MISPRISION OF FELONY: REVIVING AN OLD CRIME IN NEW TIMES: DR. REZARTA MATAJ

MISPRISION OF FELONY: REVIVING AN OLD CRIME IN NEW TIMES

Author: Dr. Rezarta Mataj

Judge – Tirana District Court, Albania, 2007-2017
Associate Editor-Corporate and Business Law Journal

ISSN: 2582-3655

“It may be the duty of a citizen to accuse every offender, and to proclaim every offense which comes to his knowledge, but the law which would punish him in every case for not performing this duty is too harsh for man.”

Marbury v. Brooks, 20 U.S. (7 Wheat.) 556,576 (1882).

I. OVERVIEW

A Criminal Law class about omissions as a form of actus reus inspired me for this work. One of the notes in that lesson was about David Cash who saw his friend raping and killing seven-year-old Sherrice Iverson in a casino bathroom in Las Vegas, Nevada. Cash, who witnessed the attack, did nothing to prevent or stopped the offender.[1] I reacted promptly in the class by contrasting the law and the mentality in Europe which provides that if one citizen could, he should prevent or report the crime. This is such an easy action that helps lives.

            Why are countries divided into such diametric different approaches toward crime reporting? Are the lives in the civil law countries more valuable than in the common-law countries? Or maybe the common-law countries hate “rats,” people who inform. For what happened with little Sherrice, it seems that the federal officials were shocked, too. In 1998 they introduced in Senate theSherrice Iverson Act,[2] which demands all states to enact statutes that imposed a legal duty to report sexual abuse of minors to all witnesses regardless of their function.[3]

            “Indeed, to prevent an extreme difference of the society, there is a provision punishing all persons who knowingly donot report the crime to the authorities, known as the offense of misprision of a felony” added my professor. “Oh, that’s what I meant” —I yelled—”This is anoffense that will push witnesses to report the crime to police; otherwise, they will be punished.”  “Not necessary” —replied the Professor— “some states have abolished this law, or some others rarely use it.”Another debate exploded in the whole class whether, the U.S. society needs a misprision of felony anymore.

              The study will be more in-depth on the misprision of felony offense as an old tool that the society can use it to fix new problems such as domestic or child abuse crimes or immigration law issues. Moreover, even in other countries, the main scope of why reporting a crime, beyond a civic duty, is to help the judiciary system to find or prevent the crime and cases likeKitty Genovese[4], or Richmond High School in California,[5] where society “slept” before the crime and the law enforcement failed to protect the victims because of the absence of law, should not be repeated.

            Therefore, the material aims to overview the duty of crime reporting and misprision of a felony in the United States, its approaches, and the most effective way to use it in order to decrease crime rates. Also, a more in-depth explanation is dedicated to the differences between Good Samaritan Statutes, the preemption of the Fifth Amendment above the duty of a co-defender to report another crime observed or heard, and other defendants’ duties toward the law enforcement related with inchoate crimes. A clear distinction will help the lawyers to reduce the confusion on what a client should and may report to authorities absent being guilty. Next, this note will discuss the emergency to implement to employers, employees, or other organizations either misprision of a felony or duty to report offense in High Tech Crimes. A comparison with France, Italy, and Albania laws may contribute to see the distinction for the optimal approach. Observing the U.S. federal case-law and states case-Law will expose the flaws as to why a witness is afraid to cooperate and what is the best approach, respecting the citizens right to remain silent and not being a “rat,” or helping the justice and not being a “sloth.” 

II. THE OFFENSE OF MISPRISION OF FELONY

            A. The Root of Misprision of Felony

Misprision often confused with the word “misprision” as if it stems from a composition of words “mis” and “prison.” Indeed, misprision comes from the verb ”mesprendre,” which meansin Old French ”to take by mistake,” from “mes”( a French form of the prefix mis) and “prendre,” a French verb means “to take.”[6] While the past participle of the verb prendre is “pris.”[7]

According to Black’s Law Dictionary, misprision (mis-prizh-en) is” Concealment or nondisclosure of a serious crime by one who did not participate in the crime. ‘Misprision of a felony,’ that is, the concealment of the commission of a felony, is a criminal act. Similarly, neglect to prevent or disclose the commission of treason is misprision of treason. All misprisions are misdemeanors, and misprision of a misdemeanor is too trifling an offense for the criminal law to take cognizance of.’ John Wilder May, The Law of Crimes § 19, at 15 (Harry Augustus Bigelow ed., 1905).”[8]

            Black’s Law Dictionary offers various types of misprision since the first use, namely clerical misprision,[9] misprision of felony,[10] misprision of treason,[11]negative misprision,[12] and positive misprision.[13]

            In the federal statute of 1491, a misprision was an act that was considered neither treason nor a felony.[14]The original meaning of the misprision of treason appeared in the Act of Succession, 1533 where it provided when a person commits treason and what constitutes a misprision of treason to the King.[15] For example, treason to the King was any writing which intended to disturb the King’s “title or slander his marriage to Ann Boleyn.”[16] While it was misprision of treason any attempt to disturb the King “by any words without writing or any exterior deed or act.”[17] So misprision of felony committed a person who had failed to raise the hue and the cry ( aka did not report) what he has seen or found dead but not the one who merely heard about the felony.[18]

            In the United States, the Crimes Act of 1790 provided misprision of treason (§2) and misprision of a felony (§6). Misprision of Felony with later amendments had this configure:

Whoever, having knowledge of the actual commission of the crime of murder or another felony cognizable by the courts of the United States, conceals and does not as soon as may be disclosed and make known the same to someone of the judges or other persons in civil or military authority under the United States, shall be fined not more than five hundred dollars, or imprisoned not more than three years, or both.[19]

            This provision often would complement specific laws that regulate failure to report felonies, like the National Prohibition Act of 1919 on illegal possession of intoxication liquor.[20]  Judge Fitzhenry of United States District Court, Southern District of Illinois, had to amend his opinion the next day when he figured out that Act of 1919 supplemented by Jones Law must be interpreted as any witness who fails to report a Jones Act violation would be a felon and not simply witnessing a misdemeanor of liquor possession under the Act of 1919.[21]In both alternatives, §6 of Crimes Act of 1790 need two elements (1) the concealment of the felony and (2) the failure to disclose.[22] For example, the buyer is neither aider and abettor of the seller nor guilty for misprision of felony of sale of liquor because this Act requires more than mere knowledge of the commission of the crime.[23]

            Today, the misprision of felony as an offense is being less and less used however it remains in force yet as a remainder of the civic and legal duty to cooperate with the law enforcement to discover the felonies, to discourage the felons committing future crimes, and helping the victims to get their remedies once the offender is identified. As the Fifth Circuit stated in Ward, “[m]isprision of felony now has an archaic ring, gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship.”[24]

            Scholars[25]and courts consider the offense of misprision of felony as a big umbrella under which includes the scenarios either when the defendant fails to prevent a commission of a felony (the contrary of a Good Samaritan) or when the defendant fails to report the felon to the authorities. To make an easy conclusion whether this approach is correct, we divide reporting of the crime before, during, and after it, and we consider that misprision of felony provided by federal statute 18 U.S.C. § 4 regulates only failure to report a crime after the commission.[26]

            B.The Common Law Offense of Misprision of Felony

            Author Meale defines the common law offense of Misprision of Felony as “[a] criminal neglect either to prevent a felony from being committed or to bring the offender to justice after its commission, but without such previous concert with or subsequent assistance of him as will make the concealer an accessory before or after the fact.”[27] Its roots are in the Old English common law to raise “the hue and the cry” and report the crime to the authorities.[28]

            Misprision of common law felony in contrast with misprision of federal felony is a misdemeanor. This misdemeanor states where is enforceable is becoming less used. However, we should bear in mind that this common law misdemeanor is different from the statutory offense Failure to Report and/or False Reporting of Child Abuse and Neglect enforced in approximately 49 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands.[29] However, some states that materialized in statutes the civic duty to report crimes to authorities are Colorado, Ohio, Rhode Island, Massachusetts, and South Dakota as follow: COLO. REV. STAT. 18-8-115 (2019),[30]OHIO REV. CODE ANN. § 2921.29 (West 2019),[31]R.I. GEN. LAWS § 11–37–3.1,[32]R.I. GEN. LAWS ANN. § 11-1-5.1 (West 2019),[33]Mass. Gen. LawSch.268 § 40 (2019),[34]S.D. CODIFIED LAWS § 22-11-12 (2019).[35]

            Other jurisdictions regulate this duty through their case law recognizing or refusing to have it in their substantive criminal law. For example, in Holland v. State,[36]the case was remanded to the lower court with the directions to discharge the petitioner because Florida law does not recognize the elements of common law misprision. Here, the defendant, the City Manager of the City of Pinellas Park, went to his assistant’s house after an unsuccessful attempt to reach him via telephone.[37] In the employee’s rear yard, he noticed some marijuana plants; then he picked two leaves and reported to the Police Department.[38] After a positive chemical analysis of the leaves and the confession of the employee, the latter was charged with the felony of possession of marijuana.[39] Defendant asked his employee to resign to save the city’s reputation in exchange for no indictment.[40] Then, the defendant assured the affidavits of seventeen officials, who knew about the matter, that the employee’s arrest was not necessary.[41] For the first time in the history of the State, Holland was indicted with misprision of felony.[42] Therefore, according to the Florida Supreme Court, this crime does not fit with the United States conditions where the investigation authorities well-function and the society support the right not to “put the nose” in others’ business.[43] The court summarized that this crime stating that the scope of this crime in Old English common law was”[t]o aid an alien, dictatorial sovereign in his forcible subjugation of England’s inhabitants.”[44]

