Guilt by (More Than) Association: The Case for Spectator Liability in Gang Rapes

Kimberley K. Allen

In 2009, a 15-year-old student from Richmond, California left her homecoming dance to join a drinking session on school property. She quickly became intoxicated and, over the next two hours, was attacked by as many as ten assailants who “laughed and took photos as they took turns” raping her. Police eventually found the girl lying semiconscious under a picnic table. Detective Ken Greco, who had been in law enforcement for 29 years, said the crime “‘shocked the conscience of responding officers.’” Equally shocking, however, is the fact that as many as two dozen bystanders witnessed the gang rape, but none called the police. Some onlookers took photos with their cell phones, which suggests that they viewed the gang rape as a spectacle.

The “‘extremely callous and brutal’” nature of the crime sparked outrage and “‘sent shockwaves throughout the nation.’” At least one commentator called on lawmakers to hold onlookers responsible for failing to contact police in cases such as these. In response to cries for action, a California lawmaker proposed the Witness Responsibility Act, which would require a witness of a rape or homicide to report the crime to police or else face a misdemeanor charge, punishable by up to six months imprisonment and a fine of $1,500.

Statutes such as the Witness Responsibility Act improve the status quo; nonetheless, these laws fall short of bringing justice for victims of gang rapes because they fail to acknowledge that the audience does more than merely witness the gang rape.1 Though it is wrong to fail to contact police, the greater wrong is the decision to watch and, through that approving presence, to encourage the rape.

There is little doubt that individuals who affirmatively participate in the gang rape (for instance, through cheering on the perpetrators) are complicit in the crime. However, even the silent audience member, though perhaps not liable as an accomplice, plays an encouraging role worthy of criminal liability in some form. Properly understood, gang rapes involve all of the audience members, or “spectators,” who are intentionally present at the gang rape. Social science literature has recognized for decades that gang rape is inherently a group crime and is a medium for the group members, both the rapists and spectators, to interact with one another. Because the objective of a gang rape is to perform sexually in front of an audience, the audience is a key motivating factor in the crime.

It is this motivating role that justifies criminal liability for spectators. Even so, the law has hitherto failed to appreciate the unique group dynamic of gang rapes. The law does not touch the group member who intentionally watches and enjoys the gang rape; indeed, even aiders and abetters who cheer on the rapists, who snap photos, or who otherwise facilitate the gang rape are rarely held accountable. In other words, the law ignores the motivating role that “spectators” play in gang rapes.

At the same time, the law recognizes the motivating role of spectators in other crimes—drag racing and dogfighting, for example. Forty-eight states have outlawed knowing and intentional presence at a dogfight, and three states and numerous municipalities have done the same for drag races. In doing so, state and local governments have recognized that effectively deterring a crime requires targeting the motivation.

San Diego is one such example. In 2002, the city became the first to pass an ordinance criminalizing spectatorship at a drag race. The city found that existing laws did not adequately deter drag racing and that “a motivating factor for the racers was the presence and reaction of the spectators.” The San Diego City Attorney’s press secretary explained that the “aim of the ordinance [is] to target the hundreds of spectators that, by their mere presence, [fuel] the illegal races and exhibitions of speed.” Thus, San Diego recognized that spectators can be a motivating element in drag racing and began to target that motivation.

The ordinance worked. The San Diego City Attorney touted the spectator ordinance as a success, noting that it “has had a huge impact on public health and safety which is saving lives.” In 2003, San Diego saw “a 99% reduction in organized illegal street racing activity . . . and a 79% improvement in . . . crash mortality/morbidity.” Other cities and states have followed San Diego’s lead. In all, at least ten cities or counties and three states have criminalized participating in a drag race as a spectator.

Much like drag racing, dogfighting is a sport that is fueled by the presence of spectators. Dogfighting spectator laws, which are on the books in forty-eight states, are a recognition that “‘[b]reeding animals to fight doesn’t happen in a vacuum.’” The decision to fight dogs is influenced by more than the dog owners’ own personal entertainment. One motivation is profit gained from the spectators’ admissions fees and wagers. Another is “street cred” or “bragging rights.” Because some receive no prize money, their only motivation for participating in fights is the “status” they achieve in the eyes of their spectators. A third is the “sport” of the fights, because “[w]ithout the presence of spectators . . . much of the ‘sport’ in animal fighting would be eliminated.”

