States may punish witnesses who look the other way

A few New England lawmakers want to throw the book at an apathetic public. Prompted by several widely reported alleged gang rapes, a group of Massachusetts and Rhode Island legislators are pushing to make it illegal to witness certain types of crime without reporting them to the police.

''We're not asking anyone to jump in and try to break something up - just report it as soon as possible,'' says Massachusetts Rep. Barbara Gray (R), sponsor of a bill that would make it a misdemeanor, punishable by fines up to $1 ,000, not to report crimes such as rape, arson, armed robbery, or murder within 24 hours.

Rhode Island's proposed law, by contrast, focuses only on those who witness sexual assaults or attempted assaults, and is patterned after a law that lays down legal responsibilities for those who witness child abuse. Failure to report would carry a $500 fine or a one-year jail term, or both.

Both proposed laws raise nettling constitutional questions, as well as more fundamental concerns about whether matters of conscience and moral responsibility can or should be legislated.

At the same time, national concern over violent crime seems likely to give the laws a degree of legislative momentum.

''This is the kind of statute which tends to catch on in other states,'' says Harvard Law School Prof. Alan Dershowitz, an expert on constitutional and criminal law. He says he expects the proposed Massachusetts law to be passed in some form.

But legal experts, including Professor Dershowitz, caution that laws that make witnesses step forward could tread on Fifth Amendment privileges protecting citizens from self-incrimination. Others say the two proposed laws offer no exemption for lawyers, clergy, or family members - individuals who may have knowledge of another's criminal activity and who traditionally have been exempt from testifying against defendants under certain conditions.

''This could be an opening wedge for making us all into private policemen,'' says Dershowitz.

As it now stands, witnesses to a crime can be held legally responsible if their actions somehow encourage the person committing the crime. In the case of the alleged gang rape in a New Bedford, Mass., bar, for instance, some witnesses were reported to have cheered support to the assailants and none offered assistance to the victim or notified police.

But witness culpability in such cases is decided by a jury, not a statute. Someone who simply witnesses a criminal act has no obligation to tell anyone.

The proposed Massachusetts law would exempt someone who violates it from being fined if that witness agrees to testify for the prosecution in court. In addition, a rape victim could not be fined for failing to report the crime.

Dershowitz points out that many communist countries have laws requiring witnesses to report crimes. But these are often abused by prosecutors, he says, in such a way as to coerce testimony from one family member against another.

The Civil Liberties Union of Massachusetts (CLUM), while not taking an official stance against the proposed law, says it's the sort of legislation that's almost impossible to implement fairly.

''This kind of law can get passed hastily in the wake of a situation such as the one in New Bedford,'' says CLUM executive director John Roberts. ''But there's always a danger of overlooking the full implications in that kind of climate.''

In practice, he says, the law would only be applied in selected cases. This raises the possibility that prosecutors could use the law against unpopular groups or individuals.

Making it illegal not to report a crime, while controversial, is not a new concept. Until the early 1820s, Americans abided by an element in English common law which made it a felony not to report a crime. The Supreme Court finally overturned the rule when it decided the provision was too burdensome on witnesses.