            The same approach holds Maryland[45] and Michigan[46] refusing to charge suspect for the common law offense of misprision of felony because it does not respond to the modern criminal law standard. Virgin Island[47] adopted the same language of 18 U.S.C. § 4 in its statute. In 2015 in Percival v. People,[48],the Virgin Island Supreme Court held that the difference between the federal and state offense is that the former requires that the defendant failed to disclose the felony committed to the authorities, while the latter requires that the defendant willfully conceals the commission of crime from the authorities.[49]For example, the police twice asked Percival about the murder, and even though he saw everything, he failed to disclose because he did not want to be “a rat.”[50] The court accepted the existence of misprision of the felony in its jurisdiction, but acquitted Percival because the refusal to cooperate and provide information to the police does not convey the third element of misprision of felony “an affirmative step to conceal the crime.”[51]

            In sum, we can say that mere presence is not enough to commit the offense of misprision of felony regulated by statutes or common law. Further acts are required, such as refuse to cooperate with the police[52] e.g., misleading, cheating, defrauding, and defeating public justice.[53] Today, not only states are split between recognizing or refusing the offense of misprision of felony, but states are divided on the seriousness of this offense. Some consider it a felony and some a misdemeanor.[54]

C. Elements of Misprision of Felony as a Federal Offense

            Under the United State Code, the offense of misprision of felony appears in two types (1) for not reporting every felony[55] and (2) for not reporting the felony of treason.[56]In a federal level, failure to report a crime is clearer, and its case-law results more consolidated. The offense Misprision of Felony under 18 U.S.C. § 4 reads:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years,[57], or both.[58]

            Four are the all-accepted element that the prosecution needs to prove beyond a reasonable doubt to charge a suspect with misprision of felony under the federal statute: (1) having knowledge of the already-committed felony, (2) the felony should be known by federal courts, (3) concealing and not making known to (4) federal judges, or civil the same to some judge or other person in federal civil authority, or federal military authority.

            As it is seen, the offense of misprision of felony, is a felony, because the sentence is higher than a year imprisonment. While as for the maximum of the fine, it is provided under 18 U.S.C. §§ 3571b-3, c-3(1994) for individuals not more than the greatest of $250,000 and organization not more than the greatest of $500,000.

            Before going to elements one by one, it is crucial to elaborate on the category of the subjects who can commit this offense. The law states “whoever,” which means no specific qualities to the subject, so a defendant can be a police officer (whose colleagues conducted a drug trafficking),[59]a Chief Investigator of the Special Investigations Unit for the county sheriff’s department[60]; however, the jurisprudence has exempted from misprision of felony charges an accessory[61] of the principal or a conspirator[62] of the underlying offense because the duty to disclose to the authorities conflicts with the right of the defendant not to self-incriminate.

            Moreover, relatives can be subject to this offense, and they are not exempt by the law, in contrast with other state statutes which exclude from the criminal liability the spouse, the children, parents, siblings, grandparents, and grandchildren.[63]

            In some legal systems, the duty to report is included in their criminal statutes, however, family members are exempted from this duty; but friendship is not a category that is part of this exemption. Therefore, in the Cash case, he would be guilty for the offense of “Failure to report,” although his primary protection would have been that he did not want to lose a friend. The legislature is fair when it requires to report the crime committed by a friend than one committed by a family. The value of the victim’s life is equal in both cases, though the legislature is careful to protect the family as a nucleus of the society, to enforce the “trust inherited to a family relationship.”[64]

 1. Commission of a Felony Cognizable by a Court of the United States

            The target of the offenses that the subject should know and should not hide from the authorities are felonies. It means all offenses pursuant to 18 U.S.C.A. § 3559 where the maximum term of imprisonment authorized is more than one year.[65] Therefore the majority of the offenses that may qualify are offenses with the maximum sentence from one-year imprisonment to life imprisonment, or the death penalty. Hence, a person is not guilty for the offense of misprision of felony if she does not disclose to the authorities any misdemeanor or infraction commission.[66]

            The second prong “cognizable by a court of the United States” means that the felony, regardless of what class it is, should be in force and under the jurisdiction of the federal courts at the moment when the defendant knows about the commission of that felony. So, it requires that the defendant knew about a federal felony and not a state felony. Furthermore, it requires that at the moment when the defendant knew about this federal felony, the latter was in force and not abolished or not known as an offense.[67] For example, the prosecution cannot indict a person for misprision of a felony when at the moment the defendant knew about the underlying felony, this felony was abolished. Furthermore, if the defendant is charged, he should be released when it turns out that the actions that the defendant failed to disclose are no longer considered a felony.  If no underlying felony exists, a person has no duty to report. However, if the prosecution did not charge the principals because he died or excused before indictment or conviction, that does not bar the prosecution to continue the misprision of felony charge.[68]

            In United States v. White Eagle, the court held that the underlying felony and the misprision of the felony are two offenses that follow independent trial paths; therefore, a commission is the element required for misprision of the felony and not necessarily a conviction of the principals,[69] for instance, the death, the excuses, or the acquit of the principals does not bar the prosecution from charging or the court trying the defendant for misprision of the underlying felony.[70]

2. Knowledge About the Commission of a Federal Felony

            The version in force under 18 U.S.C.A § 4 requires only knowledge about a felony not specifically for the crime of murder as the original version of misprision of felony provided:

Whoever, having knowledge of the actual commission of the crime of murder or other felonies cognizable by the courts of the United States, conceals and does not as soon as may be disclosed and make known the same to some of the judges or other persons in civil or military authority under the United States, shall be fined not more than five hundred dollars, or imprisoned not more than three years, or both.[71]

This element does not require that the defendant knows precisely the term of imprisonment for the particular offense; however, the government needs to prove that she as any layman must know that the potential punishment of the underlying offense is by death or more than one-year imprisonment.[72] In the most recent decision about the misprision of felony, the Ninth Circuit court held that “the government must prove not only that the defendant knew the principal engaged in conduct that satisfies the essential elements of the underlying felony, but also that the defendant knew the conduct was a felony.”[73] The defendant’s mens rea must be read not only as a commission but also as the knowledge that this commission fulfills a felony’s element in the jurisdiction where happened. Knowing that the principals committed a felony requires that the defendants had not heard as hearsay, but she saw personally action that composes the felony, or the principal confessed the felony.

On the other hand, if the defendant is aware of a felony commission, it is not necessary to know who the author is.[74] For example, a person is liable even when she found the cadaver or saw the stolen money and does not report to the authorities, even though she does not know who the author is. The scope of misprision of felony is to assist the law enforcement authorities in the investigation; therefore, a person does not “escape” from the responsibility if she partially reports the felony, for example, she reports the felony but conceals the author. She is guilty for misprision of felony, as well because a partial report may mislead the officials and delay the investigation outcome.[75]

3. Failure to Disclose the Felony to the Authorities as Soon as Possible

            The manner how one reports the felony is not essential; however, the final result, i.e., informing the authorities is a sine qua non-element for which 18 U.S.C. § 4 does not provide exceptions.[76] Nowadays, the most common way to report a crime is via telephone, 911-line, mail, e-mail, text messages, or walk-in to the police station. Anonymous report also is acceptable via anonymous toll-free hotlines and websites portals, privately or federal operated.[77]

            Misprision of felony often occurs when the defendant is asked directly during a criminal investigation and even though the defendant is obliged to report pursuant to 18 U.S.C. § 4, she refuses to cooperate and intentionally conceal the offense and/or the author. This prong requires that a person fail to inform, not to whatever authority, but to some judge[78] or other persons in civil or military authority[79] under the United States. It seems like an exhaustive list of authorities; however, practically the optimal understanding is reporting to federal judges, to any armed forced members or any civilian authority employee. The most debatable part of this element is that the reporting must be fast or in the statute words “as soon as possible” to the cited authorities. This is a subjective element and will be decided case by case. However, courts concluded that the defendant must report to the authorities once a harmless opportunity comes, e.g., when a defendant was afraid to report a harbored bank robber, the court found that defendant had missed this opportunity when the defendant’s wife accompanied the robber to the tailor shop, the evening when the robber went for a stroll, or when the defendant went alone to pick up the robber’s clothes.[80]

4. Concealment of Felony from the Investigation or Prosecution

            The literal meaning of the word “conceal” is (1) to prevent disclosure or recognition of, or (2) to place out of sight.[81] Therefore, the defendant needs to act affirmatively because the omission as an actus reus is not enough.

            Concealment is related to a crime, i.e., felony of the principal, therefore, a court must reverse an indictment to a third party who did not report to the authorities in the same day the conversation he heard planning to export arms and ammunition, a violation of Neutrality Act, 22 U.S.C.A. § 1934.[82]

            In addition to failure to disclose, the offense requires, some positive act of concealment, such as untruthful statements to the F.B.I. Agents[83] covering up an employee’s fraudulent scheme and asking employee’s widow to pay the loans after her death,[84] suppression of evidence, e.g., concealing the stolen money or altering and erasing from the account book the principal’s investment of the stolen money,[85] carpooling two bank robbers to the place when they had hidden clothing, guns, and money from the robbery and returned them to the apartment to divide the money,[86] harboring of the principal of the underlying felony,[87] or some other positive act designed to conceal the crime.[88] This approach is embraced by all circuits except First Circuit, which accepts the offense committed only when the defendant did not inform the federal authorities.[89]

            However, the form of concealing the principal from the authorities differentiates from the actus reus of other offenses such as concealing escaped prisoners under 18 U.S.C. § 1072, concealing persons from arrest under 18 U.S.C. § 1071, and harboring or concealing persons engaged in espionage under 18 U.S.C. § 792. Misprision of felony is an offense regulated under the general provisions of the Code alongside principals and accessories after the fact. Chapter 49 of the U.S.C. on “Fugitives from Justice” governs offenses of concealing an escaped prisoner or a person from arrest. While chapter 37 of the U.S.C. on “Espionage and Censorship” regulates the crime of harboring or concealing persons engaged in espionage. Therefore, the gist of the legislator to regulate the misprision of federal felony is different from other forms of concealing random persons or qualified persons who escaped from the investigation.

            The section below shows how the misprision of felony is having an increasingly crucial role in immigration issues like deportation of legal residents who committed “moral turpitude” crimes or in child abuse not reported to authorities.

