"I hope the prosecutor in California is trying to be creative and looking to find ways to prosecute these people who did nothing to stop the crime," she said. "If they were just cheering and hooting, that probably would not be enough to put them in an accomplice category."
The act of recording the event, or watching it for hours, changes the witness's perception of the crime and can make it easier for prosecutors to accuse him of being an accessory, said O'Donnell.
In 2002, the late Raiders defensive tackle Darrell Russell was accused of videotaping a woman while she was raped by two friends. Russell pleaded not guilty and the charges were later dropped.
Only four states have "bad Samaritan" laws, according to Louisiana State University professor Ken Levy. In states with "bad Samaritan" laws, the penalties are minimal, usually a fine of less than $500, said Levy.
The magnitude of the California gang rape evokes other historic cases in which bystanders stood by and did nothing including the 1984 gang rape in a New Bedford, Mass., bar, in which some patrons watched, and the 1964 murder of Kitty Genovese outside a Queens, N.Y., apartment complex, in which residents ignored her many screams for help.
"This case isn't much better and it's a lot worse," said Fairstein. "We can assume the kids watching knew some or all of the perps and may have known the victim. That failure to tell someone, with teachers and administrators all around is deplorable."