1. Civil Liberty: The state should not require all of society to function as the eyes and ears for the police. If a grown man wants to stand at the edge of a pool and watch a little girl drowning rather than tossing a life preserver that's at his feet, that is his prerogative in a free society. The state should not compel a benevolent act where there is no legal duty to act. Unless the man was hired to serve as a lifeguard or he was the one who caused the girl to fall into the pool, he should have no legal requirement to save her regardless of how little effort it takes on his part. Is he a horrible, immoral person? Yes. Is he acting illegally? No.

How about a billionaire who could easily donate .0001% of his wealth to save countless lives but when asked to do so, declines and spends that money on a new private jet instead? Is he acting illegally? We'd all agree that he is not. We all know that over a million people die each year from lack of drinking water and that a $1 donation provides clean drinking water for 1 person for 1 whole year. We don't. That's our prerogative.

We do not, we cannot, and we should not punish "thought crimes". In the examples above regarding the man at the pool and the billionaire, essentially they are guilty of having bad thoughts/mindset. However, without an accompanying bad act, they have not broken any laws.

2. Legislation of Morality: Liberals complain bitterly and vociferously against "legislation of morality" in the form of anti-gay, anti-abortion, anti-drug, and anti-sex laws. However, that's exactly what this law would do. It legislates morality by requiring strangers to act altruistically toward a victim under threat of punishment from the state. Anti-abortionist make the exact same argument as Justice Kasparian - "the children, we must save the children". I find it ironic that the very same folks who decry a state's interference with a woman's choice to terminate a pregnancy, then turns around and claims that the state should have the right to interfere with a person's choice to report crimes.

3. Unintended Consequences: The reporting requirement could very well cause a chilling effect that results in LESS reporting. A person who witnesses child rape but won't report it of their own accord likely won't be swayed by the reporting requirement. Instead, that person will just not say anything to anyone and act as if he saw nothing at all. Take McQueary as an example. If he doesn't have the courage to report the child rape that he witnessed, it is doubtful that he would report it just b/c there was a law requiring him. Rather than talking to Joe Paterno, he might just not say anything to anyone. Who would know if he didn't report? Furthermore, he and other witnesses may not come forward at trial for fear that they would get prosecuted for failing to report in the first place. The prosecutor is likely to lose many witnesses at trial under this kind of law, thereby directly hurting the very cause this law is supposed to further - the protection of children against predators.

4. Impracticality of Enforcement: Does this reporting requirement apply only to child rape only or also to child molestation? How about child abuse? Physical abuse only or emotional abuse as well? We have very different standards of what constitutes child abuse so who decides when to report? For some, a vigorous spanking is good child rearing, while others deem it unacceptable. Whose standard applies for the reporting requirement?

Does the requirement to report kick in when you have rock certain evidence or upon mere suspicion? If I report Ben as being a molester and it turns out that I am wrong, can he sue me? Must private citizens weigh the fear of lawsuit for erroneous reporting versus the fear of prosecution for failing to report? In the example of the little girl in China, who gets arrested for failing to report the injury? The entire block of people? How in the world do you prove who saw what and when? What if the bicyclist who swerved around the poor girl's body thought it was a lump of trash or an animal? Is he liable? What if he thought she was already dead? Does he still have to report? How can you prove what he saw, let alone what he perceived?

In the example above regarding the man at the pool who chooses to watch a girl die instead of tossing her the life preserver, what if he didn't realize she was drowning, that she was simply goofing around? What if he panicked and froze? What if he was staring in her direction but was day dreaming and didn't realize what was happening? What if there was no life preserver, does he have to jump in and save her? What if he's a bad swimmer? What if there were 8 other people standing around? Do all of them get arrested for not helping? How can you prove what they saw, what they perceived, and why they failed to act?

5. Real Solutions, Not Short Cuts: If we really want to make a difference in child sex crimes, we should really put forth enormous energy in the form of education, social programs for abused children, hotlines, PSA, etc. Passing some vague law that is difficult to enforce and is likely to be abused by bad cops and bad neighbors is not the answer. Why not just pass a law that says "you must be a good person"?

Summary

Whenever there is a great tragedy, we naturally have a strong emotional response and we seek ways to prevent that tragedy from ever happening again. We want to believe that by passing tough laws, we can prevent such tragedies, and if we give up a small measure of our civil liberties along the way, that's a fine price to pay for the additional security. That is the exact reasoning that brought about the Defense Auth Act, the Patriot Act, the internment of Japanese citizens during WWII, etc. Requiring people to all spy on each other on behalf of the government is a terrible idea. It will not increase the sense of community as Justice Jackson believes it will, it will not help protect the children as Justice Kasparian believes, and it will not be limited to this narrow instance of child sex cases as Chief Justice Godoy unrealistically believes. This reporting requirement will be expanded and it will simply become yet another tool of the government to incarcerate its citizenry without offering any of the protections it purports to.

Respectfully,
Justice Oh
Joined by Justice Uygur