D. Constructing Misprision of Federal Felony with Other Laws 

1. Misprision of Felony and Immigration Law    

Although the misprision of felony is a felony that is rarely used in practice, in the immigration law, it is gaining a solid role. Because of the concealment element that includes the fraud or lying about a fact, the courts construct misprision of a federal felony as a crime involving moral turpitude and in other cases as an aggravated felony. As a result, this categorization prohibits a further reside of illegal or legal immigrants within the United States borders.

In Patel v. Mukasey, the court considered misprision of a felony as an aggravated felony under 8 U.S.C.A.1101(a)(43)(M)(i),[90]and under the Immigration and Nationality Act, § 101(a)43(M)(i) because it involves the element of deceit and fraud the authorities. The court decided to deport to India the defendant as an illegal immigrant for committing the offense of misprision of a felony when he fulfilled the elements required by the 8 U.S.C.A.1101(a)(43)(M)(i): first, deceit and fraud the authorities and second he had to restitute the victim for the loss of more than $10,000.[91] Notably, in Villegas-Sarabia v. Sessions, it was held when a permanent resident is convicted for the misprision of felony, as a crime of moral turpitude,[92]  aka CIMT, this makes the defendant inadmissible for permanent residency under the Immigration and Nationality Act.[93]Misprision of a felony includes deceit; therefore, it is a CIMT.[94]Actually, two circuits are divided as to whether the definition of misprision of felony conveys moral turpitude offense elements. Eleventh Circuit favors the misprision of a felony as a CIMT.[95] The Ninth Circuit rejected this approach, stating that merely not completing a civic duty cannot weigh for a CIMT.[96] The Second Circuit raised the question of which approaches between these two circuits to maintain in Lugo v. Holder’s case.[97]The the court remanded the case to the Board of Immigration Appeals (BIA) ordering it that a uniform stand is necessary for this situation when the board in its precedents has two diametrical approaches.[98] BIA’s final position displays that the Board will continue its precedent considering the misprision of felony, a crime of moral turpitude.[99] However, BIA clarified that Ninth Circuit jurisdiction does not follow this position.[100]

2. Misprision of Felony and Child Abuse Laws

            Child abuse often is considered a continuing crime. It does not occur sporadically; conversely, when the perpetrator is a family member these crimes are present periodically and for a long time. Therefore, reporting a continuing crime when the abuser is a father, a sibling, or a relative slows the process of reporting, the investigation, and the abuser’s conviction.

            Nowadays is consolidated the duty of professionals that deal with children to report ongoing child abuse. Wyoming and New Jersey are the only states that do not require a specific category of professions as mandated reporters but required all persons to report, while forty-eight other states have imposed a mandatory duty to report school teachers, health care professionals such as physicians, psychiatrists.[101]

            The requirement covers specific crimes. Three are forms of children abuse: physical, sexual, and mental health abuse.[102] However, there is an invisible line between discipline use of force and physical abuse to children, specifically for countries which recognize a physical correction force used.[103]

            At the international level, United Nations Conventions 1) on the Rights of the Child (1989) and 2) Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000) do not mandate members to regulate on the duty to report child abuse but leaves it to their discretion to take the appropriate measures prohibiting children abuse offenses.[104] Furthermore, the Council of Europe requires also a permissive reporting to anyone who knows a child’s sexual exploitation or/and abuse.[105]

            Two types of reporters are known: mandatory reporters and permissive reporters.[106] Mandatory reporters are individuals who have regular contact with the children, social workers, teachers, principals, physicians, nurses, law enforcement officers, and so on. Permissive reports are voluntary reporters of abuse. In some states, a clergyman has a common-law duty to report the child abuse to the authority.[107]

            According to authors Jones & Lupton,[108] the abused child, under Act of 1998, is entitled to sue the abuser when he proves six elements in the defendant’s wrongful act: (1) the voluntariness of the defendant’s act, (2) the wrongful act infringes the African laws on child[109] and domestic[110] abuse, (3) the mandatory reporter had no excuse for not reporting the abuse, (4) reporter’s malice mens rea, (5) the causation between the child’s injuries, defendant’s actions, and the reporter’s omission, and (6) the victim’s loss as a result of the subsequent abuse.[111]

Many states make a difference between child abuse and spouse abuse. Moreover, some states do not recognize the legal duty to report a spouse abuse act, especially this duty bears to physicians that have more contact with the adults, while in the child abuse the responsibility is expanded to teachers or social workers. Usually, domestic abuse cases are considered a sensitive topic between the partners or couples, some others think that the victim as an adult should take the first step to escape from the violence, or the physicians consider the patient-doctor confidentiality most important.

            In the United States, medical professionals may face both common-law and statutory-negligence liability when they do not report domestic violence to the authorities, the abuse continues, and the victim suffers additional harm.[112] This liability included three types of sanctions: (1) Criminal offense, (2) Professional Discipline[113], and (3) Civil Liability.

            In South Africa under the Domestic Violence Act of 166 of 1998, a person who knew a child violence case has to report.[114] As for the spouse abuse cases, no liability is imposed because the spouses are adults, and the relationship is considered a sensitive issue between the partners, However, in the U.S. and South Africa, the welfare of the patient, not only a minor patient, must be reconsidered, especially when the patient suffers from contagious disease. [115]

            In conclusion, in the United States professionals working directly with children have an absolute duty to report any suspicion of physical, mental, or sexual abuse. Otherwise, they will face tortious, discipline, and any criminal liability for not reporting the violence. As for spouse abuse, many in-state and overseas authorities are reluctant to oblige doctors or other professions to report any suspicion for domestic violence. The common reason is that the victim is an adult (as far as she/he was engaged in marriage) to decide to report the violator. Furthermore, the relationship in the couple is considered a private issue that a third-party hardly try to touch.

III. THE IRREPLACEABLE ROLE OF MISPRISION OF FELONY IN THE U.S. LEGAL SYSTEM

            Ignoring the importance of the offense of misprision of felony, as a risk for one’s privacy, is a common mistake of U.S. lawyers or legal scholars.  The trend of repealing this offense in many states may induce persons to obstruct justice, to be indifferent before the crime, and to increase the criminality that may be reported with the least effort.  Moreover, the misprision of a felony does overlap neither with the Good Samaritan statues, with which most of the legal practitioners confuse nor with the Fifth Amendment right, not to self-incriminate. Thus, its role in criminal law is indispensable as the section below will explain.

            A.  The Good Samaritan States

“Imposing an affirmative duty to rescue in criminal situations brings with it the dangers of vigilantism and interference with the criminal justice system.”[116] Moreover, encouraging people to interfere like police officers when they witness criminal behavior, it will incentivize people using their guns and often committing offenses in excess of deadly force. So why do some states enforce Good Samaritan Laws?

            The duty to assist a person in peril is different from a duty to report a crime to the authority. The former is to help the victim the second is to assist the justice and not to obstruct it. The good Samaritan law tries to legalize this duty to the citizens. Good Samaritan laws are common to states whose community needs “the hand” of each other because of natural, geographical, or weather factors. For example, Alaska is one of the states that has embraced the “Good Samaritan Law.”[117] It is evident that people need the assistance of each other in a minus degree weather, on a large surface and when avalanches or animal attacks happen randomly. This is the only manner a state can decentralize his obligations vertically to people. How to assist? The duty to assist can be in the form of calling 911, actively helping the victim while drowning, burning in a fireplace, or asking help to the neighbors.

            Not only helping the government to manage the situation where it is hard to assist promptly and efficiently, but this mandatory duty is also a relief to the victim or her family to find the perpetrator soon and to help speed up the procedure of civil remedies, besides the conviction.

            However, Good Samaritan Statute urges a bystander to assist a person in need without rescuing himself.[118] This is one reason that some states enforced a remedy to estimate citizen courage but also to cover the damages that occurred as a result of the assistance.[119]

            As a result, this manner steps back people interfering because they are unable in an emergent situation to evaluate the balance of what rights should protect and what force intense should use. Therefore, we go a step further, from a duty (or right) to assist to a duty to report a crime to the authorities.

            Finding the balance between the welfare of the victim and the risk taken by a layman witness by this intervention is very delicate. Letting the life of the victim be at the discretion of the witness to call the police or not is the least value that society equals human life. If the government interferes and imposes a legal duty to anyone who knows of a murder plan, is present at the murder scene or other serious crime, would bring a “sense of security to every individual in society, including the reporter herself.”[120] However, this duty is not imposed for property, or when the actor endangers herself.

In 1961, the UK revived the offense of misprision of felony, which had practically been abolished since the Middle Ages when Sykes failed to inform the police about gun trafficking of Irish Republic Army (“IRA”) activists. In Sykes v. Director of Public Prosecutions,[121] there was no evidence that Defendant was an accessory, negotiating or purchasing of firearms between IRA and the weapon thieves. However due to a necessity to convict Sykes, for not reporting to the police this illegal transaction, misprision of felony offense would contribute to social justice. In order to secure a conviction, in this case, the court narrowed the scope of the offense only to persons (1) who heard and saw personally (2) a serious crime, and (3) failed to report the crime to the proper authority.[122]

            In Israel, Thou Shall Not Stand Idly by the Blood of thy Neighbor Law (1998), provides the Good Samaritan duty of rescue:

1. Duty to rescue and extend aid (a) a person is required to extend aid to a person before his eyes whose life, physical integrity or health is in serious and immediate danger due to a sudden event, if it is in his power to extend that aid without endangering himself or others, (b) a person who notifies the authorities or calls another who can extend the necessary aid will be deemed to have extended the aid for the purposes of this law; for the purposes of this section, “authorities”–the Israel Police, Magen David Adom, and the Fire Department.…

4. Punishment A person who transgresses the provisions of section 1 of this law is liable to a fine § 61 in Israeli Penal Code.[123]

In the same situation as UK with Syke, after the murder of Prime Minister Ytzhak Rabin in 1995, Israeli revived the §260 of the Penal Law. However, usually, this offense is a collateral offense together with other criminal activity.[124]

As Jack Wenik states, “The dangers of ‘self-help justice’ are especially acute at the apprehension stage when emotions can distort rational behavior, and lead to vigilantism.”[125] So, what are the benefits of imposing a legal duty to report a crime to the authorities before or during it happens?

