Can Prosecutors Charge Gang Rape Witnesses for Doing Nothing?

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 News.com 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.

Homecoming Gang Rape Lasted More Than Two Hours

Police said that as many as 20 people witnessed the assault, which lasted more than two hours on the campus of Richmond High School, and some of them are believed to have recorded the attack on their cell phones.

Given the number and nature of the way witnesses watched the rape take place, experts said, prosecutors may have a wider window than normal to charge onlookers as accessories to the crime.

"If you were on the scene and encouraging -- or urging the suspect -- you can be held responsible. Participation can be slight. Recording a crime is different from just watching it. Recording it can be a form of urging if the suspect feels like he's expected to perform," said O'Donnell.

Witnesses are rarely prosecuted for failing to report a crime because, O'Donnell said, "as a practical matter, it's difficult to prove someone saw something. It's even harder to prove they processed what they saw."

Prosecutors said they are often frustrated by not being able to hold a witness responsible for doing nothing. Prosecutors can subpoena a witness and force him to testify at a trial, but cannot force him to cooperate with a police investigation or hold him criminally responsible if he chooses not to talk to cops.

"I can't tell you how many cases I had where there was someone standing feet away from a rape, and I wanted to try them as an accomplice but couldn't," said author Linda Fairstein, a former New York City sex crimes prosecutor.

"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."

Four States Have 'Bad Samaritan' Laws

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."