Beyond Silence: Debate On Duty To Rescue In Cases Of Sexual Violence In India

Sargam Gupta, O.P. Jindal Global Law School

ABSTRACT

The surge in bystander apathy during heinous crimes in India, notably the Belgavi incident and the brutal Delhi murder, has prompted a critical debate on the introduction of a "duty to rescue." This paper explores the comprehensive scope of this duty, encompassing obligations from reporting crimes to physically intervening. The focus is on rape and sexual assault cases due to their unique psychological impact and societal power dynamics. Contrary to civil law traditions, common law countries like India resist incorporating duty to rescue, citing clashes with individualism. Critics argue against nonfeasance liability, emphasizing the challenge of defining culpability parameters. The paper counters these arguments, highlighting the societal approval and victim degradation perpetuated by bystander inaction.

Examining legal precedents, the paper challenges the misfeasance and nonfeasance distinction in sexual assault cases. It suggests adopting strict liability for bystanders to address knowledge gaps, emphasizing the compounding effect of their presence on victim harm. Recommendations include legislative changes and complementary measures, focusing on unexcused bystanders and varying mental states. The proposal suggests a limited duty to rescue, drawing inspiration from European legislations. Research questions aim to establish standards for culpability, balancing justice for victims and fairness for bystanders. A tiered punishment system, psychological assessments, and awareness campaigns form integral components of the proposed reforms. Ultimately, the duty to rescue debate transcends legal discourse, representing a societal imperative toward justice, empathy, and responsibility in the face of sexual violence.

Keywords: duty to rescue, aggravated sexual assault, guilty bystanders, bystander effect, bad Samaritan laws