            One benefit of imposing such a legal duty is that inviting the police to intervene in the murder plan or another serious crime that is happening or will be happening, increase the positive outcome, prevention of the crime from the trained professionals in this situation. The police usually collaborate with firefighters or ambulance to avoid the risks. 

            Second, from a criminal justice viewpoint, it raises the number of convicted people for the offense committed or attempted to commit; however, for the police it is easier to find the evidence at the scene of a crime, to arrest the defendant in hot pursuit, etc. In this manner, the intervention of the police will decrease the possibility of a self-help crime.

            On the other hand, reporting a crime to the authorities faces some negative effects that should be considered in balancing the benefits and the flaws of the law.

            The first disadvantage of reporting a planned crime is finding the proper time to report. Sometimes, the witness learns about the crime when it is at an early stage however, criminal statute does not provide this stage as an offense, for instance when prospective murderer shares with the witness the idea that he is planning to kill his brother. The legal duty to report a crime does not incentivize people to report in the police station every thought stem from gossip or chats. So, there is no place for fear that if a person does not report this information, she will be charged with failure to report a crime, because if the crime never happened, a planner would not be convicted either. If this happens, then these scenarios will lead to focus more on the witness who failed to report rather than the person who planned the murder.[126]

            Second, the vigilance of the public to report a felony will discourage the perpetrators from committing it, or at least to act openly and publicly without fear that someone will report him to the authorities.[127]

            Another flaw is that sometimes for a state it is costless to pay her informants or to “hunt” the offenders on its own initiative rather than protecting the witnesses from any offenders’ threatening or accommodating them under a new identity. This is because often the police do not immediately pursue the offender once they get the report, but they must verify the tip and the tipster before acting.

It is also necessary to mention what frightens the witnesses in reporting a crime before it happens. The below-factors may justify people’s reluctance:

One factor associated with the failure to report crime is the diffusion of responsibility.[128] In a crime scene with a lot of spectators, it is in the human being nature, to take the first step without being secure that another will behave in the same manner. (bystander effect[129]). People tend to wait for someone else to report the crime or for the crime to be discovered before acting. Indeed, verbal encouragement and interpersonal influence can increase crime reporting. [130]

Another factor is the lack of social pressure toward a bystander.  Reporting a crime is an issue of freedom and individual liberty; therefore, criminal law cannot compel a person and put him at risk to benefit others.[131] A witness is encouraged to report a crime; otherwise, if he fails, society will negatively evaluate his behavior. Researches have shown that a bystander who knows that she will not have any social or legal consequence is unlikely to intervene. [132]

Finally, the bystanders often are confused about where to act, when to act, and who to inform better.[133] This happens especially in countries when the law enforcement lacks to inform the witness of all his duty and is it difficult to know who are the authorities that will prevent or interrupt the criminal or at arresting the offender. Leaving this course of action in the hands of the bystander, in his rational thinking or his own experience, incentivizes a reluctant bystander than an active one. One could argue that this is not a civic duty but a police duty; hence, the police officers are the ones who should intervene when they witness a crime. However, according to Bickman, in Los Angeles, a police officer is present, for example, at a robbery only one in 14 years.[134] Also, raising the number of police to be present as a witness in the most crime zone will raise the cost and create a negative impression in the neighborhood as a police control zone. 

B. Failure to Report A Crime to Authorities after its Commission

The typical situation when the witnesses may help the law enforcement sectors to investigate and indict the offender is reporting the crime after its commission. So, the primary scope of this kind of provision is to decrease the obstruct of justice offenses and to charge the offenders as soon as possible. Crime reporting after the commission differs from reporting a crime before or during the commission. In the latter, the primary scope is “prophylactic” i.e., to prevent the crime and to protect the potential or actual victims.

Failure to report a crime after it is committed is known as misprision of a felony. However, the vague and uncertain language of the provision often forced countries to abolished this offense like in the English common-law,[135], or as in the majority of jurisdictions do not provide misprision of a felony in their statutes or it is repealed.[136] The majority of jurisdictions require two elements to satisfy the offense: (1) failure to report a crime plus (2) an additional element– some positive act with evil intent.[137] However, it depends on the states. Some states like New Jersey equals failure to report a crime with the misprision of a felony. While some states like Louisiana and Maine found misprision of felony something more than a mere failure to report a crime, they require an accessory after the crime or positive concealment.[138]

            So, the offense of misprision of a felony requires the citizens to report only when it is a serious crime. It will be hard for a citizen with the minimal legal knowledge to divide in a fraction of seconds that what she is seeing, or hearing is a serious crime or not.

            A crime is a felony if a person convicted may be sentenced to death or more than one-year imprisonment.[139] A felony under Model Penal Code Section1.04. Classes of crimes are felonies, misdemeanors, and petty misdemeanors. So, in three categories, only for a felony a person will be charged with misprision of a felony. There is no legal obligation to report crimes that the law provides a sentence for the convicted person less than one-year imprisonment, known as a misdemeanor or petty misdemeanor.[140]

            However, in cases when the law provides as an offense failure to report a crime, it is helpful to bear in mind that a person is liable if he did not report either a felony, misdemeanor, or a petty misdemeanor.

             Misprision of felony recognized by federal statute differs from the common law because in the latter silence is sufficient, and the offender does not need to take a further step, while in federal statute a misprision of felony equals failure to report a crime plus concealment.[141] It seems that the federal statutes require a higher standard and two-prong tests an offender must complete. 

C. Misprision of Felony and its Intersect with the Fifth Amendment Right Against Self-incrimination

            Nothing outweighs the value of human life and one must contribute to help life in danger. This leitmotif well adopted by countries that had imposed a legal duty to save another’s life when a person witnessed the murder or knew the plan for killing. 

In the United States, there is no duty to report an offense which is planned to happen in the future; however, under the Model Penal Code, an accomplice, who chose to speak, may risk the charge as aider and abettor or as an accessory after the fact. Under MPC§2.06(6)(c) an accomplice will be discharged from conspiracy if he: (1) terminates his complicity prior to the commission of the offense and (2) proves at least one of this fact (i) that he achieved to prevent the commission of the offense, or (ii) he timely warned the authorities to intervene, or (iii) made another effort to prevent the commission of the offense. But, how can a defendant’s duty to report under 18 U.S.C. § 4 be reconciled with her Fifth Amendment privilege not to incriminate herself? The Ninth Circuit raised this question in a case when the defendant was convicted for misprision of a felony for not reporting a bank robbery.[142]

 In the King case and all its progeny, the courts established that an accomplice who did not report a crime to authorities could not be charged for Misprision of Felony because she chooses to exercise her Fifth Amendment right, not to self-incriminate herself and not to lead the police officers to her prosecution.[143] However, as the Fifth Amendment does not shield perjured and false statements, similarly, an accessory is guilty under 18 U.S.C. § 4, when she conceals the felony to the authorities through lying and perjuring.[144] It is less important whether the defendant’s false statements were made under oath.[145]The elements of misprision of a felony are satisfied when an accessory chooses not to invoke her right to stay silent, but conversely, she voluntarily confesses and makes affirmative action, i.e., lying with the purpose to conceal the crime.[146]

Although the effect of misprision of felony is taken for granted for many decades, it is necessary to reviving this offense after the society is facing new threaten along with the use of the technology. Thus, the following section seeks to address how countries are enforcing the misprision of a felony as an offense to reduce the victims and prevent serious crimes. Moreover, the following section treats the offense of misprision of treason, which because of similarities lawyers may use its consolidated jurisprudence when constructing any vagueness of misprision of a felony.

IV. THE IMPORTANCE OF UNDERSTANDING AND USING EFFECTIVELY THE MISPRISION OF FELONY

A. Duty to Report Cybercrime

            States are addressing Technology Crimes, High Tech Crimes, or Cybercrimes in their criminal statutes.[147]Law enforcement agents are concerned that many cyber offenses go unreported, and the costs to track them are tremendous. A thousand crimes happen worldwide, before internet users’ sight such as online drug distribution, stolen cellphone distribution, cyberstalking, human trafficking for sex or labor, gift or credit card fraud schemes, child exploitation. Now preparators are resigning from street crimes toward a safer way, the cybercrimes.[148]

            However, the Department of Defense (“DOD”) took the first initiative with 78 Fed. Reg. 69273 (Nov. 18, 2013) which regulates the obligation of contractors to provide “adequate security,” to safeguard “unclassified controlled technical information” (“UCTI”) and the obligation of contractors to report to DOD’s officers all cyber incidents that affect UCTI. [149]

            Another solution can borrow from the Europol, an EU investigation authority that deals with cybercrimes. Europol informs the citizens to report to the member’s police station all type of crimes they may come across; however, for crimes that include: cybercrimes, illegal content in the internet, child sexual abuse information or material, child sexual coercion, and extortion, the citizens can contact Europol directly.[150] In a technology era where offenders announce their criminal plans in the social mediacy, the government was forced to come up with new anti-crimes tools. Lastly, the United Kingdom criticized Facebook, Google, and Twitter for not notifying the police when they failed to remove from social media platforms the terrorists, or fundamentalist posts, video, or pictures, especially after the New Zealand church shooting.[151]

            Next, it is urgent to understand and use more effectively the offense of misprision of felony through the interpretation and construction that courts gave to misprision of treason.[152]Thus, subsection Bpresentscharacteristics of this offense as a “model” to be followed by misprision of felony offense when there is any vagueness.

            B. The Offense of Misprision of Treason

            Treason, as the only offense defined explicitly in the Constitution,[153] has a special provision if the author does not report it to authorities. Under 18 U.S.C. § 2383 is provided:

Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.

            The four components that satisfy the misprision of treason are: (1) owing allegiance to the United States, (2) having knowledge of the commission of any treason against the United States, (3) conceals and does not disclose as soon as possible (4) to the President, or to any federal judge, or to the governor when the offense is committed or related, or any state judge which the crime is committed or related.

