Should witnesses be required to report violent crimes?
on January 19, 2010
The case of a 16-year-old girl who was raped at Richmond High, while as many as 20 people watched and did not call police, has inspired new proposed legislation authored by state lawmakers that would make it a misdemeanor to fail to contact authorities when witnessing a violent crime.
The two bills, one authored by Assemblyman Pedro Nava (D-Santa Barbara) and another by state Sen. Leland Yee (D-San Francisco) have sparked a mixed reaction.
Rev. Andre Shumake of the Richmond Improvement Association said he thinks it’s unfortunate that there has to be such legislation, but “there’s an incredible need for it.” Rhonda James, director of the crisis center Community Violence Solutions, said it’s unnecessary legislation and she doesn’t understand how it will be implemented. Only Yee’s bill is supported by the Richmond Police Department.
Nava’s measure, called the Witness Responsibility Act, would change an existing law and make it a misdemeanor to witness a rape, murder or violent crime and fail to report it to police. The current law mandates witnesses report such crimes only when the victim is under the age of 14.
Yee’s measure would also change the current law. Instead of lifting the age restriction, however, Yee’s bill changes it from 14 to 18.
Nava’s bill passed out of the Assembly Public Safety committee on Jan. 12. Yee’s bill will be heard during a Senate committee meeting in late February or early March, according to Adam Keigwin, one of Yee’s aides.
The Richmond Police Department supports Yee’s bill, but is not behind Nava’s.
“The Richmond Police Department understands the nature of both bills and supports Yee’s bill on its face,” Lt. Mark Gagan said. “Yee’s bill only changes the ages of victims protected from children under the age of 14 to children under the age of 18. Sen. Yee’s bill resonates with us because we agree there is vulnerability in victims under the age of 18.”
Keigwin said that Yee believes that “children don’t have the mental capability to go to law enforcement, where an adult victim has mental wherewithal,” to contact authorities. Removing the age restriction would take away some of an adult victim’s control of their case, Keigwin said.
Nava said he does not feel that Yee’s bill goes far enough.
“What do you say to the victim’s family when the victim is 18 and 1 day old, or 19?” Nava said. “And why should a witness be asked to make a determination of a victim’s age before they report it to the police?”
James, a crisis center director, said there are problems with both bills. She said she worries that people who were in the wrong place at the wrong time will be forced to testify – that someone could be penalized just for living in a rough neighborhood.
Also, the West County youth she works with can be hostile in participating with law enforcement, she said, and forcing them to cooperate with police won’t improve that relationship.
“There is a lot of fear of how a law like this can be implemented,” she said, “when you live in a neighborhood rife with crime.”
Rev. Shumake said he understands the difficulty in coming forward, especially when the witness lives near the crime scene. Still, he said, “we need every tool to bring to the table to help this madness end,” and that includes the proposed legislation.
“It could be that one motivating factor,” he said. “Unfortunately, often people need legislation like this to do what they know and believe in their heart is what the right thing to do.”
Shumake said that law enforcement also needs to create an environment where witnesses feel safe coming forward with information.
“If they build that working relationship, they will start to receive more phone calls,” Shumake said. “Peace is in all of our self interests. These communities do not want to continue to live in fear, but that environment has to be created where they can start coming forward.”
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I work in Richmond and love it. Yes, it should be a crime to witness a violent crime and do nothing. Though many in my generation are loathe to be a snitch, we must learn to differentiate between disobeying unjust and stupid laws (and law enforcement officers) and being part of something as awful as the gang rape or the murders.
The obvious, obvious problem to this law is it’s use in sexual assault cases.
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.
Assume a rape is alleged and there is an independent witness to the incident. The crime was reported by the alleged victim and the witness did not report the incident to the police. The police then attempt to interview the witness. The witness either denies seeing anything happen or says that the incident was entirely consensual.
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.
How would a witness know if his/her life was in jeaprody if he/she did come to justice with what they saw. Not saying that i agree with the term stop snitching, im saying that i dont agree with what the law, and constituion says about what happens when and after a witness does in deed “snitch”