Can Prosecutors Charge Gang Rape Witnesses for Doing Nothing?

Dozens of do-nothing observers could walk free if they didn't "egg on" rapists.

ByABC News
October 28, 2009, 12:51 PM

Oct. 28, 2009— -- The crowd of students who watched and may have even recorded a 2½ hour gang rape of a California teenager should be held criminally liable for indirectly encouraging the attack, experts told ABC News today.

The outrage over the gang rape of the 15-year-old girl outside Richmond High School's homecoming dance is equaled by the fury that so many stood by and watched, and may have encouraged the attackers by their actions or their words.

Dara Cashman, head of the Contra County sex assault unit, told ABC News that witnesses who did not come to the girl's aid or call police were unlikely to be charged with a crime unless they aided the assault.

Experts told ABC that most states do not have laws compelling witnesses to report crimes to the police. But in some cases, the line between being a witness and an active participant can blur -- particularly, when onlookers even passively encourage suspects to commit crimes -- opening the door to prosecutors to press charges against bystanders.

"Maybe this crime wouldn't have been so brutal, or so prolonged if not for the audience," said Eugene O'Donnell, a law professor at John Jay College of Criminal Justice, which is part of the City University of New York, and a former district attorney. "These people were not at the aquarium looking at this through glass. They were actually standing there and creating the environment that allowed this to take place."

California is one of the few states that has a law on its books in which witnesses are required to report a sex crime against a minor or risk prosecution. However, the law, which was passed in 2000 and was named for 7-year-old victim Sherrice Iverson, applies only to minor children younger than 14 years old.

"Unfortunately, California law does not allow you to arrest a person for witnessing a sex crime if the victim is over the age of 14," Lt. Mark Gagan of the Richmond Police Department told ABC News KGO-TV.