            First, as it is noticed, for misprision of treason, the authority where anyone should report is not as in the random felony, but to a limited category of officials: (1) the President, (2) the governor of the state when the treason happened or has effect, (3) federal or state judges, their court is located in that state or is within the jurisdiction when the treason happened or had effects.[154]

            Second, prosecuting for failing to disclose or concealing is also another distinction between felonies and misdemeanors, between the most serious felony and felonies.[155]

            Never has existed the offense of misprision of a misdemeanor. On the other hand, the misprision of felony or concealment of felony never has been a misdemeanor.[156] People worry more about their safety, and this is the main reason why they tend to report or disclose offense that threatens their security than offenses damaging only the victim. For example, trespass is a misdemeanor. Witnesses who saw a person trespassing in another’s property are less keen to report that misdemeanor to authorities, thinking that this is the owner’s business. Another example would be the libel and defamation which are explicitly related to the victim’s person. 

            As Judge Fleming writing for the majority stated in People v. Lauria, requiring everyone to report any offenses without a distinction is more dangerous than the scope to prevent that crime happens again.[157]

            In People v. Weger, Judge Fleming in his concurrence on the constitutionality of loitering offense stated that “The legal duty of the citizen to assist the public authority in preserving the peace has been firmly established for hundreds of years and is manifest in such obligations as the duty to assist the posse comitatus, to join the hue and cry, to expose treason, and to disclose the commission of known felonies to the proper authority.”[158] The defendant charged for loiters or wanders arrested without probable cause.[159] He also criticized the private area when people are living, stating that exaggerated and extreme individualism era comes from an antisocialism theory that neighbors have no duty to render the smallest assistance to each other.[160]

            Third, another characteristic noticed in the misprision of treason is the offender’s affirmative act.[161] While in misprision of felony, affirmative action in the form of the concealment is one of the offense’s elements, in the misprision of treason a person commits this offense to absent any effort or attempt to conceal the treason alongside with knowledge and failure to report it.[162]

 Not all the statutes or regulations has such a clear requirement of the concealment to hold guilty for misprision of a felony. However, the laws must be read in their entirety and related to other laws that directly or indirectly amend the law. 

            The most significant loophole in getting people to report crimes is the fear for their safety. The decision becomes harder when the offender is a family member. Furthermore, Some European Countries, that provide the offense of Failure to Report a Crime in their Criminal Codes, overcame this dilemma. The next subsection illustrates the misprision of a felony in France, Italy, and Albania and presents similarities and differences with Common law or federal misprision of a felony. 

C. Failure to Report a Crime in some European Countries

            The offense of failure to report a crime is regulated in France,[163] Italy,[164] and in Albania,[165]under their respective Penal Codes. All these civil laws countries with the authority of charging or convicting a person is based only on what is provided literally in the law; however, the interpretation of the highest court of the land is vital for lower courts especially when the jurisprudence is not unified.

            The similarity of all three jurisdictions is that misprision of a felony as an offense is regulated under the administration of the justice chapter.[166] Hence, the first legislatures’ gist in this offense is to assist the justice authorities to investigate, prosecute, and try it quickly and accurately. Unlike the trend of common law not to “bother” the citizens feeling as rats and caring only for their own business, European countries urge the citizens to contribute to the justice being the first informants of a crime. Also, these countries push the citizens to cooperate with the justice actors in order to assist law enforcement bodies and to prevent anyone who intervenes in the obstruction of justice. Precisely, in countries like Croatia, Denmark, Estonia, Finland, Ireland, Italia, Latvia, Lithuania, Portugal, Czech Republic, Slovakia, Slovenia, and Sweden citizens ought to report every case of maltreatment, abandonment, and negligence of children.[167]

            Another characteristic of the European misprision of felony is that exceptfor the duty of the citizens to report the crimes to the authorities; there are some other specific subjects who must report to the authorities because of their professions, such as public officials,[168] public service officers,[169] health professionals.[170]A feature that we do not find in common law or federal misprision of felony. Furthermore, EU members like Bulgaria, Croatia, Denmark, Spain provide that professionals who know of any crime against a minor, should report.[171] This means “Reporting is not a choice but a real obligation.”[172] Specifically, in Italy, a citizen must report to the authorities when: (1) under Art. 364 of Penal Code is aware of a felony against the country which the law provides life-imprisonment. (2) come across, in good faith, in forfeiture money, (ex. Art. 694 c.p.).  (3) possess goods or money stemming from an illicit or suspected illegal activity (ex. Art. 709 c.p.), (4) knew the location of explosive material or firearms, (5) knew about the fraud or fixing the result, (6) knew the attempt or the committed crime of a person abducted for extortion.[173]Under Article 361, the official should have a clear mens rea knowing the offense commission and not by omission but in malice did not investigate.[174]

            In Albania, because of its 45-year totalitarian regime where people commonly reported any illegal, immoral or even anti-communism ideology to authorities, the offense of misprision of felony is more present than in the western European countries such as France and Italy.

            As for the punishment, it seems that France has more severe sanctions when the victim is a minor[175] or when the crime that is being committed is an act of terrorism.[176] However, in Italy, the punishment for citizens is more severe in contrast with public officials that had a duty to report and failed to do so.[177] Furthermore, like in the United States where misprision of felony is only for the most aggravate offenses and not for a misdemeanor, Europeans recognize the offenses they have to report based on the sanctions.In Europe, usually, the penal law provides two principal punishments for crimes: the imprisonment and the fine. So, in France under art. 131-1, the punishment for a felony is from 10 years until life-imprisonment. In Albania under Art. 32 usually the maximum of imprisonment for crimes is more than2 years up to 35 years or life imprisonment. 

            Even though the obligation to inform the authorities is to any citizen, to protect the family relationship or what derives from this relationship or professional relationships there are three categories of subjects that are excluded from this offense:  

            The first category – persons that have family or marriage linkage with the perpetrator or accomplice to the felony such as children, grandchildren, parents, grandparents, stepparents, stepchildren, and all other persons in the direct line, and their spouses, siblings and their spouses.  However, in France under Art. 434-1, if the victim is a minor under fifteen years[178]the above privilege does not exist, and even the family member, the spouse, and cohabitants with the perpetrator have to inform the authorities otherwise, they will be held liable.   

            The second category – The preparator or accomplice’s spouse or openly known cohabitants are excluded from the criminal liability to report the crime.   

            The third category – Persons bound by an obligation of secrecy such as doctors, psychologists, clergy,[179] and other persons obliged to keep confidentiality because of their capacity or profession.[180]

            In the U.S. statutes or federal misprision of felon, this exemption of family members does not exist; however, under the U.S. children abuses statues, professionals are not shielded by the duty of secrecy and must reveal the secret to authorities to prevent a crime.

V. CONCLUSION

            Reporting a crime and misprision of felony offenses should be encouraged. Statistically, countries that have institutionalized the duty of the citizen to report a crime have a lower crime rate because of the fear of punishment.[181]Failure to report a crime aims to prevent the crime rates and to help the victim from endangering her life or health, while misprision of felony offense seeks to assist the law enforcement authorities to discover the felon.

            However, in the U.S. society where privacy and the right to be undisturbed is well established, it will take time to familiarize the society with the concept of cooperating with the police even when the police do not ask for the public’s assistance in the first place. The law does not aim to scare further a citizen after the “nightmare” she might experience witnessing a felony. Conversely, the law aims to promote the idea that not only the police but all citizens care about overall social safety.

VI. RECOMMENDATIONS

            Misprision of felony is not a “dead” offense; conversely, this considered “old-fashioned” tool may reduce the criminality in the Modern Era, e.g., state legislatures must enforce misprision of felony in their statues particularly in the child abuse cases. Moreover, it is necessary to have harsher sanctions with more extended consequences like excluding the defendant from military or government job applications or from federal benefits. On the other hand, good citizens deserve to be rewarded for not obstructing justice.

            Next, if the conviction is a symbolic, i.e., with a low fine or a light sentence people voluntarily will accept to pay the fine rather than be threatened by the offender’s relatives. In addition, just like in Europe, the law must protect relatives or family members from the duty to report. Reducing subjectivism in the law words, e.g., “report the crime as soon as possible.” It will cause abuse and confusion to the authorities and will incentivize the abuse to criminals.

Finally, every state legislature must impose in their statutes the offenses of failing to report a crime and misprision of a felony.

            Unfortunately, cybercrimes, cyberbullies, terrorist propaganda, and mass shootings risk our lives on a daily basis. Fortunately, criminals are exposing their plans on Facebook, YouTube, Twitter, and the list of social media platforms continue; therefore, we should come up with new civic and legal duty to combat this threat. Being vigilant and reporting to the authorities any crime committed or any conspiracy to commit it, announced in social media, is a benefit to society. In this manner, the courts will have no need to revive “abolished” law like in Syke or Yitzhak Rabin cases and the society will have fewer victims like Sherrie, Genovese, and those in the New Zealand cases.


[1]JOSHUA DRESSLER &STEPHEN P. GARVEY, CRIMINAL LAW, CASES AND MATERIALS, 147 (7th ed. 2007).

[2] Act s. 2452, 105h Cong. 1998.

[3] Miriam Gur-Arye, A Failure to Prevent Crime – Should It Be Criminal, 20 Crim. Just. Ethics 3, 26, (2001). See generally Nevada provisions adopted after Sherrice Iverson Act, Nev. Rev. Stat. Ann. § 202.882 (West 1999):

      1.  Except as otherwise provided in NRS 202.885and 202.888, a person who knows or has reasonable cause to believe that another person has committed a violent or sexual offense against a child who is 12 years of age or younger shall:

      (a) Report the commission of the violent or sexual offense against the child to a law enforcement agency; and

      (b) Make such a report as soon as reasonably practicable but not later than 24 hours after the person knows or has reasonable cause to believe that the other person has committed the violent or sexual offense against the child.