Masculinity and group identity also play an important role in dogfighting. Dogfighting groups identify as “fraternities,” a term that underscores the group’s status as a brotherhood. Dogfighting is a means of showing aggression, establishing a masculine identity within the group, and maintaining “a sense of belonging and solidarity with other men.” Without an audience, there would be no group identity, no status, and no validation of the dogmen’s masculinity within the group. Thus, dogfighting is merely the chosen method of asserting masculinity; it is the presence of others at a dogfight that is critical to establishing one’s masculinity with the fraternity.

Much like drag races and dogfights, spectators play an important motivating role in gang rapes. Before examining this role, however, it is important to first displace the notion that all types of rape result from the same motivations.

In his famous studies on rapists, A. Nicholas Groth identified three “patterns” of rape: “(1) the anger rape, in which sexuality becomes a hostile act; (2) the power rape, in which sexuality becomes an expression of conquest; and (3) the sadistic rape, in which anger and power become eroticized.” In each instance, the motivations are distinctly different. In the anger rape, the assault “becomes a means of expressing and discharging feelings of pent-up anger and rage” and a way to “retaliate for perceived wrongs or rejections [the rapist] has suffered at the hands of women.” For power rapists, the critical motivation is the desire to dominate a victim in order to establish control over the victim. The rape is “a means for compensating for underlying feelings of inadequacy” and is an attempt to satisfy the rapist’s need for control and authority. The rare case is the sadistic rapist. For these perpetrators, “[h]atred and control are eroticized.” The sadistic rapist “takes pleasure in [the victim’s] torment, anguish, distress, helplessness, and suffering.”

Others have expanded upon Groth’s work to identify motivations in non-traditional rapes. In some instances, rape is used to insult an enemy or to exert power over other men. At other times, men rape to enhance their masculinity by contrasting it with the weakness of the feminine victim. Yet another form of rape, termed “corrective rape,” is intended to “‘cure’ lesbians of their nonconforming sexual orientation” or “nonconforming sexual identities” and is motivated by a “continued misunderstanding of and animus toward homosexuality.”

Gang rapes are unlike each of these forms of rape, however. Each of gang rape’s purposes revolves around the group dynamic and the presence of an audience, just like drag races and dogfights. At times, the purpose of gang rape is to unite the men in the group, both co-offender and spectator, to each other and to “maintain[] or creat[e] images and roles within the group.” Gang rape can be intended to “foster feelings of rapport, fellowship, and cooperation among assailants” or can be a means of “prov[ing] [rapists’] virility or masculinity . . . by performing sexually in the presence of the group.” The rapist may seek to impress the group members, who he feels are “evaluating his performance.” In other instances, gang rape can also be used as a reinforcing mechanism for group membership. Or, as Bernard Lefkowitz observes, it is often a combination of all these factors:

The real goal is overcoming your own insecurities by impressing your friends with your sexual prowess. To achieve that goal, a guy needs an audience to witness his dominating performance. A group of appreciative and responsive buddies is essential to build a reputation for sexual control and domination.

Thus gang rape is inherently a group activity and “a vehicle for interacting with the other men”—it is not merely “‘a series of single rapes on one victim in close temporal and spatial relationship to each other.’” Whatever the end goal, the “unique group dynamic of a gang rape” is of particular importance because, as Katharine Baker notes, “having an audience is critical; intercourse is instrumental.”

The foregoing demonstrates that gang rape is a crime that involves, and indeed requires, an audience. This is particularly true for a subset of gang rapists who rape only in the context of a group. Groth and Birnbaum have identified two categories of gang rapists: “instigators” and “followers.” The instigators are the ones who initiate the rape and who encourage the followers to participate. Instigators are more likely to rape in other contexts, such as in solitary rapes. Instigators benefit from the group dynamic of the rape by feeling a sense of control over the victim and the gang members, and by feeling “a sense of power from being the leader.” In contrast, “followers” participate in the rape because they are persuaded to and because the presence of others “diminishes their sense of personal responsibility” for the rape. The audience is the essential ingredient for the approximately forty-three percent of gang rapists who are “followers,” because followers rape only in a group context. For the follower, the gang rape is intended to “confirm his masculinity, achieve recognition, and/or retain his acceptance with his co-offenders.” Thus, for both instigators and followers, the presence of others is a primary motivating force in committing the gang rape, perhaps even more so than the rape itself.

