THE KINDNESS OF STRANGERS AND THE LIMITS OF THE LAW: THE MORAL AND LEGAL OBLIGATIONS OF BYSTANDERS TO A VULNERABLE PERSON IN NEED OF EMERGENCY ASSISTANCE by AMELIA J. UELMEN A thesis submitted in partial fulfillment of the requirements for the degree of Doctor of Juridical Science (S.J.D.) at the Georgetown University Law Center 2015 ii Copyright 2015, Amelia J. Uelmen All Rights Reserved iii Abstract Reports of how some bystanders interact with victims on the scene of an emergency are shocking: instead of assisting or calling for help they take pictures of the victims on their cell phones. In the common law of torts law much of the discourse regarding bystander interaction with victims needing help has focused on the relationships or circumstances that could render actionable the failure to aid. While the analysis of this Thesis is informed by this commentary, this issue is not its focus. Instead, it concentrates on the question of whether a bystander’s interaction with the victim in these circumstances, conduct which often consists in taking a picture, might constitute a distinct and legally actionable harm. To illustrate the focus with a familiar hypothetical scenario: a passerby walking along a dock over shallow water comes upon a person drowning in the water below, shouting for help. The bystander notices a life-preserver at hand, but decides to sit on a bench, light a cigarette, and calmly watch as the person drowns. This Thesis does not focus on the question of whether the passerby had an obligation to rescue the drowning person or to call for help. Instead, it locks into that stare—which I imagine as steely and cold—and, from an observer’s perspective, the sense that it is a grievous wrong on the part of the bystander to turn a vulnerable person’s urgent and life-threatening need for assistance into a source of entertainment. Fifty years ago, when Kitty Genovese was murdered in New York City, it would have been difficult to show proof of that stare, its underlying intent, and the distinct harm that it may have caused. But now, in many circumstances, potential iv proof is in the hands of just about every ordinary passerby. Now it would not be rare in these circumstances for the bystander to take a picture, and for evidence of what is analogous to the stare to be locked into the memory of a cell phone. Evidence of what? It could be an indication of presence, time and date-stamped; of that fact that the bystander was paying attention long enough to engage the scene; of what the bystander actually saw; and in many circumstances, also an indication that the means to call for help were literally in hand, but the bystander chose not to use those means. This Thesis argues that this conduct—treating a vulnerable person in need of emergency assistance as an object for one’s bemusement or entertainment—should be considered a legally cognizable harm and recognized with a new cause of action: an intentional tort of “exploitative objectification of a vulnerable person in need of emergency assistance.” It is cognizant of the difficulties in the history of tort law in theorizing both the obligation between strangers and this form of intentional dignitary harm. For this reason it draws broadly on interdisciplinary resources from philosophy, theology, art and culture, to lay the foundations as well as to cabin its application to manageable limits. It is also cognizant of concerns about over-breadth and moral overload. The Thesis clearly distinguishes between those who cross the line of engaging the scene and the victim (“engaged spectators”) and those who do not (“pure bystanders”). It argues for ample space for discretion in making the decision whether to engage, respecting subjective assessments of risks and priorities as grounded in the emotional and interior life of the bystander. Drawing on the resources of civil recourse theory, v the Thesis also highlights the rhetorical frameworks that are particularly appropriate to articulate the nature of this form of dignitary harm and its remedy. On this basis the Thesis then considers how the new tort might offer a strategic “end run” around some of the doctrinal difficulties in theorizing dignitary harm when the victim was unconscious at the time of an assault. In contrast to claims for infliction of emotional distress that often hinge on the reaction or response of the victim, the victim’s lack of consciousness would not pose an obstacle when the engaged spectator’s conduct can be articulated as objective assault on the victim’s dignity and personality. Finally, the Thesis acknowledges circumstances in which the act of taking photographs of a person in need of emergency assistance may embody respect for the victim’s person and other social goods, as may be evident in the work of photojournalists engaged with the reality of human suffering. Thus the Thesis develops criteria to delineate these differing intentions and to