The reliance on criminal codes as dispositive of morality is highly questionable. Rape is not wrong because it is illegal. It is wrong because someone was violated, not because the law was broken.

But this is beside the point of the matter here, which is a professional obligation on Mr. Woodward's part to report the truth. Sometimes it may be necessary to keep someone's identity secret in order to gather information on a larger story which otherwise could not be reported, as in the case of Mark Felt, but the story itself should be reported.

Notably neither Judy Miller nor Bob Woodward actually reported the stories at issue, and Woodward actively misdirected the public in his reportage. That is at least a violation of journalistic ethics.
11.29.2005 4:05pm
Anon96 (mail):
Ok, so who is going to report on ME for violating the rule involving secrecy of grand jury materials?
11.29.2005 4:06pm
anonymous22:
We have known for a very long time that moral duties and legal incentives often conflict. I am skeptical of Prof. Volokh's post because sometimes legal conservatives try to elide or gloss over the fact that this dilemma exists in defending policies they support. For example, legal conservatives used to disagree with Miranda because it discouraged people from coming clean about their crimes-- a moral duty. What these legal conservatives used to ignore was the fact that the incentives set up by the legal system make it absolutely suicidal to ever talk to the police when it may implicate you. People familiar with the legal system (like the five justices of the Miranda majority) knew this; they thought it was senseless that less fortunate people should be entrapped by this. But when Justice Scalia rails about the fact that Miranda reduced the number of confessions, it seems somewhat hollow to me.
11.29.2005 4:08pm
Bruce:
Eugene's right; the epithets are noxious. The notion that there is something disreputable about informing others of illegal or immoral conduct is responsible for the persistent difficulties in punishing police corruption or brutality, or bad doctors, or unethical lawyers. A reasoned argument could be made for why Woodward -- a reporter using confidential sources -- had no duty to reveal his information before he was subpoenaed, but the mere fact that it would have turned him into a "snitch" is not such an argument.
11.29.2005 4:13pm
Shelby (mail):
Goober:

You say, "Are you really suggesting that the author of the Slate piece is casting doubt on the nobility of reporting child sex abuse?"

The author of the article says:

when citizens are required to rat on other people. The laws, for instance, require doctors who witness injuries consistent with child sex abuse to call authorities

So yes, the author apparently thinks doctors who reports child sex abuse are ignoble (or at least acting ignobly). I suspect that's not what he meant, but it's what he said -- apparently not having thought this whole matter through very clearly. And since when do reporters owe a duty to keep silent about the only part of a story with any public import, when it was the very act of telling the reporter that constitutes a crime? We're not protecting whistleblowers with such a principle, we're protecting crooks. If this is what passes for ethics in modern journalism, then the profession is in grave trouble indeed.
11.29.2005 4:58pm
Wintermute (www):
N.B. RPC 1.6(c)(1):

(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

IIRC, this is mandatory under the RPC, whereas it was permissive under the CPR. See the relevant Comment; mine is numbered 16. Anyone know of any cases on this? Is this more of a protective provision for lawyers or more of an exposure to liability?
11.29.2005 5:04pm
William Spieler (mail) (www):
Goober:

I've nothing against using rhetoric, but when you use it poorly, such that the natural inference upon reading it is that you say something ridiculous (as in this case), I don't see what the problem with pointing that out is.
11.29.2005 5:09pm
Splunge (mail):
What I don't get is why Eugene keeps reading Slate and critiquing what passes for "reasoning" therein. It's like shooting fish in a barrel. Doesn't he have any worthwhile arguments with grown-ups to pursue?
11.29.2005 6:51pm
Philip F. Lee (mail):
There is a slippery slope issue here which I'm surprised wasn't considered. Maryland legislators pointed to laws requiring Doctors to report abuse as rationale for requiring gun owners to report theft of guns within 48 hours of discovery and proposed penalties of jail time for failure to report. Their supposed targets were illegal dealers who claimed guns were stolen rather than sold when a gun traced to them showed up in crime.

Here is another example of the intent to expand the reporting concept -- where is the end of such reporting requirements? What is the stopping rule? For example, why not require people to report theft of any property since such thefts can be used to fuel the drug trade or other illegal activity? Why not require people to report the licenses of speeders because of the public safety problems on roads being created (40,000+ deaths a year).

Of course, a criminal accused of failing to report in the case of the proposed Maryland law on gun thefts would have the perfect defense against that charge that he was not obliged to incriminate himself. Nearly as good would have been the defense that the person might claim he didn't know the gun was stolen until Police inquired about it.

Maryland legislators are known for making lazy law. By that I mean law that pretend to do something, but really doesn't. Maryland has had the highest rate of robbery of any state for the past nine years (and very high rates of murder and violence compared to other states) despite one lazy law after another to "control" violence. In the "report your stolen guns" case cited, the law would have been practically uninforcable. But, the legislators could fool themselves and their constituents into believing they were doing something useful.

