At this point, the witness would have to be read his Miranda rights assuming the police believe that a rape occurred and this witness failed to report it. Thus instead of the police continuing to question this witness and further investigating what the witness knew about the incident, the witness might choose to remain silent and or have an attorney appointed to represent him. If the rape case ever went to trial, the witness’ attorney would advise his client to assert his 5th amendment privilege against self incrimination for fear that his client would be prosecuted for failing to report the incident. Of course, in most cases, the prosecutor would offer the non-reporting witness immunity and then he could testify. However, an attorney would be appointed for the witness and he would advise his client o testify carefully. Moreover, the defense attorney for the alleged rapist would know the witness was being given a promise of leniency in exchange for his testimony which would tend to undermine the credibility of the witness. Thus from the point of view of the victim, this is a terrible bill.

This bill is also objectionable inasmuch as it upsets the traditional requirement that criminal liability does not attach for mere presence. Generally the individual must actively facilitate the crime such as acting as a lookout at a bank robbery or doing something that would warrant depriving that individual of their liberty (through imprisonment or fine). If this draconian law should pass, the legal excuse that “he was in the wrong place at the wrong time” would no longer act as a defense and the prudent person would be well advised to eschew high crime areas for fear that they would become an unwilling witness or be subjected to criminal sanction.

The easiest defense for observers/witnesses/passers-by will be that did not think a rape was taking place, they will say that what they saw — at least what little they saw — that they thought it was consensual. And then it will be the state’s burden to prove that what little can be proven that they saw was so obviously nonconsensual that a reasonable person would consider it rape. And then the defense will say that to some people, what they saw could be considered consensual. Do you really think that charges and an ensuing trial like that is any way to help prosecute cases like this?

Also, cases so extreme as this one at Richmond are very rare. Far more common are greyer cases where the state clearly finds it very difficult to prosecute, like in the 2007 DeAnza baseball team investigation. Especially in cases where the state is already having difficulty prosecuting the people accused of directly perpetrating the crime, does it make sense to put much more in the way of resources to prove that some witness saw something that a reasonable person would clearly see as a violent crime?

It seems that in the wake of a prosecution like that, there would also be even more friends and family rallying around the people accused of witnessing a crime and not reporting it, and more victim-blaming levied as part of that show of support.