The presence of both participating and spectating gang members can influence the behavior of the participating gang rapists in other important ways. First, in a larger group, an individual often feels more pressure to conform to the group norm. Thus, the more members in a group, the more likely it is that each gang member will go along with the group. Second, the presence of approving peers reassures rapists that their behavior is acceptable and even “normal.” Third, because the group as a whole is committing the rape, responsibility is diffused among all the group members, such that none of the rapists feels that he, individually, is accountable. This “diffusion of responsibility,” then, decreases the likelihood that a gang rapist will feel that he is obligated to stop the rape or to refuse to participate himself. A diminished sense of responsibility may reduce one’s sense of guilt or shame. Fourth, the presence of others may lead individuals to feel more anonymous; this, in turn, causes “deindividuation,” which is “the loss of self-awareness in one’s beliefs, morals, and standards in a group setting.” Deindividuation occurs when the individual’s identity becomes “submerged” in the identity of the group, such that the individual becomes “more likely to behave in accordance with” the norms of the group. The feeling of anonymity in a group “reduces [individuals’] sense of personal accountability,” which can lead to “aggressive, disturbing, and antisocial behavior.”

Thus, the presence of others at a gang rape is crucial in two regards. First, the group context leads to behavior-impacting phenomena such as deindividuation, which allows the individual to commit acts that the individual would not commit alone. And second, gang rapists are uniquely motivated by the presence of others, because gang rapists commit the rape to perform for the “audience.” Far from being mere passive witnesses to the rape, spectators create and contribute to group dynamic of the rape, thereby facilitating the commission of the crime. Just as this motivating element justifies criminal liability for spectators who knowingly and intentionally watch drag races and dogfights, the motivating presence of “spectator” gang members should also justify the creation of gang rape spectator laws.

Although spectator laws are well-accepted and the most appropriate form of criminal liability where the audience motivates the crime, these laws are most vulnerable to the criticism that they punish “mere presence” at a crime. It is widely accepted that “mere presence” is insufficient to sustain criminal liability for three reasons: first, it fails to require that the accused have a culpable mindset in order to be guilty; second, it does not require an affirmative act; and third, it is vague and fails to place individuals on notice of the conduct proscribed, as individuals cannot adjust their behavior to avoid inadvertent presence at the wrong place at the wrong time.

In most states, any affirmative conduct that encourages the crime is sufficient for criminal liability. Even so, what constitutes “mere presence” at a gang rape—as opposed to presence that provides assistance or encouragement to the perpetrator—is not a settled question. Prosecution practices in high profile cases indicate that prosecutors often do not consider anything short of direct, physical acts to be participation in the gang rape. For instance, in the New Bedford, Massachusetts gang rape trial, prosecutors alleged in their opening statement that “several men at the bar ‘were cheering like at a baseball game’” while watching the rape, but none of these spectators was charged for encouraging the crime. Despite public pressure to charge the spectators, the prosecutor determined that “[m]ere presence during a crime is not enough . . . . You must have participated.” In this way, the prosecutor confused spectators’ active encouragement of the crime with a mere failure to report the crime. At least one commenter has argued that the spectators’ cheering in this case was sufficient for accomplice liability under Massachusetts law; even so, not one of them was charged under that, or any other, theory. Indeed, I have found only one case that supposed, in dicta, that laughing and vocal encouragement of a gang rape could have been sufficient to sustain some form of criminal liability. But again, in that case, the spectators were not charged.

Were states to begin to charge aiders and abettors as gang rape spectators, states will have to defend the statutes’ constitutionality. Most courts have had little trouble upholding spectator laws. In Commonwealth v. Craven, for instance, the court held that an animal fight spectator statute did not criminalize “mere presence” at an animal fight. The court distinguished “attendance at an animal fight ‘as a spectator’” from “‘presence’” because a spectator is “‘one that looks on or beholds,’” whereas “‘presence’” is “‘the state of being in one place and not elsewhere.’” Thus, the court held, the terms “presence” and “spectator” “are clearly distinct.” The court reasoned that, because attending an animal fight as a spectator is a conscious choice, “[a] spectator does more than a person who is merely present at a particular place by happenstance.”

A second Pennsylvania case, Commonwealth v. Holstein, applied the same reasoning in a drag racing statute. The defendant was convicted under the statute for attending a drag race as a spectator, though the statute did not explicitly define spectatorship as a form of participation. The defendant admitted that she had intended to view an illegal race, but argued that being a spectator did not amount to participating in a drag race. The court rejected her argument and held that “knowingly attend[ing] an illegal drag racing event as a conscious and voluntary spectator” was a form of participation and was thus prohibited under the statute.