      2.   A person who knowingly and willfully violates the provisions of subsection 1 is guilty of a misdemeanor.

      3.   A report made pursuant to this section must include, without limitation:

      (a) If known, the name of the child and the name of the person who committed the violent or sexual offense against the child;

      (b) The location where the violent or sexual offense was committed; and

      (c) The facts and circumstances which support the person’s belief that the violent or sexual offense was committed.

[4] In 1964, Kitty Genovese it is alleged being stabbed in the sight of more than 30 witnesses, and none called the police officers or aided her. See generally https://nypost.com/2014/02/16/book-reveals-real-story-behind-the-kitty-genovese-murder/ (accessed June 3, 2019).

[5]When a group of ten teenagers raped and beaten a 16-year-old girl, while the classmates and even vice-principal witnessed and did not call the police. See https://www.dailymail.co.uk/news/article-2395396/Richmond-homecoming-dance-gang-rape-attackers-sentenced-decades-bars.html (accessed June 3, 2019).

[6]See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/misprision, accessed June 10, 2019. See also P.R. Glazebrook, Misprision of Felony – Shadow or Phantom, 8 Am. J. Legal Hist. 189, 190 (1964) (explaining that there was a try to reconcile the original meaning with the offense of omission or to conceal the knowledge of a crime).

[7] Collins Dictionary, https://www.collinsdictionary.com/dictionary/french-english/pris, accessed June 25, 2019.

[8]Misprision, BLACK’S LAW DICTIONARY (11th ed. 2019).

[9]Clerical Misprision, BLACK’S LAW DICTIONARY (11th ed. 2019) (a court clerk’s mistake or fraud that is apparent from the record. See Glazebrook, supranote 6, at 191, (stating that the first use of mesprision du clerc— a mere clerical error was in 1340)).

[10]Misprision of Felony, BLACK’S LAW DICTIONARY (11th ed. 2019) (concealment or nondisclosure of someone else’s felony. See 18 USCA § 4).

[11]Misprision of Treason, BLACK’S LAW DICTIONARY (11th ed. 2019) (concealment or nondisclosure of someone else’s treason).

[12]Negative Misprision, BLACK’S LAW DICTIONARY (11th ed. 2019) (the wrongful concealment of something that should be revealed).

[13]Positive Misprision, BLACK’S LAW DICTIONARY (11th ed. 2019) (the active commission of a wrongful ac, seditious conduct against the government is positive misprision).

[14]Glazebrook, supranote 6, at 195.

[15]Id.

[16]Id.

[17]Id.

[18]Id.at 204.

[19] The original provisions of §6 of “[I]f any person or persons, having knowledge of the actual commission of the crime of willful murder, or other felony, upon the high seas, or within any fort, arsenal, dockyard, magazine, or other place or district of country, under the sole and exclusive jurisdiction of the United States, shall conceal, and not, as soon as may be, disclose and make known the same to some of the Judges or other persons in civil or military authority under the United States, on conviction thereof, such persons shall be adjudged guilty of misprision of felony, and shall be imprisoned not exceeding three years and fined not exceeding five hundred dollars.” 

[20]Mere Failure to Report Felony Not a crime, 63 U.S.L. Rev. 621 (1929).

[21]Id.

[22]Id. at 622.

[23]United States v. Farrar,38 F.2d 515, 517 (D.C. Mass. 1930).

[24]United States v. Ward,757 F.2d 616, 620 (5th Cir. 1985).

[25]2 Subst. Crim. L. § 136.6(b) (3d. ed. Westlaw database updated June 2018), 21 Am. Jur. 2dCriminal Laws § 32, Westlaw (database updated June 2019) 15 C.J.S. Compounding Offenses § 3, Westlaw (database updated May 2014)).

[26]See generally 2 Subst. Crim. L. § 136.6(b) (3d. ed. 2018) (where Professor Wayne R. LaFave states that is an erroneous view to include a failure to prevent the commission of a felony in the offense of misprision of felony).

[27]Robert E. Meale, Misprison of Felony: A Crime Whose Time Has Come, Again, 28 U. Fla. L. Rev. 199, 200 (1975).

[28]See, e.g.,United States v. Cefalu, 85 F.3d 964, 969 (2d Cir. 1996).

[29]Penalties for Failure to Report and False Reporting of Child Abuse and Neglect, CHILDWELFARE.GOV, https://www.childwelfare.gov/pubPDFs/report.pdf (last updated Feb. 2019).See alsoCAL. PENAL CODE § 152.3 (West 2019) known as Sherrice Iverson Child Victim Protection Act:

“ a) Any person who reasonably believes that he or she has observed the commission of any of the following offenses where the victim is a child under 14 years of age shall notify a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2:

(1) Murder.

(2) Rape.

(3) A violation of paragraph (1) of subdivision (b) of Section 288 of the Penal Code.

(b) This section shall not be construed to affect privileged relationships as provided by law.

(c) The duty to notify a peace officer imposed pursuant to subdivision (a) is satisfied if the notification or an attempt to provide notice is made by telephone or any other means.

(d) Failure to notify as required pursuant to subdivision (a) is a misdemeanor and is punishable by a fine of not more than one thousand five hundred dollars ($1,500), by imprisonment in a county jail for not more than six months, or by both that fine and imprisonment.

(e) The requirements of this section shall not apply to the following:

(1) A person who is related to either the victim or the offender, including a spouse, parent, child, brother, sister, grandparent, grandchild, or other person related by consanguinity or affinity.

(2) A person who fails to report based on a reasonable mistake of fact.

(3) A person who fails to report based on a reasonable fear for his or her own safety or for the safety of his or her family.”

[30] “It is the duty of every corporation or person who has reasonable grounds to believe that a crime has been committed to report promptly the suspected crime to law enforcement authorities. Notwithstanding any other provision of the law to the contrary, a corporation or person may disclose information concerning a suspected crime to other persons or corporations for the purpose of giving notice of the possibility that other such criminal conduct may be attempted which may affect the persons or corporations notified. When acting in good faith, such corporation or person shall be immune from any civil liability for such reporting or disclosure. This duty shall exist notwithstanding any other provision of the law to the contrary; except that this section shall not require disclosure of any communication privileged by law.”

[31] “(A) No person who is in a public place shall refuse to disclose the person’s name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:

(1) The person is committing, has committed, or is about to commit a criminal offense.

(2) The person witnessed any of the following:

(a) An offense of violence that would constitute a felony under the laws of this state;

(b) A felony offense that causes or results in, or creates a substantial risk of, serious physical harm to another person or to property;

(c) Any attempt or conspiracy to commit, or complicity in committing, any offense identified in division (A)(2)(a) or (b) of this section;

(d) Any conduct reasonably indicating that any offense identified in division (A)(2)(a) or (b) of this section or any attempt, conspiracy, or complicity described in division (A)(2)(c) of this section has been, is being, or is about to be committed.

(B) Whoever violates this section is guilty of failure to disclose one’s personal information, a misdemeanor of the fourth degree.

(C) Nothing in this section requires a person to answer any questions beyond that person’s name, address, or date of birth. Nothing in this section authorizes a law enforcement officer to arrest a person for not providing any information beyond that person’s name, address, or date of birth or for refusing to describe the offense observed.

(D) It is not a violation of this section to refuse to answer a question that would reveal a person’s age or date of birth if age is an element of the crime that the person is suspected of committing.”

[32] “Any person, other than the victim, who knows or has reason to know that a first-degree sexual assault or attempted first degree sexual assault is taking place in his or her presence shall immediately notify the state police or the police department of the city or town in which the assault or attempted assault is taking place of the crime.”

[33] “A person who knows that another person is a victim of sexual assault, murder, manslaughter, or armed robbery and who is at the scene of the crime shall, to the extent that the person can do so without danger of peril to the person or others, report the crime to an appropriate law enforcement official as soon as reasonably practicable. Any person who violates the provisions of this section shall be subject to imprisonment for a term not exceeding six (6) months, or by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).”

[34] “Whoever knows that another person is a victim of aggravated rape, rape, murder, manslaughter or armed robbery and is at the scene of said crime shall, to the extent that said person can do so without danger or peril to himself or others, report said crime to an appropriate law enforcement official as soon as reasonably practicable. Any person who violates this section shall be punished by a fine of not less than five hundred nor more than two thousand and five hundred dollars.”

[35] “Any person who, having knowledge, which is not privileged, of the commission of a felony, conceals the felony, or does not immediately disclose the felony, including the name of the perpetrator, if known, and all of the other relevant known facts, to the proper authorities, is guilty of misprision of a felony. Misprision of a felony is a Class 1 misdemeanor. There is no misprision of misdemeanors, petty offenses, or any violation of § 22-42-5.1.”

[36]302 So.2d 806, 810 (Fla. 1974).

[37]Id. at 807.

[38]Id.

[39]Id.

[40]Id. at 808.

[41]Id.

[42]Holland, 302 So.2d. at 807.

[43]Id. at 810. (also quoting Commonwealth v. Lopez, 61 N.E.2d 849 (Mass. 1945) (“[N]ot every principle of the English common law become part of the common law of Massachusetts. Some doctrines were judged inapplicable to the ‘ne state and condition’ of the settlers in this country . . . .”)).

[44]Id. at 809.

[45]Pope v. State, 396 A.2d 1054, 1078 (Md. 1979) (declaring that the common law offense of misprision is not chargeable anymore in Maryland as impractical and incompatible with Maryland’s jurisprudence, law and circumstances unless the legislature enforces it in a statute).

[46]People v. Lefkovitz, 294 N.W. 263 (Mich. 1940) (holding that never has been in the substantive law in the state such an offense of concealment of a crime committing by a third party).

[47]V.I. CODE Ann. tit. 14 § 13 (2019).

[48] 61 V.I. 187, 189 (2014).

[49]Id. at 197.

[50]Id.

[51]Id. at 199.

[52]State v. Carson, 262 S.E. 2d 918, 919 (S.C. 1980) (holding a witness commits misprision of felony when he left the crime scene before the arrival of the police and then denied to police he had never been there).

