Must We Report Drug Users? A Moral Issue Is at Stake

On the same day that New York Mets pitcher Dwight Gooden tested positive for cocaine usage and entered a rehabilitation program, it was reported that the Major League Players Assn. had been informed months earlier that Gooden was a drug user.

The players’ association has declined all comment, so we don’t know what use, if any, it made of this information. But if it behaved as most of us would have, it did nothing.

Such passivity is understandable yet disquieting. Gooden was risking his health and committing a felony, and in the process befouling baseball. For altruistic as well as for selfish reasons, the players’ association must have agonized over what to do.

All citizens, it is sometimes asserted, have a legal obligation to report serious criminal conduct, and failure to do so is punishable. But this is an exaggeration. The scope of the offense in question, misprision of felony , is narrow, typically interpreted to require not only a failure to disclose but also an affirmative act of concealment of wrong-doing. In England the offense has been abolished, and prosecution in the United States has been rare, taking its cue from Chief Justice John Marshall’s observation in 1822 that while “it may be the duty of every citizen to accuse every offender . . . the law which would punish him for not performing his duty . . . is too harsh.”

If Dwight Gooden’s cocaine habit is viewed as a health problem rather than as a criminal matter, it is even clearer that no legal duty arises. The common law has consistently refused to impose an obligation to aid another. Thus the expert swimmer, with boat and rope at hand, who sees another drowning is not required to help--he may sit on the dock, smoke his cigarette and watch. A physician is under no legal duty to answer the call of one dying, nor is anyone required to bind the wounds of the stranger bleeding to death, to prevent a neighbor’s child from playing with a loaded gun or to remove a stone from the highway where it menaces safe passage. The common law is coldly individualistic. Only on rare occasions does it make us our brother’s keeper.

In defense of existing law, some argue that judging the necessity of intervention is too difficult and subjective, and that well-meaning efforts to help can produce harm rather than alleviate it. And it is often asserted that intervention intrudes on the privacy of others. Gooden’s desire to be let alone, to get himself into (and perhaps out of) serious trouble, is viewed not merely as an anti-social preference but as a right to be respected.

Beyond these arguments is one perhaps more influential: We each possess what might be called a right to remain apart, uninvolved, to pursue our own concerns unencumbered by obligations to others or to community life. “We cherish the right to mind our own business when our best interests dictate,” the Florida Supreme Court said in abolishing misprision of felony.

If there is no legal duty to assist one in trouble or to report his conduct, is there some sort of ethical obligation to act?

Apparently not. Ordinarily, doing nothing is the ethical course. To encourage reporting would, we fear, lead more and more to the spectacle of children spying on parents and friends betraying one another in the name of principle.

But such concerns seem exaggerated. Europeans have a long and successful experience with criminal statutes imposing a duty on all citizens to “render aid in an accident or common danger or in an emergency situation” where it does not pose “any considerable danger.” And in the United States, laws mandating the reporting of child abuse and immunizing those who do so in good faith from civil suit have been well received. Children have been rescued by the judicious intervention of schoolteachers, physicians, bus drivers and neighbors. Many of these persons would have acted even though not encouraged or protected by law. But the existence of a legal duty provides an incentive for others who would hesitate, and stands as a statement of community values, a common responsibility to protect children.

Non-intervention has its darkest consequences in situations where the victimization or hazard is likely to continue but for the willingness of insiders, colleagues and friends to act. There are otherwise high-minded physicians who hesitate to expose even the grossest incompetence of colleagues, responsible air-traffic controllers who ignore the heavy drinking of co-workers, law-abiding police officers who tolerate the most offensive behavior rather than report the corruption or brutality of fellow officers. Inaction by these persons has greater consequences than a wild pitch or losing season by Dwight Gooden.

But we lack an ethic to distinguish these unusual situations where simple decency demands action from the mass of more routine events where “the right to be uninvolved” is affordable. The challenge is to fashion a clearer morality of when self-interest should yield to public interest.