So the question arises whether criminal liability existed before the fact? We all agree that if this creep had stood across the street and filmed the automobile, no criminal liability would attach. I think we would all agree that if he had only approached the automobile and filmed through the window without touching the car, no criminal liability would attach. The problem comes because he did in fact touch the car, he did open the door and there is some suggestion that he actually intruded into the car.
If he were merely a passerby who upon seeing the accident approached and opened the door and was so revolted by what he saw that he threw up without rendering aid, would we then impose criminal liability on him? I'm trying to make us understand whether the act of opening the door is pivotal.
In this case we have him not throwing up but filming the two accident victims. What difference does this make? In other words, if he had a duty to render aid the moment he intruded into the car, what difference does filming make? If he had no duty to render aid upon intruding into the car, why should filming change that?
So the question of guilt it seems to me turns on the issue of duty, that is, is there a pre-existing criminal standard which requires aid to be rendered? Does filming change that standard somehow? Does trying to sell the film change the standard somehow? Does opening the door?
Now we ask hypothetically if some medical authority says it is possible that if aid had been rendered by this creep a victim might have survived, does that somehow change the standard of legal criminal conduct and require the creep to render aid and render him guilty for not having done so? I have a problem with the condition of the victim creating the crime. I can understand that if a crime exists, that is if there is a duty to render aid, the subsequent death of the victim might make the crime more heinous, that is a higher level of criminality such as we do all the time in moving from atrocious assault or attempted murder to homicide.
But you no doubt will say, he is not charged with any of this, he is simply charged with intruding into the car (or maybe only just opening the car door). And that brings me to my problem, he is being charged with opening the car door because the police are morally offended. Worse, we have a case of selective enforcement. As a member of the establishment press he almost certainly would not be charged. I know that selective law enforcement occurs all the time, I know the police and prosecutors need a great deal of discretion in refraining from bringing criminal cases, and I also accept that this creep is hardly a paragon of virtue crying out for prosecutorial discretion but I do want to protect the public's right to know, and I do want to have the administration of criminal law done with the right motives. In other words, if he had opened the car door and rendered no aid without filming, he would not be prosecuted. Indeed, if we had opened the car door and filmed but not put it on the Internet, he would not be prosecuted. There is even some question that if he had opened the car door, filmed, put it on the Internet, and not sought to sell it for profit, he would not be prosecuted. As someone with a pesky libertarian streak, I don't like the idea of rendering capitalism a crime. In other words a daisy chain of sex in an orgy is perfectly legal but consenting sex between two adults is a crime if money changes hands. But at least in that situation, we have an identifiable statute whereas in this case it is not clear what the crime is.
So the man is charged with opening a car door because the police are morally affronted that he did not render aid. But failure to render aid is not a crime. The police were morally offended because he filmed but filming is not a crime. The police were morally offended because he put the film on the Internet, but putting it on the Internet is not a crime. The police were morally offended because he allegedly tried to sell the film, but that is not a crime. In fact all these acts are perfectly legal and indeed sanctified and protected by the First Amendment. In a companion story about this affair, the police were reported as saying they went back to the station house and searched their lawbooks to find a crime. There is evidence that the police were morally offended as am I and as so many other readers are. So the police found a crime but it is the confusion of motives that leads us into trouble. If the police are able to assuage their moral disquiet in this manner we have a threat, or at least a potential threat to the public's right to know, to transparency, and to the First Amendment.
