'The crime of complicity': The case for making bystander inaction a punishable offence

American law professor Amos Guiora's grandparents were murdered at Auschwitz. He argues that without bystander complicity, the Holocaust would not have been possible. Guiora lays out the case for making bystander intervention not just a moral duty, but a legal duty.
American law professor Amos Guiora lays out the case for making bystander intervention not just a moral duty, but a legal duty.

American law professor Amos Guiora has had a lifelong fascination with bystanders.

He is the child of Holocaust survivors, and his paternal grandparents were murdered at Auschwitz. Haunted by the image of the neighbours and strangers who stood by as his family members were loaded onto trains, he began investigating the role of the bystander.

When I was a kid, we were always told, "people know to do the right thing." Five years of very intensive Holocaust research taught me that no, we don't know to do the right thing.- Amos Guiora

​He came to believe that without bystander complicity, the Holocaust would not have been possible, and that a moral duty alone is not strong enough to make people act.

In his new book, The Crime of Complicity: The Bystander in the Holocaust, he argues that bystander inaction should be considered a crime — prosecutable and punishable by the full force of the law.

Jewish deportees arriving at the railway terminus at the Nazi concentration camp at Auschwitz, Poland, circa 1942. (Hulton Archive/Getty Images)
Guiora spoke with Michael Enright about his proposal and about why he is more interested in — and critical of — bystanders than perpetrators.

"I just don't find the perpetrator that interesting. It's a bad person who's doing a bad act. A court of law will prosecute, will convict. The police will interrogate, investigate … but the bystander — you or me — make a conscious decision to keep on walking, to turn our head away. I think that is a far more profound question," he says.

The law Guiora proposes wouldn't require bystanders to physically intervene — just to alert the authorities. "I think in the overwhelming majority of cases, the bystander is going to have a very difficult time proving that there was danger to them by dialing 911," he says.

To successfully prosecute someone for failing to intervene, the state would have to prove that "one, that the bystander was there physically, two, saw that the victim was in peril, and three, had the capability to act."

Guiora acknowledges that in some cases, such as the Holocaust, or recent examples of police shootings, the authorities may not have the victim's best interests at heart, or may themselves be the perpetrators. However, he believes that in most contemporary cases, alerting the authorities is the right thing to do.

He argues making bystander inaction a crime is an urgent necessity in cases of sexual assault, and points to a 2013 rape case at Vanderbilt University as an example.

In that case, a football player named Brandon Vandenburg and his teammates carried an unconscious young woman into their dorm room and raped her. Vanderburg's roommate, Mack Prioleau, was in the room during the assault and pretended to be asleep. Later that night, he got up, saw the victim on the floor, and went to sleep across the hall without checking on her well-being or calling 911.

"In his own words, he feigned sleep because the situation made him uncomfortable. That, for me, is an absolute bystander who absolutely needs to be prosecuted.- Amos Guiora

"There's no doubt that his inaction enhanced her peril. He easily could have said something, done something, but he chose not to, because — gosh, it made him uncomfortable," says Guiora.

Click 'listen' above to hear the full interview.