Numerous other published and unpublished opinions have held along similar lines.2 As these cases show, it is well accepted that a spectator statute that requires proof of intent and knowledge meets the mens rea requirement, gives the accused fair notice of the conduct proscribed, and is not unconstitutionally vague. A handful of cases also support the argument that spectatorship, on its own, constitutes “participation” in a crime.

Applying these principles, there is no constitutional obstacle to statutes punishing gang rape spectators. Indeed, such liability is entirely unexceptional. First, criminalizing knowing and intentional presence at a gang rape does not violate our constitutional commitment against punishing “mere presence” at a crime scene because knowing and intentional presence at a gang rape involves a conscious choice by the accused. For example, in the case of the mentally challenged girl from Glen Ridge, New Jersey who was gang raped in a basement, thirteen baseball players assembled in the basement, but six chose to leave. Of the seven who made a knowing and intentional decision to remain, three did not physically participate in the gang rape. Rather, they purposefully remained in the room to watch their comrades do it. They were not “merely present” at the gang rape—they did not happen to walk by and see it, and they were not merely aware that it was going on. Because the decision to watch the gang rape was a conscious choice, these men possessed a guilty mind, and they could have been prosecuted under a “spectator” law for their involvement as “spectators” in the gang rape.

Second, a law criminalizing knowing and intentional presence at a gang rape would provide sufficient notice of the conduct proscribed and would not be unconstitutionally vague. The Supreme Court has held in Kolender v. Lawson that a criminal statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” An explicitly worded spectator statute would easily meet this standard. Because individuals covered under the statute would not be passersby or mere witnesses to the crime, they would be able to arrange their conduct so as to avoid criminal liability.

Gang rape spectator laws are not only constitutionally sound but are wholly justified. As argued above, the primary justification is that spectators play an important motivating role in the crime. Another weighty justification is that the laws would express disapproval for participating in a gang rape as a spectator. Laws serve an important “expressive” function because laws communicate “a society’s values, what it esteems, what it abhors.” A law criminalizing an act sends a clear statement that society views the act as wrong and worthy of criminal punishment.  In other words, the law identifies the kinds of behavior that society is willing to accept and reject.

Changing a law, however, does more than express approval or disapproval. Because the law carries moral weight, a change in the “statement” the law makes can also shift the social norms that ultimately affect behavior. In this way, the law can be used to “reconstruct existing norms and to change the social meaning of action through a legal expression . . . about appropriate behavior.” By legitimizing or delegitimizing certain conduct, the law can “work directly against existing norms and push them in new directions.” This, in turn, informs individuals’ expectations about the behavior of other people and leads them to conform their behavior to the perceived judgments of others.

Shockingly, the norm among certain groups of men is that gang rape, euphemistically called “pulling train,” is neither morally nor legally wrong. As Nathan McCall, an admitted gang rapist, put it, “few guys thought of [gang rape] as rape. It was viewed as a social thing among hanging partners, like passing a joint.” If men believe the gang rape itself is not wrong, they may have no qualms watching, enjoying, and encouraging the gang rape. By explicitly criminalizing this behavior, states would make a statement that this behavior is societally unacceptable, a statement which could eventually begin to inform and shape young men’s views on gang rape.

Once a baseline norm is established that spectatorship in gang rapes is both criminal and morally wrong, it would be possible to create a subsidiary norm, one that encourages potential spectators to intervene. Researchers are beginning to understand the power of bystanders in preventing, rather than motivating or encouraging, rapes. The key to a bystander’s willingness to intervene is the bystander’s own beliefs or attitudes toward rape. “[L]imited but promising” findings indicate that through changing bystander norms, it is possible to reduce the acceptance of rape myths, increase the incidence of bystander intervention in rapes, and consequently decrease the likelihood that rapes will occur. These programs demonstrate that, when would-be spectators possess the right norms—norms that are in no small part influenced by the law—bystander intervention can be “a powerful prevention tool to ultimately reduce the occurrence of rape.”