[53]State v. Flynn, 217 A.2d 432, 433 (R.I. 1966).

[54] 15 C.J.S. Compounding Offenses § 3 (2019).

[55] 18 U.S.C.A. § 4 (Westlaw through P.L. 116-21).

[56] 18 U.S.C. § 2382 (1994).

[57] The sentence for misprision of felony offense cannot exceed 36 months imprisonment even when sentencing enhancements are applied. In United States v. Goodbear,676 F.3d 904 (9t Cir. 2012) the court remand the case for resentencing because the district court erred to convict the defendant with a 37-month sentence to pursuant to 18 U.S.C.§ 4 and USSG § 3B1.4, i.e., soliciting a minor to hide the crime.

[58] 18 U.S.C.A. § 4 (Westlaw through P.L. 116-21).

[59]United States v. Caraballo-Rodriguez,480 F.3d 62, 64 (1st Cir. 2007).

[60]United States v. Daddano,432 F.2d, 1119, 1122 (7th Cir. 1970).

[61]See Weekley, 389 F. Supp. 2d at 1293 (the defendant was an accessory before and after the commission of her husband’s bank robbery. The prosecution did not charge her as a conspirator of bank robbery. The court held that charging an accessory with misprision of felony violates the Self Incrimination of the Fifth Amendment because it could lead the authorities to prosecute her.)

[62]Id. at 72 (quoting United States v. Kuh, 541 F.2d 672, 677 (7th Cir.1976) (‘‘If the duty to notify federal authorities is precluded by constitutional privilege, it is difficult to understand how a conviction [under 18 U.S.C. § 4] could be substantiated”).

[63]CA PENAL§ 152.3 (West 2019).

[64] Gur-Arye, supra note 3, at 10.

[65] Under 18 U.S.C.A. § 3559(a) (Westlaw P.L. 116-21) “An offense that is not explicitly classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is:

(1) life imprisonment, or if the maximum penalty is death, as a Class A felony;

(2) twenty-five years or more, as a Class B felony;

(3) less than twenty-five years but ten or more years, as a Class C felony;

(4) less than ten years but five or more years, as a Class D felony;

(5) less than five years but more than one year, as a Class E felony;

(6) one year or less but more than six months, as a Class A misdemeanor;

(7) six months or less but more than thirty days, as a Class B misdemeanor;

(8) thirty days or less but more than five days, as a Class C misdemeanor; or

(9) five days or less, or if no imprisonment is authorized, as an infraction.

[66]See generallyPresont v. United States,281 F. 131(6th Cir. 1922); United States v. Venturini, 1 F. Supp. 213 (S. D. Ala. 1931).

[67]United States v. Brandenburg,144 F.2d 656 (3d Cir. 1944).

[68] 721 F.3d 1108, 1120 (9th Cir. 2013).

[69]Id.

[70]See United States v. Davila,698 F.2d 715, 723 (5th Cir. 1983) (the court explained that even though the two co-conspirators for perjury were acquitted, the defendant conviction of misprision of this felony, as he pleads, was valid).

[71]18 U.S.C.A. § 251 (1909).

[72]United States v. Olson, 856 F.3d 1216 (9th Cir. 2017) (Olson was convicted for misprision of felony under federal law because she did not report to the authorities that her partner submitted false statements to the USDA to profit grant funds. The court discussed only the second element, the defendant’s knowledge of the felony. Furthermore, the court noted that the defendant is not required to know that the underlying felony is a federal or a state one).

[73]Id. at 1218.

[74]Lancey v. United States, 356 F.2d 407 (9th Cir. 1966).

[75]Caraballo-Rodriguez,480 F.3d at 64, (defendant failed to prove that his partial disclosure was not misleading. Defendant tipped his colleagues controlling the drug trafficking, then he participated in the conspiracy, and then he confessed to the authorities again), See also United States v. Sessions,Nos. 00–1756, 00–1791, 2000 WL 1456903 (8th Cir. Oct.2, 2000) (unpublished decision), United States v. Ciambrone,750 F.2d 1416 (9th Cir. 1984) (defendant required to the police officer $15,000 in exchange for counterfeiting operation information. The officer refused to pay ahead, and the informant was charged with misprision of felony. The court dismissed this charge, concluding that the action to sell information to the officers is not criminal. Caraballo-Rodriguez Court distinguished this case).

[76] Other criminal defenses cognizable by the law may be applicable in misprision of felony case as well, for example, justification defenses like a necessity or excuses defenses like insanity or duress.

[77] EPA, https://www.epa.gov (last visited June 29, 2019), Fraud Hotline, LLC, https://www.fraudhl.com/ (last visited June 29, 2019), CDC, https://www.cdc.gov (last visited June 29, 2019).

[78] Under 28 U.S.C.A. § 372 (Westlaw through P.L. 116-21), a judge of the United States includes a judge appointed by the President of the United States like Supreme Court Justices, Circuit Court judges, District Court Judges, and judges of the Court of International Trade.

[79] See generally Army Study Guide, Duties, Responsibilities and Authority Explained, (June 29, 2019), https://www.armystudyguide.com/content/army_board_study_guide_topics/nco_duties/duties-responsibilities-authority-of-nco.shtml, (explaining that “general military authority exists whether you are on duty or not, in uniform or civilian attire and regardless of location.”)

[80]Lancey,356 F.2d at 411. See also Neal v. Unites States, 102 F.2d 643, 650 (8th Cir.1939) (the court ordered the trial court to determine if the defendant had the opportunity to disclose his brother’s bank robbery within the period December 28th to January 6th).

[81]Conceal, MERRIAM-WEBSTER DICTIONARY,https://www.merriam-webster.com/dictionary/conceal (last visited June 29, 2019).

[82]United States v. Johnson, 546 F.2d 1225, 1227 (5th Cir.1977). 

[83]United States v. Hodges, 566 F.2d 674, 675 (9th Cir. 1977) (holding that the fact that the defendant lied to the agents that he neither saw the principal nor the child kidnapped, tantamounted for an affirmative act of concealment).

[84]White,721 F.3d at 1115.

[85]Neal,102 F.2d at 645.

[86]United States v. Gravitt, 590 F. 2d 123, 126 (5th Cir. 1979).

[87]Lancey, 356 F.2d at 41-12; see also United States v. Thomson,178 F. Supp. 42, 43 (E.D.N.Y. 1959) (the defendant knew about the fugitive flight of the principal to avoid the indictment, then booked a hotel room and hid the principal identity under a fictitious name).

[88]Bratton v. United States, 73 F.2d 795 (10th Cir. 1934).

[89]SeeCaraballo, 480 F.3d at 70.

[90] An aggravated felony is “an offense that involves fraud and deceit in which the loss to the victim or victims exceeds 10,000.” The court considered a misprision of felony an aggravated.

[91]Patel v. Mukasay, 526 F.3d 800, 801-804 (5th Cir. 2008).

[92]Moral Turpitude, Black’s Law Dictionary (11th ed. 2019) is a “Conduct that is contrary to justice, honesty, or morality; esp., an act that demonstrates depravity.”

[93] 874 F.3d 871, 875 (5th Cir. 2017) (holding that misprision of felony is one of the crimes of moral turpitude offense because it involves concealment toward the authorities). See also Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007) and Omagh v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002) (explaining that if a crime’s essential element is fraud, deception, dishonesty or lying it is a CIMT).

[94]Villegas-Sarabia,874 F.3d at 881.

[95]See also Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002).

[96]Robles-Urrea v. Holder, 678 F.3d 702, 705 (9th Cir. 2012) (cited Villegas-Sarabia v. Sessions, 874 F.3d at 880).

[97]783 F.3d 119. (2d Cir. 2015).

[98]Id. at 120-21 (citing that in the matter of Robles-Urrea, BIA held that the offense of misprision of felony is categorically a crime involving moral turpitude, while in an earlier case, Matter of Sloan,12 I. & N. Dec. 840, 854, 1966 WL 14404 (B.I.A. 1966) BIA held that misprision of felony is not a crime of moral turpitude.)

[99]Matter of Mendez, 27 I. & N. Dec. 219, 226 2018 WL 1083736 (B.I.A. 2018) (holding that although the underlying felony is not a crime of moral turpitude, the offense of misprision of felony is one of the CIMT because concealing involves dishonesty and deceit, elements required to qualify a moral turpitude crime).

[100]Id. at 223.

[101]SeegenerallyMandatory Reporters of Child Abuse and Neglect, https://www.childwelfare.gov/pubPDFs/manda.pdf#page=5&view=Summaries of State laws on page 2 (updated until 2015). SeeCanadian Child Welfare Act s.49 which like New Jersey and Wyoming involves anyone who has knowledge of child abuse to report: “Notwithstanding the provisions of any other Act, every person who has reasonable grounds to suspect in the course of the person’s professional or official duties that a child has suffered or is suffering from abuse that may have been caused or permitted by a person who has or has had charge of the child shall forthwith report the suspected abuse to a society.”

[102]See also Martha Bailey, The Failure of Physicians to Report Child Abuse, 40 U. Toronto Fac. L. Rev. 49  (1982) when under Canada law “Abuse is defined in s.47(1) of The Child Welfare Act as a condition of:(a) physical harm; (b) malnutrition or mental ill-health of a degree that if not immediately remedied could seriously impair growth and development or result in permanent injury or death; or (c) sexual molestation.”

[103] Canadian Criminal Code s. 43: “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care if the force does not exceed what is reasonable under the circumstances.”

[104]Sungyong Kang, In Defense of the Global Regulation of a Duty to Report Crime, 57 Washburn L.J. 77, 91 (2018).

[105]See also Council of Europe, Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, art 12(2), CETS No. 201 (2007).

[106]Id.

[107]James T. R. Jones& Michael L. Lupton, Liability in Delict for Failure to Report Family Violence, 116 S. African L.J. 371, 374 (1999) (mentioning the case of a former child-sexual-abuse victim who sued all people who knew about his foster father molestation and failed to report. Among them, the Court found liable only the clergyman with whom the victim in the course of 4 years had spoken more than fifty times about the incidents. See alsoJ A W v. Roberts, 627 NE 2D 802 (Ind Ct. App. 1994).