distinguish these circumstances from “exploitative objectification,” providing a complete defense to liability under this tort. Key Words: tort, bystander, emergency, objectification, cell phone vi Dedication For my parents, Gerald and Martha Uelmen: in gratitude for your lives and careers devoted to the protecting the dignity of those most fragile among us, in their most fragile moments, and for your example of a “quality of mercy [that] is not strained…” (The Merchant of Venice, Act IV, Scene 1); For my nephews, Thomas and Oliver: you are still too young for the party scene, but this work is for you and your friends, in the hopes that we can help to make it safer, and help you better understand what to do when it is not; For my teachers and mentors at various points in my legal academic journey: Michael H. Gottesman, Howard Lesnick, Russell G. Pearce, and William Michael Treanor, in gratitude for being living examples of how a “richer conception of humanity” can permeate every aspect of law practice and academic work; For Chiara Lubich (1920 – 2008): my teacher in faith, hope and love. Washington, D.C. November 23, 2015 vii Acknowledgments I owe several debts of gratitude, many of which cannot be fully explicated in a short space. First, several people have commented on my incredible fortune to have a “dream committee” for this dissertation, and this is true. Starting with the thoughtful and attentive guidance of my advisor, David Luban, the intellectual journey was also greatly enriched by the comments, critique and support of Robin West, Benjamin Zipursky and Judith Lichtenberg. Thank you for your encouragement to be both ambitious and creative in this interdisciplinary venture; for your deep respect for the integrity of my own insights; for your illuminating suggestions when I was struggling with some particularly difficult nuts to crack; and also for your common sense and guidance on the boundaries that helped to contain a project that could have consumed an additional twenty years. I could not have asked for a better guides—and friends for this intellectual journey. Heartfelt thanks to our program director Lexi Freeman and my fellow students in the S.J.D. program, which is a shining example of Georgetown Law as a “community of scholars.” Our sessions together were a constant source of mutual support, genuine care and concern, honest critique, and creative insight. Another great blessing in how the program is structured is its intersection with the Fellows’ Collaborative, which gathers into an intellectual community the various fellows and researchers who are in the process of developing a research agenda. Many of the major insights and organizational strategies for this Thesis find their genesis in discussions of the various chapters with this group. I am grateful to each of the participants for their deep engagement and generosity of spirit. Particular thanks also to Robin West, together with Greg Klass and Larry Solum for coordinating this workshop. Finally, many thanks the members of the Georgetown Law Faculty who shared their probing questions and helpful critique during the April 2015 and July 2015 workshops. Both sessions helped me to identify some of the deepest challenges in the argument and begin to work toward solutions. I am also very grateful to the staff of the Georgetown Law Library not only for their attentive assistance, but also for their kindness. My work for this Thesis has also been sustained by the insight, support and encouragement of many colleagues and friends in the Fordham Theology Department where I completed my Master of Arts in 2009. Thanks especially to Telly Papanikolaou, for modeling how insights from Trinitarian theology can be situated in conversation with broader cultural themes, and for taking the time at an important fork in my road for conversations that instilled in me a certainty that doctoral work at this point in my career could be both a good experience and a helpful service. I am also grateful for the graciousness and hospitality that I have experienced from members of the Georgetown Philosophy Department. Particular thanks to Mark Murphy, who welcomed me into his Ethics Proseminar; to Karen Stohr, for the background I needed to begin to appreciate Kant in a new way; and of course to Judy viii Lichtenberg, for the wonderful conversations that led to, as she put it, “joining the party” on the dissertation committee. Behind a project of this duration and scope is an army of amazing personal support. I will come nowhere near to naming the many friends and colleagues whose encouragement and help have been important for me during this time. In addition to the support I have received from the closest mentors mentioned in the dedication, conversations with my dearest friends at Fordham Law and those connected with Fordham Law’s “Relational Perspectives” project have been a continued source of inspiration, hope, and great joy.