A second justification for “spectator” gang rape laws is their potential deterrent effect. Because gang rapes tend to involve young men, a change in the “statement” of the law may have an even greater impact on gang rapes than it would on crimes that tend to involve older offenders. One study on the efficacy of witness reporting laws found that participants under the age of twenty-five were more likely to intervene and report a gang rape when the law required that they do so. The law influenced their behavior more than it influenced the behavior of older participants in the study. The authors explained that “younger persons are more responsive to law mandates.” This is because individuals in adolescence and early adulthood seek to “align [their] behavior in accordance with social expectations and norms”—expectations that are informed, in part, by the law. Thus, by criminalizing presence as a spectator at a gang rape, states can shift societal expectations and norms—norms that will inform young men’s senses of moral judgment and, perhaps, influence their behavior accordingly.

A final justification is that “spectator” gang rape laws would help to bring about justice for the victims of gang rapes. It seems fundamentally unjust that the law ignores individuals who play such an important motivating role in the gang rape, even as the law recognizes this same role in much less heinous crimes such as drag races and dogfights. By themselves, spectators inflict additional and unique harms on the victim, harms that are above and beyond those imposed by the rapists. Spectators should be held liable for the substantial role they play in gang rapes, not only so that this behavior is deterred in the future, but also so that the blameworthy are punished and the victim’s suffering is fully avenged. In turning a blind eye to spectators’ involvement in gang rapes, the law has turned its back on the victims, as well. It is time for the law to fully redress the harm done to victims of gang rapes. It is time to hold spectators accountable for their wrongs.

Acknowledgments:
Special thanks to Professor Jane Aiken for her unflagging support and invaluable guidance, and to Professor Anne Coughlin for her enthusiastic feedback. I am also indebted to William Murray and the staff of The Georgetown Law Journal for their tireless efforts.

Copyright © 2011 Georgetown Law Journal.
Kimberley K. Allen is a 2011 graduate of the Georgetown University Law Center; University of Texas at Dallas, B.S. 2008.

This editorial is based on Ms. Allen’s essay in the March, 2011 issue of the Georgetown Law Journal: Kimberley K. Allen, Guilt by (More Than) Association: The Case for Spectator Liability in Gang Rapes, 99 Geo. L.J. 837 (2011).

  1. This Note draws a distinction between witnesses or bystanders, who see that a rape is occurring but do not involve themselves in the rape or choose to watch, and spectators, who knowingly and intentionally watch the rape. Witness reporting laws miss this distinction and lump both groups of nonparticipants together.
  2. See, e.g., People v. Elder, 247 Cal. Rptr. 647, 647 (Cal. Ct. App. 1988) (upholding statute which the court interpreted to require knowing presence as a spectator at an animal fight); People v. Bergen, 883 P.2d, 532, 545 (Colo. Ct. App. 1994) (rejecting the argument that a statute that prohibited “knowingly attending a dogfight held for profit or entertainment” criminalized “mere presence”); Gonzalez v. State, 941 So.2d 1226, 1229 (Fla. Dist. Ct. App. 2006) (holding that “{t}he requirement that the conduct be done ‘knowingly’ . . . establishes a level of mens rea required under the statute . . .” and holding that the law was sufficiently clear so that the rule of lenity did not apply); State v. Arnold, 557 S.E.2d 119, 122 (N.C. Ct. App. 2001) (holding that statute which prohibited “participat{ing} as a spectator at an exhibition featuring the fighting or baiting of a dog” was not unconstitutionally vague); State v. Weeks, No. 91-A-1634, 1992 Ohio App LEXIS 1090, at *5–14 (Ohio Ct. App. 1992) (upholding a portion of a statute which prohibited “knowingly purchas{ing} a ticket of admission to {an animal fight} or . . . witness{ing} such a spectacle” but striking down a phrase in the statute that prohibited mere presence at such an animal fight); Edmondson v. Pearce, 91 P.3d 605, 637–38 (Okla. 2004) (rejecting facial constitutional challenge to law criminalizing knowing and intentional presence at a cockfight and dismissing the argument that the law would ensnare innocent passersby); Peck v. Dunn, 574 P.2d 367, 370 (Utah 1978) (upholding an ordinance that criminalized presence as a spectator at an animal fight because it did not criminalize being a “mere passerby”). But see, e.g., Greer v. State, 563 So.2d 39 (Ala. Ct. Cr. App. 1990) (holding that being a spectator at a drag race, without some further encouragement of the race, is mere presence); State v. Maravola, 198 N.E.2d 88, 89 (Ohio Ct. App. 1963) (holding that the voluntary presence of persons at a drag race did not constitute “rendering assistance” to a drag race under the statute).

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