[108]Id.

[109] s 42(1) of the Child Abuse Act.

[110] s 4 of the Family Violence Act.

[111] Jones&Lupton,supranote 107,at 378.

[112]Id. at381.

[113] In the California case the court held that a physician could be held civilly liable for failure to diagnose and report child abuse when a reasonably foreseeable injury is consequently suffered. See generally Landeros v. Floor, 551 P.2d 97 (1976).

[114] Jones &Lupton, supra note 107,at 381.

[115]Id. at 385.

[116]” Jack Wenik, Forcing the Bystander to Get Involved: A crime Case for a Student Requiring Witnesses to Report Crime, 94 Yale L.J. 1788, 1794 (1985).

[117]ALASKA STAT. ANN. § 09.65.090 (West 2019). See generally Alaska Department of Health and Social Services, Division of Public Health, http://dhss.alaska.gov/dph/emergency/pages/ems/programs/aed/default.aspx (last visited July 13, 2019).

[118]Wenik, supra note 116, at 1787.

[119]Id. at 1801.

[120]Id.

[121] [1962] A.C. 528, 45 Crim. App. 230 (1961).

[122]Meale, supra note 27,at 208.

[123] Gur-Arye, supranote 3, at 17.

[124]Id.at 23.

[125]Wenik, supranote116,at 1795.

[126] Gur-Arye, supranote 3,at 8.

[127]Id.at 14.

[128]Wenik, supranote116,at 1788.

[129] As many people are aware of the duty to help or report a person in risk, less is the rescue to the victim, because each bystander believes that not he but another one will intervene. See generally Dressler, supranote 1, at 148.

[130]Wenik, supranote 116,at 1789.

[131] Dressler, supranote 1,at 149.

[132]Wenik, supra note 116,at 1789.

[133]Id.at 1790.

[134]Id. (citing Leonard Bickman, Bystander Intervention in a Crime, Victims and Society 144, 145 (1976)).

[135]Id.at 1791.

[136]Id.at 1792.

[137]Id.at 1793.

[138]Id. at 1792.

[139] MPC § 1.04(2).

[140] MPC§1.04 (3)-(4).

[141]See, e.g., 4Wharton, Criminal Law §572, (14th ed. 2018).

[142]United States v. King,402 F.2d 694, 697 (9th Cir. 1968) (holding that 18 U.S.C. § 4 would be unconstitutional under the Fifth Amendment and would risk an aider and abettor indictment if the defendant would report to the authorities the information learned about a bank robbery); see also United States v. Pigott,453 F.2d 419 (9th Cir. 1971) (in one-page opinion the court said that when there is a collision between the right not to self-incriminate from Fifth Amendment and the duty to report which stems from 18 U.S.C. § 4, the first should prevail).

[143]See United States v. Weekley,389 F.Supp. 2d 1293, 1299 (S.D.Ala. 2005).

[144]Id. at 1301.

[145]Id. at 1302.

[146]Id. at 1301.

[147] Al Baker, An ‘Icebrg’ of Unseen Crimes: Many Cyber Offenses Go Unreported, (Feb. 5, 2018), THE NEW YORK TIMES, https://www.nytimes.com/2018/02/05/nyregion/cyber-crimes-unreported.html.

[148]Id. 

[149] Charles A. Blanchardd, Ronald D. Lee, Nicholas L. Townsend, A Closer Look at The Department of Defense’s Cybersecurity Rule on Adequate Security And “Cyber Incident” Reporting, 68 Consumer Fin. L.Q. Rep. 73, 74 (2014).

[150]See Report a Crime, EUROPOL.EUROPA.EU, https://www.europol.europa.eu/report-a-crime (last visited July 2, 2019).

[151] Alex Hern, MPs Criticise Social Media Firms for Failure to Report Criminal Posts, THE GUARDIAN, (April 19, 2019), https://www.theguardian.com/media/2019/apr/24/mps-criticise-tech-giants-for-failure-to-report-criminal-posts-twitter-facebook-google-youtube.

[152] U.S. Const. art. III. §3 cl. 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or Confession in open Court. 

While under 18 U.S.C § 2381 Treason is: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

[153]United States v. Greathouse, 2 Abb.U.S. 364, 21 (1863).

[154]See alsoIn reCharge to Grand Jury, 4 Blatchf. 518, (1861).

[155]People v. Lauria, 251 Cal.App.2d 471, 481 (1967).

[156]Id. at 481–82.

[157]Lauria,251 Cal. App. at 482.

[158] 251 Cal. App. 2d 584, 675 (1967).

[159]Id. at 674.

[160]Id. at 675.

[161]Mere Failure to Report Felony Not a Crime, supra note 20, at 622.

[162]Id.

[163] CODE PÉNAL [C.PÉN.] [PENAL CODE] art. 434-1 (Fr.): “Any person who, having knowledge of a felony the consequences of which it is still possible to prevent or limit, or the perpetrators of which are liable to commit new felonies that could be prevented, omits to inform the administrative or judicial authorities, is punished by three years’ imprisonment and a fine of €45,000. 

Except where felonies committed against minors under fifteen years of age are concerned, the following are exempted from the provisions above: 

1° the relatives in a direct line and their spouses, and the brothers and sisters and their spouses, of the perpetrator or accomplice to the felony; 

2° the spouse of the offender or accomplice to the felony, or the person who openly cohabits with him. 

Also exempted from the provisions of the first paragraph are persons bound by an obligation of secrecy pursuant to the conditions laid down under article 226-13.” 

[164] Art. 364 CodicePenale [C.p.] [Penal Code] (It.):“A person who, knowing of an offense against the personality of the State, for which the law provides the penalty of death or life imprisonment, does not immediately report this to the Authority designated in Article 361 [law enforcement authority] is punishable by imprisonment up to a year or by fine 103 euros to 1032 euros.” [ Death penalty is abolished from this Code by Art.1 of D. Lgs. Lgt. August 10, 1944, n.244—R.M.] [1 euro= $1.12, convert exchange rate according to https://www.moneycurrencyconverter.com/1-eur-to-usd.html (last visited July 7, 2019)—R.M)].

[165] Art. 300 Kodi Penal [Penal Code]: “Failure to report, to the criminal prosecution bodies, to the court, to the public order bodies, [or to the appropriate] authorities or administration, a crime that is being committed or which has been committed, is punishable by a fine or up to three years of imprisonment.

Lineal ascendants, and descendants, brothers and sisters, spouses, stepparents and stepchildren, as well as persons obliged to keep secrecy because of their capacity or profession, are excluded from the obligation to report.” [Under Art. 30 Albanian Penal Code the fine range from 100 000 ALL up to 10 million ALL.—R.M.] [ 1 ALL=$0.01 convert exchange rate according to https://exchangerate.guru/all/usd/1/ (last visited July 8, 2019)—R.M)].

[166] In France under Chapter IV, Perverting the Course of Justice, specifically under Section I “Obstructing the Intervention of Justice.” In Italy under Title III, Offenses against Administration of Justice. In Albania under IX, Criminal Acts against Justice.

[167]European Union Agency for Fundamental Rights,https://fra.europa.eu/fr/publication/2015/cartographie-des-systemes-de-protection-de-lenfance/signaler-1 (last visited July 11, 2019).

[168] Art. 361 C.p (It.).

[169] Art. 362 C.p (It.).

[170] Art. 365 C.p (It.)

[171] The whole list of countries is Bulgaria, Croatia, Denmark, Spain, Estonia, France, Hungry, Ireland, Lithuania, Luxembourg, Poland, Romania, Slovenia, and Sweden. See generally European Union Agency for Fundamental Rights,https://fra.europa.eu/fr/publication/2015/cartographie-des-systemes-de-protection-de-lenfance/signaler-1 (last visited July 11, 2019). 

[172] Isabella Policarpio, Denuncia Obbligatoria: I Casi in cui Denunciare non e una Scelta,”(Jan. 11, 2019), https://www.money.it/Denuncia-obbligatoria-casi-Codice-Penale).

[173]Id. (quoting“The means of reporting are less important, via telephone, walking-in the police station; however, more detailed is better for the agents.”)

[174] Cass. Sez. ses. 23 Gennaio 1975, n. 16577, Giust. Pen. I, 4 (It.).

[175] C.PÉN, art. 434-3 “Any person who, having knowledge of maltreatment, deprivations, or sexual assaults inflicted upon a minor under fifteen years of age or upon a person incapable of self-protection by reason of age, sickness, infirmity, psychical or psychological disability or pregnancy, omits to report this to the administrative or judicial authorities is punished by three years’ imprisonment and a fine of €45,000.    

  Except where the law otherwise provides, persons bound by an obligation of secrecy pursuant to the conditions set out under article 226-13 are exempted from the above provisions.”

[176] C.PÉN, art. 434-2 (Fr) “Where the felony referred to under the first paragraph of article 434-1 consists of a violation of a fundamental interest of the nation as defined by title I of the present Book or an act of terrorism referred to under title II of the present Book, the penalty is increased to five years’ imprisonment and a fine of €75,000.”

[177]See Art. 365, 362, and 361 C.p. (It.) where is provided no imprisonment and the fine varies from €30 to €516.

[178] Not only children abuse offenses but for all types of crimes such as kidnapping a minor or murdering a child. 

[179] The latest decree in the Vatican was about the all clergies to report to authorities any sexual offense they knew. See MSN.COM (May 9, 2019),https://www.msn.com/fr-ca/actualites/monde/le-vatican-d%C3%A9cr%C3%A8te-lobligation-de-signaler-les-crimes-sexuels-dans-l%C3%A9glise/ar-AAB8naL.

[180]SeeC.PÉN, 226-13 (Fr.), see alsoArt. 300 § 2 Kodi Penal [Penal Code] (Alb.).

[181]Meale, supranote 27, at 208.

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