In general, people who think passing a law to require "good citizenship" are supporting lazy legislation.
11.29.2005 6:59pm
Alaska Jack (mail):
Goober -

You wrote:

Are you really suggesting that the author of the Slate piece is casting doubt on the nobility of reporting child sex abuse? Such hyperbole, I feel, is not productive.

In your use of the term "hyperbole" I at first understood you (reasonably, I think) to be talking about the Slate author. It took me a minute to realize that you were in fact referring to Eugene! Did the absurdity of this really escape you?

- AJ
11.29.2005 8:23pm
Oleg Volk (mail) (www):
Depends on the law being violated. Informing on a thief, certainly, on a violator of NFA34, definitely not. Some laws aren't worth obeying or supporting.
11.29.2005 10:52pm
Visitor Again:
I wonder what Eugene would say to a client who approached him for legal advice as to whether to inform the authorities of criminal activity.

Would he talk of the moral duty to report crime and leave it at that?

Or would he tell the client that reporting a crime is often asking for trouble?

The first thing the LAPD does is run a make on persons reporting the crime and unless they are squeaky clean, they'll suffer. Even an outstanding traffic warrant might put them in jail for a night. The police will look at their cars, too. Expired registration tags might mean they will have to pay a ticket and put up registration fees. If the police have relations with immigration officials, formal or informal, the informants might find themselves in trouble there, too.

In neighborhoods where drug transactions are a dime a dozen, people reporting them will find they no longer lead a peaceable existence. There will be retaliation. They eventually will have to move.

If it's a serious gang crime they're considering reporting, they should know about gang retaliation, which often takes the form of witness murder, and that the police are incapable of protecting them from that retaliation--admittedly so.

Of lesser concern are the huge amounts of time becoming a witness takes.

Moral duty might override all these considerations, of course, but the decision belongs to the client and it should be an informed decision.

The fact is that many people are unwilling to report crimes for reasons that have nothing to do with morality, even sometimes when they are themselves the victims of the crimes.
11.30.2005 1:30am
Public_Defender:
Some states do have laws requiring the reporting of felonies. I thought Nevada got one after a teenager observed a friend rape and murder a girl in a hotel there. The teenager didn't participate or help, so he couldn't be charged with anything.

Ironically, these laws could prevent testimony. Anyone who has observed evidence of a felony gets a Fifth Amendment right not to testify about it. Why? Because they can correctly say that they are subject to prosecution for failure to report.

I would only use the "snitch" label to someone who was giving information in return for something, and then I would probably only use it when I thought the informant was making things up to get a better deal.

Many defense lawyers don't give discovery materials to their jailed clients. We don't want other prisoners to read the materials to learn the details of the case. Once the other prisoners learn the detailes, they can call the prosecutor to say that the our clients "confessed."
11.30.2005 5:33am
arbitraryaardvark (mail) (www):
I think the article uses terms like rat and sqeal to remind us of deeply held cultural values - at least these are values in my neighborhood in the ghetto, and I also noticed them at play in law school. See also stool pigeon, narc.
In evaluating whether to report a crime, one should consider a) whether the authority one is reporting to is legitimate b) whether it will do any good. c)whether the "crime" involved any rights violation - dancing wouldn't.
If the authority is Saadam's secret police, it is probably immoral to report even an actual crime, such as a robbery.
Many Americans believe, with some evidence, that their local cops have about the same legitimacy as Saadam.
The main reason people report crimes is to pass the buck, to absolve themselves of the guilt of not actually doing something about the crime. 97% of the time, police response is either nothing, or counterproductive.
I usually don't bother to report crimes against myself, but now and then I do, and it's been interesting to watch the police do nothing in response to increasingly serious crimes - trash dumping, burglary, car theft, attempted murder. I'm dealing with it by moving. The same city sued me 54 times because my grass was too tall.
11.30.2005 10:57am
Matt Corbett (mail) (www):
The use of pejorative terms to describe informing on criminal activity really is getting it backwards- any institution with an honor code requires it. For example, every couple of years when there is a cheating scandal at a service academy or some other institution with a strict honor code, the majority of expulsions are not for actually cheating, but for knowing about the cheating and not turning in the cheaters. For reasons Public Defender outlined (potentially allowing a witness to refuse to answer questions on fifth amendment grounds), it's probably unwise to codify the requirement genreally, but reporting criminal activity is something that should be encouraged, not denigrated.
11.30.2005 4:01pm
John Herbison (mail):
The terms rat and snitch have become pejorative because of context--the providers of information are often themselves involved in unsavory conduct, whether past or present. Their information is proffered in order to avoid or lessen the consequences of past misconduct or to curry favor with police and prosti-cutors who have discretion to turn a blind eye in the present or future. The government thereby rewards, perpetuates or enables crime committed by its allies in the criminal mileu in order to gain an advantage over those accused persons who refuse to play the game.

An old maxim holds that one should choose his enemies carefully, for it is they whom he will come to resemble.
11.30.2005 5:53pm