Sanctioning the Selfish: The Operation of Portugal's New ‘Bad Samaritan’ Statute1
| Date | 01 January 1991 |
| DOI | 10.1177/026975809100100402 |
| Published date | 01 January 1991 |
| Author | Gilbert Geis |
International Review
of
Victimology,
1991,
Vol.
1,
pp.
297-313
0269-7580/91
$10
©
1991
A B Academic Publishers-Printed in Great Britain
SANCTIONING
THE
SELFISH:
THE
OPERATION
OF
PORTUGAL'S
NEW
'BAD
SAMARITAN'
STATUTE
1
GILBERT GElS
University
of
California, Irvine, USA
ABSTRACT
In
1982,
Portugal followed the precedent of most European legal systems by criminally
penalizing persons who fail to provide aid or summon help for those requiring such
assistance. Anglo-American legal codes, with rare exceptions, have resisted penalizing
such acts of omission, and jurisprudents have defended this position with a variety of
ethical and legal explanations. The article examines the initial cases which came before the
courts under the new
Portu~uese
law in order to provide empirical information bearing on
traditional objections to cnminalizing failure-to-rescue.
It
then critically reviews general
reservations about duty-to-rescue provisions.
INTRODUCTION
A much-remarked distinction between contemporary Anglo-
American criminal law and that
of
the European and Soviet countries
is
the virtual absence in the former and the presence in the latter of statutes
that impose criminal penalties on persons who, when they reasonably
might do so, fail to aid others
in
peril (Ratcliffe,
1966).
As far back as
1781,
customary law in Mongolia had provided that 'whoever does not come to
the assistance of a perishing person
is
liable to corporal punishment'
(Riazanovsky,
1979;
p.
55).
Those who saved the endangered person, the
Code decreed, were to be given a horse. In the face of the Code's silence
on the matter, Levermore
(1986)
sensibly suggests that the reward most
likely
was
to be elicited from the person who had been rescued rather than
from tribal holdings.
The Russian Criminal Code of
1845
was the first contemporary
declaration of criminal liability for failure to assist those in need (see
Hazard,
1961).
It was followed by similar provisions in the criminal codes
of Tuscany
(1853),
the Netherlands (1881), and by the Zindarelli Code of
1889
in Italy (Feldbrugge,
1965-1966;
cf.
Sheleff,
1978;
pp. 76-122).
The present French law on the duty-to-rescue, a prototypical
European statute, traces its origin to peculiar circumstances. Under
pressure in
1941
from the German occupation authorities, who had killed
fifty hostages as reprisal for the murder of a German officer (Tunc,
1966),
the Vichy government decreed punishment for two kinds of offenders: (1)
those who failed to inform on would-be-criminals and (2) those who failed
298
to bring
or
summon aid for one in peril, if affirmative action did not involve
risk to the rescuer
or
to third parties, and if the failure to act was causally
related to the death
or
serious harm of the imperiled person. The law
is
said to have been· unevenly applied, possibly because of judicial distrust
of
German motives (Note, 1952). But its second section was re-enacted after
the liberation of France. The new statute, however, dropped the segment
that required serious bodily harm
or
death before criminal liability
attached to the failure to act (Laws of 1945, Penal Code, art. 63,
s.
2).
The French statute has often been invoked against physicians who do
not respond to calls from those seeking emergency aid, and, on occasion, it
appears to have been resorted to in arguable, and perhaps indefensible
circumstances. Larguier (1963; p. 89), for instance, reports the conviction
of a man who shot another person, and.was convicted both for wilful
wounding and for failure to provide aid.
The French law has figured in at least two highly-publicized episodes.
In 1979, the body of Jean Seberg, a prominent actress, was found in a car
on a Paris side street.
It
was presumed that she had died of an overdose of
alcohol and pills. But since she could not drive without her glasses, and
these were found
in
her apartment, it was believed that her body, perhaps
while there remained a chance to save her life, had been transported to the
site where it was discovered. The court ruled that 'persons unknown' had
failed to adhere to the duty-to-rescue law (Richards, 1981;
p,.
377). Late in
1988, a French court sentenced Rehana Bhutto, the widow of the brother
of Pakistan's former prime minister, to two years
in
prison for her failure
to assist
him-she
and her husband were in the process of
separating-
after the murder or suicide attempt that led to his death (Bhutto, 1989; pp.
311, 396).
Summarizing more than two decades of experience with the statute
(Tunc, 1966; p. 62), notes that 'in France, at least, in my opinion, the law
..
acts as an incentive to everybody to behave like a Good Samaritan'
though he points out that it would be interesting to know some of the facts
behind the numerical reports, which at the time he was writing showed
about
65
convictions annually, almost all of them involving prison terms.
Seeking to portray vividly the distinctiveness
of
the Anglo-American
position, Glazebrook (1960; p. 386) notes that '[t]he foreign reader
discovers that an able-bodied Englishman ·may with impunity watch a
young child whose care he does not happen to have undertaken drown at
his feet in a foot of water'. Absence of criminal penalties in Anglo-
American codes for failure to aid has often been deplored, particularly in
more recent times (D'Amato, 1975; DeKuiper, 1976; Weinrib, 1980).
Inertia rather than either strong juridical
or
moral conviction seems to lie
behind the continuing presence of the Anglo-American doctrine.
Status quo arguments include the belief that precise enunciation of
legal obligation to rescue
is
a feckless endeavor: for instance, [to use the
example employed by Macaulay (1875; pp. vii, 484) in discussing the
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